People Born in the United States Are Properly Citizens (???)

Note: while I personally disagree with this article, as the purpose of this amendment was, in-fact, to pull together 3 enacted laws to grant citizenship & protect the previously known slaves. The heart of this (section 1) argument is is a fallacy, misinterpretation & misapplication of the fourteenth amendment. The heart of the Constitution grants an ordinal class of citizenship to its people. (Ref to: Citizenship)
August 26, 2015
Michael C. Dorf

ImmigrationLast week, Donald Trump released a white paper on immigration reform. It proposes, among other things, to “end birthright citizenship.” Trump himself should not be taken seriously as a presidential candidate, and it should be noted that his draconian views on immigration are controversial even within the Republican primary field. 

For example, in response to Trump, former Florida Governor Jeb Bush characterized birthright citizenship as “part of our noble heritage.”
Still, Trump’s tough-on-immigration position appeals to many Republican primary voters. Moreover, as his white paper trumpets, even Democratic Senate minority leader Harry Reid once supported ending birthright citizenship. Accordingly, those of us who think that children born in the United States to undocumented immigrants are properly deemed citizens cannot simply ignore Trump’s proposal as attention-grabbing buffoonery.

Section 1 of the Fourteenth Amendment
In the U.S. context, the term “birthright citizenship” refers to the Citizenship Clause of the Fourteenth Amendment, which begins: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” That language was added to the Constitution following the Civil War in order to overrule the infamous Dred Scott decision, which declared that African Americans could not be citizens. However, like other provisions of the Fourteenth Amendment, the language of the Citizenship Clause is general: by its terms, it does not apply merely to former slaves and their descendants but to “all persons born” here.

The Trump white paper does not say how Trump intends to end birthright citizenship. Some people who oppose birthright citizenship call for a constitutional amendment, but other reformers suggest that no amendment is needed. The Citizenship Clause, they note, is limited to those persons “subject to the jurisdiction” of the United States and they argue that children of undocumented immigrants do not satisfy this criterion.

As a textual matter, that claim is odd. As Professor (and Verdict columnist) Ronald Rotunda noted in a 2010 Chicago Tribune op-ed, undocumented immigrants are indeed subject to the jurisdiction of local, state, and federal government—as are their children. If they break the law, they can be prosecuted just like anybody else.

What does the Fourteenth Amendment mean when it refers to people who are born here but not subject to U.S. jurisdiction? The Supreme Court answered that question in the 1898 case of United States v. Wong Kim Ark. Riding a wave of nativist racism against East Asians that bears an uncomfortable resemblance to the anti-Latino sentiments that contemporary immigration hawks sometimes express, Congress enacted and then re-enacted the Chinese Exclusion Act, which placed severe restrictions on the entry into the United States of Chinese persons—including, in the view of the government official who sought to exclude Wong Kim Ark, ethnic Chinese who had been born in the United States.

The Court rejected the government’s attempt to apply the Chinese Exclusion Act on the ground that Wong Kim Ark was a U.S. citizen, even though his parents remained subjects of the Emperor of China. Justice Gray’s majority opinion relied mostly on the common law and practice that formed the backdrop for the Fourteenth Amendment. That backdrop also informed the Court’s understanding of the Amendment’s express qualification: Children born in the U.S. to foreign ambassadors and consuls, or to soldiers or others accompanying invading armies had, by tradition, not been regarded as citizens, as they were not “subject to” our law. But otherwise, people present in the U.S. are subject to U.S. laws and, for that reason, most people born in the U.S. are U.S. citizens.

Yet Wong Kim Ark’s parents were in the U.S. legally when he was born. No Supreme Court case affirming the broad scope of birthright citizenship speaks to the precise question of the citizenship of children born to undocumented immigrants. And in their 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity, Peter Schuck and Rogers Smith relied on an 1884 Supreme Court case holding that Native Americans are not entitled to birthright citizenship to question the broad language of Wong Kim Ark as applied to children of undocumented immigrants.

Thus, if immigration liberals are comforted by the apparently clear implications of the language of Wong Kim Ark, we should remember that before the Supreme Court dignified the claim that Congress lacks the power to require people to purchase health insurance, that claim too was widely dismissed as essentially foreclosed by prior precedent. We should not underestimate the ability of clever lawyers to make off-the-wall arguments sound reasonable—especially if they end up arguing before a Supreme Court that includes new Justices appointed by a future get-tough-on-immigration president.

The Virtues of Birthright Citizenship
Should the opponents of birthright citizenship fail to get what they want by persuading or packing the Supreme Court, they would need to amend the Constitution. What can we say to persuade Americans that such an amendment would be a bad idea?

The best defense of birthright citizenship echoes the position espoused by the Supreme Court in the 1982 case of Plyler v. Doe. Texas tried to deny a free public education to the undocumented immigrant children living in that state. In holding that the state thereby violated the Constitution, the Court noted that the state’s approach was illogical. As Justice Powell explained in a concurrence, no one “benefits from the creation within our borders of a subclass of illiterate persons, many of whom will remain in the State.”

So too with citizenship itself. If we are not going to deport the millions of people born here to undocumented immigrants—and we are not—then there is little reason to withhold the sense of belonging and the concomitant sense of duty that go with citizenship.

