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Gary Amos

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Dred Scott and Terri Schiavo: The Long and Tortured Death of the 14th Amendment At the Hands of the Federal Judiciary By Gary Amos - April 2nd, 2005

Judicial Accountability in Shiavo Matter

In all my years dealing with constitutional law, I have always said no to judicial impeachment even when from time to time on various issues some conservative activists have argued for it in specific situations. I can generally provide people more arguments against impeachment than for it where judges are concerned. Sometimes I cannot provide argurments for impeachment at all, because all the valid arguments from my point of view mitigated against judicial impeachment in those situations.

The Schiavo matter is dramatically different. Not only am I convinced that judicial impeachment applies here, I am convinced that it applies to every federal judge in the chain from the district court judge who first received the case under the act signed by President Bush, through the appeals judges of the 11th Circuit, to all nine sitting members of the U.S. Supreme Court, with the exception of the one or two judges that bucked the system.

This is the first time in my several decades of dealing with constitutional law that such a situation exists. I never imagined that I would see this situation in my entire lifetime or in my professional career.

The key points are summarized here. They are based on two one-hour radio talkshow interviews I did locally this week which laid out the matter in some detail.

First, Article III uses the words "good behavior" as the term of art dealing with the impeachment of federal judges. The Constitution uses the words "high crimes and misdemeanors" as the standard of impeachment for the executive and legislative branches. "High crimes and misdemeanors" is a higher and more rigid standard than "good behavior" in Article III. In the Schiavo matter, the misconduct on the part of the federal judiciary violates both standards. It violates the "high crimes and misdemeanors" standard because by refusing to protect the substantive right to life of Ms. Schiavo under the 14th Amendment, and treating the matter as strictly procedural, the various judges made themselves accessories to murder. It violates the "good behavior" standard for the sorts of reasons explained by William Blackstone in his Commentaries on the Laws of England.

The federal courts obstinately refused in the Schiavo matter to employ a jurisprudence of constitutionally protected inalienable rights mandated by the Declaration of Independence, the Constitution of the United States, the rights model of original American jurisprudence from the era of the Founders, and as extended to state misconduct by the 14th Amendment.

The federal courts refused to judicially notice that we prosecuted people for war crimes at Nuremberg for the very sorts of actions taken and required by the Florida state courts in clear violation of the original meaning of inalienable rights and due process of law.

Under our federal union, there has never been a power in any state to execute anyone not convicted of a crime and who has not been indicted and/or tried criminally. Under our federal union and under the constitutions and bills of rights of every individual state, the right to life is inalienable. At the state level, that right can only be lost by an individual person through an act of wrongdoing constituting a forfeiture and adjudicated as such through a criminal trial where due process would apply. Executing an innocent person through a civil process is ultra vires by definition and has been ultra vires for over two hundred years of American experience. Having occurred in the Schiavo matter, the question is not one of due process because there can be no such process, period. Where such occurs, as it has here, it is an act of state tyranny by definition, the ground upon which we fired the king of England.

When people say Ms. Schiavo received due process that is not true because the state is not permitted to have such a process, period. For any state to have a process that executes a person or citizen unconvicted of a crime is not a matter of due process because there can be no such process. The 14th Amendment mandates that the right to life be protected by the federal government if a state materially fails in its duty to secure the inalienable right to life. For any federal judge to fail in that 14th Amendment duty is "bad behavior" and criminal negligence. When the federal courts treated the matter pro forma as a procedural one rather than one of substantive rights, the courts materially breached their duty to a person who is also a citizen of the United States under the 14th Amendment with both personhood and citizenship rights. In light of the fact that the federal judges' malfeasance has materially redefined (by inaction) something as fundamental to all persons and American citizens as the right to life, and demonstrated by precedent that the federal courts criminally disregard their duty to uphold the right to life, they have failed to maintain the standard of good conduct required of a federal judge and forfeited the respect and obedience of the American people.

For these and related reasons, every federal judge involved in the execution of Terri Schiavo has violated their office as judge and have committed the high crime of being an accessory to murder. Therefore every judge so tainted MUST be impeached by Congress and removed from the bench.

