I thought I was done with this, but the crux of both this post and this post is that the real issue here is a question of legislative vs. judicial supremacy.

It is indeed proper to raise questions of federalism in the Schiavo case. Clearly the state of Florida ought to be the level of government that handles this case.

But who is the state of Florida? Is it Judge Greer?

Clearly not.

The Madisonian system of government is not, as some have suggested, a government of 'co-equal branches.' Rather, the Madisonian system is a system of checks and balances.

Read your Constitution. You will find nowhere any mention of 'equality among the branches' or anything like this.

What you will find is clear evidence that Congress was to be the most powerful branch, followed by the Executive, and the Courts a distant third. Very distant.

The same Constitutional scheme is embedded in most of our state constitutions. State legislatures are thought to embody the will of the state.

Courts are not supreme. Bill Bennett agrees:

The Florida legislature sought to keep Terri alive, or at least postpone her death, by authorizing the governor to issue a one-time stay in order to prevent the withholding of nutrition and hydration from anyone under certain and extreme circumstances. "Terri's Law" was signed into law by Governor Jeb Bush in October, 2003, but soon after, the Florida supreme court struck down the law as unconstitutional.

Clearly, Governor Bush believes "Terri's Law" to be constitutional. Not only did he sign it into law, he later challenged the decision of his own state Supreme Court by appealing to the United States Supreme Court. Unfortunately, the U.S. Supreme Court would not hear the case.

In theoretical terms, this is a conflict between the separate powers of Florida government, as the judicial and executive branches have different opinions about what the Florida constitution requires. But in practical terms, Terri's life hangs in the balance: If the Florida supreme court prevails, she dies. If Governor Bush prevails, she lives. It is a mistake to believe that the courts have the ultimate say as to what a constitution means. Every governor is bound by oath to uphold and protect his state constitution. In the case of Florida, the constitution Mr. Bush pledged to defend declares that, "All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty..." If the governor believes that he and the Florida legislature possess the constitutional authority and duty to save Terri's life, then he is bound by his oath of office to do so....

Governor Jeb Bush may find it difficult to protect Terri's rights without risking impeachment. But in the great American experiment in republican government, much is demanded of those who are charged with protecting the rights of the people. Governor Bush pledged to uphold the Florida constitution as he understands it, not as it is understood by some Florida judges. He is the rightful representative of the people of Florida and he is the chief executive, in whom the power is vested to execute the law and protect the rights of citizens. He should use that power to protect Terri's natural right to live, and he should do so now.

Posted by: Rusty at 04:09 PM | Comments (4) | Add Comment
Post contains 573 words, total size 4 kb.