Monday, January 26, 2009

The nature of liberty

  • We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Our Constitution speaks glowingly of the principles for which it was founded, the need for a more capable government, the establishment of a system of justice, and the provisions for domestic tranquility, and the common defense. Few would question the nature or meanings of these provisions within the establishment of the constitution, but is there more or less to them? Long and arduous research into the nature of these things has left the waters as muddied as any other, for without limitations, any of these things can be taken to ridiculous, and tyrannical extremes. The limiting clause is the 'blessings of liberty for ourselves and our prosperity.' Liberty is not government action, it is the lack of government action.

I look at the system of laws like a building. There is a fundamental need for a foundation to keep any and all buildings stable. The larger the building could be, the more stout and strong the foundation must be. These rights, the rights to life, liberty, and property, are and must be the foundation of any representative government, or democratic republic. The rights of the people to own land by necessity must be protected, else the people have little impetus to maintain the land in their fiefdom. The rights of life must as well be protected, as that right is fundamental to any society. The right to liberty maintains the smooth flow of society, preventing unrest by not restricting the evolution of that society, and leaving its guidance in the hands of the people.

Societies, governments, and peoples need defense, so we set up walls. Internal walls to keep us from attacking each other are laws and regulations, designed to preserve that fundamental right to society. We choose to communicate, and to travel. These are doors in the grand establishment of society. Our external walls protect us from other societies. As the building is modified for new needs, often more walls and doors are put into place. These laws and regulations, while seemingly good, sometimes have unintended effects. Any building or corridor can be turned into a prison with enough bars and locks.

The commerce clause in the constitution is one of these walls. It was written as a means to prevent any state from creating a tariff or tax on goods from outside another state, and to prevent any state from denying any other state's citizen from traveling into or through the state. It was further designed to promote the flow of goods and services without interruption or restriction, and to allow the free travel of citizens to wherever they chose.

Originally, the corridors of commerce and travel in the building were wide and free. Occasional bumps in the road occurred, but it was the job of the citizen to make sure those bumps were as small as possible. It was also their duty to insist that the government stay out of the way.

Over time, government learned to make new restrictions that would maintain their money flow. As the government expanded they also increased their power to regulate. Eventually they started building doorways in these corridors. These doorways came in, slowly, one board at a time from the outer wall. Nobody really noticed them at first, thinking that each board was necessary and proper, and for a common good. Eventually some corridors were nearly closed, and only those who had government passes could pass through. (Peanut farms for instance). Some corridors were regulated, little by little, making sure that the people had to stay on one side, (a necessary precaution for safety) then making sure that they had insurance, then due to the insurance that they had to have seat belts, specialized braking systems, speed limits, tire standards...

Each and every limitation slowly closed down the corridors of society. Now and again government would allow weak challenges to a wooden board, so they could replace the board with an iron bar. This is the doctrine of "stare decisis". But was that the intent? Was it the purpose to lay down iron bars in the concrete of the walls (jurisprudence) that could never be removed? How long does it take before the corridors become controlled like those of a prison?

The government may propose that we place iron bars upon the windows to prevent entry. They can also propose iron doors to make it more difficult to break in. This does, however, prevent you from getting out in the case of emergency. It also does not prevent them from chaining the door shut or changing the locks. What good is it to have a door if you do not maintain control over the key?

Eventually Stare Decisis as it is currently constituted creates a system no less rigid, no less binding, and no less imposing upon your liberties than a prison cell. It does not matter that the walls of the cell are invisible, nor that the keys to the locks are unseen. The barriers of law are no less restrictive than the iron bars and concrete walls of a prison. Their invisibility is just a more subtle set of bars. They have those real prisons as well to back up the writs, after all.

The principles of liberty were designed specifically to be able to redress those barriers when they were found.

