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Responding to "Mona"
Posted by: Dale Franks on Monday, June 12, 2006

First, let me cover an administrative note. We run QandO as a co-equal blog. That is to say, that we don’t ask permission from any of the other bloggers to post pretty much anything we want to post. I occasionally see criticisms of something on the blog that say "the QandO guys believe" or some similar formulation, and it irks me. When you read something by any one of us, unless it specifically says that it is a group post, where we are speaking mutatis mutandis ex cathedra on some particular point, then you should infer that the post is the opinion of the person who posted it, not the opinion of all three of us.

There are a number of things about which we disagree. The three of us have strong opinions, and naturally, as individuals, those opinions will differ. That is one of the things that makes the blog interesting to read.

So, let's move on to the proximate cause of this particular post, which is the guest post by "Mona" that appears below.

I don't know who "Mona" is, besides someone who regularly comments here, nor do I know why Jon thought her point of view required a special post. I don't know why Jon felt it necessary to post an opinion from an outside source indicating that libertarianish people might find a congenial home in the Democratic Party, immediately following a post where Jon expressed doubt about that supposed congeniality.

And while we're on the subject, I don't particularly care.

I do, however, care about some of the points expressed in "Mona's" guest post.

First, there's a rather dubious Constitutional claim, which "Mona" derives from Douglas Kmiec:
The Constitution grants to Congress only certain powers, leaving the rest to the states. Kmiec said nothing in the Constitution gave Congress the power to pass the law, which, he said, sets a troubling precedent that Congress can simply order a federal judge to direct a person's fate.
I'm unsure what the text of Professor Kmiec's copy of the Constitution says, but I have a copy lying around here somewhere that states in Article III, §2:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.
This is, of course, in addition to the express powers granted to Congress in Article II, §8 that goves Congress the power "To constitute Tribunals inferior to the supreme Court".

Congress has, as far as I can tell from a plain reading of the text, plenary power to create courts subordinate to the Supreme Court, or to regulate the appellate jurisdiction of those courts. That means that Congress can, in fact, create a special new case of Federal jurisdiction, although it could not, of course, reduce any Federal court's jurisdiction below that specified in Article III.

Moreover, Professor Kmiec's opinion, no matter how well informed, is just that. An opinion. Nor is it an opinion with which equally qualified constitutional scholars necessarily agree, as is abundantly clear from Mona's quoted source.

Whether it was wise for Congress to make such a law is an entirely different question, about which opinions may equally vary, but the Constitution gives Congress the express power to do so.

Personally, I think it's clear that Congressional Republicans were grandstanding on this issue, and that they passed the law expressly to get pro-life kudos from the usual suspects. I thought the decision Congress made was unwise at the time, and stated so flatly, both here and here, so there is no need for me to reprise those arguments.

Except to repeat, do what I've done and get a DNR down in writing, and save the rest of us a lot of potential trouble.

Second, I think the very idea that libertarians would find a congenial home in the Democratic Party is risible. That might (barely) have been true in the day of Jack Kennedy, but the Democratic Party has undergone a sea change from a liberal to leftist party in the last 40 years or so. This is not to say that the Republican Party is, at present, any more congenial to Libertarians than the Democrats are, but at least the Republicans make the appropriate mouth noises about smaller, less intrusive government. The Democrats don't even do that.

Neither party is all that concerned with preserving liberty. Or, more precisely, both parties are only concerned with preserving a very narrow band of liberty, the Democrats with personal liberty, and the Republicans with economic liberty. The idea that both personal and economic liberty must be inextricably linked is anathema to both parties.

As such, I am inclining to vote Democratic for House races and Republican for Senate races. At this point, I think the best that can be hoped for is a legislative branch that is so tied up in vicious, inter-chamber partisanship that they accomplish nothing.
 
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"As such, I am inclining to vote Democratic for House races and Republican for Senate races. At this point, I think the best that can be hoped for is a legislative branch that is so tied up in vicious, inter-chamber partisanship that they accomplish nothing."

Yes at the same time you make them unaccountable for many of their inactions.

When there is a mixed Party combination between the Presidency, Senate and House, they blame gridlock for inaction on the deficit, immigration and pork, just to name a few. At least when one controls all three, they can’t blame gridlock and are exposed as the insincere frauds they are. And the public’s energy begins to turn on them. But when they can blame gridlock, they can turn the public’s energy against each other in partisan bickering.

Basically our current politicians are probably praying for gridlock, but with their fingers crossed in hopes it not their seat that is lost.
 
Written By: jpm100
URL: http://
I’m having trouble reconciling these two statements:
"Second, I think the very idea that libertarians would find a congenial home in the Democratic Party is risible."

"the Democrats [are "concerned with preserving"] personal liberty"
Since you assert that the Democrats are concerned with preserving personal liberty, why are they intrinsically any less a tolerable "home" for libertarians than Republicans, who assert their concern with economic liberty, but do not follow through.

Certainly, given their philosophical composition, the Democrats are not a permanent home for libertarians, but that is not what Mona argued. She argued for a limited, strategic alliance "for now" to encourage Democrats towards libertarianism and to punish the Republicans for being anti-libertarian.

This is risible? For a ridiculous suggestion, you certainly seem to be amenable to the idea. ("I am inclining to vote Democratic for House races")
 
Written By: Jon Henke
URL: http://www.QandO.net
Dale Franks wrote:
"Second, I think the very idea that libertarians would find a congenial home in the Democratic Party is risible. That might (barely) have been true in the day of Jack Kennedy, but the Democratic Party has undergone a sea change from a liberal to leftist party in the last 40 years or so. This is not to say that the Republican Party is, at present, any more congenial to Libertarians than the Democrats are, but at least the Republicans make the appropriate mouth noises about smaller, less intrusive government. The Democrats don’t even do that."
And they can not and will not do that. It is a slap in the face at least—if not a dire threat to their existence—to every constituency they have. What the Democratic Party can deliver in the way of other people’s money and coerced obedience is all the Democrats have to offer them. There is no principle in the party, much less a principle of liberty.
"Second, I think the very idea that libertarians would find a congenial home in the Democratic Party is risible."

and

"Neither party is all that concerned with preserving liberty. Or, more precisely, both parties are only concerned with preserving a very narrow band of liberty, the Democrats with personal liberty, and the Republicans with economic liberty."
That libertarians might find a home in the Democratic party is risible because the Democratic Party is NOT concerned with personal liberty—except insofar as some particular aspect of personal freedom is a cause of one of their constituencies. Their constituencies are too narrowly focused on their several cause celebres for this to be an example of a general commitment to personal liberty inhering to the spirit of the party.

