American Constitutional Research Service




 On Oct. 21, 2003 Florida’s Legislature passed a bill know as “Terri’s Law” authorizing Gov. Jeb Bush to intervene in a case in which a judge, Judge Greer, ordered a feeding tube to be removed from Terri Schiavo who was, and had been, in an incapacitated state for a number of years.

 The order of the judge to remove Terri’s feeding tube was in consequence to a court action by Terri’s husband who claimed Terri’s wish was to be left to die and sought the Courts help in ordering her feeding tube to be removed.

 There was no written will or other documentation from Terri’s own hand as to what she would want under her existing conditions, but Judge Greer, acting first as a jury in evaluating testimony of witnesses alleged to be reciting what Terri would now want, and then acting as a judge, exercised the power of the state and ordered Terri’s feeding tube to be removed, in effect, ordering Terri to be left to starve to death by authority of the State.
 Shortly after the court order to allow Terri to starve to death, the Florida Legislature, in obedience to its oath of office to protect “life and liberty“ found in Florida‘s constitution, intervened and adopted “Terri’s Law” authorizing Gov. Jeb Bush to order Terri’s feeding tube to be reinserted, and which he was pleased and relieved to so order.

 Terri’s husband then had his lawyer, George J. Felos, challenge Terri’s Law, saying it deprived Terri of her right to privacy and therefore was unconstitutional. The Governor then asked an appeals court to disqualify a particular judge, Circuit Judge W. Douglas Baird, from hearing the case which challenged the constitutionality of Terri’s Law after he publicly stated, prior to trial, that Terri’s Law was “presumptively unconstitutional” because it deprived Terri of her right to privacy. The appeals court, [Justices FULMER, DAVIS and WALLACE, JJ.] refused to remove Justice Baird from the case and it is this ruling which leads to a documented account of widespread Judicial Tyranny taking place in Florida as shall herein by documented.

 NOTE: The definition of TYRANNY is as follows:

 “The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of its constitution. See DESPOTISM.” [Bouvier’s Law Dictionary, Students Edition, 1928]

 “Arbitrary or despotic government; the severe and autocratic exercise of sovereign power, either vested constitutionally in one ruler, or usurped by him by breaking down the division and distribution of governmental powers.” [ Blacks Law Dictionary, Third Edition, 1910]

 Having defined tyranny, let us now examine what Florida judges have engaged in and see if judicial tyranny is alive and active in Florida.

 The District Court of Appeal of Florida, in refusing to disqualify Justice Baird from hearing the case challenging Terri’s Law cited North Florida Women's Health & Counseling Services, Inc. v. State of Florida and then stated:

 “The circuit judge’s statement that this legislation is presumptively unconstitutional simply announced the standard by which he believes the constitutionality of the statute is to be measured and is therefore legally insufficient to create a well-founded fear of prejudice or bias.”

 IMPORTANT NOTE: The North Florida Women's case involved a legislative Act titled “The Florida Parental Notice of Abortion Act“, an Act intended to require parents to be notified if an adolescent child of theirs was attempting to have an abortion. In this case the Court relied upon an unprecedented standard created in In re T.W., 551 So. 2d 1186 (Fla. 1989) in which the court, with the stroke of a pen, laid the groundwork to overturn one of the most fundamental principles of constitutional law practiced in America for over three hundred years!

 That fundamental principle of constitutional law is stated as follows by Florida‘s Supreme Court in case NO. 93, 649 NATHAN MIZRAHI and AVA RUTHMAN:

 When faced with a challenge to the constitutionality of a statute, as here, there are certain "cardinal principals" which must be utilized in determining the constitutionality of a statute. These include the following:

 1. The burden is upon him who assails the constitutional validity of a statute,

 2. It is presumed that the Legislature intended a valid constitutional enactment,

 and 3. When the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one which it would be unconstitutional and the other it would be valid, it is the duty of the Court to adopt that construction which will save the statute from constitutional infirmity. Boynton v. State, 64 So. 2d 536, 546 (Fla. 1953).

 In spite of the crystal clear language of the Supreme Court regarding this fundamental principle of constitutional law, and its practice in every state in our union since its birth, the Court suddenly finds it appropriate to evaluate a challenged legislative act, not upon its constitutionality when challenged, but rather, by an arbitrarily court created process in which those who challenge a statutory act and in so doing allege the act violates their personal privacy, if the court accepts their privacy assertion, the Act may then be deemed by the court to be “presumptively unconstitutional” and he who attacks the statute is free from the burden of showing the act is unconstitutional, while those who may not even be interested in the legislation have suddenly acquired the responsibility of showing the statute promotes a “compelling state interest“ [an Alice in Wonderland phrase used by the Court to manipulate the law to its own liking] .

 In no way is it suggested above that Gov. Bush is uninterested in defending Terri’s Law. As a matter of fact, unlike a number of Florida’s judges, he has been obedient to his oath of office. . . a prime directive of that oath of office is to protect life and liberty.