Shiavo

I probably do not need to tell you that this matter with Schiavo is one of those turning points that mark epochs in the nation's history. This is like Dred Scot, Plessy v. Ferguson, Brown v. Board, Roe v Wade, etc.

It seems that most "educated" Americans are totally oblivious to the fact that what is happening is totally new, and has only been developing in the last 20 years. Never in the nation's history has there been an assumption that an innocent person can be ordered starved to death by the power of the state.

When the Founder's in the 5th Amendment and the post-Civil War government with the 14th Amendment said that the government cannot deprive a person of life, liberty, or property without due process of law, the assumption was that the state only had the power to deprive life from a convicted criminal. There was no power to deprive the life of an innocent person not convicted of a crime. There is no such power in any state in the Union. The primary place where inalienable rights are to be protected is at the state level. If the rights are inalienable, the government cannot take them away unless they have been forfeited by criminal activity, and then only through due process of law.

Nevertheless, the entire judicial system of the state of Florida, the state legislature of Florida, and the entire federal court system up to the United States Supreme Court, has changed the fundamental building blocks of our country so that as of this week, it is now legal for a state to order the death of someone who is not convicted of a crime. This is too chilling to exagerrate. When doctors Binding and Hoch published their book in 1919 on the Release of the Destruction of Life Devoid of Value, and it took hold in German culture, in less than 20 years Hitler was sending the infirm to the crematoriums. They will cremate Terri Schiavo in the next few days.

People are saying, "but there was due process, she had her day in court." That totally miscomprehends what due process is all about. Since there is no power in the state to take away the life of an innocent person not convicted of a crime, the due process argument does not even apply. Taking the life of an innocent person is tyranny. The state has no power to do this. That is why we fired the King of England. The state cannot order the death of the innocent not convicted of crime. It is not a question of whether there is due process because there can be no such a process, period. Since there can be no such process, the question of whether it is the process due never comes into play. It's not supposed to happen, because the right to life is inalienable, and unless you are a criminal, the state cannot take it away.

Taking the life of a convicted criminal without proper substantive rights and procedural safeguards is a denial of due process. Terri Schiavo is not a convicted criminal. Nevertheless the Florida judge issued an order of execution. Talking about due process in the Terri Schiavo situation is mixing apples and oranges. Since there is no state power to take her life in the first place, any action or procedure in that regard is tyrannical by definition, and it is abysmally ignorant for people to interject due process into the discussion as a justification for state sanctioned homicide.

As of this week, our country has opened the door to the entry way of hell. This is too awful for words. So now we must take the message of the meaning of the constitution and America's founding to anyone who will listen. Turning people back to the constitution is now a matter of survival. I am glad to be working with you. Our mission has just become doubly urgent.

- Gary Amos 24 Mar 05

The 14th Amendment

I told my wife an hour before the midnight vote what would happen with the federal district judge and why. It was too sadly predictable.

Here is what I said to her. Congress is making two mistakes. First, it is making a private law for one person rather than a rule of general application. Commands are to individuals. Laws are for all people similarly situated. Commands to individuals are given by the executive branch not the legislature. Rules of general application are given by legislation. So for this to be done right, it was supposed to be a rule that applied to anyone in this sort of situation where there was a question whether a state was depriving someone of their rights in violation of the 14th Amendment. (The Senate set this up by demanding the House limit it only to Terri Schiavo. The House has already passed a general rule and had to come back into special session to get a bill matching the Senate's.)

Second, to pass this law Congress had to adopt my view of the 14th Amendment which has been rejected by the US Supreme Court for about a 120 years. So Congress is expecting one thing, but when the law gets to the judiciary it will be something else entirely. The lower federal judge is obligated to follow what the US Supreme Court has said about the meaning of the 14th Amendment. The US Supreme Court long ago turned the 14th Amendment on its head and rejects the kind of outlook about the federal protection of individual rights and inalienable rights that is behind this bill. The lower federal judge will see this new law not only as an oddity, but at odds with the prevailing interpretation of the 14th Amendment by the federal judiciary. So I told my wife, even if the vote for the bill is successful, it will be an exercise in futility. The federal judge will not do anything.

The only hope for saving her life is that there will be a quick appeal to the 11th Circuit and somebody there will have the courage to go against the grain long enough to save the woman's life while waiting to be overruled by the US Supreme Court. Appeals judges occasionally exercise that level of judicial courage, but rarely.

