Is the Federal Government Really a State, if the IRS Says It Is?

By July 4, the Supreme Court will have decided King v. Burwell. (Those of us who write about the most recent cases sometimes do not have a work-free July 4th weekend, but the Justices always do. The justices like a summer vacation longer than just a few weeks, so I can confidently predict we will know the answer before July 4, and most likely before the end of June.)

King v. Burwell involves the Patient Protection and Affordable Care Act [Pub. L. No. 111-148]—popularly called either the “ACA,” or “Obamacare” by both its opponents and its proponents. The litigation now before the Supreme Court is, on the surface, a simple issue of statutory interpretation. Only millimeters beneath the surface is a broader issue—how far will the courts go in allowing administrators to change the law by simply redefining terms that are not vague at all. This issue is peculiarly significant because the agency doing the redefining is the Internal Revenue Service. The first named defendant is Sylvia Burwell, the Secretary of Health and Human Services, but another defendant is the IRS, and it is the agency doing the redefining. No case has ever held that Congress could delegate to the IRS the power to raise or lower taxes.

The ACA, in Section 1311 [42 U.S.C. § 18031], provides that states shall create Health Benefit Exchange (“Health Exchanges”). If they meet certain criteria, they are “Qualified Health Exchanges.” The qualified Exchanges qualify for federal subsidies. Nonqualified exchanges do not.

The Court has consistently held that Congress does not have the constitutional power to order or commandeer states to enact particular laws. New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). While Congress cannot force a state to enact a qualified Health Exchange, it can use its taxing and spending power to “bribe” states by offering various incentives to states that enact and implement the kind of laws that Congress wants. That is what the ACA does.

It provides that if a state creates a qualified Health Exchange by January 1, 2014, then another section of the law—26 U.S.C. § 36B, in the Internal Revenue Code —offers generous subsidies. The subsidies are in the form of ‘‘premium assistance tax credits” and “refundable tax credits.” They not only reduce tax liability but also provide for federal money paid to private insurance companies.

Congress also created a fallback position: if a state refuses to set up a State Health Exchange, a different section of the ACA [42 U.S.C. § 18041(c)] authorizes the Secretary of Health and Human Services (HHS) to set up Federal Exchanges in those states that refuse to set up a State Exchange.

No provision of the ACA offers any tax subsidies or payments for federally created (as opposed to state created) Health Exchanges. That supports the carrot-and-stick approach to encourage states to create, implement, and maintain state Health Exchanges. In other words, if the state creates a Health Exchange, its citizens secure valuable tax benefits in addition to acquiring health insurance. If the state refuses to create, implement, and maintain a Health Exchange, that state’s citizens do not receive the financial benefits, but they will have to pay federal taxes that finance the subsidies that residents in other states (those with state-created Exchanges) will receive.

Besides to the financial incentives (carrots), the ACA has disincentives (sticks) to prod states to set up Health Exchanges. For example, the law penalizes states that do not create Exchanges by barring them from narrowing their state Medicaid programs until “an Exchange established by the State . . . is fully operational.” [42 U.S.C. § 1396a(gg)]

As one proponent of the law explained,

[I]f you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So, you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country.

Congress expected that all or most states would take this “bribe” because it gave an offer that was hard to refuse.

Nonetheless, some states—actually a lot of states34 of them — did not pick up the free federal subsidies (the carrots) and were willing to put up with the disincentives (the sticks). They simply refused to establish State Exchanges. It turned out that the ACA has not been as popular as its proponents believed it would be. Indeed, polls show that the more people learn about the law, the less favorably they view it. Moreover, many individuals have concluded that it is quite rational to not pay for health insurance until they get sick, because the fines are often not very much and the ACA does not allow insurance companies to refuse coverage because of preexisting medical conditions.

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REAL ID IS COMING TO BITE AMERICA…NAZI-LIKE TENDENCIES & HISTORY REPEATS

>>>>>>>>>>>>>>>>>> W A R N I N G A M E R I C A <<<<<<<<<<<<<<<<<<<

Oklahoma residents will soon need passport to hit the skies
SEPTEMBER 18, 2014
BY HEATHER WARNER

Traveling out of the airport is about to become a little bit harder in Oklahoma. That’s because an Oklahoma driver’s license will no longer be accepted at security at the beginning of the new year.