The Democratic Party is a patronage party not a party of principle.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
She argued for a limited, strategic alliance "for now" to encourage Democrats towards libertarianism and to punish the Republicans for being anti-libertarian.
I looked in the post for where she argued for a "strategic alliance for now." All I found was a kos article about becoming "Libertarian Dems," an inconclusive Jesse Walker post about how Dems and Reps can attract Libertarian voters, and the Michael Shiavo quote about "leaving the [Republican] party". None of that suggests a "temporary strategic alliance." The rest of the "article" was a stone-cold, fringe-baiting rant on the evils of the Republican party.

Perhaps you would like to point out where she suggests a "temporary alliance"?
 
Written By: Terry
URL: http://
I thought Mona’s “Guest Post” was spot on. It reflected – as she put it - “…and today’s GOP violates libertarian values with promiscuous abandon (but this post focuses on only one of myriad examples of such abandonment).”
She also reasonably states, “Well, I am one libertarian who is cautiously receptive to the Donkey Team’s lure.” (Emphasis mine), in reaction to her sited reason’s Jesse Walker piece at Hit and Run in response to a Markos Moulitsas declaration of being a Libertarian Dem…
How to Be a Half-Decent Democrat,
…The short answer — and this applies to Republican candidates too — is: (a) Don’t be as bad as the other guy, and (b) Be actively good on at least one important issue. As far as Democrats in particular are concerned, I have three specific pieces of advice:
Walker then advises very reasonable libertarian political philosophy. I don’t know why anyone would find this laughable. If Democrats serenade libertarians, we should listen carefully and put very specific demands regarding a less intrusive government before we put out.
What we shouldn’t do, is dismiss the courting entirely based upon past violations. If libertarians wish to influence a major political party, it seems ridiculous to pin our hopes on only one party. Especially since…
"If the elections for Congress were being held today, which party’s candidate would you vote for in your congressional district: the Democratic Party’s candidate or the Republican Party’s candidate?" If unsure: "As of today, do you lean more toward the Democratic Party’s candidate or the Republican Party’s candidate?"
Among registered voters 6/1-4/06
Republican 42%
Democrats 51%
Other/Unsure 7%
Obviously, this is a general question and it doesn’t necessarily predict what will happen in the Fall elections. It does, however, reflect an ever increasingly hostile voting public towards the Republicans. It would be foolish not to try to influence the Democratic party since it would seem that there are some in that party who are sending us an invitation.

Mr. Franks finds this laughable.

What I found amusing was this,
This is not to say that the Republican Party is, at present, any more congenial to Libertarians than the Democrats are, but at least the Republicans make the appropriate mouth noises about smaller, less intrusive government. The Democrats don’t even do that.
Followed by, not two sentences later, this contradictory recognition,
Or, more precisely, both parties are only concerned with preserving a very narrow band of liberty, the Democrats with personal liberty, and the Republicans with economic liberty.
So apparently, Republican lip service (rampant spending and a skyrocketing debt) to economic liberty is more important than the recognized personal liberty espoused by the Democrats.

And so it’s Mona who is the foolish one to be cautiously attracted by the Democrats!?

Adding hypocrisy is Mr. Franks’ own authored Neolibertarian mission statement,
Obviously, this brief list of principles leaves a lot of wiggle room for debate on specific policy issues. But unlike the Paleos, who often treat dissenters on even minor points as pariahs, the Neos believe in a big-tent libertarianism.
I see a sign on this “big-tent” reading,

NO DEMOCRATS WELCOME
 
Written By: PogueMahone
URL: http://
Yes at the same time you make them unaccountable for many of their inactions.
LOL. For most of us, it’s the action we’re concerned about. Inaction would be progress.
 
Written By: Jon Henke
URL: http://www.QandO.net
Jon henke wrote:

"Inaction would be progress."

No. Inaction is stasis.

In this case—divided governemnt—the object in motion continues on its unnacceptable course.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"Inaction would be progress."

It must be horribly depressing in life on this topic to be unable to imagine improvement.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Perhaps you would like to point out where she suggests a "temporary alliance"?
Mona is welcome to correct me if I’m wrong, but here are statements which lead to that conclusion:
"Michael is obviously interested in a political force potent enough to evict the current, populist GOP extremists from some branches of the federal government, as am I."

"They need to be spanked hard, and the only way I can see to do that is to negotiate the best libertarian deal we can get from the Dems. Then, if a few years of defeat (but not in all branches - I don’t want that) beat some small govt sense into the GOP, I’ll go back to them."
The latter statement is quite unequivocal. And it’s worth noting that she cites Michael Schiavo, who left the Republican Party, not because he really liked the Democratic Party, but because he wanted to punish Republicans.
 
Written By: Jon Henke
URL: http://www.QandO.net
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.

You guys are a riot!
 
Written By: Shad
URL: http://
"Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.

You guys are a riot."

They imagine they are somehow supporting liberty.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
At this point, I think the best that can be hoped for is a legislative branch that is so tied up in vicious, inter-chamber partisanship that they accomplish nothing
Ahh, but they do accomplish something. They suck up massive amounts of tax. They end up passing watered down laws that solve nothing except draining the purse. What they accomplish is not a net positive, but it is an accomplishment nonetheless.

I’m not going to care about the letter next to the name any more. I’m going to do my best to see what each candidate supports, if they’re the incumbent, try to look at their voting record, make a "Pro" and "Con" checklist, and choose from there, party be damned. I’d rather put the person who most closely matches my beliefs into power.

We’re not going to see any progress unless politicians start feeling the heat for their actions rather than feeling safe behind their party.

And Pogue
So apparently, Republican lip service (rampant spending and a skyrocketing debt) to economic liberty is more important than the recognized personal liberty espoused by the Democrats.
Add Lip Service to the Democrats as well. Like their Republican counterparts, they don’t really believe you should be allowed to eat, drink, or smoke what you want, or that you can be trusted to save for your own retirement, that you should be able to raise your children how you want, that you should be able to choose where your children go to school or how they’re educated, whether or not you donate to charities voluntarily, etc. etc. etc.

The problem is that I would have hoped that the Democrats getting their asses handed to them time and time again would make them partake of a little introspective time and bring them back to the "party of the common man" mentality and start doing more than lipservice. But alas, all it’s done is drive them batsh!t crazy.

However, the Republicans aren’t doing such a hot job with my rights anyway. Talk about a rock and a hard place.
 
Written By: Robb Allen (Sharp as a Marble)
URL: http://sharpmarbles.stufftoread.com
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.
What, specifically, did you find objectionable about it? That people can choose to die? That their marital ’agent’ can so choose? That the medical evidence was evaluated for years before choosing that path? That the husband allowed a court to make the final determination in order to prevent him from being maligned for self-interest?

Or do you really think that Terri Schiavo was still a "person" with a chance at recovery?
 