Many countries, including countries generally regarded as democracies, reject birthright citizenship, treating parentage as the chief means of acquiring citizenship. As Professor Rotunda noted in his Op-Ed and as Professor Neil Buchanan discussed in his recent column on the Dominican Republic’s treatment of its ethnic Haitian minority, this approach can be ugly. Generation after generation of people who have known no other home are treated as not even second-class citizens.

By contrast, birthright citizenship implements widely shared and characteristically American values. Through the Titles of Nobility Clauses of Article I, Sections 9 and 10, the Constitution abjures eighteenth-century European notions of privilege obtained by birth. Meanwhile, Article III, Section 3 forbids the “Corruption of Blood”—the old practice of disinheriting the heirs of persons convicted of treason or other serious crimes. Together, these provisions reject the proposition that in America the sins of the fathers (or mothers) can be visited on the sons (or daughters).

That notion also informed the Supreme Court’s decision in Plyler. “Even if the State found it expedient to control the conduct of adults by acting against their children,” Justice Brennan wrote for the majority, “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”
No doubt the American commitment to disregarding accidents of birth has always been under-inclusive, originally grossly so. After all, the original Constitution co-existed with race-based chattel slavery, and we still face the consequences of our collective failure to fully remedy that historic wrong.

But the Fourteenth Amendment—including its Citizenship Clause—was a huge step in the right direction. Curtailing its promise of birthright citizenship would thus be a huge step backward.

Today’s Supreme Court [Land] Patent Decision

20140319-191546.jpg

Original article

March 10, 2014Dennis Crouch
by Dennis Crouch

Today the Supreme Court decided an interesting patent case in Brandt v. U.S. The patent at stake was a land patent that the Supreme Court here defined as “an official document reflecting a grant by a sovereign that is made public, or ‘patent.’”

The case involved an 83-acre plot in Wyoming owned by Marvin Brandt. The U.S. government originally owned the land as part of the 1803 Louisiana Purchase. In order to expand rail-road coverage in the US, the Government offered a free right-of-way to RR builders. General Railroad Right-of-Way Act of 1875. In 1911, the Laramie Hahn’s Peak & Pacific Railway Company (LHPP) took advantage of that offer and build a RR across the land that was later patented to Brandt’s. Thus, in 1976, when the Brandt’s took fee simple ownership, that ownership was “subject to those rights for railroad purposes as have been granted to [LHPP], its successors or assigns.” Finally, in 2004, LHPP (now part of Union Pacific) removed its tracks and expressly abandoned its right of way.

The land patent itself did not specify what would occur if the railroad abandoned its right of way. Similarly, the 1875 Act did not expressly indicate what rights the US retained.

Here, the US Government wanted ownership of the land, or at least an easement to convert the railroad pathway to a trail for hikers and bikers. However, Brandt argued that the abandoned easement merged into his fee title. Both the district court and 10th Circuit courts sided with the government.

On certiorari, however, the Supreme Court has sided with the fee owner Brandt. In particular, the 8-1 decision finds that the 1875 statute provided only for a grant of easement to the railroad and that the 1976 patent grant by the U.S. to Brandt did not retain any further potential reversionary interest in the easement. Thus, when the easement was abandoned, all rights merged into the fee and are owned by Brandt.

Of course, the U.S. can still obtain the land to build a trail — it will just have to pay just compensation under the rules of eminent domain and the Fifth Amendment takings clause.

This shows that a land patent, not a deed of trust, is the highest form of ownership.

Summary of Constitutional Rights, Powers and Duties

I thought this was an interesting article. Original article

Discussions of rights are sometimes confused concerning what are and are not rights of the people or powers of government or the duties of each. This is an attempt to summarize most of the more important rights, powers, and duties recognized or established in the U.S. Constitution, in Common Law as it existed at the time the U.S. Constitution was adopted, or as implied therein. Not included are certain “internal” or administrative rights and powers that pertain to the various elements of government within each level with respect to each other.

Personhood:[1]

“Persons” are one of the two main classes which are the subject of rights, powers, and duties, the other being “citizens”. Persons may be “natural” or “corporate”. “Citizens” are a subclass of “natural persons”. Only persons have standing as parties under due process. Each government has the power to define what is and is not a “person” within its jurisdiction, subject to certain restrictions of Common Law and the Constitution, the 15th Amendment to which requires that it not exclude anyone based on race, color, or previous condition of servitude. Under Common Law existing at the time of the adoption of the U.S. Constitution, “natural personhood” was considered to begin at natural birth and end with the cessation of the heartbeat. But technology has created a new situation, opening the way for statute or court decision to extend this definition and set the conditions under which personhood begins and ends.

Each government may also establish, within its jurisdiction, “corporate persons” such as governmental entities, associations, trusts, corporations, or partnerships, in addition to the Common Law “natural” persons, but the “personhood” of such corporate entities is not created by the government. Its corporate personhood derives from the personhood of its members. Corporate persons must be aggregates of natural persons.

Under Common Law, persons include only individual human beings and combinations of them acting in concert, but it provides a basis for inclusion of entities that are sufficiently like human beings in their behavior to be indistinguishable for legal purposes, such as aliens, androids, or genetically enhanced animals, which have interests, an ability to reason, and an ability to communicate. This would exclude, however, establishment of other things as persons, such as inanimate objects, which have no ability to represent themselves under due process. Inclusion of such inanimate objects as parties to civil due process, in effect making them “persons”, has found its way into the U.S. legal system as in rem proceedings, unconstitutionally, through recent seizure/forfeiture statutes.

