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Habeas Corpus – The Guardian of Liberty

Habeas Corpus The Guardian of Liberty

 

Gary Hunt Outpost of Freedom June 19, 2013

 

Habeas Corpus — Its meaning in Our History

Suppose you lived in Washington state or Colorado.  Suppose, too, that consistent with state law, you grow, process, and used marijuana.  Now, state law says you can, but federal law says that you can’t.  What happens if the feds arrest you and charge you with a crime?

The Constitution/Bill of Rights says that the right to keep and bear arms cannot be infringed.  Would a federal requirement that demands that you register your firearms, be such an infringement?  Could you be successfully prosecuted if charged with failing to register your firearms?

This article is divided into five sections:

If you wish to bypass the first four sections, but want to understand just what they prove, go to the “Summation”, which puts all of the pieces in place.

Introduction to Habeas Corpus

Habeas corpus, also known as the “sacred writ”, is something that we have heard about since our youth.  At best, we were told that it means to bring the body forward, as when somebody is falsely imprisoned.  We knew that it was in the Constitution, but beyond that, we knew very little about it.

Before we start, let’s take a short quiz to see what we know and where we are starting from.

What does “writ of habeas corpus” mean?

A)  A writ to remove someone who has been detained to another jurisdiction or court. B)  A writ to move a civil case to a higher court. C)  A writ to move a civil case to a different court. D)  A writ to move a prisoner to a superior court. E)  A writ to assure that a person condemned to death receives complete due process to higher courts. F)  The “sacred writ” that we learned about in school. G)  A writ, meaning, “you have the body to testify,” to bring a prisoner from jail or prison to court. H)  A writ requiring a person detaining another to prove that he is lawfully detained.

To fully understand habeas corpus, we will first have to clear our minds of misconceptions that have been promulgated through our entire lifetimes.  The last Habeas Corpus ad subjiciendum (sacred writ) heard by the United States Supreme Court, at least as far as I have been able to determine, was the decision of In Re Lane, back in 1890, yes, 123 years ago.  So, let’s see what Habeas Corpus meant, back then.

Has the government become good guys, where we need not fear that they might be overzealous in prosecuting citizens?  Or, have we lost that which was so sacred to the Founders, the sacred writ, which was protected by the Constitution?

Is it possible that this lost art is no longer taught in today’s law schools?  Perhaps for decades?  Is it possible, since none has been heard in the last 123 years, that modern attorneys have not even looked into the reason for its inclusion in the Constitution?  Is it possible that even the judges are not really aware of habeas corpus, or, do they intentionally avoid recognizing demands for the sacred writ?

Nullification is discussed, at great length, within the patriot community, as a means of suppressing federal intrusion.  Is it possible that the sacred writ is the only clearly constitutional means of nullifying unconstitutional federal laws?  And, an individual can challenge that such laws, although there is no constitutional provision for a state of the Union to challenge such unconstitutional laws?

As you continue reading, please do so without any preconceptions or misconceptions regarding other proposed techniques of nullification, or previous understanding of Habeas Corpus.  Enter into this subject with an open mind and read, if necessary, the referenced sources.

The Meaning of Habeas Corpus

Habeas corpus, by itself, has numerous meanings.  When we hear of a habeas corpus, it is seldom, if ever, Habeas Corpus ad subjiciendum; rather, it is on appeal, or, an order for change.  The “sacred writ” is not an appeal, rather, a question of jurisdiction – – whether to challenge charges and/or imprisonment are based upon a constitutional law.

The Sacred Writ is defined as follows (Black’s Law Dictionary, 5th Edition):

habeas corpus ad subjiciendum.  A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained.  This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent. 

This is the well-known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ, in all manner of illegal confinement.  The “great writ of liberty”, issuing at common law out of the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer.

From this point on, we will be discussing only Habeas Corpus ad subjiciendum.

In 1679, the first Habeas Corpus Act was enacted in England, consolidating principles previously established, some originating from the Magna Carta.

Some excerpts from that act:

V. And be it further enacted by the authority aforesaid, That if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaidshall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; (2) and for the second offence the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office

Habeas Corpus was a writ of right – and was executable upon demand.  From the act, quoted above, we see that there are penalties for any government official refusing to bring the body forward.  Consider that in a monarchical society, failure to respond to a writ of habeas corpus was unpardonable.

In 1768, William Blackstone, in his Commentaries, provides the following:

But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention,…  This is a high prerogative writ, and therefore by the common law issuing out of the court of king’s bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions: for the king is at all times intitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.

Here, Blackstone tells us that the justices are bound, as well, to respond, timely, to the demand for a writ, even if on vacation.  However, we must substitute “We the People” for “king”.  After all, we are “intitled to have an account, why the liberty of any of [us] is restrained, wherever that restraint may be inflicted“.

Clearly, whether jurisdiction is obvious, or in question, the court is compelled to answer.

In the court of King’s Bench it was, and is still, necessary to apply for it by motion to the court, as in the case of all other prerogative writs…  For, as was argued by lord chief justice Vaughan, “it is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it: for the court ought to be satisfied that the party hath a probable cause to be delivered.” …  On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”

So, if it is demanded, it must be issued.  Once demanded, the existence of probable cause is unquestionable.

Now, let’s look into what might be the cause of an improper imprisonment.

In a former part of these commentaries we expatiated at large on the personal liberty of the subject.  It was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, nor ought to be abridged in any case without the special permission of law.  A doctrine co-eval with the first rudiments of the English constitution; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest: asserted afterwards and confirmed by the conqueror himself and his descendants: and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of magna carta, and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering it’s protection impossible: but the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful.  This induces an absolute necessity of expressing upon every commitment the reason for which it is made; that the court upon an habeas corpus may examine into its validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner.

If the imprisonment were a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes“, then the law that lead to the imprisonment might be under “color of law” rather than lawful — in accordance with the Constitution.

Blackstone concludes his commentary on the sacred writ in unequivocal terms:

But even upon writs at the common law it is now expected by the court, agreeable to antient precedents and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue.  By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement.  A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government.

Therefore, writs of habeas corpus must be issued; must be immediately obeyed; and, no other filings are required.  He also expounds upon what may be the cause of the enactments which are beyond the authority of the government, when he explains that habeas corpus ad subjiciendum is “a remedy the more necessary, because the oppression does not always arise from the ill nature, but sometimes from the mere inattention of government.”