All Oklahoma residents will need a passport, even on domestic flights. The state never signed on to the federal government’s Real ID act, which is supposed to make it harder for potential terrorists to get a fake i-d. Now travelers will have to bring extra identification with them to the airport.

“You would be required to have a drivers license or passport or some other federal id to actually go through the TSA checkpoint or fly on a commercial aircraft,” says Karen Carney of Will Rogers World Airport. One passenger at the airport says he’s all for it. “If everybody does it and I do it, it makes it safer for all of us I guess.”

Oklahoma citizens will also have to bring their passport to get through security at federal buildings, such as a federal courthouse.

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REAL ID Implementation Embraced by 41 States
Driver’s Licenses Still at Risk of Terrorist Abuse

Janice Kephart is the Director of National Security Policy at the Center for Immigration Studies.

While driver’s licenses and birth certificates remain a tool sought by terrorists to support jihad in the United States, Department of Homeland Security Secretary Janet Napolitano is still pushing for repeal of driver’s license and birth certificate standards supported by 9/11 Commission recommendations. Ironically, Secretary Napolitano continues to assail the REAL ID Act’s standards despite new statistics — still held tightly within DHS — showing that 41 states, plus D.C., have embraced REAL ID implementation even without DHS support or new monies.

The importance of secure identification was re-emphasized just last month in Senate testimony by the former chairman and vice chairman of the 9/11 Commission:

Standardize Secure Identifications

Eighteen of the nineteen 9/11 hijackers obtained 30 state-issued IDs amongst them that enabled them to more easily board planes on the morning of 9/11. Due to the ease with which fraud was used to obtain legitimate IDs that helped the hijackers embed and assimilate in the U.S. for the purpose of carrying out a terrorist act, the 9/11 Commission recommended that ‘The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.’

The REAL ID Act established these standards by statute. In 2008, detailed regulations were issued setting standards and benchmarks for driver’s license issuance. While nearly one-third of the states have complied with the first tier of benchmarks, the deadlines for compliance have been pushed back twice to May 2011, and a recent announcement pushed back compliance again until January 2013. The delay in compliance creates vulnerabilities and makes us less safe. No further delay should be authorized, rather compliance should be accelerated. [Emphasis added.]

Terrorists Still Seek Driver’s Licenses. On February 23, 2011, the FBI filed an extensive, detailed criminal complaint with a tremendous amount of forensic evidence indicating that a Saudi foreign student, Khalid Ali-M Aldawsari, who entered the United States on a student visa, had done so for the sole purpose of using our educational and visa system to commit major terrorist acts. His targets included former President Bush’s home and dams and other key infrastructure, intending to use a variety of homemade car bombs assembled with knowledge gained in chemical engineering classrooms and chemicals and materials purchased here in the United States. What did Aldawsari intend to use in order to embed in the United States and avoid detection? Multiple state-issued driver’s licenses and a U.S. passport based on fake birth certificates, not a particularly dissimilar method to the 19 9/11 terrorists who had 30 state-issued IDs between them and also used fraud to game the driver’s license system. The Khalid Ali-M Aldawsari criminal complaint specifically mentions that his plan for jihad depended in part on well-known terrorist travel methodology:

In a ‘synopsis of important steps,’ ALDAWSARI listed: obtaining a forged US birth certificate; applying for a US passport and driver’s license; traveling to New York for at least a week; renting a car via the Internet; changing clothes and appearance before picking up the car; using a different driver’s license for each car he rents; preparing the bombs for remote detonation; putting the bombs into the cars and taking them to different places during rush hour; and leaving the city for a safe place. [p. 10]

Khalid Ali-M Aldawsari might have been successful but for his dogged determination to accumulate as much precursor chemicals as possible (for the explosives), for which Carolina Biological Supply rightly reported his purchases to law enforcement. The Aldawsari case shows that not much has changed in the world of terrorist travel since the publication of the 9/11 Commission Report and the supporting staff monograph, 9/11 and Terrorist Travel: driver’s licenses are still an important tool in the terrorists’ toolbox, whether a lone actor or a member of a larger organization. Aldawsari is a significant example of why it is important to prevent fake birth certificates and other lies about identity from being used to obtain legitimate state-issued driver’s licenses. It is important to remain vigilant about assuring that people are who they say they are. At its base, that is what the REAL ID Act is about: assuring that driver’s license applicants are who they say they are, from the sum-total of the identity documents they present as applicants.

