Friday, April 15, 2005

Newsflash: Second-Rate Elitist Parrots NYT BSDs on his way onto Anti-DeLay Bandwagon

Even in li'l ole Lansing, Michigan, the long arm of the opinion elite has infected the local law school constabulary. "Assistant Professor" Beery from highly-touted Thomas M. Cooley Law School (and Small Engine Repair) opines that the federal law that created a de novo cause of action in federal court for Terry Schiavo's parents was in actuality "not legally the province of Congress." "Courts," the good professor tells us with his flair for the obvious, "can't pass legislation [and] Congress can't decide cases." What is strange -- even at a backwoods law school like Cooley -- is that the Assistant Professor hasn't found or been made to find the "deprivation clause" in the Fifth and Fourteenth Amendment. The analysis is not difficult: The Fifth Amendment of the United States Constitution, ratified December 15, 1791, provides in part: "nor shall any person . . . be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment, ratified July 9, 1868, is, in pertinent part, identical. The power of Congress to control the causes of action in federal courts, Section 2. of Article III of that dear old (and I do mean old) Constitution, provides (after vesting "judicial power in the Supreme Court): "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." If the Supreme Court has "appellate jurisdiction," then some court has original jurisdiction. It should not be too hard to discern that the Framers were conspiring to institute a complete set of lower federal courts. Right at the same time they were constructing the Constitution! Fascinating, eh, Assistant Professor? The other question is, may Congress fiddle with the jurisdiction of these "inferior" courts (I do so hope they won't be offended!)? And the answer is a resounding "Yes!" Article III, Section 2 says, "Congress, you may make "exceptions" and "regulations" to your legislative heart's content! Thus, when Terry Schiavo's "husband" decided to deprive her of life, even though the quality of that life did not measure up to the standards of enemies of Tom DeLay (and, by implication, friends of our "Assistant Professor"), nevertheless, there was no question that she was "alive." As an "alive" person, Terry was still in possession of her Fifth Amendment right to life. No question about it; except perhaps in the minds of lefties. And, since Congress could adjust the original jurisdiction of the inferior federal courts to include a reivew of attempt to deprive her of her right to life, Congress was not exercising a "power to regulate life support," Congress was exercising its power under Article III. You'd think that a law professor might know that. Even if he didn't agree with the politics. Hiding the truth this way will do nothing to enhance the respect one feels for the legal manipulators like our good Assistant Professor. Let's review: Attacks on Terry Schiavo's life implicate a federal right under Fifth and Fourteenth Amendments that she not be "deprived" of her life without "due process" (that's a different laugh track). Congress was authorized under Article III, Section 2 to adjust the original jurisdiction of inferior federal courts. Which it did with this law, Pub. L. No. 109-3 (Section 1.): "The United States District Court for the Middle District of Florida shall have 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 of Theresa Marie Schiavo 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." Notice, "Assistant Professor," the law is quite specific concerning the "rights" to be vindicated. They are "rights under the Constitution or laws of the United States." The good professor writes: "Not since 1871 has Congress had the temerity to suggest that it could tell federal courts how to decide cases." Savor that phrase: "had the temerity." Assistant Professor Beery might just as well have said, "Not since 1871 has Congress exercised its constitutional right to adjust the jurisdiction of inferior federal courts." Savor the other lie: "tell federal courts how to decide cases." Where, good Assistant Professor, will be find that direction in the statute? Please be kind enough to explicate it for us.. The sarcasm is palpable. The Assistant Professor couldn't stand the idea of the United States Congress reaching out into the world in an effort to block the unlawful killing of a human being. How pathetic that acting for life is such a threat to the liberal technocrats who try to license our entry into this world and hasten our exit.


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