Although not a well-developed area, there is also a basis for excluding entities which, although they are born to human beings, lack attributes which would enable them to be functionally human, such as some minimal level of cognitive capacity, but such beings must be considered natural persons as the default unless proven otherwise through due process.

Citizenship:

Citizenship is the attribute of persons who, as members of the polity, have certain privileges and duties in addition to those they have as persons. Citizens include those born on U.S. or State territory or naturalized according to law.

Natural Rights:

The classic definition of “natural rights” are “life, liberty, and property”, but these need to be expanded somewhat. They are rights of “personhood”, not “citizenship”. These rights are not all equally basic, but form a hierarchy of derivation, with those listed later being generally derived from those listed earlier.

Personal Security (Life):

(1) Not to be killed.

(2) Not to be injured or abused.

Personal Liberty:

(3) To move freely.

(4) To assemble peaceably.

(5) To keep and bear arms.[18]

(6) To assemble in an independent well-disciplined[13] militia.

(7) To communicate with the world.

(8) To express or publish one’s opinions or those of others.

(9) To practice one’s religion.

(10) To be secure in one’s person, house, papers, vehicle[14], and effects against unreasonable searches and seizures.

(11) To enjoy privacy in all matters in which the rights of others are not violated.[7]

Private Property:

(12) To acquire, have and use the means necessary to exercise the above natural rights and pursue happiness, specifically including:

(1) A private residence, from which others may be excluded.

(2) Tools needed for one’s livelihood.

(3) Personal property, which others may be denied the use of.

(4) Arms suitable for personal and community defense.

Non-natural rights of personhood, created by social contract:

(1) To enter into contracts, and thereby acquire contractual rights, to secure the means to exercise the above natural rights.[1,15]

(2) To enjoy equally the rights, privileges and protections of personhood as established by law.

(3) To petition an official for redress of grievances and get action thereon in accordance with law, subject to the resources available thereto.

(4) To petition a legislator and get consideration thereof, subject to resources available thereto.

(5) To petition a court for redress of grievances and get a decision thereon, subject to resources available thereto.

(6) Not to have one’s natural rights individually disabled except through due process of law, which includes:

(a) In criminal prosecutions:

(1) Not to be charged for a major crime but by indictment by a Grand Jury, except while serving in the military, or while serving in the Militia during time of war or public danger.

(2) Not to be charged more than once for the same offense.

(3) Not to be compelled to testify against oneself.

(4) Not to have excessive bail required.

(5) To be tried by an impartial jury from the state and district in which the events took place.

(6) To have a jury of at least six for a misdemeanor, and at least twelve for a felony.[1]

(7) To a speedy trial.

(8) To a public trial.

(9) To have the assistance of counsel of one’s choice.

(10) To be informed of the nature and cause of the accusation.

(11) To be confronted with the witnesses against one.

(12) To have compulsory process for obtaining favorable witnesses.

(13) To have each charge proved beyond a reasonable doubt.[1]

(14) To have a verdict by a unanimous vote of the jury, which shall not be held to account for its verdict.[1]

(15) To have the jury decide on both the facts of the case and the constitutionality, jurisdiction, and applicability of the law.[1]

(16) Upon conviction, to have each disablement separately and explicitly proven as justified and necessary based on the facts and verdict.[1]

(17) To have a sentence which explicitly states all disablements, and is final in that once rendered no further disablements may be imposed for the same offense.[1]

(18) Not to have a cruel or unusual punishment inflicted upon oneself.

(b) In civil cases:

(1) To trial by an impartial jury from the state and district in which the events took place[1] where the issue in question is either a natural right[1] or property worth more than $20.

(2) In taking of one’s property for public use, to be given just compensation therefor.

(3) To have compulsory process for obtaining favorable witnesses.[1]

(c) In all cases:

(1) To have process only upon legal persons able to defend themselves, either natural persons or corporate persons that are represented by a natural person as agent, and who are present, competent, and duly notified, except, in cases of disappearance or abandonment, after public notice and a reasonable period of time.[1]

(2) Not to be ordered to give testimony or produce evidence beyond what is necessary to the proper conduct of the process.[1]

Non-natural rights or citizenship, created by social contract:

(1) To enjoy equally the rights and privileges of citizenship as established by law.

(2) To vote in elections that are conducted fairly and honestly, by secret ballot.

(3) To exercise general police powers to defend the community and enforce the laws, subject to legal orders of higher-ranking officials.[17]

(4) To receive militia training.[7]

See also List of constitutional rights.