Written By: Jon Henke
URL: http://www.QandO.net
I have pretty much descided that I will not vote republican for either house.I will find the nobody 3rd party which is on the ballot and vote for them. I will not vote dem. If you do it would be endorsing what they wish to do. Fix Urban Sprawl (lock everyone in highrise ampartment buildings),Koyto (make companies spend so much on things, that may not make any difference, that goods and services price skyrockets as well as any improvment made is offset by other nations increasing what we decrease), increase taxes to pay for new and bigger government programs (not to pay for what we already have but new stuff), etc,etc...

I’m sorry but I will not endorse those things.

If the dems win in 06 and 08 no matter how small the win I can hear the calls from the capital steps already how they have a mandate to do as they wish.

 
Written By: SkyWatch
URL: http://
Dale writes:
Congress has, as far as I can tell from a plain reading of the text, plenary power to create courts subordinate to the Supreme Court, or to regulate the appellate jurisdiction of those courts. That means that Congress can, in fact, create a special new case of Federal jurisdiction, although it could not, of course, reduce any Federal court’s jurisdiction below that specified in Article III.
Dale, I answered this point with a quote from and link to a Cato Institute Report in my thread below.
 
Written By: Mona
URL: http://
Terry Shiavo’s husband Michael abandoned his priveleges and duties to the disposition of the state. The ONLY question reasonably at issue is whether the judge in question took his responsibilities seriously and rationally decided between the several options open to him, and whether the policies which the laws of Florida were enacted to effect were in keeping with the US constitution where they may conflict.

The standard of "beyond a reasonable doubt" is the only standard which I can support a government applying in this case. It is certainly within a reasonable doubt as to whether Terry Schaivo would wanted to die or not in the circumstances she was in, and it is within a reasonable doubt whether she would have wanted to die by starvation.

Before this person was killed by direction of the state, the standard applied even to common criminals before they are mildly punished was not met, violating the equal protection clause. The death of Terry Schaivo at the direction of the state does in my view not meet even the most preliminary of constitutional tests.

DNRs and living wills are important, they are done so the state cannot kill inconvenient, vulnerable people. If you are stuck "alive" on a ventilator, feeding tube, it’s your own fault.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
I am a bit late to this particular party and so will address my comments regarding Mona’s guest-blog here rather than in the comments section there. First, simply by way of stating where I stand on whom libertarians should consider voting for in the next two election cycles, I am inclined to agree with Mr. Franks that splitting Congress with the Democrats in control of the House and the Republicans in control of the Senate is the optimal practical and possible result from a libertarian perspective. I remain open about the ’08 presidential race until candidates are selected.

As for Mona’s credentials as a libertarian, I can only say that she and I rather consistently argued libertarian positions in response to the liberal perspectives at the blog “Left2Right” during its heyday in 2005. The notion that she’s in the tank for Dems or flacking for Kos, etc. is, to use the word of the day, risible. Of course, there is no one-size-fits-all libertarianism – how could there be? – and I frankly find those who insist on various litmus tests or ideological purity in these matters to be likely sufferers of arrested intellectual and emotional development.

I will not opine on the constitutional issue Mona and Mr. Franks addressed except to say this much: Congress cannot give judicial jurisdiction to federal courts if the federal government does not constitutionally have jurisdiction in the first place. Sweeping 20th century interpretations of the commerce clause broadening that claimed jurisdiction notwithstanding and aside, libertarians should be chary about any attempt at federal preemption into an area historically reserved to the states or the people, respectively.

Finally, whither the libertarian vote vis-à-vis Republicans or Democrats? My position is simply that all elected officials are presumptively weasels and that libertarians should vote on any given occasion for those weasels less likely to do as much harm as their opponents. In weighing that decision, I am less concerned by what they claim they will do than what they have recently done. At present, I see no reason to side with big government Republicans who give lip service to small government as opposed to big government Democrats who do not. Moreover, although I believe economic liberty is inextricably connected to political and civil liberty, if I must choose between the two I would reluctantly opt for the latter over the former. Even then, regardless of whichever weasels for whom, with fear and trembling, I cast my vote, I never lose sight of the fact that they remain weasels.
 
Written By: D.A. Ridgely
URL: http://
"Dale, I answered this point with a quote from and link to a Cato Institute Report in my thread below."

Well, no. You didn’t answer the point.

The constitution as currently amended gives original jurisdiction to the national governemnt court system where questions of equal protection arise. Congress does have plenary power within that and other constitutional bounds to assign jurisdiction to national courts.

Try and find something with which to justify ignoring the Constitution, Mona, then you’ll have answered the point.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Tom Perkins writes:
Terry Shiavo’s husband Michael abandoned his priveleges and duties to the disposition of the state.
Get a clue. He was required by Florida law to secure a court order if he was going to unplug the feeding tube under the circumstances of that case. Michael Schiavo never abandoned Terri’s care. Read my link to the Florida adjudication papers.
The ONLY question reasonably at issue is whether the judge in question took his responsibilities seriously and rationally decided between the several options open to him, and whether the policies which the laws of Florida were enacted to effect were in keeping with the US constitution where they may conflict.

The standard of "beyond a reasonable doubt" is the only standard which I can support a government applying in this case.
That’s nice. And if you live in Florida you can lobby that state’s legislature to change the standard to the criminal one of "beyond a reasonablke doubt." As it stands, FL courts are to decide what the "clear and convincing evidence" yields in such cases. The FL Supreme Court has also said the probate judge must make such determinations in the absence of written, advance directives. Judge Greer was following Florida law, and was repeatedly upheld on appeal in that state.
 
Written By: Mona
URL: http://
What, specifically, did you find objectionable about it?
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.
I don’t know whether I should laugh or cry that this needs to be pointed out to someone who posts on the "Free Markets, Free People" blog.
 
Written By: Shad
URL: http://
I LOVE libertarians... they’re so funny. I have yet to read of a constituency of the Democrtic party that urged defeat of the Democrats in one or both houses of Congress, in order to produce "grid lock." The path to victory lies in DEFEAT!

If you want change a la Mona, but with a different party focus, that libertarians follow the the "Progressive/Tom Hayden Path." You capture a party, you don’t "punish" one.

But that requires comprimise and patience... do you have it. Realizing that the time from New Deal until Great Society was 32 years. The Progresives fought their fights WITHIN the Party and triumphed, in time.

Why it will be different for Republicans and or the Libertarian wing of the R party baffles me. But vote for divided government if you want.

Of course we Pro-Life Republicans will fight you on changes in Schiavo-like cases, many of us do oppose the "Culture of Death" and the desire to eliminate the "inconvenient" or "imperfect." For many of us Terry Schiavo was Judicially Murdered because she was inconvenient to Michael Schiavo, no more no less. Core value for us... As far as I’m concerned and I hope many Conservatives, we’ll take lower taxes, we’ll take a smaller government, but we EXPECT a more Pro-life Culture.