Forty years (1829) after the ratification of the Constitution, William Rawle, a Constitutional scholar, in his “A View of the Constitution of the United States“, provides insight into habeas corpus, as a part of the law of the land.

Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction.  It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governorsAfter erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected, was not provided by itself.

In order to protect the personal liberty of every individual and repel the injustice of an unconstitutional law or despotic governors, we have the Writ of Habeas Corpus, in addition to the Bill of Rights.

If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief.  But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress….  It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States.  But the state courts and judges possess the right of determining on the legality of imprisonment under either authority.

Rawle makes clear that even absent a provision in the Constitution, any state, with a provision for habeas corpus, could, under said state’s authority, through a judge or justice, issue a writ of habeas corpus.

Finally, the Honorable Justice Joseph Story, in his “Commentaries on the Constitution” (1833), provides additional insight:

§ 1333.  In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus.  At the common law there are various writs, called writs of habeas corpus.  But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum...  It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge.  This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man’s liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.

So, we have confirmed that from the First Habeas Corpus Act until two generations after the ratification of the Constitution, we have a consistent definition and procedure as to the purpose and administration of Habeas Corpus.  Yes, 200 years of protection, that which was even true under monarchical government, from imprisonment under any law that is in violation of the Constitution.

So, what happens when the national government does not pay attention (rather, inattention) to the Constitution?

Although every state has a provision for habeas corpus within its constitution, for the sake of this discussion we will be using Florida, as this is the state where the story began.

Habeas Corpus and the Constitution

There are many rights protected under the Constitution and the Bill of Rights.  However, The Right of Habeas Corpus is defined as a Privilege.  Article I, Section 9, Clause 2, reads:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

To understand why it is deemed a privilege, rather than a right, we need only understand that of all of the rights protected by the Constitution, only Habeas Corpus can be suspended.  Had the Founders not seen the necessity of suspending Habeas Corpus during “Rebellion or Invasion”, then Habeas Corpus would have been defined as a right, as were others enumerated therein, or within the Bill of Rights.  It is sufficient, however, to understand that they felt the necessity of including it.

From the Florida Constitution, Article 1 – Declaration of Rights, Section 13:

Habeas corpus.–The writ of habeas corpus shall be grantable of right, freely and without cost.  It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety.

Well, there you have it.  Without cost and without delay is, without a doubt, a right, as both the state and the federal government should treat it.

Court Cases and enactments affirming Habeas Corpus in the United States, during its first century

What better way to understand the significance of habeas corpus in the United States of America, then to look at previous court cases, both habeas corpus and non-habeas corpus, to see what influence it had on our relationship with the national government.

We will begin in the year 1833, with a non-Habeas Corpus case, to see what our relationship with the federal government was.  Mr. Barron owned a dock in Baltimore, Maryland.  The City of Baltimore, in dredging the river, made the area in front of Barron’s dock too shallow for normal traffic.  Barron filed suit against the City of Baltimore, arguing that under the Fifth Amendment to the Constitution, his property was taken without “just compensation”.  This case was heard by the United States Supreme Court, Chief Justice Marshall giving the opinion of the Court.  Understand that in this decision, the “general government” refers solely to the national government, and that “local government” refers to state and/or lesser governments.  Barron v. City of Baltimore, (32 U.S. 243):

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.  Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated…  The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.  In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves.  It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

So, the Constitution was only between the people and the general government. The people of each state were free to decide what constitution and laws best suited them.

Marshall then explains the evidence in support of the proposition of that separation by reference to Article I, Sections 9 and 10, of the Constitution:

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if, in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed…Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.

The concerns that lead to this separation of powers are explained:

Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty.  In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended.  These amendments demanded security against the apprehended encroachments of the general government- [and] not against those of the local governments…These amendments contain no expression indicating an intention to apply them to the state governments.  This court cannot so apply them.

We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.

What?  The Constitution does not foreclose protection from the state government; only from the national government.  Well, that is exactly what Chief Justice Marshall said.

Perhaps another way to understand the limitations of the national government, is to look to a law enacted in 1825.  Article I, section 8, clause 17, grants Congress the power “to exercise exclusive legislation” over lands ceded to the United States by the state in which the land lies.

An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes.  (March 3, 1825)

“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”

Now, this law was enacted just 35 years after the first Congress sat under the Constitution.  What did they know that we do not know?  For them to punish you for crimes against property of the United States, the property had to be on land ceded to the United States, and jurisdiction also ceded to the United States.  That means the state had to relinquish its jurisdiction over the property.  Can there be any doubt that the Congress, in 1825, understood the limitations of their authority under the Constitution?

Perhaps now we can understand why it was decided that the Constitution did not extend its powers to the detriment of the state; why Congress should enact a law to protect its property only if that land where the property was had been ceded, so that the national government had jurisdiction over that land.  By looking at what Justice Marshall said, in Marbury v. Madison (5 US 137) in 1803:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.

Now, this was not a novel idea on the part of Justice Marshall, because in 1787, before the Constitution was ratified by the states, the North Carolina Supreme Court addressed the state legislature enacting a law that was in contradiction to the state constitution, when they said, in Bayard v. Singleton (1 N.C. 42):

But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established

Interestingly, they recognized that should such a law be upheld, it would have the effect of dissolving the government created by the North Carolina Constitution because that government violated the instrument of its own creation.  Does that concept also apply to the United States Constitution?

Now that we have a perception of the relationship of the national government to the people, and that being the perspective of those who lived in those times and rubbed shoulders with those who wrote and/or ratified the Constitution, we will look at what is, and, what is not, within the purview of the national government, to enact into law, under the authority of the constitution.

Stephen Ableman was a US Marshal; Sherman Booth had “aided and abetted” fugitive slaves.  Booth was held to “appear and answer” before the district court of the United States for the district of Wisconsin.

Booth made application for writ of habeas corpus to A. D. Smith, one of the justices of the Supreme Court of the State of Wisconsin, alleging that “the act of Congress of September 18, 1850, was unconstitutional and void” (the Fugitive Slave Act of 1850).

Booth was brought before the justice and the justice determined that “his detention was illegal, and ordered the Marshall to discharge him and set him at liberty, which was accordingly done.”