Disabilities of minority: [1]

Certain of the above rights are restricted, or “disabled”, for minors, but the definition of who is a minor and the extent to which each of these rights are disabled for minors, is limited to the jurisdiction over which each government has general legislative authority, which for the U.S. government, is “federal ground” (see below). Minors are the only class of persons whose rights may be disabled without a need to justify the disablement as arising from the need to resolve a conflict with the rights of others, either through statute or due process. The disablement consists of the assignment of a power to supervise the exercise of the rights under the headings of “liberty” and “property” listed above to a guardian, by default the parents, who acts as agent of the State for the purpose of nurturing the minor. The disability is normally removed by statute providing for removal when a certain age, such as 18, or condition, such as marriage, is attained. The disabilities of minority can also be removed earlier by court order or, if statute allows, extended beyond the usual statutory expiration by court order in cases of incompetence. The right to vote is not included among the disabilities of minority, but is defined separately by law, so that removal of the disabilities of minority does not in itself affect having the right to vote.

Constitutional duties of persons under U.S. or State jurisdiction: [7]

(1) To obey laws that are constitutional and applied within their proper jurisdiction and according to their intent.

(2) To comply with the terms of legal contracts to which one is a party.

(3) To tell the truth under oath.

Constitutional duties of citizens under U.S. or State jurisdiction: [7]

(1) To preserve, protect, and defend the Constitution.[6]

(2) To help enforce laws and practices that are constitutional and applied within their proper jurisdiction and according to their intent, and to resist those which are not.

(3) To serve on juries, and to render verdicts according to the constitutionality, jurisdiction, and applicability of statute and common law, and the facts of the case.

Constitutional duties of able-bodied citizens under U.S. or State jurisdiction:[7]

(1) To defend the U.S. or State, individually and through service in the Militia.

(2) To keep and bear arms.[18]

(3) To exercise general police powers to defend the community and enforce the laws, subject to legal orders of higher-ranking officials when present.[17]

Powers delegated to U.S. (National) Government:

(1) Exclusive powers

(1) To lay and collect import duties.[8]

(2) To pay the debts of the U.S. Government.

(3) To regulate commerce with foreign nations and Indian Tribes.

(4) To regulate commerce among the States.[2]

(5) To regulate immigration.[7]

(6) To establish a uniform rule of naturalization.

(7) To establish uniform laws on bankruptcy throughout the United States.

(8) To coin money and regulate its value and that of foreign coin, and to issue bills of credit.

(9) To provide for the punishment of counterfeiting the securities and current coin of the United States.[3]

(10) To fix the standard of weights and measures.

(11) To provide and regulate postal services.

(12) To establish protection for intellectual property, including patent, copyright, and trademark rights.

(13) To constitute lower national courts.

(14) To define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations.[3]

(15) To declare war, authorize warlike activities by other than the armed forces, and make rules concerning captures.

(16) To raise, support and regulate the armed forces.

(17) To govern what part of the Militia shall be employed in the service of the United States.

(18) To exercise general Legislation[9] over federal ground, which is limited to federal territories and districts, land purchased from states with the consent of their legislatures, U.S. flag vessels on the high seas, and the grounds of U.S. embassies abroad.

(19) To guarantee a republican form[12] of government to the States.[3]

(20) To enter into a treaty, alliance, or confederation with a foreign state.

(21) To declare the punishment for treason.[3]

(22) To prescribe the manner in which the acts, records, and judicial proceedings of each state shall be proved to other states and what should be done about them.

(23) To admit new states into the Union.

(24) To dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.

(25) To make laws necessary and proper for executing the powers delegated to the U.S. government.

(2) Pre-emptive but non-exclusive powers

(1) To provide for the common defense and general welfare.

(2) To provide for calling forth the Militia to execute the laws, suppress insurrections, and repel invasions.[16]

(3) To provide for organizing, arming, and disciplining the Militia.

(4) To prescribe the times, places and manner of holding elections for members of Congress, except the places for electing senators.

(5) To conduct a census every ten years.

(3) Non-pre-emptive non-exclusive powers

(1) To lay and collect excise taxes on commerce or income taxes on persons.[8]

(2) To borrow money.

Restrictions of the powers of the national Government:

(1) No exercise of powers not delegated to it by the Constitution.

(2) No payment from the Treasury except under appropriations made by law.

(3) Excises and duties must be uniform throughout the United States.

(4) Shall pass no tax or duty on articles exported from any state.[5]

(5) No appointment of a senator or representative to any civil office which was created while he was a member of Congress or for which the amount of compensation was increased during that period.

(6) No preferences to the ports of one state over another in regulation or tax collection.

(7) No titles of nobility shall be granted by the U.S. government, or permitted to be granted to government officials by foreign states.

(8) May not protect a State against domestic violence without the request of its legislature, unless it cannot be convened, in which case, without the consent of its executive.

(9) U.S. courts do not have jurisdiction over suits against a state by citizens of another state or foreign country.

Powers delegated to State Governments:

(1) Exclusive powers

(1) To appoint persons to fill vacancies in the U.S. Congress from that state and to hold special elections to replace them. State executive may make temporary appointments if state legislature in recess and until they reconvene, when they shall appoint a temporary replacement.

(2) To appoint the officers of its Militia.[11]

(3) To conduct the training of its Militia.[12]

(2) Non-exclusive powers[4]

(1) To prescribe the times, places and manner of holding elections for members of Congress.[10]

Restrictions of the powers of the State Governments:

(1) State constitutions and laws may not conflict with any provision of the U.S. Constitution or U.S. laws pursuant to it.[7]

(2) May not exercise powers not delegated to the State government by the State Constitution.[7]

(3) May not make anything but gold or silver coin a tender in payment of debts.