Now if the Mona-tarians feel that this is incompatible with their core values, then no coalition is possible with the Republican Party and Jon and the Mona-tarians better move to the Democrats. It depends on where in your hierarchy of values you place Right to Life/Right to Die/Choice issues.
 
Written By: Joe
URL: http://
Mona wrote:
"Get a clue. He was required by Florida law to secure a court order if he was going to unplug the feeding tube under the circumstances of that case. Michael Schiavo never abandoned Terri’s care."
I did not say he "abandoned care", whatever you ment by that. I mean he went to the judge for a decision. This places the question solely in realm of what it is right for a judge to do.

Here, the Constitution is dispositive.
"nor be deprived of life, liberty, or property, without due process of law"
and
"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"
The standard to be used before the state can deprive someone of their life, even if it is not much of a life, is the standard of "beyond a reasonable doubt". That is due process, nothing less is.

It is no slight to it that it is called a "criminal standard" and it is no magnification beyond the reasonable that it is the standard that must resonably be required before the state ends the life on an unquestionably innocent yet inconvenient person.

Try to answer that point, instead of some other—especially an irrelevant—point.

Are you saying the standard to be used before the government kills someone should be that it "probable", "likely", or merely "plausible" that that is what they wanted?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Tom Perkins corrects Chief Justice Rehnquist:
The standard to be used before the state can deprive someone of their life, even if it is not much of a life, is the standard of "beyond a reasonable doubt". That is due process, nothing less is.
You are wrong, as Chief Rehnquist, writing for the Supreme Court, held in CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH, my emphasis:
Missouri requires that evidence of the incompetent’s wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.

Whether or not Missouri’s clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its in terest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the Statesindeed, all civilized nationsdemonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. [n.8]We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to starve to death.

But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.....

In our view, Missouri has permissibly sought to advance these interests through the adoption of a "clear and con vincing" standard of proof to govern such proceedings.

After this ruling, the Cruzan family went back to Missouri and proved by clear and convincing evidence that their daughter, Nancy — who like Terri Schiavo was in a persistent vegeative state — would want her feeding tube pulled, and it was.
 
Written By: Mona
URL: http://
OK Jon, this is quite bizarre. You somehow pull the following quote from the post:
Michael is obviously interested in a political force potent enough to evict the current, populist GOP extremists from some branches of the federal government, as am I."

"They need to be spanked hard, and the only way I can see to do that is to negotiate the best libertarian deal we can get from the Dems. Then, if a few years of defeat (but not in all branches - I don’t want that) beat some small govt sense into the GOP, I’ll go back to them."
Well, I highlight in bold below the only part of the statement that you quoted that appears on the screen when I read the post.
What libertarian could blame him? (And please don’t suggest that he could make recourse to the Libertarian Party; Michael is obviously interested in a political force potent enough to evict the current, populist GOP extremists from some branches of the federal government, as am I.)

Let us recall how the Bush/Frist GOP utterly savaged Michael, gleefully joined by its handmaidens at Fox news, the latter of which virtually drove the hysteria , with no little bit of assistance from some pro-Bush blogs.


Where’s the rest of it?

 
Written By: Terry
URL: http://
And Pogue

So apparently, Republican lip service (rampant spending and a skyrocketing debt) to economic liberty is more important than the recognized personal liberty espoused by the Democrats.
Add Lip Service to the Democrats as well. ...
Agreed. The point was that Mr. Franks recognized that the Dems espouse personal liberty. Perhaps I should have worded that better.
Even if the Dems - as Mr. Franks himself most likely believes - don’t really believe in personal liberty, one can easily point out that the Republicans don’t really believe in economic liberty. (corporate welfare, pork barrel, etc. etc... And you remember Tom DeLay’s infamous, "we’ve cut spending as much as possible" ridiculous remark.)
 
Written By: PogueMahone
URL: http://
She argued for a limited, strategic alliance "for now" to encourage Democrats towards libertarianism and to punish the Republicans for being anti-libertarian.

This is risible?
Yes. It is.

First, it is uneccessary. Splitting the legislature would serve well enough to punish Republicans.

Second, the Democratic Party is structurally, as well as ideologically, opposed to smaller government. Anyone who thinks the Democratic Party can be inclined towards libertarianism is living in cloud cuckoo land.
For a ridiculous suggestion, you certainly seem to be amenable to the idea. ("I am inclining to vote Democratic for House races")
Huh. Well, if you think dividing the government so that neither party has a working majority is "making an alliance with Democrats", well, then, I guess you got me.
Since you assert that the Democrats are concerned with preserving personal liberty, why are they intrinsically any less a tolerable "home" for libertarians than Republicans, who assert their concern with economic liberty, but do not follow through.
So apparently, Republican lip service (rampant spending and a skyrocketing debt) to economic liberty is more important than the recognized personal liberty espoused by the Democrats.
Well, the lip service to smaller government is lip service to something more than simply economic liberty. The main point, however, is that the Republican Party already has a constituency for smaller less intrusive government. No such constituency exists in the Democratc Party. Hence, it is easier to push a party with a pre-existing small-government wing of signifigant size towards libertarianism, than it is to create it out of whole cloth in a party where no such constituency exists.
I see a sign on this “big-tent” reading,

NO DEMOCRATS WELCOME
The big tent refers to a big tent of libertarians, not a big tent of all political persuasions. I should’ve thought that would’ve been obvious.

In any event, if by "Democrats" you are referring to the type of person who wants things like government-provided health care, higher taxes, more regulation, well, then you’re right. They aren’t welcome, and more than tax-cutting pro-lifers are welcome when it comes to having any serious role in the modern Democratic Party.

Although, it was amusing to see Joe Lieberman backtrack on education issues in 2000, or watch Dennis Kucinich turn into a pro-choice crusader overnight in 2004.
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.

You guys are a riot.
And you, sir, are an idiot.

The only relevant question was who, in the abscence of a clear directive from the patient, holds the medical proxy for terminating care when the patient is in a vegetative state. For decades, this has been presumed to be the spouse. It has also been presumed to be solely a state matter, in which no Federal interests applied.

Now, as a result of Schiavo, we have the precedent that some other party who disagrees with your medical decision about your spouse’s care, can prevent you from making a decision they don’t like, as long as they can show standing.

Your framing of the issue is also insultingly tendentions. We were not "supporting and defending a mandate from the state to put one of its innocent citizens to death". We were supporting the well-established legal doctrine that the spouse is the presumptive proxy for medical decisions.

That you are unable to even frame the issue in such a way as to even consider that there might be a good-faith argument in opposition to yours, marks you as a fanatic.
Dale, I answered this point with a quote from and link to a Cato Institute Report in my thread below.
You did no such thing. The Cato link doesn’t rebut my argument at all. Indeed, the Cato document to which you link calls the Schiavo law one that, "arguably interfered with that party’s constitutional right to refuse unwanted medical treatment," then goes on, again to quote Professor Kmiec.