Ableman appealed to the entire Supreme Court of the State, which affirmed the decision of the associate justice.

Ableman then appealed to the United States Supreme Court, which was heard in 1858 (Ableman v. Booth [62 US 506]).  Justice Taney gave the Decision of the Court:

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts.  In the first case, it provides that ‘this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.’…  The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution

So, if Congress “passed a law not authorized by its enumerated powers, it was not to be regarded as “the supreme law of the land”.  The test, then, is whether the Fugitive Slave Act was enacted in accordance with the Constitution.

This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Governmentif it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void.

The United States Supreme Court, then, is to judge the Constitutionality of any law.  However, to do so, they must also hear the matter.  Habeas Corpus being the proper means of challenging such jurisdiction; then only by Habeas Corpus can such a challenge be made, and heard by the United States Supreme Court.  In this case, the Wisconsin Supreme Court did see fit to challenge the constitutionality of the Fugitive Slave Act.

However, if we look at the constitutionality of the Fugitive Slave Act of 1850, we find that it is constitutional, for the Constitution states, in Article IV, Section 2, clauses 2 and 3, respectively:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The authority to enact such laws is clearly stated in the Constitution.  The Fugitive Slave Act was enacted to provide statutory detail regarding the return of “persons” as well as punishment for violation of those provisions, of the Constitution.

Just 13 years later, in 1871, the Supreme Court of the state of Wisconsin supported another challenge to federal jurisdiction.  A minor, under the age of 18, named Edward Tarble, enlisted as a soldier under the name of Frank Brown.  Later, Tarble deserted, was “retaken”, and confined as a deserter.

Tarble’s father petitioned the court commissioner of Dane County, Wisconsin for a writ of habeas corpus.  The writ was issued and Tarble was brought before the court.  The court “[h]eld that the prisoner was illegally imprisoned and detained”, and ordered that he be discharged from custody.”

The officer detaining Tarble filed with the Supreme Court of the State, which affirmed the lower court’s discharge of Tarble.  The matter then advanced to the United States Supreme Court (In Re-Tarble (80 US 397).  The Court explains the separation of jurisdictions:

There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres.  Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement.  Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other.  The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories…  The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, ‘anything in the constitution or laws of any State to the contrary notwithstanding.’  Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States.  This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments

Further on, the Court explains the procedure whereby the determination of jurisdiction can be challenged by a state court.  If the lower court determines unconstitutionality, and a contest as to jurisdiction still exist, then the Supreme Court of the United States will make the final determination.

State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government…  And the process or orders, under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority.

The dilemma is whether the lower court recognizes what appears to be a conflict in jurisdiction.  Should that lower court, accept, prima facie, that the officer of the United States is correct in his claim of jurisdiction (“in good faith“), or, should any doubt arise, “under the mere pretense of having such authority“, should that lower court hold the position of defending jurisdictions when there appears to be no constitutional authority, or, is in conflict with the laws of that state?

To accept that any federal officer can make a proper decision as to jurisdiction, and to leave that remedy solely to the federal courts, denies justice and leaves us with an impractical remedy.  In that same opinion (Tarble), Chief Justice Salmon P Chase, of the United States Supreme Court, in a dissenting opinion, says:

I cannot concur in the opinion just read.  I have no doubt of the right of a State court to inquire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction.  If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.

To deny the right of State courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases

Absent such ability of the states to challenge jurisdiction, at least when there is no direct Constitutional nexus (nexus is defined as a connection or series of connections linking two or more things together), would result in the states and the people subjecting themselves to absolute federal despotism.  This, clearly, was not the intent in either Tarble, or, the Constitution.  This means that an explicit grant of power or authority has to exist in the Constitution, otherwise an enactment is not legal, and, can be stricken down, as we will see.

Regardless of whether a state can defend its citizens against overreaching federal intrusions, the fact is that in Tarble, there was a nexus to the Constitution (that is, a Constitutional nexus) in Article I, Section 8, clause 12, and, Article II, Section 2, clause 1, to wit:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

The President shall be Commander in Chief of the Army and Navy of the United States…

For Congress to raise and support Armies, there must be a degree of control over the resources and obligations of that Army.  As the President, as Commander in Chief, there can be no doubt as to the implications of jurisdiction over the members of the Army, once they have enlisted and are still under that enlistment.  Tarble, regardless of age, upon his enlistment, was subject to the jurisdiction of the United States military system.

Conclusions:

We learned, from Barron v. City of Baltimore, that the Constitution applies only to the relationship between an individual and the “general government”.  That each state, when they adopted their constitutions, established both government and laws suitable to the people of that state.  The Constitution was a prohibition against federal intrusion into those matters left solely to the state.

We saw, in the act of 1825, that the federal government, to protect its own property, could only do so on lands ceded by the state to the federal government.  We can ponder whether the limits of jurisdiction were superfluous words, or, rather, were they simply more explicit, in defining the extent of their authority, when writing laws.

Chief Justice Marshall and the North Carolina Supreme Court recognize that a law in violation of the Constitution cannot be allowed to stand. North Carolina goes even further by pointing out that if the government created by a constitution violates the terms of the constitution, they void the constitution — and cease to exist under it.

From Ableman v. Booth, we see that federal jurisdiction requires a nexus to the Constitution.  We find the same nexus in In Re Tarble, and an explanation that both governments, state and federal, have their own spheres, laws, and tribunals for their enforcement, and that one cannot encroach upon the other.

 

The Fourteenth Amendment and its effect on the citizen

Next, though not a Habeas Corpus case, we will demonstrate that the Constitutional nexus must be clear and indisputable.  This case arises out of a statute enacted after the ratification of the 15th Amendment to the Constitution.  Two election officers were charged with violation of the Enrollment Act because they refused to receive and count a ballot from a negro, though they did so in accordance with state law.

The case is United States v. Reese (92 US 214), heard in 1875.

The 15th amendment (1870) reads:

Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

The Enrollment Act of 1870 was enacted by Congress under the authority of Section 2 of that Amendment.  The portions of that Act in question are the provisions of sections 3 and 4.