(4) May not pass a law impairing the obligation of contracts.

(5) May not grant a title of nobility.

(6) May not collect imposts or duties on imports or exports without consent of Congress, except fees necessary to cover the costs of inspections and paid to the U.S. Treasury.[8]

(7) May not lay a duty on tonnage.

(8) May not keep troops or ships of war in time of peace or make war without the consent of Congress, unless actually invaded and in imminent danger that does not admit of delay.

(9) May not make a compact or agreement with another state of the U.S. or with a foreign state without the consent of Congress.

Duties of the State Governments:

(1) Must provide a republican form[12] of government to their citizens.[7]

(2) Must conduct honest and fair elections, by secret ballot.[7]

(3) Must give full faith and credit to the public acts, records, and judicial proceedings of every other state, and recognize the privileges and immunities granted thereby.

(4) Must extradict a person charged with a crime in another state to that state.

(5) Must organize and train their militias.[7]

Restrictions of the powers of all Governments:

(1) Shall not disable any natural or constitutional right without due process of law, and then only to the extent necessary to avoid infringing the rights of others.

(2) Shall not deny any person within its jurisdiction equal protection of the laws.

(3) Shall not suspend habeas corpus, except in case of rebellion of invasion and the public safety may require it.

(4) Shall not issue a search warrant but on probably cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

(5) Shall not arrest members of Congress, except for treason, felony, or breach of the peace, while their house is in session.

(6) Shall not question a member of Congress on anything he says during a speech or debate in his house.

(7) Shall not pass any bill of attainder or ex post facto law.

(8) Shall allow no slavery or involuntary servitude except as punishment for a crime of which the party shall have been duly convicted.

(9) Shall not deny or abridge the right to vote to any person on account of race, color, previous condition of servitude, sex, for failure to pay any tax, or on account of age if older than 18.

(10) Shall not exercise any power in an unreasonable manner or for other than a legitimate public purpose, as partially indicated in the Preamble. (No power is “plenary”, and discretion can be abused.)

Some arguably needed national powers:

(1) To regulate the manufacture, distribution, operation, and disposition of aircraft and spacecraft, the regulation of their crews, and the definition and punishment of crimes committed on U.S. registered aircraft or spacecraft or on aircraft or spacecraft operating in U.S. airspace.

(2) To regulate cabled or wireless communications beyond a distance of 1 kilometer.

(3) To regulate the production, distribution, and use of nuclear energy, and electric energy transmitted more than 1 kilometer.

(4) To limit tort liability on commerce and commercial articles subject to U.S. regulation of their manufacture.

(5) To pre-emptively pass and enforce laws needed to conserve wildlife and natural resources, to protect the climate and natural environment, to prevent an excess of population, and to regulate public health and workplace safety.

(6) To provide for the punishment of abuses of power by any official, agent, or employee of, or contractor for, any institution of government, and specifically any violations of the Constitution and laws pursuant thereto.

(7) To provide for the punishment of abuses of the natural rights of persons by other persons, in the event that those abuses, if the occurred on state ground, are not prosecuted by a State government.

(8) To define “due process” to include the elements given above which are not now explicit in the U.S. Constitution.

(9) To define the arms to which persons have a right to keep and bear as including “all those weapons which may be carried by one person and which might be useful or necessary to defend oneself or the community, except weapons of mass destruction such as bombs, heavy missiles or artillery, or biological, chemical, or nuclear agents which may cause lasting injury or death.”

(10) To make explicit that only natural persons or corporate persons composed of natural persons may be the subject of due process in any civil or criminal proceeding.

NOTES:

[1] This is established in Common Law at the time the U.S. Constitution was adopted, but is not explicit in the U.S. Constitution.

[2] Originally, “commerce” meant only transfers of goods or services for a valuable consideration, so that “interstate” commerce would not include interstate migration, carrying across a state border of one’s own possessions that one intends to keep, the sending across a state border of a gift or inheritance, nor include articles which had not yet crossed a state border, or articles which had “come to rest” with the completion of the transfer. It would not include manufacturing, local sales, or things that are “part of an aggregate” of interstate commerce, or things that might “affect” interstate commerce. Note also that the power to regulate does not include the power to criminally prosecute violations of regulations, but only to seize property through civil process.

[3] These are the only provisions that allow federal criminal laws jurisdiction outside federal ground.

[4] These powers, if not exercised by the State, revert to the people.

[5] This provision would seem to forbid taxes on interstate commerce if export to another state of the U.S. is included, leaving only intrastate commerce or commerce on federal ground subject to excise taxes or duties, although interstate commerce can otherwise be regulated.

[6] This means obeying constitutional laws and practices, and resisting unconstitutional ones.

[7] This is not clearly stated, but implied.

[8] The power to tax is not the power to regulate or license, and vice versa. That is why the powers to tax and to regulate are separately specified. With one exception, which is never used (in Art. 1 Sec. 10), no allowance is made for the charging of fees to cover the costs of regulation, even though this has become a common practice, in violation of the Constitution.

[9] This use of the word “Legislation” is a term of art which grants general powers within its jurisdiction, including powers of criminal and civil law that a State might exercise within its jurisdiction, but unlike a State in that a State would be restricted by a state constitution granting it only certain powers. This is a major gap in the Constitution. Although it applies only to federal ground, it also does not make clear what are the limitations on such legislative power, other than the natural and constitutional rights of persons, and so has been interpreted to allow anything that does not violate those rights. There is a need for a federal sub-constitution, similar to a typical state constitution, that applies to federal ground.

