Judge Birch says Terri's Law Unconstitutional
Hugh Hewitt points out that Judge Birch argues that Congress stepped beyond their bounds in passing a law requiring a de novo review of Terri's case. See Hugh's post for both his response and the actual filing by the judge. I agree with Hugh on two points here. First, this judge is in the minority on the federal bench in actually filing an opinion. As such he should be applauded. The vast majority have simply declined to hear the case without publishing any reasoning which is highly cowardly given the extraordinary coverage of this case.I also agree with Hugh that the judge is incorrect in his opinion. As someone who is not a lawyer I have difficulty in parsing and arguing the implications of Article 3 of the constitution as it applies to this case. Other federal judges have argued, see Hugh's post, that this interpretation of said article would leave many (upheld by the USSC) federal laws moot.
That said, a quick reading of the 14th ammendment to the US Constitution by even a lay person is another story.
"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.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,(See Note 15) and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Given that Section 1 says "deprive any person of life..." and section 5 is pretty straightforward, I find it difficult to believe that any rational person could argue that it is not within the rights of the Congress to pass legislation forcing the federal courts to conduct a de novo review of Terri's federal rights. It is potentially arguable that they cannot force federal courts into a de novo review of application of state law but it is not reasonably arguable that they cannot force the federal courts to review her federal rights, including her right to life under the 14th ammendment itself, without regard to judgement of the state courts.
0 Comments:
Post a Comment
<< Home