The Bill of Rights

Part 2

…the first official act of this nation declared the foundation of government in these words:  “We hold these truths to be self-evident***.”  While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the constitution in the spirit of the Declaration of Independence.” 

– US Supreme Court, majority opinion; Gulf, Colorado & Sante Fe Railroad Co. v Ellis, 165 U.S. 150, 159-160 (1897)

This sets the tone for the beginning of these United States and I promise not to digress too far from the subject matter.  As a unified people the Declaration of Independence was the first legal act of this country to the world thereby separating the ties that bound us to the English Empire forever.

Now, I understand the Supreme Court had ruled in the case of Cohens v. Virginia, 19 U.S. 264 (1821) that The Federalist Papers, was the exact record of the intent of the framers of the constitution Madison, Hamilton, and Jay. I have also seen references, in many instances where the Anti-Federalist Papers were also given much weight in court cases heard by the Supreme Court of the United States.  So obviously being able to read their published thoughts as they were doing this constitution is very forceful in terms of constitutional interpretation. The intent of the lawmaker is the law. And it shall be liberally enforced in favor of you; you are the clearly intended and expressly designated beneficiary.  Everything you can do to enhance your position in terms of how your lawmakers thought when the framed this constitution clearly makes your case even stronger for the constitution to be interpreted in favor of you. So, it is recommend you get a copy of The Federalist Papers and read it.  That being said, you also need to research the Debates concerning the creation of the Constitution, which would also be considered the mind of the Founding Fathers.

How, you may ask, do either of these two relate to the Bill of Rights?  First of all, the Declaration of Independence set the tone for these United States and for every legal act thereafter.  Secondly, the Supreme Court of the United States tells us that the Federalist Papers (written by Alexander Hamilton, James Madison, & John Jay) are the basis of the Founding Fathers decisions and mind with respect to the United States Constitution, with respect to the Cohens case.  And through deduction we can also extrapolate the messages from the Anti-Federalist Papers (written or inspired by Thomas Jefferson, George Clinton, Robert Yates, Samuel Bryan, Melancton Smith, Richard Henry Lee, Mercy Otis Warren, & Patrick Henry) as also being the mind and basis of the decisions of our Founding Fathers.

In Federalist Pater #84, Alexander Hamilton was attempting to influence the American People that there was no need for a Bill of Rights to be added to the Constitution because the rights of man were retained by him if not specifically given to the state or the federal government.  Hamilton stated in this paper, The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: “To bereave a man of life, [say she] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.”  Despite the old English in which it is written you can discern from it its meaning and if you consider the present day events of our Legislature you can see that he was completely off point.  The reason I say he was completely off point is just consider the USA PATRIOT ACT (which was the start of the indefinite detentions); consider the Japanese-American camps during WWII in which American citizens were cast and thereby lost all that they owned and this was by one of our beloved Presidents (FDR); the JOHN WARNER DEFENSE ACT in which our Fourth and Fifth Amendment protected and secured RIGHTS were gutted and do not forget the one hundred twenty five year old Possee Comitatus Act of 1878 which said military forces could not act on American soil as it was not constitutional for them to do so.  Despite all that Hamilton spoke within that paper it only took 236 years to steal the rights away from America’s Citizens.  You can also pinpoint some Constitutional violations as early as George Washington with the quashing of the Whiskey Rebellion of 1791, or John Adams with the Alien and Seditions Act of 1796.

I, for one, am of the belief that there are no reasonable restrictions on a man’s God given rights other than, perhaps, if one’s exercise of rights would denigrate the rights of another in an illegal and unconscionable way.  There have been a great number of Supreme Court cases which either strengthened the Citizen’s rights or degraded them.  There are two minds in the Supreme Court of the United States that you need to be aware of: One is the “Originalist” and the other is the “Living Document”.  Each mind has valid points; however, I am of the mind that should be an Originalist, which means you possess the ideological mindset to determine the mind and meaning of the Founding Fathers when they wrote the Constitution.  Those with the Living Document mindset believe that the Constitution is a living breathing document and its meaning changes upon the whims of society and with the times…this mindset is dangerous to the Rights and Liberties of every American, in my opinion; one day you have a specific Right and the next, based upon the whims of society, you no longer have that right.  Consider the above paragraph where you possess the Right of Habeas Corpus written within the text of the Constitution, but President Lincoln through extra-constitutional means suspended the writ of Habeas Corpus.  This was a duty of the Congress in Article I, section 9.  You will note throughout our history that Presidents have time and again overstepped their boundaries with respect to their duties and responsibilities and those of another branch of government.  This is more noticeable in more recent days with the information technology available to us.

More to come…

See also: Part 1, Part 2, Part 3, Part 4, Part 5

Works Cited

Alexander Hamilton, J. J. (1788). THE FEDERALIST PAPERS.

Butler, J. (n.d.). THE BEST OF CARL MILLER. Retrieved January 15, 2013, from MY PRIVATE AUDIO: http://www.myprivateaudio.com/CARLTEXT.pdf; https://www.youtube.com/watch?v=1s-zHrNPfkQ (PARTS 1, 2, & 3)

LII. (n.d.). 18 USC § 1385 – Use of Army and Air Force as posse comitatus. Retrieved January 15, 2013, from Legal Information Institute: http://www.law.cornell.edu/uscode/text/18/1385

Know Your Constitution – Carl Miller Parts 1 – 3 (abt. 1980). [Motion Picture].

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A Moment to Reflect…

I was wondering what I was going to write for the fourth of July.  Something patriotic, perhaps?  Bet you didn’t see that one coming, eh?