Section 3 states, in part:

Sec. 3. …  That whenever… any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote,… if it fail to be carried into execution by reason of the wrongful act or omission… of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon…; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act…”

The key here is that it says “any act”, without reference to “race, color, or previous condition of servitude.”  Because of the broadness of the phrase, the court determined that the entire section was beyond the authority granted by the 15th amendment, to wit:

The third section does not in express terms limit the offence of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c.

The statute contemplates a most important change in the election laws.  Previous to its adoption, the States, as a general rule, regulated in their own way all the details of all elections.

Section 4 states, in part:

Sec. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall [penalties listed].

Again, we have a very broad brush, with no reference to “race, color, or previous condition of servitude”.  The court responded:

[W]e find there no words of limitation, or reference even, that can be construed as manifesting any intention to confine its provisions to the terms of the Fifteenth Amendment.  That section has for its object the punishment of all persons, who, by force, bribery, &c., hinder, delay, &c., any person from qualifying or voting.  In view of all these facts, we feel compelled to say, that, in our opinion, the language of the third and fourth sections does not confine their operation to unlawful discriminations on account of race , &c.  If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose.

We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish.  For this purpose, we must take these sections of the statute as they are.  We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not.  The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there.  Each of the sections must stand as a whole, or fall altogether.

Therefore, in this instance, since there was no constitutional nexus, Sections 3 and 4 were struck down as unconstitutional.  It appears that if any law is unconstitutional, then it is no law, at all.  However, shortly, we will see that a new source of laws, outside of the Constitution, will be put in place – though only to those who allow it.

Next, we will look at another Habeas Corpus case, which demonstrates the limitations of jurisdiction of federal law, as we saw in the Act of 1825.  We will also see what establishes those spheres, laws, and tribunals for enforcement, as well as where jurisdiction is limited by the geographic boundaries and current status of certain parts of the United States.

The incident, for which Charles Mason Lane was tried, occurred in the Oklahoma territory, or, Indian territory.  The trial was held in the “district court of the United States in and for the district of Kansas.” 

The charge was,

on or about the 4th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at that part of the district of [judicial] Kansas aforesaid, the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court, with force of arms in and upon one Frances M. Skeed, a female under the age of sixteen years, then and there being, violently and feloniously did make an assault, and her, the said Frances M. Skeed, then and there, forcibly and against her will, feloniously did ravish and carnally know [Skeed]…”

Associate justice Samuel Miller gave the decision in In Re Lane (135 US 443), on April 28, 1890.

The law in which Lane was alleged to be in violation of was

the act of congress approved February, 9, 1889, c. 120, (25 St. 658,) under which defendant is indicted and convicted, it is provided ‘that every person who shall carnally and unlawfully know any female under the age of sixteen years, or who shall be accessory to such carnal and unlawful knowledge before the fact, in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction, or on any vessel within the admiralty or maritime jurisdiction of the United States, and out of the jurisdiction of any state or territory, shall be guilty of a felony, and when convicted thereof shall be punished by imprisonment at hard labor, for the first offense, for not more than fifteen years, and for each subsequent offense not more than thirty years.’

And in the decision, in which a writ of habeas corpus was denied, we find:

“We think the words ‘except the territories’ have reference exclusively to that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments.  These governments have an executive, a legislative, and a judicial system.  They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States.  They are not in any sense independant governments…  Yet they exercise nearly all the powers of government under what are generally called ‘organic acts,’ passed by congress, conferring such powers on them.  It is this class of governments, long known by the name of ‘territories,’ that the act of congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction.  Oklahoma was not of this class of territories.  It [Oklahoma territory] had no legislative body.  It had no government.  It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have, and have always had.”

What can we conclude from this?  The States each have “have an executive, a legislative, and a judicial system”; recognized, or organized, territories, “have an executive, a legislative, and a judicial system”.  However, those lands that are not within either a state or an organized territory, under the authority granted by the Constitution, in article IV, section 3, clause 2, grants Congress the “Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belong to the United States…”

We have come to assume that all laws enacted by Congress, absent the limiting phraseology, act upon all of us.  That assumption, however, is in contradiction with the Constitution.  Clearly, in times past, those separate spheres; those limitations on jurisdiction; and the creation of laws, were well-defined and limited.  It is evident that the state had the right to make laws that were not in conflict with the Constitution.  How, then, could the federal government enact laws that would be in conflict, or contradiction, to state laws that are not in conflict with the Constitution?  It is an untenable situation to think that one would have to decide which of two conflicting laws he was bound to abide by.

Let us see if there is another situation that might allow the general government to act upon someone that it does not have lawful authority to act upon.

To understand “standing”, the right or obligation to appear in a certain court, we have to look as things were before the ratification of the Fourteenth Amendment.  This matter comes to light, and understand this, that it is a very significant point in dealing with the judicial system, in Dred Scott v. Sandford (60 U.S. 393), heard in 1856.  In this decision, notwithstanding the subject of the case, rather, with consideration of a rather obscure but significant portion of the decision, we find that Scott had no standing.  Scott was a freed slave, as such, he was not deemed a citizen capable of entering the federal judicial system.  At that time, most states would not allow a negro to testify against a white man, or sit on a jury.  Regardless of your present perspective, that was the law, at that time.  However, the Court decided to hear the case, anyway. 

“That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.  If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.  It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.”

Sandford “plead over” (he filed with the court), and, in so doing, he failed to challenge the prohibition (absence of jurisdiction) of Scott’s lack of right to enter the jurisdiction of the court.  So, what we have is, if I don’t challenge the jurisdiction of the court, instead, I plead, or otherwise fail to challenge jurisdiction, the court may deem that the right to challenge as waived and the court is free to proceed.

Now, we understand that if we assume that we have to submit to the court, when charged with any crime, then the court will assume that we have ‘granted’ them jurisdiction.  This does not mean that you are not subject to the court’s jurisdiction in certain cases, such as counterfeiting, treason, or any law passed within the authority granted by the enumerated powers.  This is, however, very important in securing your right to Habeas Corpus — to challenge the lawfulness of the law that you are charged with violating.  As we proceed, you will begin to understand.

As you have just seen, Scott was allowed to proceed in court, since Sandford failed to object.  If Sandford had objected to Scott’s right to go to that court, the case would have stood, as had been previously decided by the state court – and in Sandford’s favor.  It was Scott that appealed the lower court’s decision.  Therefore, when there are two classes of people, it is important to differentiate between those two classes, and, to determine which class you are, and, whether the law, you are charged to be in violation of actually applies to you.

