March 24, 2005


A few observations on “Terri’s Law” passed by Congress last weekend in response to some of the subsequent pronouncements by talking heads who should know better:

1. The law is constitutional. Article III of the Constitution vests the judicial power of the Untied States in a “supreme court” and such “inferior courts” as Congress may establish from time to time. The lower federal courts are created by Congress and the jurisdiction all federal courts is determined by Congress as part of the system of checks and balances. The Judiciary Act of 1789 created the first lower courts and Congress has tinkered with them ever since in terms of the number of courts and the jurisdiction. The Fourteenth Amendment ensures equal protection for all citizens and the Civil Rights Acts of 1866 and 1871 provide federal remedies for those whose rights have been violated by state actors.

2. The judgments of state courts are not always beyond review by the federal courts. The writ of habeas corpus exists to challenge those unjustly held or punished by state authorities and may not be suspended except in time of war. The Florida court order which triggered the federal legislation literally ordered Michael Schiavo to cause the removal of the feeding tube. It is, in effect, a death sentence, made upon evidence proven by a standard of less than proof beyond a reasonable doubt, which made review by the federal courts proper. “Terri’s Law” ensured the parents had standing to bring the claim and dispensed with the usual requirement of exhaustion of state remedies

Yips from Robbo: I have stayed right off this subject in part because I have nothing useful to say and in part out of horror at the whole business. But here we have it now - through a terrible combination of circumstances, an innocent woman is being forced by the law to die of thirst. I only pray that she isn't suffering.

Posted by LMC at March 24, 2005 10:00 PM

No less a constitutional authority than the great O-Dub has weighed in on the other side, though, LMC.

Posted by: The Colossus at March 25, 2005 07:08 AM

Also Spracht Zarachubstra

Posted by: Brian B at March 25, 2005 04:02 PM
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