REAL ID Implementation Embraced. Secretary Napolitano has again extended the deadline for states to comply with the minimum standards of REAL ID, to exactly the time frame she could be leaving office: January 2013. Ironically, however, the states have not paid much attention to Napolitano or to the fact that federal monies for REAL ID have all but dried up. Instead, the states are complying with REAL ID in numbers that exceed what I published in January 2011 in “REAL ID Implementation: Less Expensive, Doable, and Helpful in Reducing Fraud”, which is summarized as follows:

[The] 2005 REAL ID law … based on recommendations of the 9/11 Commission, is proving to be easier to implement and less expensive than critics have alleged for years. In fact, 11 states have already fulfilled the critical first stage of REAL ID compliance — meaning they have fulfilled all 18 REAL ID security benchmarks for material compliance — ahead of the May 2011 deadline. Additionally, many other states have implemented or are in the process of implementing more secure procedures, systems, and documents consistent with the requirements of REAL ID. The next stage requires all individuals under age 50 as of December 1, 2014, to be issued (by that date) a driver’s license or identification card that complies with all of the REAL ID requirements if the document is to be presented for official federal purposes such as boarding a commercial aircraft. The final stage requires all eligible individuals using a state-issued driver’s license or identification card for official federal purposes to be issued REAL ID-compliant licenses by December 1, 2017.

According to internal, official government information which the Department of Homeland Security (DHS) has not shared with Congress beyond the House and Senate appropriators, there are not only 11 states that have fulfilled the first 18 material compliance benchmarks as I reported in January, but another five that have submitted full compliance packages to the DHS, meaning they are asking DHS to certify that the state has met all the criteria for REAL ID, criteria that were not required to be completed even under the old deadline until December 1, 2014. Twelve more states have told DHS they are fully committed to meeting material compliance, but need more time, while another four states have comparable Enhanced Driver’s License programs that former DHS Secretary Chertoff stated were REAL ID-compliant.

Beyond these 32 states that have already met at least REAL ID material compliance, another 12 states have written and assured DHS that they are seeking to meet at least 15 of 18 of the material compliance standards. In total, of the 50 U.S. states and six territories, 44 (41 states and three territories) of them have given DHS the green light that they are on board and working toward REAL ID compliance. Of the remaining nine states and three territories, three of those states have laws banning the state from compliance yet two of them are meeting REAL ID standards without using the REAL ID name. All in all, that leaves only six states that appear to have little interest in REAL ID implementation.

REAL ID Implementation Status State / Territory
Submitted full compliance certification packages to DHS1 Conn., Del., Md., S.D., Tenn. (5)
Self-certified: Issuing materially compliant licenses (meeting the first 18 benchmarks) + compliance mark (gold star) Ala., Fla., Ind., Utah (4)
Self-certified: Issuing materially compliant licenses (meeting the first 18 benchmarks) Ark., D.C., Iowa, Kan., Ky., Miss., N.J. (7)
Committed to meeting material compliance but need time Colo., Hawaii, Ill., Neb., Ohio, Puerto Rico, R.I., Texas, Va., W.Va., Wis., Wyo. (12)
Certifiable Enhanced Driver’s License programs N.Y., Mich, Vt., Wash. (4)
Committed to meeting 15 of 18 benchmarks Ariz., Calif., Ga., Minn, Mo., Nev., N.H., N.C., N.D., Pa., S.C., U.S. Virgin Islands (12)
Will not meet four or more benchmarks in the next 12 months Alaska, American Samoa, Guam, Idaho, La., Maine, Mass., Mont., N.M., Okla., Ore., N. Marianas2 (12)
Note 1 According to DHS, other states have assured DHS that once DHS proves its willingness to certify states’ compliance packages, they will take the extra steps to assemble and submit the required packages.

Note 2 Montana, Oklahoma, and Washington have laws preventing REAL ID implementation, although Washington state has tried to repeal the law, and does have an Enhanced Driver License. Montana has strict issuing standards but they are not intended to be in line with REAL ID.

Birth Certificate Standard Implementation. The 9/11 Commission also recommended minimum standards for birth certificates, for reasons made evident in the above excerpt from the Aldawsari criminal complaint. In February 2011, I updated birth record standardization implementation in “Update on Digitization of Vital Records.” The good news is that in the past month, Georgia and New York City have completed installation of the hardware and software necessary to support electronic vital records checks, and Vermont has begun the process (as shown in the updated map below). This means there are now 30 states online ready to perform birth certificate verification for other state DMVs and other users. If states want to shore up against attempts by terrorists such as Aldawsari, criminals, and illegal aliens, they should consider providing DMV connectivity as soon as practicable, even though it is not a strict requirement of REAL ID.