In 1868, something occurred that changed the nature of the government and the people of the United States; the 14th Amendment was ratified.  It reads, in part:

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Let’s look closely at this sentence.  “All persons born or naturalized in the United States,” well, that is pretty inclusive.  However, the next phrase, “and subject to the jurisdiction thereof,” limits that inclusiveness to those “subject to the jurisdiction thereof.”

As we have seen from the previous cases, those who were citizens before the 14th Amendment was ratified, were not “subject to the jurisdiction thereof,” except when there was a constitutional nexus.

We have one class of people (Citizens), who created the Constitution.  We have another class of people (citizens) that were created by the Constitution.  There is nothing in the Constitution, or the 14th Amendment, that dissolved the first class; therefore, we must assume that it still exists, andm we will see that the Supreme Court still recognizes this fact.

So, the question arises, did the 14th Amendment change the nature of those who were already citizens?  The answer can be found in the next case.

It was over 40 years after the 14th amendment was ratified (1908) that this next case was heard.  Albert C. Twining and David C. Cornell were convicted of providing “false papers” to the state banking examiner.  They were sentenced to prison and Twining appealed to the United States Supreme Court, based upon his Fourth Amendment rights.  He argued that the requirement to turn over papers to the examiner, absent a court order, denied him due process clause under the 14th Amendment.  Twining and Cornell were both citizens of New Jersey.  Since they were citizens of New Jersey (state), they were not within the jurisdiction of the Court; therefore, the Court had no jurisdiction (federal) over them.

Justice Moody provided the decision of the court in Twining v. State of New Jersey (211 US 78):

In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: First, that the exemption from compulsory self- incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at barThe first proposition naturally presents itself for earlier consideration.  If the right here asserted is not a Federal right, that is the end of the case.  We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.

That last point, “If the right here asserted is not a Federal right, that is the end of the case“, will lead to the final decision of the Court.  Does it also hold that if no right is conferred, that there is an absence of jurisdiction?

We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.

Conclusions:

This tells us that there is, without a doubt, a limitation on the jurisdiction of the federal government.  If the Constitution does not provide for jurisdiction, they cannot assume to have jurisdiction, except as was noted.  If Twining had been a citizen created by the 14th Amendment, he would have been afforded the due process protection of the 14th Amendment.  Not being of that class of citizen, he came solely under state laws and protection of the state Constitution.

As we saw in Barron v. Baltimore (1833), the federal Constitution provided only protection from the federal government.  Twining v. State of New Jersey (1908), shows that such federal jurisdiction did not apply to those who were not of the nature of the citizens created by the 14th Amendment.

Dred Scott v. Sandford demonstrated that if we acquiesce to the jurisdiction of the court, whether proper or not, the court may assume that you are there properly, and proceed, absent any other consideration of jurisdiction.

Twining v. State of New Jersey, particularly, brings home the point that, more than two generations after the 14th Amendment was ratified, there was still a distinction between those who were citizens of a state and those who were not afforded the protection of the Constitution, if the matter was between them and state laws and their respective constitutions.

The Fourth Branch of Government, and, who is subject to that unconstitutional branch

We are lead to believe that the United States Supreme Court rules on the constitutionality of a law when a case is brought before it.  We are often quite surprised when it appears that the Supreme Court ruled contrary to the Constitution.  Perhaps an understanding of another “separation” that exists, though not of the nature of the person, rather the nature of the laws themselves.

For at least a few decades, those with direct relationships with the federal government were being subjected to decisions that did not seem quite consistent with the Constitution.  It was not until 1936, however, that Justice Brandeis provided insight into the changing nature, or perhaps more correctly, expanding nature of the court.  The case was Ashwander v. Tennessee Valley Authority (297 US 288).  Justice Brandeis, in a separate but concurring decision, provided insight into the evolving role of the United States Supreme Court, wherein he said:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.  They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort

2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’  ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’

3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.  This rule has found most varied application.  Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.  Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.  Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided

Didn’t Justice Brandeis just tell us that they would not rule on the constitutionality of a matter before them, if they could find any way to avoid such ruling? 

He also speaks of “statutes”.  What statutes could be enacted by Congress, if they were not consistent with the Constitution?  Well, Congress has the power of “exclusive Legislation” (Article I, Section 8, clause 17), and the power to “make all needed Rules and Regulations” (Article IV, Section 3, clause 2) that authorize enacting laws under certain circumstances.  Suppose they enact a law that would fall within this scope; however, they allowed people to voluntarily “subject” themselves to that law by partaking in perceived benefits, or, that the people do not fully realize the true nature of such a law and who it applies to.

To simplify this, let’s suppose that you are watching some people playing a game of Monopoly.  If you decide to join a game of Monopoly, once you have rolled the dice, you are bound by the rules of the game.  If, however, you do not choose to play Monopoly, you are not bound by the rules of the game.

After all, Justice Brandeis said that “The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”  So, by some intricate means, if you have sought a benefit, under a statute, you may have just left the Constitution behind.

Now, this would be understandable if particular circumstances, say of your business, warranted cooperation with a government agency.  This appears to be the case, at the time of the Ashwander decision.

However, in the next 10 years, things were to change.

We all know that we have a tripartite (composed of or divided into three parts) form of government.  The three branches, legislative, executive, and judicial, were created by the Constitution, in the first three articles.

What if we had four branches of government?  Would that fourth branch be unconstitutional?  Or, could it exist under the provisions of the previously mentioned Article I, Section 8, clause 17, and/or, Article IV, Section 3, clause 2, respectively?

The Congress shall have the Power… To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…

The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States

Just 10 years after the Ashwander decision, the Congress enacted the Administrative Procedure Act of 1946.  Representative Pat McCarran (Democrat from Nevada) submitted the Bill, who also gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946):

We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy.  They set up the executive, the legislative, and the judicial branches; but since that time we have set up fourth dimension, if I may so term it, which is now popularly known as administrative in natureSo we have the legislative, the executive, the judicial, and the administrative.”

“Perhaps there are reasons for that arrangement.  We found that the legislative branch, although it might enact a law, could not very well administer it.  So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations.  These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.

“Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal governmentIt is designed to provide guarantees of due process in administrative procedure.