This is why the juries were established. Their role was to maintain the role of the people in deciding the law of the case as well as the facts. John Jay (the first Supreme Court Justice) went so far as to declare:

“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. … Both objects are lawfully within your power of decision.”
  • Georgia v. Brailsford, 1794
This is also why the writ of habeas corpus was enshrined in Article 1, Section 9. In spite of presidential writ, and in spite of the laws passed by the legislature, there is no power whatsoever to deny habeas corpus. To put this act in scope, the removal of habeas corpus was considered an absolute measure of tyranny.

This is also why bills of attainder were prohibited. The legislature could not declare someone guilty for an act, or lack of an act, status, or any other issue. They did not have that power and authority. They could not prepare punishments in the legislature for that assumed act,nor could they make an action unlawful after the fact, and charge a man with it. They could also not emplace further laws, codes, or 'regulations' upon any man after the jury had heard and decided the case. This was not within their power, nor should it ever be.

Stare decisis
has been changed substantially since the beginning. It was neither binding, nor a writ of law by itself, nor was it unchangeable. It was founded in fundamental principles of constitutional law. Anything outside of those principles could be revisited, including the doctrine of stare decisis itself.

As in Bouvier's Law Dictionary of 1866

Stare decisis. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.

For a very good illustration of this issue:

How many bars has our government put in place over the past two centuries in the corridors of our society? How many precedents and laws limit our travels? How many limit our freedom? How can we reverse them? How can the citizens who established the government tear down those walls?

We could attempt civil actions, but the doctrine of stare decisis as it stands today blocks many attempts at reversal.

“Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.”

-- Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2D 450 (1962).

The difference in the definition is striking. The question becomes what the underlying principles were that were not to be deviated from... and why the deviations have occurred. The latter is beyond the scope of this document. The former, however, is not. Those principles were constitutional law. Those principles were individual liberty, and the philosophies in the following two quotes from the time of the founding fathers.

Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non praesumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Perhaps the best definitions of this issue form from the following, the words of those very people who founded the government.

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed. “
  • Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
  • George Washington, Farewell Address, 1796

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
  • James Madison
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press."
  • Thomas Jefferson

Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.
  • Abraham Lincoln

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, and not merely from the date of the decision so branding it... No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.

16 Am Jur 2d, Sec 177 late 2d, Sec 256

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

— Thomas Jefferson, in a letter to William Smith, Nov. 13, 1787

We are the brushfires in the minds of men. We sear their conscience, burn their souls with hot fire, trouble their minds with questions that they dare not answer, for in answering, they must breach the armour around their hearts and look upon them, judging themselves by their own measure.

We petition, we remonstrate, we ask for what is ours... and must forever guard jealously our rights, our immunities, and our freedoms. Our liberties depend upon it.

To those that say that certainly the past cannot bind the present, that the intent of the Constitution could never be to bind those today... that was its entire intention, to bind the government from action against the people forevermore. The doctrine of stare decisis has strayed from the purpose for which it is founded, and it too must be corrected. Our job, our purpose, is to tear down those bars which choke the society, destroy the flow of goods, of ideas, of life itself. Our purpose as citizens and as human beings in this great society is not to meekly accept the works and words of our government, but to challenge them, refine them, purify them, and to guard forever those rights which pre-existed the government.
After all.... our patriots were not those who meekly adhered to a government and defended it, but those who tore it down, rooted it out, and built a new government based on the lessons they had learned. They were traitors, in the truest sense of the word, and had they been caught, (and some were), they'd have been killed in gruesome fashion and their heads placed at the Traitor's gate in London.
How do we guard our liberties? How do we prevent this creeping, insidious destruction of our freedoms in the name of the public good?
They had answers for that as well.
"[I]f the king ceases to govern the kingdom, and begins to act as a tyrant, to destroy justice, to overthrow peace, and to break his faith, the man who has taken the oath is free from it, and the people are entitled to depose the king and to set up another, inasmuch as he has broken the principle upon which their mutual obligation depended."
-- Manegold

