Who Had the Right to Rule? Accusations about the Abuses of Constitutional Authority in the Terri Schiavo Case Get Cleared Up

Article excerpt

"We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the President." House Majority Leader Tom DeLay of Texas announced after the U.S. Courts failed to intervene on behalf of Terri Schiavo. Congress had just days earlier passed a law purporting to grant federal courts jurisdiction to hear the pleas of Terri's parents to spare the life of their brain-damaged daughter.

There is no doubt that the federal judiciary has in many instances overstepped its proper constitutional boundaries. But was the federal courts' recent refusal to hear the merits of the Schiavo case another example of an "arrogant, out-of-control" judiciary? In this instance it was not, since the congressional legislation intended to save Terri Schiavo was unconstitutional.

Nullification by Legislation

Congress passed a law during the Palm Sunday weekend to give the federal judiciary jurisdiction to "hear, determine, and render judgment on ... the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States." Yet the federal courts already had the authority to rule on civil rights appeals from the states under laws passed previously by Congress. Under the U.S. Code, "The district courts shall have original jurisdiction of any civil action ... to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens...." (28 U.S. Code, Section 1343)

So why did Congress pass this new law, if it had already given the same authority to the federal courts? The answer can be found in Section 2 of the bill, which purports to grant federal courts the authority to rule "de novo any claim of a violation of any right ... notwithstanding any prior State court determination, and regardless of whether such a claim has previously been raised, considered or decided in State court proceedings." De novo may sound like a complex legal term, but it is simply a Latin term meaning "anew." The traditional role of the appeals process in the American common law system has not been to give disputants a whole new second trial, but to review the lower court's methods to ensure fairness, impartiality, and--usually on the state level, for cases originating in state courts--an avenue to consider new evidence that may have been discovered. A de novo review means a totally new judicial hearing, as if the lower court trial had never occurred.

Moreover, under the 14th Amendment, Congress has the authority to protect the "due process" rights of individuals under state laws to ensure "'equal protection of the laws," but it does not have the constitutional authority to ignore the factual findings of state courts. The Palm Sunday law's de novo review order did not simply allow Terri Schiavo's parents to use the 14th Amendment's "due process" clause to make sure their daughter's rights were not violated by the state of Florida, it unconstitutionally attempted to completely nullify the Florida judiciary findings by having the federal judiciary try the case under federal law.

Republicans and other pro-life activists hoped that activist judges would utilize a court-created innovation called the "incorporation doctrine." The incorporation doctrine is a legal fiction introduced in the 1920s, five decades after the 14th Amendment was ratified.

The Bill of Rights was added to the Constitution to protect the rights of the people from the new federal government that they had created. Now, the federal judiciary is twisting the language of the Bill of Rights to force states to take actions that are against the wishes of the people of the states and that constitutionally should be up to the states to decide upon.

In the case of Roe v. Wade, the Supreme Court used one of its previous decisions, Griswold v. …