Sunday, March 20, 2005

Republicans vs. the Constiution: The Schiavo "compromise" means the end of Constitutional governmment 

Here's the [cough] "compromise" the Republicans are trying to pass (and that the Dems shamefully are lying down for):

The draft legislation passed around Saturday evening, the "compromise" that legislators say they will enact and then present to the President, starts off with the words "for the relief of the parents of Theresa Marie Schiavo." The bill would give the U.S. District Court for the Middle District of Florida jurisdiction "to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right... under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." But it would specifically not "confer additional jurisdiction" on courts to hear disputes about assisted suicide or "create substantive rights not otherwise secured" already in federal or state law.

The proposed law also gives Terri Schiavo's parents procedural help. It gives them standing to start a case on behalf of their daughter in the Middle District of Florida and it requires the federal trial judge to determine "de novo any claim of a violation of any right" Terri Schiavo may have. It also requires the federal courts to push the case to the front of the litigation line and requires the federal courts to issue "such declaratory and injunctive relief as may be necessary to protect the rights of" Schiavo." The law gives Schiavo's parents, or "any other person who was a party to State court proceedings relating" to the case, to file a lawsuit within 30 day.
(via CBS)

That's a bill of attainder—a law that has to do with persons, instead of general legal principles. (See FindLaw)

Here's what the Consitution says:

No Bill of Attainder or ex post facto Law shall be passed. (Article I, section 9)

What does this mean? FindLaw:

The phrase ''bill of attainder,'' as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 1702

The prohibition embodied in this clause is not to be strictly and narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, a violation of the separation of powers concept. 1703

The clause thus prohibits all legislative acts, ''no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. . . .''1704

(The persons being punished in this case being Terry Schiavo herself, kept as a living corpse against her own express wishes, as well as her husband.)

James Madison tells us why bills of attainder and trial by legislature are bad ideas, in the Federalist papers #44:

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and lessinformed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

Make no mistake. The "compromise" the Republicans, and, to their shame, the Beltway Dems are pushing in this case means "trial by legislature."

That means that the law, and the Constitition, mean whatever the party in power in Congress says that they mean.

And that means the end of Constitutional—i.e., legitimate—government in the United States.

So I imagine Bush will sign the bill with relish. Funny how we're relying on the Rehnquist court to save our Constitution, isn't it? God must be an ironist.

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