“The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.

“Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.

Therefore, the question arises as to whether the administrative branch of government, “the fourth dimension”, extends to all people, or just “the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government“.  Given that the estimated population of the United States in 1946 was over 141 million people, which would mean that less than one percent were among those “hundreds of thousands of Americans“.

If we assume the former, that it only applies to those who come under the Administrative Procedure Act of 1946, that leaves cause to wonder whether the remaining 99 percent have fallen under the influence of the Act by other means, or simple inattention.  If inattention, is it because they entered the court not understanding that they are entering the court that was acting in the capacity of an administrative tribunal?

If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it.  If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.

Later, on May 24 (from the Congressional Record), Representative John Gwynne of Iowa provides insight into what “rule-making” is, when he said:

After a law has been passed by the Congress, before it applies to the individual citizens there are about three steps that must be taken.  First, the bureau having charge of enforcement must write rules and regulations to amplify, interpret, or expand the statute that we passed; rulemaking, we call it.  Second, there must be some procedure whereby the individual citizen who has some contact with the law can be brought before the bureau and his case adjudicated…  Finally, there must be some procedure whereby the individual may appeal to the courts from the action taken by the bureau.”

“Amplify, interpret, or expand”?  Was the intention of the Act to apply only to the hundreds of thousands, who were among that less than one percent?  Or, was the intention to circumvent the Constitution by establishing a despotic regime that was no longer bound by the Constitution?

Of course, if you have followed that second step, you will have sought a benefit under the statute, and thenceforth, be bound by the rules of the statute (administrative agency).

Conclusions:

By 1936, with the Ashwander v. Tennessee Valley Authority decision, we have conclusive proof that the United States Supreme Court, which, as suggested by Chief Justice Marshall, is the interpreter of the Constitution, has been transformed into one that will avoid addressing constitutionality of a matter before it, “unless absolutely necessary”.  Since the court cannot offer legal advice, their decision is based solely upon that information presented to them.  They have not violated the Constitution; they have simply assumed that you have entered into an agreement with an agency of the government, and therefore you are bound by all of the conditions of that agreement.

If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it.  If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.

Then, just 10 years later, with the Administrative Procedure Act of 1946, we find Congress, refining the means of avoidance of the Constitution by creating a fourth branch of government.

 

Summation – that puts all of the pieces neatly into place

Now that we have the historical elements, from prior to the Constitution through recent times, we can put these pieces together so that we may understand Habeas Corpus, and how we can restore it to its proper role.  Since we have now put aside our misconceptions and preconceptions, we will put it together from the beginning.

We know that “the purpose of [habeas corpus] is to test the legality of the detention or imprisonment“.  We know that the false imprisonment may be a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes” or, that “the oppression does not always arise from the ill nature, but sometimes from the inattention of government“, and, that “it is the great remedy of the citizen… against arbitrary or illegal imprisonment“.

If we consider the implications of this, we can see that one’s imprisonment under a law that is unconstitutional can be legally challenged by filing a Demand for Habeas Corpus; thus, an individual may very well be able to nullify a law that is either unconstitutional or inapplicable.  This is not a State claiming that an enactment of Congress is unconstitutional, as there is no provision in the Constitution that allows a State to act in that capacity, except by granting Habeas Corpus, at the state level, and allowing that challenge to go to the United States Supreme Court, to be judged as to its constitutionality.  This does not preclude going directly to the United States Supreme Court, if the charges are federal, and otherwise in violation of the Constitution, if the state and lower courts do not provide a remedy.

We have also seen that a response to a Demand for Habeas Corpus is supposed to be considered timely, even if the judge or justice is on vacation.  After all, Liberty is one of the ideals upon which this country was founded.  When a man’s liberty is unjustly taken, there is no excuse for delay in restoring his liberty.

We have seen that in 1833, in Barron v.  City of Baltimore, though Barron sought protection under the Fourth Amendment, there was an absence of jurisdiction; that the Constitution applied only to the federal government; and, that the people of each state were able to determine which laws would apply to them, since they had legislative, executive, and judicial branches, within their respective states.  As Justice Marshall said, the Constitution “is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.”

We have also seen that, in 1825, and enactment by Congress to provide for punishing those who damage government property was limited to land, “ceded to, and under the jurisdiction of the United States.”  We also saw that the 1890 enactment that Lane was charged with applied only “in the district of Columbia, or other place, except for the territories, over which the United States has exclusive jurisdiction… and out of the jurisdiction of any state or territory.”

In the former, was it because Congress did not intend to protect their property if it was not in land ceded, or was it because they were explicit in defining the extent of that authority granted by the Constitution?  If the latter, did they not care if it occurred in a state or established territory, or did they realize that when executive, legislative, and judicial branches existed under the will of the people, that federal jurisdiction ceased, unless authorized specifically by the Constitution?

In Ableman v. Booth, in 1858, we saw that the Fugitive Slave Act of 1850 had a direct nexus with the Constitution.  The Act was a statutory enactment supporting the enforcement of Article IV, Section 2, clauses 2 and 3, of the Constitution.

In In Re Tarble, 1871, we also find the nexus to the military provisions of the Constitution.

Later, in 1875, and, United States v. Reese, we find that an amendment to the Constitution did not grant authority to punish beyond the explicit intent of the 15th Amendment.  Federal charges were dismissed because there was no federal jurisdiction created by that amendment.

So, clearly, the requisite for a constitutional nexus has been established in both Habeas Corpus and other court cases.  “There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres.”

Before we begin looking into the chicanery that led to the obfuscation of Habeas Corpus, we must first look at our relationship with the court.  In 1856, the case was Dred Scott v. Sandford, we find that Scott had no standing, under the laws of the United States, to take his matter before the United States Supreme Court.  Sandford, however, failed to challenge Scott’s standing, leaving it upon the court to decide whether to hear the case or not.  This established precedence that allows the court to proceed, if objection is not made timely.  Quite simply, if you enter court and do not properly object, the court may assume jurisdiction, even though not warranted by the law.

Now, we have learned that, except in certain circumstances, we were not subject to the jurisdiction of the United States.  So, if 4th Amendment says that it extended to those who were “subject to the jurisdiction” of the United States, would it also include those who, prior to the amendment, were not subject to the jurisdiction of the United States?