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Congressional Annoyance. While the congressional disillusionment with the REAL ID Act that existed from 2005-2009 has now shifted with proof and value of REAL ID implementation, Secretary Napolitano has kept that implementation hidden from view and continued to seek the law’s repeal. She has now extended the compliance deadline of the REAL ID Act rule by 20 months, citing that, “[t]he inability of States to fully comply with the requirements of REAL ID by May 11, 2011, is the result of a number of factors, including diminished State budgets caused by the economic downturn and the uncertainty throughout much of the 111th Congress about Congressional action on the PASS ID Act.” Her statement, as shown in the numbers being held by her own department, implies noncompliance, rather than the truth: “uncertainty” was created by her push for repeal of REAL ID.

Here are some of the secretary’s statements creating that “uncertainty;” note the erroneous assertion that REAL ID repeal meets the intent of 9/11 Commission recommendations regarding the setting minimum standards for driver’s licenses:

April 22, 2009: “And so we’ve been, over the last weeks, meeting with governors of both parties to look at a way to repeal REAL ID and substitute something else that pivots off of the driver’s license but accomplishes some of the same goals.”
— Speech delivered before the Anti-Defamation League National Leadership Conference

June 15, 2009: “I am committed to supporting this important bill and it is my hope that Congress will pass it into law as quickly as possible.”
— DHS Press Release regarding the PASS ID Act (“Providing Additional Security in the States” )

June 25, 2009: “Now, when I get back, I will turn my attention immediately to a bill that was proposed in the Senate this past week known as PASS ID. PASS ID is a national security measure. It fulfills one of the key recommendations of the 9/11 Commission, which was that the Federal Government set a national standard for identification.”
— Remarks at “Pen & Pad” Session with DHS Beat Reporters

July, 15, 2009: “PASS ID is a critical piece of national security legislation that will fix the REAL ID Act of 2005 and institute strong security standards for government-issued identification…PASS ID will enact the same strong security standards set out by REAL ID as quickly as REAL ID – but, critically, this bill provides a workable way to get there.”
— Testimony delivered to the Senate Homeland Security and Government Affairs Committee

July 20, 2009: “Pass ID provides a strong yet flexible framework for states to implement secure identification,” said Secretary Napolitano. “I am proud to join our nation’s governors in supporting Pass ID – a cost-effective, common-sense solution that balances critical security requirements with the input and practical needs of state governments.”
— “DHS Press Release, Secretary Napolitano, Governors Show Support for Pass ID in Mississippi

December 2, 2009: “Pass ID helps us meet the 9/11 commission recommendations and at the same time addresses issues that were legitimately raised by the states. And so what I would prefer to urge the Senate to do and use the – this hearing as an opportunity to really urge it to do is to move to floor action and move Pass ID through so we can get it over to the House. I think it could go very quickly over there and we could solve this issue, as opposed to extension after extension, which not only doesn’t deal with the 9/11 commission recommendation but it’s just another year of uncertainty.”
— Hearing before the before the Senate Commerce, Science and Transportation Committee

December 9, 2009: “Should Congress not act before it adjourns this year, we have planned for contingencies related to REAL ID implementation to minimize the impact to U.S. citizens. Any of these steps, however, would represent a temporary approach that does not advance our collective security interests over the long-term.”
— Testimony delivered before the Senate Judiciary Committee

March 9, 2011: “I would encourage Congress to take a fresh look [at the PASS ID Act].”
— Hearing before the Senate Judiciary Committee

Congress has begun to show its annoyance with the secretary’s unwillingness to implement REAL ID as the federal law she has a duty to uphold. No longer does Secretary Napolitano’s PASS ID have champions in either chamber. Moreover, the quiet that permeated both chambers while PASS ID was being considered in 2009 has turned into outright support for REAL ID, especially since publication of facts pertaining to the current status of implementation.

