The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
There is absolutely nothing in the Schiavo case that gives the Federal courts jurisdiction. That alone should ensure that the Act is ruled unconstitutional.
Secondly, there is this part of the Act itself;
SEC. 2. PROCEDURE.
Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
This, as you can imagine, violates the Fourteenth amendment, which states;
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, one could argue that since this is the federal government, and not the state, that the Fourteenth amendment doesn't apply. However, the Supreme Court has ruled that any amendment that restricts the states also applies to the federal government.
It also abridges the privilege of Michael Schavio to seek redress in state court which has and retains jurisdiction for every other American citizen except him. This violates his "equal protection" rights. Oddly, the Act itself states this in saying;
SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.
Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
The act creates a special right to access for Terri's parents that does not apply to any other family similarly affected. Not only are Michael Schiavo's equal protection rights limited, so are the equal protection rights of every other incapacitated person in Mrs. Schiavo's situation. Even if the Federal Court Judge orders the reinsertion of the tube, I can't imagine how the Supreme Court - including, in particular, Justice Scalia - affirms such a ruling.
All this does is delay the inevitable. No court of jurisdiction has ruled that Mr. Schavio is outside his legal rights as established by centuries of tradition, case law and recognized legislation. The phrase stare decisis
used to mean something in "strict constructionalist" circles. Apparently, it no longer does.
If, in fact, the Federal court rules on behalf of the Schindler family, and if the Supreme Court affirms it, the Republican Party will have created their very own ROE V. WADE (1973),
in that they will have created an entire area of federal jurisdiction out of whole cloth and contrary to the constitution.
The Schiavo Act should be as distinctly offensive from a philosophical context as Roe
is to conservatives. It is an unprecedented expansion of federal power. It limits the rights of the states, it limits the rights of the people, and it does so with no constitutional foundation whatsover.
For these reasons, no one with any sense at all should listen to any Republican who voted for this act (and all but five did), when they rail against the injustice of Roe
President Bush this morning issued a particularly rich statement.
Today, I signed into law a bill that will allow Federal courts to hear a claim by or on behalf of Terri Schiavo for violation of her rights relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In cases like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. This presumption is especially critical for those like Terri Schiavo who live at the mercy of others. I appreciate the bipartisan action by the Members of Congress to pass this bill. I will continue to stand on the side of those defending life for all Americans, including those with disabilities.
This, from a president how has sworn to defend the "traditional definition of marriage." Perhaps the president is unfamiliar with that definition, but it includes the idea that if one partner is incapacititated, the other assumes the right to make decisions relevant to the care of the incapacitated. In signing this act, President Bush has done more to undermine "the ancient institution of marriage" than same sex couples EVER could.
In Tucson, Arizona, the president went even further.
"Democrats and Republicans in Congress came together last night to give Terri Schiavo's parents another opportunity to save their daughter's life," Bush said, his first public comments since the latest legal and legislative wrangling. "This is a complex case with serious issues, but in extraordinary circumstances like this, it is wise to always err on the side of life."
No, Mr. President, it is wise to "err" on the side of the Constitution. In fact, you have sworn an oath to "preserve, protect and defend" same.
As much as I sympathize with those of goodwill who honestly want to save Mrs. Schiavo's life, there comes a point when centuries of legal and cultural precedent and the Constitution take priority.
All of this raises an important question. Why are the Republicans in the Congress and the White House so blatantly violating their own principles? Well, this
might give us all an idea.
Republican leaders believe their attention to the Terri Schiavo issue could pay dividends with Christian conservatives whose support they covet in the 2006 midterm elections, according to a GOP memo intended to be seen only by senators.
The one-page memo, distributed to Republican senators by party leaders, called the debate over Schiavo legislation "a great political issue" that would appeal to the party's base, or core, supporters. The memo singled out Sen. Bill Nelson, D-Fla., who is up for re-election next year.
"This is an important moral issue, and the pro-life base will be excited that the Senate is debating this important issue," said the memo, reported by ABC News and later given to The Washington Post. "This is a great political issue, because Senator Nelson of Florida has already refused to become a co-sponsor and this is a tough issue for Democrats."
Politics. That's all this is, and that's what makes this so gut-wrenchingly disgusting. This is now the third time Mrs. Schiavo's feeding tube has been removed. At some point, it will come out and stay out. Most legal observers believe that to be the case. If the Republicans are right, and Terri does understand what is going on and feel pain, then they are saving her only to kill her later in an agonizing way. This is to say nothing of the incredible violence that they are visiting on the Constitution and the concept of "traditional marriage."
And for what? So the Christian Coalition can get worked up enough to win a senate seat in Florida next year, that's what. Even if you take President Bush, Speaker Hastert and Majorty Leader DeLay at their word, this is reprehensible treatment of a helpless woman that only serves them politically. This is, far and away, the most disgusting display that I've seen in all my years of studying American politics.
I'm sure that I'll get any number of comments pointing out that most Democrats voted for the bill as well. I never expected the Democrats to be anything but gutless cowards. They are so rattled by their genetic disposition to losing that expecting anything else from them is silly.
But I expected more from the "conservatives" and "strict constructionalists." Instead, they just proved themselves to be politicians in the very worst sense of the word.
I have no quarrel with the opposing viewpoint. But the actions of the last 24 hours are on the verge of undermining the very notion of a nation of laws. Does any person of any decency really want this to Terri Schiavo's legacy?Permalink