It is my hunch that the Senate (whose leaders are more in tune with these sorts of things) intentionally limited their bill to applying to Terri Schiavo only so that it would be more likely to fail in federal court. So they get the political benefit of appearing to try to save her life, but don't do anything to affect the present state of 14th Amendment jurisprudence on the federal courts. I hope when this gets to the appeals level (if Terri is still alive) that I turn out to be wrong and that they undertake a new examination of the meaning of the 14th Amendment. I was dumbstruck that so many black legislators didn't get it. One after one they took the same kind of position that my slaveholding great grandparents and racist grandparents had about the role of Congress where individual rights and the role of the federal government is concerned. These black legislators have the same outlook as my white slaveholding ancestors. Truly amazing.

The only way for anything to happen quickly would be for Bush to do something similar to what Eisenhower did in Little Rock. Use federal might to protect an individual right. That is extremely unlikely.

By the way, things are going to be changing for me soon. I now have an agent who is going to begin booking me for speaking on constitutional matters. I will be having a new web site and all the related stuff. I will let you know as it starts to unfold.

- Gary Amos 22 Mar 05

Living Wills

The problem is that doctors and nurses don't read them. It does not matter how carefully a lawyer may word a living will. It does not matter where the living will draws the line about when you want to be treated and when you don't want to be treated. What the document says is irrelevant.

Go to any critical care center and you will see handwritten signs by magic marker taped on the door or near the patient saying "Living Will." So on a sheet of typing paper there will only be two words "Living Will." It says nothing else.

Those two words are short hand to the medical personnel that: "This person does not want to live. If there is any downturn in the condition let him (or her) die." So, for example if there is a heart attack, don't use CPR.

People and their lawyers think that a living will tells the medical community that you don't want to be kept on a respirator or other expensive lifesustaining emergency and critical care equipment if your organs are shutting down from cancer or some such, or if you are becoming brain dead.

But people do not know that having a living will and telling the doctors and nurses about it means that they have just given the medical community the green light to provide substandard care and to pay only minimal attention to the patient because this patient wants to die.

Here is an example. My mother in law had a living will that said if her cancer got to a certain point where she had to be kept alive by being put on life support she did not want to be put on life support. Well the chemo worked and she began recovering from cancer. However, while in the hospital recovering she had a heart attack. Thankfully, her daughter and daugher in law, both registered nurses and both experienced in trama care, happened to be in the room when the heart attack started. They hit the emergency button to call for help. The RN daughter jumped up on the bed, straddled mom's body, and began doing CPR until she was revived.

When the medical personnel did not show up to help and had to be brought by personal request, they said "oh, she had a living will. She did not want to have help if she had a heart attack." They were not going to do anything about her heart attack, even though the heart attack was not part of the living will. The living will was about being not being kept indefinitely on life support if the cancer went too far. The doctors and nurses took the two words "living will" to mean, "let her die if she has a heart attack, a stroke, or any other life threatening emergency besides the cancer." Good thing she didn't choke on a piece of chicken while the nurses were around.

Letting her die in the event of heart attack was not at all what her living will said. But the medical personnel did not read it. They don't read them. All these living wills are worded somewhat differently, but it doesn't really matter. A lawyer can spend hours drafting a carefully worded living will. It's a waste of time, because only two words count -- living will. And they take this to mean, "let them die."

To the doctors and nurses, the words living will means that we can ignore this patient no matter what happens.

So now we have this great push for living wills. People are being led to think that living wills and advance medical directives are really great. They may be, but don't tell your doctor or nurses that you have one until after the crisis is clearly underway. Otherwise you won't get the care you should have been getting even if you didn't have a living will. Let the medical community treat you to their best and fullest extent. Then if it fails, and only then, should the medical providers learn from the family members that there was a living will so it is okay to pull the plug on the life support once it is clear that the care is useless and futile.

This new infatuation will living wills is going to have the unexpected result of lots of people dying when they could be saved and would want to be saved because the situation that led to death was reversible and not covered by the written text of the living will, but nobody bothered to ask. But this will be a kind of poetic justice for our mental laziness and naivete about dealing with these matters.

-Gary Amos 22 Mar 05

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