On March 28, Senate Judiciary Committee Ranking Member, Charles Grassley (R-Iowa), and House Judiciary Chairman Lamar Smith (R-Texas) put out a searing press release regarding a letter jointly sent to Secretary Napolitano criticizing the delay in REAL ID implementation by 20 months and yet another call for REAL ID repeal by the secretary. Rep. Smith stated: “To undermine the REAL ID law is to make it easier for terrorists to operate in the U.S. The Administration should stop trying to undercut REAL ID and instead support the full implementation of this critical national security law.” Ranking Member Chuck Grassley was equally pointed:

REAL ID is more than protecting an individual’s identity; it’s about protecting the American people by making sure licenses are secure and impede a terrorist’s ability to carry out attacks. The REAL ID Act was a direct result of the 9/11 Commission Report, and was signed into law to improve our national security and protect the American people from terrorist attacks. It’s clear from recent arrests that terrorists want to exploit our weak identification requirements to carry out attacks on Americans. The administration needs to commit to full implementation of current law, instead of kicking the can down the road.

On March 2, 2011, the House Committee on Appropriations, Subcommittee on Homeland Security, held a hearing on the Department of Homeland Security’s Fiscal year 2012 budget request. Subcommittee Chairman Robert Aderholt (R-Ala.) noted that the “The Department of Homeland Security cannot operate in a world as it would like to be. Instead it must follow the law as it is written. This assertion not only applies to the budget realities I have just outlined but also to areas where this administration has been reluctant to fully engage, such as immigration enforcement, REAL ID, and the biometric exit solution for US-VISIT. These are mandates the Department of Homeland Security must plan for, budget for, and perform.”

Aderholt’s comments were preceded by a February 28, 2011, letter to Secretary Napolitano sent by Republican leadership with jurisdiction over REAL ID implementation, stating that “[r]ather than usurping Congress’s authority in writing policy, DHS should commit to the law and fully support implementation.” The letter was signed by House Judiciary Committee leadership, former Chairman and REAL ID author Rep. James Sensenbrenner (R-Wis.), and Chairman of House Judiciary Lamar Smith (R-Texas), as well as Chairman of the House Homeland Security Committee, Rep. Peter King (R-N.Y.).

Bill of Rights

debate_Constitution

Part 11

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

If you truly wish to understand the First Amendment, you would be wise to study/read the Federalist Papers, writings of the individual founding fathers, and the Debates on the Constitution, and of course the letters sent by each of the founders to others (even though this may be considered part of their writings, I view them as personal correspondence.)

There is a wide array of information, books, web-sites, articles, etc. concerning the founders and their intention.  Me personally, I am both an Originalist and a Textualist…I believe the Constitution and the Bill of Rights live on with the original meaning that the founder’s intended and can be used in all governmental circumstances; also, I believe the founders wrote exactly what their intentions were in word form and can be gleaned from the text we presently have before us.  I do not believe it to be a “living document” that is breathed new meaning with the advent of a new generation.  You may not like the right that someone has, but guess what…not everyone likes the rights you are exercising! 

debate1I leave you with this quote:

“I do not agree with what you have to say, but I’ll defend to the death your right to say it.” ~Voltaire

 

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9,  Part 10

Bill of Rights

freedom-of-speech

Part 10:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We have a RIGHT to peaceably assemble with others, this is not in dispute.  We also have the RIGHT to petition our government for redressing our grievances; this also is not in dispute.  These articles are foundational to our right to gather as a people to tell those who govern us, by our consent, that they have done us a great disservice.  However, the US Supreme Court stated in a 1984 decision, “Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to communications of members of the public on public issues.”  Seems a bit odd, don’t you think?  Our Founding Fathers fought over one of the grievances of just such a nature.  In-fact, it was not unheard of that if someone was considered such an upstart the British Crown would remove that person(s) to England for trial there, which created the impetus for the requirement of a jury of one’s peers in the Sixth Amendment.

Here is where things get interesting as I was reading the definition of the “Freedom of Speech” in Black’s Law Dictionary; I was referred to the “Fighting Words Doctrine.”  Who knew?  And clearly indicate that not all speech is protected by the First Amendment.  “These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Over the course of some 60-70 years the doctrine has been honed down to be more specific than ambiguous.  An interesting case in 1971 comes to bear with this aspect of the First Amendment:  “The Court further expanded its protection of offensive speech in Cohen v. California, 403 U.S. 15 (1971). Cohen was arrested and convicted for disturbing the peace after wearing a jacket bearing the words “F— the Draft.” The Supreme Court reversed the conviction, redefining fighting words as only those “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions.” The Court reasoned that because Cohen’s statement was not an insult directed toward a particular individual, it could not be regulated as fighting words.”