"[I]t is not only permitted, but it is also equitable and just to slay tyrants. For he who receives the sword deserves to perish by the sword.
"But 'receives' is to be understood to pertain to he who has rashly usurped that which is not his, now he who receives what he uses from the power of God. He who receives power from God serves the laws and is the slave of justice and right. He who usurps power suppresses justice and places the laws beneath his will. Therefore, justice is deservedly armed against those who disarm the law, and the public power treats harshly those who endeavour to put aside the public hand. And, although there are many forms of high treason, none is of them is so serious as that which is executed against the body of justice itself. Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public. For if all prosecutors may be allowed in the case of high treason, how much more are they allowed when there is oppression of laws which should themselves command emperors? Surely no one will avenge a public enemy, and whoever does not prosecute him transgresses against himself and against the whole body of the earthly republic."

  • John of Salsisbury, Policratus
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press."

  • Thomas Jefferson
[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

And when the government's legal protection force has no legal requirement to protect (see other posts on this very blog) there is no protection or security offered, or granted by government (state or federal).

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Monday, January 19, 2009

Is it Constitutional?

Long ago, in a land not so far away, there once was a Supreme Court Judge named Marshall. Now Marshall was a crafty sort of fellow. He was also one of the most knowledgeable people when it came to the Constitution of the United States (keep in mind that this was a mere 25 years after the Constitution was created).

Judge Marshall was on the bench when the infamous case of Marbury v. Madison came to a head. Some history on the case:

Marbury was given a commission to become a Justice of the Peace in Washington D.C. by John Adams. In his haste to confirm about 50 or so such commissions, some were accidentally not stamped with the US Seal. Marbury went to the Supreme Court (SCOTUS) to ask for a Writ of Mandamus against James Madison (Secretary of State)to produce the commission owed to him.

The Court, seeing a catch twenty-two, looked to the intent of the Constitution.

"Marshall found an escape from his dilemma. He announced the decision on February 24, and proclaimed the most distinctive power of the Supreme Court, the power to declare an Act of Congress unconstitutional. Point by point he analyzed the case. Did Marbury have a legal right to his commission? Yes. Would a writ of mandamus enforce his right? Yes. Could the Court issue the writ? No."

"Congress had said it could, in the Judiciary Act of 1789. It had given the Court an original jurisdiction in such cases - power to try them for the first time. But, said Marshall triumphantly, the Constitution defined the Court’s original jurisdiction and Congress could not change it by law. Therefore that section of the law was void. Marshall declared for all time the supremacy of the Constitution over any conflicting law. Other judges had said as much, but Marshall added: 'It is, emphatically, the province and duty of the judicial department, to say what the law is.'"

Marshall gave us an interesting point to remember. The Constitution is the Supreme Law of the land. And no Act of Congress shall change that.

So, that brings us to the current state of affairs in our beloved country. Is Congress trying to change the Constitution?

Think on it this way.

Congress creates more than 100 new laws per year (some reports say more than 1000). In doing so, they far surpass the number of court cases that SCOTUS can hear each year. So, many laws go unchallenged. Thus changing the face of our Constitution by the very nature that these laws are created under.

Liberty is what is lost by the American people who are affected by these laws. Liberty is a tricky word, but one that means more than life to any American who loses it.

Patrick Henry gave us a glimpse of it when he said:

"It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace--but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"

And to what extent do most American's hold onto their Liberty? Patrick Henry again paints us a picture:

"Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the numbers of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth, to know the worst, and to provide for it."

Liberty is an essential and integral part of our daily lives. Without it, we cease to be the "..Land of the Free, and the Home of the Brave!"

I ask that you pay attention to the meaning behind the laws that are passed these days. Look to the ramifications that come from the passage of these laws. Look to the way they are passed. Evaluate for yourself.

Are these laws Constitutional? Is Congress acting in accordance with their charter as laid out by the very Constitution that they are sworn to protect? Do they pass laws in a fashion that can stand up to Constitutional muster?

Do they sacrifice our Liberties in doing so?

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