A rebuttal, on the other hand, would have demonstrated why my reading of Article III is incorrect. I am mystified as to why you would represent the Cato link as a rebuttal.
 
Written By: Dale Franks
URL: http://www.qando.net
Where’s the rest of it?
In one of her comments.
First, it is uneccessary. Splitting the legislature would serve well enough to punish Republicans.
I’m almost certain I don’t have to explain to you who has to win one branch of the legislature in order to split it.
Second, the Democratic Party is structurally, as well as ideologically, opposed to smaller government. Anyone who thinks the Democratic Party can be inclined towards libertarianism is living in cloud cuckoo land.
"the Democrats [are "concerned with preserving"] personal liberty"
Huh. Well, if you think dividing the government so that neither party has a working majority is "making an alliance with Democrats", well, then, I guess you got me.
Mona is welcome to correct me, but I didn’t have the impression that the detente she sought was unified Democratic control of all branches of government; merely an alliance with Democrats to blunt and punish the Republicans, so that, as Jesse Walker argued, Democrats can be good at what they’re supposed to be good at from a libertarian perspective.

I’m not aware of anybody that argues that Democrats are actually libertarian. The argument is merely that either (a) they are objectively better than the Republican Party, or (b) the Republican Party must lose if they’re ever to be brought back to their principles and the only party that can oppose them is the Democratic Party.
 
Written By: Jon Henke
URL: http://www.qando.net/
A rebuttal, on the other hand, would have demonstrated why my reading of Article III is incorrect. I am mystified as to why you would represent the Cato link as a rebuttal.
So, it would be fine with you, and no anti-federalism measure, if Congress took all family and probate law from the several states, and vested it in federal courts per Article III?
 
Written By: Mona
URL: http://
No need to correct you, Jon: Everything you just said.
 
Written By: Mona
URL: http://
Mr. Franks:

Perhaps I should repeat that the underlying issue is whether there is any legitimate federal authority here in the first place. If the federal government’s powers are express, limited and delegated by the Constitution, then there are things it cannot constitutionally do. Tautologically, then, no branch of the federal government can do it. That is the basis of federalism. Admittedly, it is a concept more often honored in the breach, especially in the 20th century, by all three branches of federal government, but the fact that the federal government has claimed such expansive power doesn’t suffice to answer the question whether it is correct in doing so.

Article III goes to the establishment of the complete appellate jurisdiction and limited original jurisdiction of the Supreme Court and leaves to Congress the authority to establish lower courts of both original and appeallate jurisdiction insofar as and only to the extent that the federal government has any judicial authority in the first place. But it has never been held to grant Congress the authority to extend the jurisdication of any federal court to decide matters not within the legitimate jurisdiction of the federal government in the first place. That is the issue.
 
Written By: D.A. Ridgely
URL: http://
Mona.

If, like Chief Justice Tawney before him, Rehnquist was flat wrong on a point of when another person is or is not a person deserving of the rights preserved to us in the constitution, I will correct him and trust—in almost every circumstance—history to provide an amplified correction.
"You are wrong,"
No you are ;^)

And I ask you again, without your tenditiously appealing to authority, whether you feel the standard of "probably", "likely", or merely "plausibly" should be applied. Or more strictly, please say why "clear and convincing" is a better yet lower standard to use when speaking about having the state kill someone. If you can say to your satisfaction why "clear and convincing" is a better standard to use, then please show how the congress’s actions WRT Terry Schiavo are an untoward intrusion into Florida’s affairs—when if the same standard were used to execute a black man on equally flimsy evidence, there would be no question of the national government properly intervening when the state refused or was incompetent to carry on its affairs while regarding all its citizens to be equal before the law.

In short, what on earth makes you think there was "clear and convincing" evidence in this case in either direction?

And to both Dale and Mona.

In accordance to part 765.101.16 (and other provisions of title 765) of the Florida Code, Michael Schiavo had waived his priveleges to the contrary and asked the court to act as a surrogate for Terry. His wishes as her spouse should have had no more weight than anyone else’s in the considerations—from the standpoint of making medical decisions for Terry, he was her spouse no longer, he was just one of many witnesses.

Dale Franks statement:
"We were supporting the well-established legal doctrine that the spouse is the presumptive proxy for medical decisions. "
Is simply not relevant to the controvsery. Whether the courts of Florida competently executed their own law—in such a way as to be compatible with national constitutional garrantees—is a relevant question.

"After this ruling, the Cruzan family went back to Missouri and proved by clear and convincing evidence that their daughter, Nancy — who like Terri Schiavo was in a persistent vegeative state — would want her feeding tube pulled, and it was."
And there may well have been "clear and convincing evidence" to the effect she wanted to die in those circumstances. There is no such evidence in the Schiavo case.
" I am mystified as to why you would represent the Cato link as a rebuttal.’"
Because she can’t imagine that Terry didn’t want to die, and so that’s the best Mona can do.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Robb Allen hits the nail on the head.
We’re not going to see any progress unless politicians start feeling the heat for their actions rather than feeling safe behind their party.
Trent Lott and Tom Coburn are both Republicans. Joe Lieberman and Teddy Kennedy are both Democrats.

Ignore the letters after the names, get off your behind and find out what the candidates themselves stand for. Vote for the one you agree with most. Pure and simple. Arguing endlessly about whether it’s the Dems or the Reps that truly, madly, deeply support personal freedom is a mug’s game. Both parties have planks that support liberty and planks that treat it as something that needs to be stamped out For The Good Of All.

As frustrating as it is to watch helplessly as corrupt, conniving sleazeballs are elected in other states, forget this notion of ’punishing’ Politician Jones’ entire party because you’re hacked off about something Politician Smith did. You don’t have a stick, you have a carrot. It’s one carrot, and it’s one of those little baby carrots you can buy 30-to-a-bag. Spend it wisely.

(And then there’s gridlock. Even leaving aside the backfire potential of betting on a particular narrow point spread, it’s baby & bathwater time. Stuff that actually needs to be done gets mired in the same partisan bickering as the nonsense. And the spending bills that do get passed do so by being crammed with enough pork to buy the requisite number of votes.)
 
Written By: Achillea
URL: http://
and so that’s /= and in support that’s

Yours, TDP, ml,msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.
Spin it any way you find convenient, folks, but what I supported was Michael Schiavo’s right to make the decision without interference from anyone. Read the link in my first comment on this thread if you’re actually interested in my position.

If not, continue to buy into the above nonsense.
 
Written By: McQ
URL: http://www.qando.net/blog
McQ wrote:
"Spin it any way you find convenient, folks, but what I supported was Michael Schiavo’s right to make the decision without interference from anyone."
The problem McQ, is that he gave up the privelege of making that decision to the courts, and the question becomes were the courts correct to the standard they should be held to?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
The problem McQ, is that he gave up the privelege of making that decision to the courts, and the question becomes were the courts correct to the standard they should be held to?
Again, Tom, that doesn’t reflect my position. Clear enough?
 