Our Founding Fathers intended for our government to listen to us, since they had just shaken off the British who listened to no one but themselves.  And though the US Supreme Court has deigned it to not be a requirement of Government to answer the People, historically speaking, the people redressed their grievances with the King of England; two examples being the Magna Carta of 1215 and the Petition of Rights.  The colonists attempted to all things peacefully, over the course of a decade but the crown would not relent.  In those similar instances the people of England attempted peaceful solutions and then waged war on the crown.  The crown knew if he did not relent, it would have been sure death at the hands of his servants, hmmmmmm… The colonists followed a similar path and ended up booting the British forces out of the colonies!  On a side note, what the colonists were experiencing was far less intrusive than that of us in this present day.  People are still fighting in courts this very day, but the courts (for the most part) are siding with the government.

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9,  Part 10

Works Cited

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

Andrews, J. (2001). Amendments to the US Constitution: Amendment I. In J. Andrews, Guide for Learning and Teaching the Declaration of Independance & US Constitution (p. 382). San Marcos, CA: Center for Teaching the Constitutiuon.

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)

freedomforum.org. (n.d.). What is the Fighting Words Doctrine? Retrieved January 1, 2014, from Freedom Forum: http://www.freedomforum.org/templates/document.asp?documentID=13718

Geiger, R. (2008, June 4). Background on the First Amendment. Retrieved March 5, 2013, from Oklahoma State University School of Media & Strategic Communications: http://journalism.okstate.edu/faculty/jsenat/foioklahoma/educationlessons/Background_on_First_Amendment.pdf

Justia. (1984, February 21). Minn. Bd. Commun. for Colleges v. Knight – 465 U.S. 271. Retrieved January 1, 2014, from JuUSTIA US Supreme Court: http://supreme.justia.com/cases/federal/us/465/271/

Lockhart, W. B., Kamisar, Y., & Choper, J. H. (1970). THE AMERICAN CONSTITUTION Cases and Materials. St. Paul: West Publishing.

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

Turner, B. (2011, January 18). The Tyranny Of The Supreme Court. Retrieved January 1, 2014, from American Patriot Commision blog: http://americanpatriotscommission.wordpress.com/2011/01/18/the-tyranny-of-the-supreme-court/

Bill of Rights

assy2

Part 9:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Did you ever wonder why the “Occupy Movement” was neither sanctioned, nor jailed (i.e., though they may have been arrested, they were released by the Judge with the charges being dropped not at the behest of the District Attorney, either) it was because it is our fundamental right and liberty to exercise.  Especially, when done on-the-fly and without any preplanning as if it were by a corporate mindset. 

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The right of assembly was first tested by the Supreme Court in 1876, in United States v. Cruikshank. The defendants in the case had been indicted under the Enforcement Act of 1870, which prohibited any act to “intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States”.  While the indictment could not be upheld, the court declared, “’The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” (United States v. Cruikshank, 1876) [1]

In the precedent setting 1937 Supreme Court case De Jonge v. State of Oregon, Dirk De Jonge had been convicted for teaching communist doctrine to a gathering of 300 people .The Court reversed his conviction, observing that “the right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”  In other words, said the court, you can’t deny the the right to assemble “ without violating those fundamental principles which lie at the base of all civil and political institutions.” More profoundly, the court ruled that “the holding of meetings for peaceable political action cannot be proscribed.””[2]

“Peaceable” remains the operative word. The First Amendment protects peaceful, not violent, assembly, although there must be a “clear and present danger” or an “imminent incitement of lawlessness” in order for government to restrict assembly rights.  Generally, though, the Supreme Court maintains that it is imperative to protect the right to peaceful assembly, even for those with whose speech many may disagree, such as Ku Klux Klan (KKK) gatherings, which many perceive as hateful, ruling (in National Socialist Party v. Skokie, 1977) that “it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.” [3]

assy1

The rights of Free Speech and Assembly are protected rights and liberties we all possess; however, they do not protect us from being offended by the purpose the Assembly and Speech being exercised.  The so-called Hate Laws are, in-fact, unconstitutional if you think long and hard on them, because they hinder us from saying what we desire to say and for the “Political Correctness” of the day which forces you to be tolerant of others and permits one side to be intolerant.  In essence, “Political Correctness” forces us to allow intolerance to be practiced and exercised against one group and prevents their exercising their rights, in a peaceable manner, toward the originating group.