Now, we learned from Dred Scott that Scott, a former slave, was not subject to jurisdiction.  That, however, was prior to the 13th Amendment, which freed the slaves.  Since most states would not recognize freed slaves as citizens, this new class of people became subject to the federal jurisdiction, by virtue of the Amendment.  They, then, were “subject to the jurisdiction” of the United States.

The 14th Amendment, then, only applied to those who were not citizens at the time of its enactment.

We see this confirmed, in 1908, in Twining v. State of New Jersey.  Twining and Cornell were citizens of New Jersey.  They had not been incorporated into that new class of citizen created by the 14th Amendment.  Since they were not citizens under the 14th Amendment, they were treated just as Barron was in 1833 – they were outside of federal jurisdiction.  Had they been citizens under the 14th Amendment, they would have been under the jurisdiction of, and afforded the protection of, the 14th Amendment.

In 1936, Justice Brandeis, in Ashwander v. Tennessee Valley Authority, explained the rules that the Supreme Court had adopted over the past few decades.  Those rules provide us insight into the workings of the court in which they endeavor to avoid ruling on the constitutionality of a matter before them, if at all possible, and if not possible, to make its ruling as narrow as possible.

So, the courts are willing to take a case presented to them, whether proper or not; and to avoid ruling on the constitutionality, if at all possible.  What else could go wrong?

Though there had been administrative agencies prior to the Administrative Procedure Act of 1946, there had not been a codification that provided for the enforcement of Administrative Agency rules.  So Congress created, by their own admission, a fourth branch of government.  At that time, this fourth branch affected less than one percent of the population.  However, by failure, on the part of the people, to realize their evolving relationship with the federal government, we have come to a point in time where over 99% of the people find themselves subject to the these administrative agencies.

Habeas Corpus is the means by which we can challenge the jurisdiction of many federal laws, at least as they apply to us, effectively nullifying those laws.  We simply have to learn how to not roll the dice, so that we are not bound by the rules of the game.

 

 

For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended

 

 

A Social Contract

A Social Contract

Gary Hunt
Outpost of Freedom
May 18, 1994

The Founding Fathers relied upon, and developed much of the concept of the Constitution (a social contract) from the works of authors, thinkers and philosophers of the time. One of those was Rousseau, who wrote “The Social Contract”, who recognized the true relationship between government and people when the presumption was made that all just power derives from the people. Rousseau wrote:

“The moment the people is lawfully assembled as a sovereign body, all jurisdiction of the ‑government ceases the executive power is suspended, and the person of the hum blest citizen is as sacred and inviolable as that of the highest magistrate, because there can be no representatives in the presence of those they represent. . . The consuls were then only the people’s chairmen, the tribunes were only speakers, and the Senate was nothing at all.

“The government always dreads these intervals of suspension, when it recognizes, or should recognize, a present superior and such assemblies of the people, which am the shield of the body politic and the brake on the government, have always been the terror of the magistrates, who therefore spare no pains in raising objections, making difficulties, and giving promises to discourage the citizens from assembling. When the citizens am avaricious, lethargic, cowardly, or fonder of tranquility than of freedom, they do not hold out long against the redoubled a its of the government. It is thus that, as the opposing force constantly  increases, the sovereign authority finally  vanishes and most republics fail and perish before their time.

So, what stands between the sovereign authority (the people) and arbitrary government (that which Rousseau identifies as the “opposing force”)? The social contract which, in our case, is the supreme law of the land, the Constitution for the United States of America. It is easy to conclude the purpose for the Constitution, yet is it so easy to understand the peril that threatens it today?

We are told, from early school education through college, on television, radio, newspapers and nearly every from of social communication, that the changes in technology warrant a greater necessity for “law enforcement” and regulation. We are told that the reason for the second amendment was the need to hunt meat or to defend against outlaws and Indians. We are told that the need no longer exists, and that the passage of laws restricting firearms ownership are because of the rampant crime existent in America today. Do they tell us that the crime that we see today is not crime as envisioned by our forefathers? These “crime control acts” that they are constantly passing, if you think about it just a moment, are really “crime creation acts”, for they create crimes as a result of rule violations rather than damage or injury to victims. These “manifestations” of crime then lead to real crime as a result of putting people into a circumstance of being on the other side of the “law.” Then comes the “outrage” expressed by the politicians which results in reactive passage of even more restrictive laws, which results in further increase in “crime”, which results in passage of more laws ‑‑ And we see the results of Rousseau’s theory come to fruition.

Is there, however, and alternative to this slow but sure demise of our Constitutional Republic? Perhaps the Founding Fathers gave us a means to achieve these goals. In most republics of past history, and there were many, the cycle of their histories lasted about two hundred years. The Founding Fathers, understanding this reality, provided us a document written in simple terms so as to not be to difficult to be understood, yet provided us, also, with many supportive documents whereby we could learn of their inspiration and, perhaps, resurrect the Great Experiment. The tools were given us by the AntiFederalists when they insisted on the Bill of Rights. This “heart of the Constitution” assures us both the intent and the means of the salvation of this great nation. It is not an easy task, nor is it to be accomplished without effort by those who understand and desire to achieve this goal. More significantly it must be recognized that now is just short of to late to begin this process.

Factions — The Chains of Oppression – Part III

Factions — The Chains of Oppression – Part III

The Greatest Obstacle to Restoration of Constitutional Government

Gary Hunt
Outpost of Freedom
August 25, 2011
This is Part IIII of IV Parts

Factions in conflict with the Principle Faction

Illegal immigrants:  It is often said that the first impression is the most important impression that you will make upon others.  Suppose that the first impression that you make is an unwillingness to abide by the rules/laws of the host, when you are a guest; suppose someone came, invited, or not, into your home and started telling you that the wall colors were wrong, that they didn’t like the pictures you had hung, that they didn’t like carpeted floors, or that you should prepares them a meal and a bed.  It would not be surprising if you caused them to exit your home, and assured them that they would never, again, have entry into your home.  That impression that they gave was not what is expected of the guest, and any reaction you had to that belligerence is justified, even if force is necessary to remove them.

We are the collective owners of the country (our collective home), and, as such, have established rules/laws for entry into that home. They were enacted in accordance with the Constitution and are, as such, the law of the land.  Those who enter with their first step being a violation of those rules/laws have, as the unwanted guest in your house, established an impression that is lasting, and totally unacceptable.