Written By: McQ
URL: http://www.qando.net/blog
McQ,

Just to be clear, you are saying you opinion of the Terry Schiavo case:

1) Does not depend on the case itself, and

2) You’re fine with state executing their own law and citizens willy nilly.

Or are you just saying you don’t believe Michael Schiavo waived his traditional spousal priveleges?

Yours, TDP, ml, ml, & pfpp
 
Written By: Tom Perkins
URL: http://
And I ask you again, without your tenditiously appealing to authority
You are beyond reason. On a legal question — a question of a constitutional standard — the Supreme Court’s word is more than a "mere appeal to authority" (tho it is that, and a proper, indeed, mandatory one in any litigation), but is also the law.
 
Written By: Mona
URL: http://
Well Tom, obviously it isn’t clear to you.

Michael Schiavo, as her spouse and with competent medical advice, should have originally been left alone to make a very private and difficult decision concerning terminating care, a decision thousands of us face a day.

The state should have and no role it in whatsoever. And if you read my post, you’d have noticed the decision I made concerning my mother, in much the same sort of situation, wasn’t dependent upon or vetted by the state.

Is it clear now?

 
Written By: McQ
URL: http://www.qando.net/blog
Mona, appeals to an authority have a limited value, and they have less value when that authority has been shown to be disastrously wrong in the past.

Do you have answers to the other questions or do you honestly expect every one else to fly into the mountain you’re heading towards?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
McQ,
"should have originally been left alone to make a very private and difficult decision concerning terminating care, a decision thousands of us face a day"
Do you or do you not understand that he willingly gave up that decision making power to the courts, with the courts acting as Terry’s surrogate?

If you believe he did not, you can be educated.

If you believe he did, then why does the matter not fall under the purview of all of us, as does the general conduct of our government in virtually every case?

Did the courts in Florida follow their own law in his case, and did that law comport with the clauses of the constitution which I mentioned above?

Lastly, when the government does become the gaurdian of the rights and person of a previously competent person, and that person has no living will, what standard should be applied as to whether the government should end their life, that they "certainly" wanted it that way, "probably" wanted it that way, or that they "likely" wanted it that way?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Do you or do you not understand that what he did or didn’t subsequently do has nothing whatsoever to do with MY position?

Good lord, man ... how many times do I have to say it:

"The state should have had no role in it whatsoever."


Now how does that square with this tripe?
Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.
 
Written By: McQ
URL: http://www.qando.net/blog
Michael Schiavo, as her spouse and with competent medical advice, should have originally been left alone to make a very private and difficult decision concerning terminating care, a decision thousands of us face a day.

The state should have and no role it in whatsoever
And that McQ is why I’m not a Libertarian. Yes, I think the State had EVERY right to intervene to prevent her death... or at a minimum to have demended substantial proof of her wishes. Which Schiavo did NOT produce... testimony from friends who were talking with Terry is NOT proof, IMO.

This isn’t a debate about Schiavo, per se I’m glad you put it so baldly. It serves as an illustration between the two view points. I just fundamentally disagree with yours... and you with mine. But IF you place the Schiavo "case" fairly high on your list of things to do, please don’t vote Republican, consistently. You won’t be happy.

As I say it’s good to see the divisions between libertarian and conservative simply explained and this is one of them. I want lower taxes AND wanted Terry Schiavo’s hydration to be maintained, you only want 1 of the 2.
 
Written By: Joe
URL: http://
And that McQ is why I’m not a Libertarian.
Well, Joe, I can only tell that pleases me greatly ... you not being a libertarian, I mean.
 
Written By: McQ
URL: http://www.qando.net/blog
Trust me McQ, I’m glad I’m not a libertarian either.
 
Written By: Joe
URL: http://
Tom: Michael Schiavo was following Florida law, which is explained in this appellate decision in the Schiavo matter, my emphasis:


When the directions of a written advance directive are being complied with [didn’t exist in Schaivo - ed. Mona], or when interested parties do not disagree with the need to terminate life support systems [didn’t exist in Schiavo case - ed. Mona] Florida courts agree that the patient/ward needs no procedural due process protections .... The guardian only goes to court for authority to terminate life-support procedures when he is uncertain as to the ward’s wishes or [as existed in the Schiavo case - ed. Mona] when interested parties object to his decision.
—Mona—
 
Written By: Mona
URL: http://
Do you or do you not understand that what he did or didn’t subsequently do has nothing whatsoever to do with MY position?

Good lord, man ... how many times do I have to say it:

"The state should have had no role in it whatsoever."
Do you or do you not understand that the state was given not just A role but the ENTIRE role by the guy you claim should have the authority? Do you see that means you need either to comment on the case as is or that your views don’t actually apply in any way about the case?
Now how does that square with this tripe?

Two out of three bloggers on a "libertarian" website supporting and defending a mandate from the state to put one of its innocent citizens to death in order to profit another one of its citizens.
Because in remonstrating the Congress for doing what it should do, oversee the execution of basic constitutional garrantees in the courts of the states, these ostensibly "libertarian" bloggers are setting an apalling low standard for the state to meet in order to kill one of its citizens.

The state of Florida/the judge could plausibly say a "more likely than not" standard was met in deciding if Terry Schiavo would want to die in these circumstances. Are you agreeing that is the stnadard to meet when the state kill a citizen?

Are you sure something more stringent shouldn’t be the standard?

Thank you, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Mona, you are quite wrong, which is quite usual for you. Michael Schiavo was under no requirement to surrender his surrogacy priveleges to the state, instead he gambled that the judge would agree with him (which was true) and that the parents wouldn’t be able to muster a case against the resources of the State of Florida (which wasn’t true). In so doing, he made this case fair game for comment as to whether the courts of the State of Florida were up to par.

You have yet to demostrate they were or to answer my other questions.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
So, it would be fine with you, and no anti-federalism measure, if Congress took all family and probate law from the several states, and vested it in federal courts per Article III?
*Sigh*

Let’s recap the argument shall we?

1. You assert the Schiavo law was unconstitutional.
2. I respond with the text of the Constitution highlighting Congress’ power to regulate the jurisdiction of the Federal courts.
3. You come back with a supporting document that says the law was "arguably unconstitutional", which means, of course, that it is also arguably constitutional.
4. I point out that the supporting document does not, in fact, offer any clear support for your position.
5. You respond with the rhetorical equivalent of "So, if all the other kids were jumping off a cliff, would you jump off, too?"

We aren’t talking about whether or not Congress has the legitimate power to federalize all family and probate law, so your last response is simply silly, as well as being a non sequitur in the context of our discussion. We are talking about whether a specific act was constitutional or not. Moreover, you post the last question as if I hadn’t written in some detail about my opinion of the wisdom of law in question, and that my position is an impenetrable mystery to you.