[10] The wording suggests that the States have the power, but allows the Congress to pre-empt it.

[11] But this implies that if the State fails to appoint such officers, local militias are left to elect their own, which was the established Common Law practice at the time the U.S. Constitution was adopted. But “according to the discipline prescribed by Congress”. This means Congress can direct, but not forbid it, and implies that, in the absence of any training conducted by the State, local militias are left to organize and train themselves, which was the established Common Law practice established at the time the U.S. Constitution was adopted.

[12] The term used is “form” of government, but the Framers seem to have meant substance as well, and that is reasonably implied.

[13] The original term was “well-regulated”, but this is what was meant. Militias were originally local and independent of official authority, and it was intended that although they be subject to official authority when called into service by such authority, that they also be able to convene and operate independently when not.

[14] “Vehicle” was not explicitly included, but implied as an “effect”.

[15] This is needed to allow persons not only to have rights but the means to exercise them, and also to acquire those means if they do not already have them, without which the right would be unduly burdened. However, beyond this right, the community has the general power to restrict contracts for reasons of public policy and not just to avoid conflicts with the rights of others, so that there is not a general “right” of contract, but a “default privilege” of doing so, subject to law, for contracts that do not involve securing the means to exercise their natural rights.

[16] This is worded as “to execute the Laws of the Union”, thus allowing States to also call forth their Militias to execute their own laws.

[17] The exercise of general police powers is both a right of citizens, and a duty of able-bodied ones. All citizens are policemen, although ordinary citizens may be outranked by professional police officers when such officers are present in a law enforcement situation.

[18] Likewise, the keeping and bearing of arms, while a right of persons, is also a duty of able-bodied citizens.

FURTHER COMMENT:

Note that there is no right to marry or bear children included among any of the rights listed above. It is not a “natural” right, because natural rights are only rights of individuals, and exercise of a “right” to marry, without the consent of the other, would be an assault. Since consent is required, it is a matter of contract, and contractual rights are created by the community, even if it is a “community” of only two persons. Since the community is normally a larger polity, and since all legal contracts are agreements not only between the contracting parties, but also with the entire community, therefore the community has the power to regulate marriage and childbirth, and has exercised that power since time immemorial, for the benefit of the community.

Note also that the fundamental unit of the social contract is the local community, ward, or village. These may aggregate into a larger “state” or “federal union”, but the basis is agreement among those who are in direct contact with one another.

It is sometimes thought that “the Constitution” consists only of the written document. This is not so. The title “The Constitution of the United States” was added after the document was adopted, but “constitution” meant the “basic legal order”, and the Constitution consists of both the written document and the common law at the time the document was adopted, which is here referred to as the Common Law in caps. Now, the written document does supersede the Common Law where they might be in conflict, but it does not replace it, and courts must refer to the Common Law for guidance where the written document is silent or ambiguous.

In addition to the written document and the Common Law, the Constitution also includes Treaties, which, although they are valid only insofar as they are not in conflict with the written Constitution, are superior to both the Common Law and to State constitutions and laws, to the extent that those might be in conflict with the Treaties. Thus, some of the Treaties that have been adopted extend and clarify some of the rights, powers, and duties provided in the written Constitution. For example, that is how “federal ground” is extended to include coastal waters out to a certain distance from shore, and the grounds of U.S. embassies abroad, and how the rights of the people are amplified by the Charter of the United Nations and by various bilateral and multilateral Treaties that extend civil and commercial rights to U.S. citizens abroad.

The following diagrams can help clarify the relationship among the various elements of law in the U.S. legal system. Each element is superior to the one below it, although state constitutions are derived from their people, not from the U.S. Constitution. Although not shown, each element also includes the body of writings and recorded speeches of the legislators, diplomats, and judges who wrote the constitutions, treaties, laws, and court decisions, which clarify their intent, and which must be accepted as the basis of interpreting the words as originally meant and understood when there is confusion or dispute over their meaning.

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Quotable Moments in Time…

George-Washington

“The fate of unborn millions will now depend, under God, on
the courage and conduct of this army…There is nothing that
gives a man consequence, and renders him fit for command,
like a support that renders him independent of everybody but
the State he serves.”

– Letter from George Washington to the president of Congress,
Heights of Harlem (24 September 1776)

visit http://www.thefederalistpapers.org/ and they are also on Facebook and Twitter

A History of Hypocrisy…

In my series concerning the 14th Amendment and the Dredd Scott case ( Part 1, Part 2, Part 3, Part 4, & Part 5) we discussed a number of issues concerning slavery, who a slave was, who the 14th Amendment applied to, how it was conceived, and to what purpose it would serve.  I attempted to leave behind any and all thoughts of rightness or wrongness of slavery itself.  However, in this piece I intend to touch base on how wrong slavery is, and was.