There are many who fail to seek out our history and yet continue to refer to it in order to make a point.  At some point in time, the actual history of America becomes revised to fit the circumstance(s) while failing to reflect its entire purpose.  We the People of the united colonies, in one voice, declared our independence from King George for usurpation of power without adequately representing our interests and for what amounted to a 1% tax.

Now, sit back and reflect on all of the wrongs that have been committed against the people of America:

  • Arrests without probable cause and trumped up charges
  • Setting up of law abiding citizens just to make an “justifiable” shoot
  • Constant abuse of our individual privacy – drone uses, Patriot Act wire-taps, etc.
  • The loss of our property rights (Kelo v. New London City decision)
  • Legislation from the bench at various levels of the Judiciary, including the recent US Supreme Court ruling over the Affordable Healthcare Act
  • The refusal of the Senate and the Congress to do their job – one in particular is their refusal to organize a militia, instead they increase the size of the military; authorize military toys for the local and state police forces, etc.
  • Look at how much in the way of taxes you are paying.  Add it all up and you will be surprised that it amounts to almost 50% of your income.
  • Look at our looming and ever-increasing federal debt…

For all of these, and all we do as Americans is complain.  Looking back on things, throughout the actual history of these United States of America – don’t you think that our Founding Fathers and all of the Revolutionary warriors who spilled their blood upon the ground in defense of this nation would be turning over in their graves?  Our taxation alone is enough cause to be riled beyond belief – yet we just complain until we get used to it and then our taxes rise again, because we become comfortable…again.

As you ponder and reflect on our history and our Independence from tyranny from afar, consider the tyranny that is so close to us.  Remember the liberties that were fought for and the God-given Rights that were recognized – yet we take them all for granted, if we even recall what any of them are, hmmmm.

I leave you now with some words from one of our Founding Fathers, Thomas Jefferson, the principle author of the Declaration of Independence, and the Third President of the US under the US constitution.

Where is America’s sense of resistance?  The resistance we once had is as American as hot apple pie and baseball…so where is it?

God bless and Godspeed to you all on this holiday, be safe and be vigilante in all your endeavors!

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

On the Constitutional Side…

14th Amendment Part 2

I have endeavored to read through the Dredd Scott case, which is an 1856 case that definitively defined the who the  founding fathers intended to include within the meaning of the term “Citizen of the United States.”  There is quite a bit to this case, as mentioned it is 110 pages long – who would have thought that the Supreme Court Justices of that time would have had that much to say on any one subject?  With that wise crack aside, this was a most important case in which a person born into slavery (Missouri) was moved from time to time to other parts of the country (Illinois, Wahington DC, & Mississippi).

Dredd Scott relied on the fact that newer states admitted into the country could not be slave states and therefore when passing through such a northern state he was no longer a slave.  In so doing, he was then accepted into the citizenry of the state as part of “The People” who created the sovereignty of the United States.  This was not the case according the Chief Justice Taney.  Keep in mind the time-frame, this was prior to the Civil War and prior to the 13th Amendment.  Dredd Scott brought a legal suit against his master/captor.  He left Illinois to bring about this suit in the state courts of Missouri.  Mr. Scott, by his own averment, indicated that he was born into slavery due to his lineage.  He also made the mistake, in his assumptions, that he was a citizen of the several states – based upon the determination of Chief Justice Taney; another mistake he made was to return to the state of Missouri from Illinois, in which he proceeded to bring this suit – in so doing he returned himself to a state of slavery, based upon the laws of Missouri as determined/inferred by Justice Nelson.

The slaves who were of African decent were noted in the following ways: the African race, the unfortunate race, the negro race, the negro slave,beings of an inferior order, this unhappy race, etc.

These people were brought from Africa  to be traded, bought and sold as lawful property, no different than how we see cattle today.  One of the questions which  Chief Justice Taney posed before the court was:  Can a negro, whose ancestors were imported into this country, sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?

Based upon the litany of cases, individual state laws (in force and enacted at the time of USCs adoption and after), Federal laws, the Constitutions (state & federal), etc.  I have also read many of the writings of Abraham Lincoln during his time as a lawyer (1836-1850s) in which he indicated a desire for freedom for the negro slaves, but the preference of creating a colony where they could be taken back to their homeland of Africa, or some other island.

See also Part 1 Part 3, Part 4

Politically Speaking…

I was listening to some of the political commentators on the news today, as well as some of the comments by the candidates.  It is well understood that candidates running for the number one spot will speak out against the others for the soul fact that they need that placement.  In the Iowa Caucuses the topic of interest was Ron Paul who is sitting pretty high and mighty.

Ron PaulThe main problem with the other candidates is his Foreign Policy.  One he finds it irrelevant that Iran obtains nuclear weapons and second his so-call “isolationist policy”.  First, like it or not, Iran is a sovereign nation!  For the US or any other nation to tell them they cannot have nukes is much like either Russia or China telling the US that they cannot have such weapons, it is a ludicrous idea and concept; although, I would feel much better if they didn’t have them.  Secondly, his so-called isolationist view stem from our history.  A little known man named Thomas Jefferson once stated in his First Inaugural Address, “…peace, commerce, and honest friendship with all nations, entangling alliances with none…“, which indicates we are to trade with other nations for business but are not to permit ourselves to get into any alliances that place us into a precarious position.  The present day politics have in essence allowed us to whore ourselves out to the nations that we are in an “entangling alliance” with…and where had that gotten us?

I personally like the man as I find him refreshingly more conservative than most others.  A true conservative wants smaller government, government that has less interaction with The People’s lives, and to be rid of the Federal Reserve.  This man has forgotten more about the Constitution and Constitutional Money than I believe I will ever obtain.  However, that is probably another blog topic or two.