If you can’t or won’t respond constructively to the specific point at issue with the appropriate constitutional reasoning, then just say so. It will save us both some time. At the moment, however, you seem to be saying that it is not satisfactory to simply believe that the Schiavo law was unwise. I must also believe it to be unconstitutional.

I decline to accept that line of reasoning.

Additionally, the jurisdictional issue is this case contains elements of the law that are not present in family and probate law cases in general, as will be clear in due course.
Article III goes to the establishment of the complete appellate jurisdiction and limited original jurisdiction of the Supreme Court and leaves to Congress the authority to establish lower courts of both original and appeallate jurisdiction insofar as and only to the extent that the federal government has any judicial authority in the first place. But it has never been held to grant Congress the authority to extend the jurisdication of any federal court to decide matters not within the legitimate jurisdiction of the federal government in the first place. That is the issue.
In this case, Congress apparently felt that there were 5th and 14th Amendment issues in conjunction with depriving a "person of life, liberty, or property without due process of law". While it may be difficult in the extreme to see how probating a will, or determining the appropriate child custody determinations might have such implications, it does seem odd to argue that the state-sanctioned killing of a person has no 5th or 14th Amendment implications whatsoever.

So, unless your argument that the "right to die", and the method of it’s implementation has no relevance whatever to the 5th or 14th Amendments, then it’s difficult to see how you can argue that Congress has no authority to give Federal courts the jurisdiction to make the appropriate determinations in order to satisfy those constitutional implications.

For instance, let us say a state passed a law that declared people in permanent vegetative states to no longer be "persons", and requiring that their feeding tubes be removed once a PVS diagnosis had been satisfactorily established. Would you then argue that the Federal Courts had no jurisdiction over the matter, if the state’s courts upheld such a law? If not, then you believe that there are, in fact, constitutional implications in the "right to die" that go beyond purely state-level considerations. Consequently, that means that you do, in fact, believe that Congress does have the power to regulate the Federal Courts’ jurisdiction in such matters.

Whether Congress has the power to do something is in no way related to whether it is prudent to do so. Congress could, in fact, declare war on Great Britain this afternoon, if it desired to do so, based on nothing more than disgust over those nasty sausages the British insist on eating for breakfast. That would be perfectly constitutional, as well as perfectly unwise. I should think the difference between the two would be easy to understand.

Apparently not.
 
Written By: Dale Franks
URL: http://www.qando.net
Yeesh .. what Michael Schiavo did or didn’t do has nothing to do with MY position, which was mischaracterized above. That is what I was addressing when I refered you to my post.

My position is the state should have no role in the decision to remove life support for those who cannot be medically revived or resucitated or who’ve been shown to have no brain activity. That decision should be left to and made by the legal guardian, spouse or relative in consultation with competent medical authorities. Their decision should be final.

And spouses trump parents. If the state were to have any role it should be to tell those who aren’t primary to that decision to butt out.

That’s the way it works 99.99% of the time and I’m of the opinion Terry Schiavo shouldn’t have been any different. What happened in the Schiavo case was the intrusion of the state at the behest of another party.

Now, given your past replies, I assume I’m going to have to say that at least 5 and possibly more times before it finally sinks in.

So to preclude that waste of time, let me just say I’ve made my position abundently clear numerous times — with large letters for easy reading and rather smallish words for easy understanding. The fact that you seem unable to do so isn’t my problem.

Feel free to continue to misread, mischaracterize and generally poke at it, but there it sits for any reasonable reader to digest.

As for me ... fini on this subject.
 
Written By: McQ
URL: http://www.qando.net/blog
McQ that should have been finis not fini, unless you think it’s poser (wrong) not poseur (Correct), just thought you’d want to know.
 
Written By: Joe
URL: http://
Actually, it’s pretty simple. "State sanctioned" (which really isn’t quite accurate, either) doesn’t equal state action. The Constitution protects against state infringement or violation of those fundamental interests without due process of law. Your examples would constitute state action. Here the decision before the court — let me rephrase that, the only legitimate decision before the court (and, properly, only before a state court) would be which private party would have the legal authority to terminate treatment. And it won’t do to say that anything the state permits is therefore state action, else everything is state action. Of course, by the time the various other circus acts hit the stage, the issues were muddied beyond recognition, but that’s how I would frame the controversy and the distinction I would stress in response to your questions.
 
Written By: D.A. Ridgely
URL: http://
"As for me ... fini on this subject."

And McQ signs off, admitting in almost so many words that he never had anything to say of relevance to the Schiavo case than,
if wishes were horses
Yours, TDP, ml, msp, & pfpp
 
Written By: Tom Perkins
URL: http://
if wishes were horses
And if mischaracterizations were nickles, Perkins wouldn’t be able to lift his.
 
Written By: McQ
URL: http://www.qando.net/blog
Pretty good McQ, you should take that on the road.

You’re talking about how things ought to be be. I’m talking about how they are.

The whole Schiavo incident was about, legally, how things are/were.

Do you have some thing to add to the debate in light of the fact Michael gave authority to the state in this case, according tho that states law, and that that constitution gives certain protections against state action to persons whose life is at issue?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
You’re talking about how things ought to be be.
Lord help us all ...

No, I’m talking about my position on the issue, which was mischaracterized.

Why is that so difficult for you to understand?
 
Written By: McQ
URL: http://www.qando.net/blog
McQ, you wrote:

"The state should have had no role in it whatsoever."

And that’s not how Florida law was written then, QED, not how it is.

I presume you did however write how you desire Florida law to be written?

What did I just write that isn’t true?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"not how it is."

Err. How it was, Florida law might say something else now.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
I presume you did however write how you desire Florida law to be written?
No.

I wrote my position on the issue in general, which had been earlier mischaracterized.

Florida has nothing to do with it. "State" was used generically.
 
Written By: McQ
URL: http://www.qando.net/blog
You don’t see any inconsistency with having a preference in general but not opposing a state law written to the contrary of that preference?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
You don’t see any inconsistency with having a preference in general but not opposing a state law written to the contrary of that preference?
How is "the state should have no role" inconsistent with a contrary law?
 
Written By: McQ
URL: http://www.qando.net/blog
Dale Franks writes:
Let’s recap the argument shall we?

1. You assert the Schiavo law was unconstitutional.
I never wrote that. I quoted Kmiec as its being a "constitutional abomination." And it is, whether it would ultimately be decided to be constitutional or not. For our entire history such decisions have resided with the states.

And, as Mr. Ridgely keeps patiently pointing out, there has never been an Article III creation of jurisdiction for matters reserved to the states, (I would add except for diversity jurisdiction in some areas). There is even an abstention doctrine, "the domestic relations exception," whereby federal courts abstain from ruling on matters of divorce, pty settlement and child custody. Do you think Article III could or should put federal courts into the family law business?
 