You may consider bullying, in a sense, to be similar.  How often have you heard of a child being bullied to the point they couldn’t take it any longer and finally stood up for themselves?  And how many of them were suspended and expelled for none other than “Bullying”?  Seems a bit ironic and ludicrous, but happens much more often than you may think.  I have heard of a few occurrences here in my home area and at least 5 times, or more, nationwide.

People are becoming so fed up with the business-as-usual politicians, which created the vacuum to create the Tea Party movement.  The Tea Party is made up of Conservative Republicans with a Libertarian and Constitutionalist twist, who have found that the Republican Party had left them in spirit, heart, soul and principle.  Myself, I left long ago when I felt they left their roots and instead of standing on principle when they should have, the negotiated (and vise versa.)

Tyranny-400x291

HOW DOES TYRANNY BEGIN?  WHY ARE THERE SO MANY LAWS?

Heroes are men of glory who are so honored because of some heroic deed. People often out of gratitude yield allegiance to them. Honor and allegiance are nice words for power!  Power and allegiance can only be held rightfully by trust as a result of continued character.  When people acting in the name of government violate ethics, they break trust with “WE THE PEOPLE.” The natural result is for “WE THE PEOPLE” to pull back power (honor and allegiance).  The loss of power creates fear for those losing the power. Fearing the loss of power, people acting in the name of government often seek to regain or at least hold their power. Hence, to legitimatize their quest for control, laws and force are often instituted.  Unchecked power is the foundation of tyranny.

See also: Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8, Part 9

Works

1.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Early Challenges

2.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Early History of Freedom of Assembly”

3.      http://suite101.com/a/understanding-freedom-of-assembly-a66325 “Peaceful Assembly Protection for All”

 

Part 8:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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Here is a very telling part of this Amendment, speech and press.  Both are protected, excepting under certain reasons such as yelling fire in a crowded theatre, that I find very reasonable; however, I recently read where a man was arrested and charged with felonies for holding signage protesting the Federal Reserve, I believe on the east coast around Maryland.  (The sign read something to the effect, “GIVE A MAN A GUN AND HE CAN ROB A BANK, GIVE THE MAN A BANK AND HE CAN ROB THE WORLD.”)  One felony count was for Terroristic Threats and the other for Bank Robbery, hmmmmmmmmm?  Another recent problem was a Florida Sheriff being relieved of his duties for letting someone go for possession of a firearm without a permit; the sheriff checked him out and let him go as it should be.  The sheriff’s deputy who started the whole mess was disgruntled because he had several complaints against him and was being investigated.  I just read either today or yesterday that the sheriff was placed back in to his job.  BRAVO!  There are many other incidents where many Police are threatening people with felony arrest for recording them, despite the fact that many courts have struck down such arguments.  The Glick case being won on appeal and was in the words of the Judge that recording public servants is “ancillary to the First Amendment”.

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ANY HOOO…

Take a look at all of the laws that are cropping up, lately.  I believe it was one of the California Senators that brought before the Senate a bill to “clarify” who is and who is not “PRESS”.  Unfortunately, our representation (yes, most of them) do little to nothing to protect your rights, or support & defend the Constitution, that piece of paper they took an oath to do so!  The writing is very simplistic and very straight forward…and very understandable!  To amend people’s rights through Laws is both unconscionable and unconstitutional, but as mentioned sometime ago our rights or the limitation placed on the government are not negotiable. 

Once you speak something, it is spoken; provided you did not slander or libel someone, or cause them specific harm (aside from the fact that it was true) you should be safe, but with the caveat that you are responsible for what your actions.  Once written, it is considered press and it should not matter that you are not a member of a specific news agency…once written, it is written, same rules should apply to speech should apply here.  With blogging being as in your face as it is, it seems to be the new generation of information.  And at times more up to date and fact specific than the lame-street-media!  The media, or Press (using rather loosely), have pretty much, in my opinion, abdicated their responsibilities and the people are as tired of them as they are of their government.  The people are slowly picking up the gauntlet in order to fight the battle of the Press with useful information, instead of political rhetoric, tripe, and propaganda.

Each of us needs to protect the Constitution, what it stands for, and the Bill of Rights (or Limitations on Government), God knows that it will not protect themselves!  And some of these lawyers and judges should just be activists outside of their profession NOT in the Courtrooms of America!

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See also:  Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7

Bill of Rights