 

 

One of the greatest Libertarian minds that our Founding Fathers rested on was that of John Locke.  In his book “The Second Treatise of Civil Government,” this was written in 1690, he stated outright the following:  “THE natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”  This is a strong indication that his thoughts on freedom were for ALL men and left little to no room for debate on the issue of slavery.  Furthermore, those famous words of Thomas Jefferson within the confines of that famous document the Declaration of Independence were, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  These are very strong sentiments of a man, or of men, concerning the rights of man.

Unfortunately, those who owned slaves considered slaves as property, or chattel, much like cattle or real estate.  Throughout the Dredd Scott case it was understood and explained that slaves were not part of “We the People” in the sense that they were people, but as property.  They, slaves, were considered “persons” (US Constitution, Article IV, section 2) in the legal sense of the word; which meant “In general usage, a human being; by statute, however, the term can include firms, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in Bankruptcy, or receivers.” Also, a corporation is a “person” for purposes of the constitutional guarantees of equal protection of laws and Due Process of Law.  In the US Constitution, Article I, section 2 slaves were classified as “all other Persons” and were valued at 3/5 of a person for purposes of taxation and representation.  Another of the great depravities of slavery was the fact the wealthy did not want to pay to get their crops harvested; most of them felt it an unnecessary hindrance to their wealth to house and feed those who did the work.

Now, I personally do not believe in slavery; however, had I been brought up in the south with slaves as part of my culture I may think differently on the matter.  The bible mentions slavery in several instances.  It has been customary throughout history to enslave those peoples who were conquered.

For a moment let us consider the dissenting opinions of the Justices on the Dredd Scott case, Justices Curtis and McLean.

In his dissent, Justice Curtis rightly stated, “Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects-those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State.” (DRED SCOTT v. SANDFORD, 1856)

William Lloyd Garrison stated it quite well in this sentiment, “The right to enjoy liberty is inalienable. To invade it is to usurp the prerogative of Jehovah. Every man has a right to his own body ’ — to the products of his own labor — to the protection of law — and to the common advantages of society. It is piracy to buy or steal a native African, and subject him to servitude. Surely, the sin is as great to enslave an American as an African.” (Garrison, 1833)

According to William Ellery Channing, two years later, “The very idea of a slave is, that he belongs to another, that he is bound to live and labor for another, to be another’s instrument, and to make another’s will his habitual law, however adverse to his own. Another owns him, and, of course, has a right to his time and strength, a right to the fruits of his labor, a right to task him without his consent, and to determine the kind and duration of his toil, a right to confine him to any bounds, a right to extort the required work by stripes, a right, in a word, to use him as a tool, without contract, against his will, and in denial of his right to dispose of himself, or to use his power for his own good. “A slave,” says the Louisiana code, “is in the power of the master to whom he belongs. The master may sell him, dispose of his person, his industry, his labor; he can do nothing, possess nothing, nor acquire anything, but which must belong to his master.” “Slaves shall be deemed, taken, reputed, and adjudged,” say the South-Carolina laws, “to be chattels personal in the hands of their masters, and possessions to all intents and purposes whatsoever.” Such is slavery, a claim to man as property.”  In his assertions a human being cannot be justly owned, with which I truly concur. (Channing, 1835)

Even in the Dredd Scott case in the dissenting vote were several references to the laws of the states and territories.  Once the “slave” was brought in to the territory, such as Wisconsin, the US Laws (as opposed to states laws) ruled.  All new territories and states under US Laws and under the Constitution, in order to become a state, slavery was not to be recognized.  In fact, in Justice Curtis’ dissent, the Missouri Compromise was mentioned where this was part of the compromise to become a state, which rendered any and all state laws recognizing slavery as null and void.  Justice Curtis also mentions the language of the Constitution where it discussed “natural born citizen”, continuing on with the fact that citizenship is granted at birth (US Constitution, Article II, section 1)

How could this subject be complete without some reference to the bible?  The bible does mention slavery and slaves; however, for the most part, it deals with the subjugation of a conquered people.  References are made to slaves that they should essentially be happy and do their due diligence to the best of their abilities.  The problem being is that God gave each and every man (women included) freewill, which grants us each the ability to do as we please provided we do not hinder the rights and liberties of another.  And since these rights are granted to us by our creator, no one can abrogate, abridge, or take them from us.  However, if we do not fight for our rights, who will fight for us?  Your rights are precious, all of them!  We must be willing to fight for each and every one of them, regardless of the consequences.

I hope this was of interest to you, please let me know your thoughts on this subject.

Works Cited

Channing, W. E. (1835). A Human Being Cannot Be Justly Owned. Retrieved October 1, 2012, from The Libertarian Library: http://www.libertarianism.org/publications/essays/human-being-cannot-be-justly-owned

DRED SCOTT v. SANDFORD, 60 U.S. 393 (U.S. Supreme Court December 1856).

Garrison, W. L. (1833, December 13). Man Cannot Hold Property in Man. Retrieved October 1, 2012, from The Libertarian Library: http://www.libertarianism.org/publications/essays/man-cannot-hold-property-man

John Locke-Slavery. (2007, October 28). Retrieved October 1, 2012, from Study Mode: http://www.studymode.com/essays/John-Locke-Slavery-123778.html

Locke, J. (1690). The Second Treatise of Civil Government. Retrieved October 1, 2012, from Constitution.org: http://www.constitution.org/jl/2ndtreat.htm

Madison, J. (1787, September 17). U.S. Constitution. The Constitution of the United States .