Written By: Mona
URL: http://
So apparently, Republican lip service (rampant spending and a skyrocketing debt) to economic liberty is more important than the recognized personal liberty espoused by the Democrats.
Well, the lip service to smaller government is lip service to something more than simply economic liberty. The main point, however, is that the Republican Party already has a constituency for smaller less intrusive government. No such constituency exists in the Democratc Party. Hence, it is easier to push a party with a pre-existing small-government wing of signifigant size towards libertarianism, than it is to create it out of whole cloth in a party where no such constituency exists.
Fair enough. I see no reason to dismiss the other party, however.

I see a sign on this “big-tent” reading,

NO DEMOCRATS WELCOME
The big tent refers to a big tent of libertarians, not a big tent of all political persuasions. I should’ve thought that would’ve been obvious.
Then you thought wrong. Seeing as how you have frequently dismissed libertarians with ideas sympathetic to the Left with, “Go f*ck yourself”, “can screw themselves”, “you truly are an idiot”, and most recently describing libertarian Mona’s ideas of “cautiously receptive to the Donkey Team’s lure” as being laughable.

My that’s a big pup-tent you have there.
 
Written By: PogueMahone
URL: http://
I never wrote that [the schiavo law was unconstitutional]. I quoted Kmiec as its being a "constitutional abomination."
Ah. Presumably he was referring to a constitutional "constitutional abomination." Thanks for clearing that up, then.
Mr. Ridgely keeps patiently pointing out, there has never been an Article III creation of jurisdiction for matters reserved to the states...
And I have patiently pointed out, there’s no exclusive state jurisdiction for 5th or 14th Amendment issues, either. Issues, by the way, that only arise, if they arise at all, in right to death cases, rather than in general family law. Which I pointed out in my previous response.

You may think it’s unwise to assert that there that there were any 5th or 14th Amendment issues in the case at hand, but it’s clear that Congress does, in fact, have the authority to extend the Federal judiciaries 5th and 14th Amendment scope of review, where the actual life of a citizen is at stake.

So far, you have presented nothing other than bald assertion to counter this reading of the plain text of the Constitution. Your counter—twice running—has been the extremely silly:
Do you think Article III could or should put federal courts into the family law business?
So, I guess I’ll just take it as a given that you will not, in fact, address the proximate argument, note that I’ve already answered this extremely silly question, or refer to any of 5th or 14th Amendment implications for Federal jurisdiction in right to die cases.

Fine. I’m done with you.
My that’s a big pup-tent you have there.
I don’t think I’m comfortable with you commenting on the size of my pup tent.
 
Written By: Dale Franks
URL: http://www.qando.net
Dale, Article III judicial power can be granted to cases or controversies which Congress could regulate under Article I powers. In this case, what is the jurisdictional ’hook’ which allows the federal government access here?
 
Written By: Pooh
URL: http://sethyblog.blogspot.com
Dale, Article III judicial power can be granted to cases or controversies which Congress could regulate under Article I powers. In this case, what is the jurisdictional ’hook’ which allows the federal government access here?
I’ve already answered this question.
 
Written By: Dale Franks
URL: http://www.qando.net
Dale, I do not understand why you are so terse and dismissive of me, and apparently rather angry. Look, I never wrote that the Terri II federal law was unconstitutional; I simply agree with Kmiec and many others who said Congress told the Florida courts:
What Congress has said is, ’We can take that away from you. We can make the decision not yours, but that of a federal judge,’" Kmiec said. "That is a profound thing to say, and not just for the Schiavo case.
I DID NOT SAY DOING THAT IS OBVIOUSLY UNCONSTITUTIONAL. It’s a novel matter I have not per se studied, and many experts were scratching their heads at the time as to the constitutionality of it, but not as to whether it was prudent and proper. That law was an assault on our federalist form of govt — as it has existed throughtout our history — in which probate matters like guardianships and medical decisions for wards were always state matters.

You and I don’t even seem to really disagree on this point, so I do not understand your rather icy tone with me.
 
Written By: Mona
URL: http://
Dale, Article III judicial power can be granted to cases or controversies which Congress could regulate under Article I powers. In this case, what is the jurisdictional ’hook’ which allows the federal government access here?
I’ve already answered this question.
Not really - you analogized to a counterfactual (which admittedly has greater 14th amendment implications)

Alternatively, I guess I find your assertion of federal jurisdiction uncompelling.
 
Written By: Pooh
URL: http://sethyblog.blogspot.com
McQ wrote:

"How is "the state should have no role" inconsistent with a contrary law?"

I looked at it as a Venn diagram. Circle "A" is the state law which Michael Schiavo used to give up his responsibility to decide Terry’s fate to the state, You’ve drawn Circle "B" clear around A, saying something which implies you disapprove of the law and Michael’s decision WRT it.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
The Republican Party is currently promoting outright dictatorship: Bush has declared his "right" to ignore whatever laws he chooses (via signing statements); he has claimed the right to declare people "enemy combatants" purely on his own say-so, and then to lock them up indefinitely and torture them, all without any oversight by anyone, least of all a judge. There’s lots more of course.

Whatever the Democratic Party stands for, it at least opposes that. Well, almost all of them, anyway. (Lieberman excepted, for instance.) :-/ The Republican Party are actively cheerleading for this evil, with very rare exceptions (Ron Paul).

Any honest libertarian must realize that preventing a genuine police state from emerging takes priority over any other form of liberty. Neither personal freedom nor economic freedom is available, *at all*, when you’ve been dumped in Gitmo, or a Navy brig, or "rendered" to a torture cell in Syria. Remember these are mostly people who are innocent of any crime — the administration has been completely unwilling to present any actual evidence of wrongdoing to anyone.

Given this, it is a libertarian’s duty to vote for the Democrats in the coming election, just in order to expel and discredit the Bush Republicans as quickly as humanly possible, before they solidify their attempted police state into a true, total police state. And that means expelling the Republicans from both houses and trying to get an investigation into impeachment. Really, it’s like the French elections a few years ago where one of the options in the runoff was the National Front; it was your duty to vote for the other party at that point, no matter what you thought of them.

Also, being disorganized, the Democratic Party is ripe for takeover by people with "nontraditional" ideologies. Like you. The Republican Party is currently held in a stranglehold by religious fanatics, and is actively threatening and purging elected officials who dissent from the party line (Bush Is Always Right); you will have no luck there.

Some libertarians are apparently still so blinkered that they haven’t realized that the national Republican Party is now essentially a totalitarian, theocratic organization. I feel sorry for them; they’ll realize it sooner or later, but for all of our sakes, I hope it’s sooner.
 
Written By: Anon.
URL: http://

 
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