 Gov. Bush has been obedient to his oath by his signing of Terri’s Law and then enforcing the reinsertion of Terri’s feeding tube [the protection of life]. He has also called for a trial by jury to determine Terri’s wishes, as opposed to Judge Greer acting as judge and jury, which is an attempt by the Governor to ensure the protection of Terri’s liberty, and that her wishes are determined by due process of law… due process of law which provides the protection of a trial by jury in cases where the authority of the State is called upon to determine if a life shall be ended by authority of the state!

 The subject of this writing, however, is the ongoing subjugation of a fundamental principle of constitutional law by the Court, and a possible mischief which may result from that subjugation…the mischief being, the striking down of legislation by the court, not upon constitutional grounds, but rather, because of the court’s own personal predilections concerning the impact of legislation as related to a compelling state interest!

 In the .T.W. case cited earlier, the court, in its attempt to justify its act of subjugation, [the shifting of the burden of proof], it pointed out with regard to Article 1. Section 23 of Florida’s Constitution:

 “The privacy section contains no express standard of review for evaluating the lawfulness of a government intrusion into one’s private life, and this Court when called upon, adopted the following standard:

 Since the privacy section as adopted contains no textual standard of review, it is important for us to identify an explicit standard to be applied in order to give proper force and effect to the amendment. The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.”

 In short and sweet language, the Court wants to set itself up, to not only determine, or avoid altogether in determining, the constitutionality of a statute, it also wants to be able to strike down legislation if that legislation does not meet the court’s personal theosophical views and standards which is a blatant act of tyranny. This allowance of tyranny and its consequences is documented in North Florida Women's Health & Counseling Services, Inc. v. State of Florida , the case cited by the Court when refusing to remove Justice Baird from determining the constitutionality of Terri’s Law.

 In the Women’s Health case, the Court alleged the act impinged upon the personal privacy of a minor, thereby triggering a standard created in the T.W. case requiring the State to show a compelling state interest was involved in requiring parents to be notified prior to their adolescent child having an abortion. The justices on the court then arbitrarily found no such compelling state interest existed and prohibited the enforcement of the Act.

 But the most important standard to be observed by the Court when determining the constitutionality of a statute is not a textual standard created by the court, it is a standard which has been recognized and practiced for hundreds of years in America, and that standard is to carry out the legislative intent of a constitution as contemplated by its framers and the people who adopted it, which includes carrying out the legislative intent of Article 1. Section 23 of Florida’s Constitution and which the Court, in the Women’s Health case, has managed to pervert and pretend was adopted with a legislative intent, to overturn parental rights as know to the people in the State of Florida since its beginning, and further intended to prohibit the State Legislature to adopt a law intended to insure that parents of an adolescent child seeking an abortion ought to be notified.

 Surely, no such legislative intent can by construed from the historical record which documents the legislative intent for which the people of Florida adopted Article 1. Section 23 , and thus, the court has willingly engaged in judicial tyranny…it has violated the most fundamental rule of constitutional law and pursued a path usurping and exercising power not authorized by the state constitution. The court has indeed imposed its own whims and fancies as the law of Florida, striking down longstanding parental rights never intended to be erased by Article 1, Section 23 of Florida’s Constitution as pretended by the Court but is nowhere to be found in the words of those who frame it and the people who adopted it!

 In the case of Terri’s Law, and the refusal of the Court to remove a justice who publicly proclaimed Terri’s Law is “presumptively unconstitutional”, the Court has restarted the same chain of events as in the Women’s Health case, a path to tyranny in which a judge proclaims a statutory law violates a petitioner’s right to privacy, asserting a law is therefore presumptively unconstitutional, and then simply waits to give its arbitrary ruling as to whether or not the State can prove a sufficient compelling state interest exists to overcome that alleged violation of the right to privacy.

 It has been duly noted in In re GUARDIANSHIP OF Estelle M. BROWNING:

 1. “The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987).”

 2. “We emphasize and caution that when the patient has left instructions regarding life- sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient's best interests.”

 The bottom line is, our system of justice guarantees Terri a right to the protection of a jury in determining the facts in her case in which her life may be ended by the authority of the State. Until this protection and due process is afforded to Terri, which may not be perfect but is guaranteed by our system of justice, Terri’s case will not be concluded within the four corners of our Constitution, and those who move forward without providing this protection, will be doing so in violation of their oath of office and be willingly participants in the subjugation of our constitutional system.

 In addition, those on the Court who have created and new practice and standard of constitutional law which overturns a fundamental principle of constitutional law practiced for hundreds of years, that principle requiring the legislative intent of a constitution to be carried out as contemplated by those who framed it and the people who have adopted it, ought to be viewed as domestic enemies of our constitutional system and extremely dangerous and removed from office, especially when they have stooped so low as to willingly trample upon the unalienable rights and relationships involved with parental guardianship ver their children.

 John William Kurowski, founder,
 American Constitutional Research Service

 "On every question of construction [of the Constitution], let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

 "If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"Justice Story commentaries

 [Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]

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