Jury Duty

Next week I am scheduled for jury duty.  I am rather excited about it, as I honestly believe that it is not just our civic duty to perform, but also our moral duty.  You may be wondering “moral duty?”  Yes!  So many people are hell bent on getting out of this obligation, because it is interfering in their lives; however, they fail to realize the purpose of this duty.  YOU are all that stands between a fellow citizen and jail, potentially a wrongful imprisonment.  This is a serious subject and MUST be deemed as such.  You are not the Prosecuting Attorney’s friend, nor are you the District Attorney’s friend; you are, in fact, the ally of the accused, because you can stop the improper use of the law and say to one and all…THIS IS WRONG AND I WON’T STAND FOR IT!

Why a JURY of your PEERS is is so vital to FREEDOM?  One day long ago a man rode into the small town of Culpeper, VA He was totally shocked by what he saw!  There, in the middle of the town square was a minister tied to a whipping post, his back laid bare and bloody with the bones of his ribs showing. He had been scourged like JESUS, with whips laced with metal.  The man turned to someone and asked what the man had done to deserve a beating such as this.  The reply given him was that the man being scourged was a minister who refused to take a license. He was one of twelve who were locked in jail because they refused to take a license to preach.  The time was March, 1775 and the man who viewed this travesty was none other than Patrick Henry and the incident was the basis for his “…GIVE ME LIBERTY OR GIVE ME DEATH!” speech.

On another occasion in history a Mr. Bushnell sat on the jury for a man who was placed on trial for violation of a “Conventicle Act.” This was an elaborate Act which made the Church of England the only legal church. The Act was struck down by the jury’s not guilty vote. Freedom of Religion was established and became part of the English Bill of Rights and later it became the First Amendment to the U.S. Constitution. In addition, the Right to peaceful assembly was founded, and Freedom of Speech. Had Bushnell and his colleagues yielded to the guilty verdict sought by the judge and prosecutor, William Penn most likely would have been executed as he clearly broke the law.  The year was 1670 and the man on trial was William Penn.

As a member of the Jury you carry much weight and power, unfortunately people are more interested in going home to watch reruns of Friends or MacGyver, hmmmm!  The previous two stories are the basis for the Bill of Rights, more specifically the First, Fourth, Fifth, Sixth, and Eighth Amendments

AMENDMENT VI (1791) to the US Constitution reads as:  “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”  This guarantees each of us the right to an impartial Jury, but so many of us forget that we are INNOCENT UNTIL PROVEN GUILTY, not the other way around!

We are endowed with God-given, or inalienable, Rights.  They come from our creator; no one can take them from us and we cannot give them away without the ability to pick them back up and use them again.  Only YOUR creator can take them from you!  As a Juror you have an obligation to the accused to ensure and make certain that he, or she, gets a fair trial.  It is NOT your duty to make certain that every Tom, Dick, and Harry is found guilty of everything that the Prosecutor swings before you and says that he is guilty.  NEWS FLASH: Not every Policeman, District Attorney, Prosecutor, and Judge tells the truth – nor do they ensure that you know everything that you need in order to make that decision.

“All laws which are repugnant to the Constitution are null and void.” Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

JURY RIGHTS

“The jury has the right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court, 1789

“The jury has the right to determine both the law and the facts.” Samuel Chase, U.S. supreme Court Justice, 1796, Signer of the unanimous Declaration

“The jury has the power to bring a verdict in the teeth of both law and fact.” Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902

“The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941

“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge…” U.S. vs. Dougherty, 473 F 2nd 1113, 1139. (1972)

And these are the Judges from the days of old speaking on the subject. During the Reconstruction Period of our history it was difficult at best to get justice for the previously known slaves and  ultimately impossible to find a white man guilty of murdering a previously know slave and that was when the Judges began to instruct the jury and essentially said that the jurors needed to listen to them.

The ultimate goal of the Communist belief is power and the Communist Manifesto represents a misguided philosophy, in my opinion, which teaches the citizens to give up their RIGHTS for the sake of the “common good,” but it always ends in a police state.  Just listen to the news and all of the things that YOUR government is implementing and how YOUR RIGHTS are being ebbed away by their law making and chiseling away at the Constitution.  This is considered preventive justice.  Control is the key concept. Read the ten tenets of communism carefully:

1. Abolition of private property.

2. Heavy progressive income tax.

3. Abolition of all rights on inheritance.

4. Confiscation of property of all emigrants and rebels.

5. Central bank.

6. Government control of Communications & Transportation.

7. Government ownership of factories and agriculture.

8. Government control of labor.

9. Corporate farms, regional planning.

10. Government control of education.

As a juror you may have to make a decision that takes away someone’s rights, rights are equivalent to property.  Just think about it and consider these things when you are on a panel of jurors.  I would highly suggest you read and reread the Declaration of Independence, US Constitution, Bill of Rights, and the Citizen’s Rule Book (which has the founding documents in it).  It would serve you well to know your rights and the rights of your fellow citizens.

 

References:

http://archive.org/stream/CitizensRuleBookJuryHandbook/

http://lewrockwell.com/peters-e/peters-e165.html

http://www.archives.gov/exhibits/charters/

Files for your viewing pleasure:

citizen-rule-book

CARLTEXT