Those who wipe their muddy feet on your clean carpet are not a part of any acceptable class of people, visitors, or those here by right.  They have, by their actions, spit in the face of what this country stands for.  It is not a melting pot for the entire world, nor was it intended to be destroyed from within, by a cancer that grows at astronomical rates, and, quite often, at the expense of our own depleted treasury.  Each person that enters illegally, or overstays their permitted visit, is a greater threat to the future of our country than any military threat, from any other country, without comparison.  The military threat, we have proven, cannot prevail against us.  This insidious intrusion, however, eats away at our country’s soul with every day that they remain.

Illegal immigration advocates:  Those who would advocate forbearance in dealing with these intruders are not adherents to the Principle Faction, nor are they adherents to the laws, concepts, traditions, manners, customs, nor anything else, that we hold dear — and must continue to hold dear, if we are to survive as the United States, our birthright.

These people, though they may otherwise not be in conflict with the Principle Faction, and may even be of the class of “We the People”, or “citizen of the United States”, are, by their support of violation of the law of the land, in conflict with the Principle Faction.  They have denied the concept of assimilation, and have thereby provided a means of destruction of the entire purpose of the Founders and Framers, for the creation of this great nation.

Anti- religious groups, Atheists, Agnostics:  When we understand our heritage, we recognize that the Founders and Framers were religious, though perhaps not pious, men.  Both Washington and Jefferson had problems with organized religion, as many of us do today.  Regardless, they had beliefs founded on both Old and New Testaments, and adhered to the Christian moral values, without question.  Never did they challenge the concept that was, eventually, embodied in the First Amendment.

The Supreme Court Building (built 1932-35) in Washington, D.C., contains over a dozen depictions of Moses and/or the Ten Commandment, sculpted in stone, and permanent not only in that building, but in the hearts and heritage of this country.  Congress begins each daily session with prayer, and has done so from their first gathering.  President’s have called for days of prayer and thanksgiving, in official proclamations, throughout our history.

However, there are those advocates who have challenged the right of a state, a county, school, or even a small town, to begin with prayer; display the same representation found in the Supreme Court building, or erection of seasonal displays of Christian holidays on public land.

And, in a somewhat surprising response, they have found proponents of their advocacy in those very halls of government mentioned above.  All under the guise that such actions and displays are “unconstitutional”.

How can that be unconstitutional which was practiced by the very authors of that document, and those who ratified it?  Their practices and beliefs were not in question then, and there is the more serious question as to whether even an amendment to the Constitution would be Constitutional if it abrogated the First Amendment.

Surely, we cannot even begin to consider that we may remain as even a vestige of the United States if we allow the denigration of those practices considered by most to be fundamental to the establishment of the country — by those very people who caused to be carved in stone the underpinnings of the moral compass by which we found our course.

So long as they adhere to the Principle Faction, and otherwise meet the requirements of class, and distance themselves from those who advocate to the contrary, they may be considered to be of the Principle Faction.

Those who continue to advocate legal sanctions, removal of displays, or any other means of undermining that which has stood so long, are in conflict with the Principle Faction, and have no place in this country, since they choose not to assimilate, rather to change that which is our heritage.

Homosexual rights groups:  Some will argue that homosexuality is a disease, others that it is a lifestyle choice.  Each is a diversion from the crux of the matter.  It is considered by the Christian moral values adopted by this country, 220 years ago, to be immoral.  Though with the exception of some local jurisdictions, and some states, it has not been considered criminal — just immoral.

Even when criminal, it was seldom prosecuted, since it was conducted between consenting parties, in private circumstances.  To intrude on that privacy was as much a crime as the behavior itself, at least under the principles of the Constitution.  However, if we look at a few of the steps taken to endeavor to assign legitimacy and morality to the practice, we will find an excellent example of the destructiveness of factions.  The common terminology used to describe homosexuals was often “queer” (which is rather what their behavior was considered to be), or the more objectionable “fag” or “faggot” (a derogatory term).

As late as the fifties and sixties, homosexual, or, queer, bars and clubs were not uncommon.  Their public behavior was normal, and their private behavior, in such facilities, was, to use the expression of the time, “done in the closet”.  And, very few had objection to such behavior, so long as it did not “spill onto the streets”.

There was an effort in California, back in that period, to establish a homosexual community in the village of Alpine, in the High Sierra.  Even then, there was no general outrage, since the village would be their own ‘closet’.

Next came a change in terminology.  A word that was frequently used to indicate jovial, happy, light, was adopted by the homosexuals.  Back then, people would go to a “gay party” meaning that it was going to be sitting around in a light and humorous atmosphere, perhaps telling jokes and stories.  However the theft, yes, I mean theft, of that word, which had only positive connotations, was a move to give an air of legitimacy and acceptance to a behavior that was, heretofore, considered immoral.  A major coup by this faction managed to change the image of the homosexual, and to remove from usage a word that was commonly used, even then.

Since that time, this once frowned upon group has managed to use the courts and legislative process to provide special protection and special privileges from what was, through most of our history, a subject unworthy of discussion.  They have taken a word, “marriage”, with millennia of understanding of the definition, and still recognized in US Code as between a man and woman, and have managed to steal that word for their own uses and economic gain.

They have successfully lobbied for legislation that forces the government schools to encourage such behavior, contrary to the wishes of the parents who are clearly among the Principle Faction, and are advocating a moral degeneration of our society.

Those advocates of homosexuality are in conflict with the Principle Faction, and have no place, with the exception of the closet, in our country.

Black  rights advocates:  As explained in the “We the People” series (linked above), a second class of citizen was established by the Fourteenth Amendment, and confirmed by a subsequent amendment and decisions of the United States Supreme Court. However, through a subtle process of indoctrination, beginning in the late fifties and early sixties, the intent of that Amendment has been converted to an application that has generated havoc, loss of property, and even loss of life.

The “civil rights” movement of that period moved us from a society that recognized the Principle Faction (basically, a fundamentally white culture) to one that has legislated, encouraged, and enforced against, that society, undermining it,  in favor of granting privileges to those citizens of the United States, as well as other without such standing, under the guise of equality, greater even than that afforded to “We the People”.

Society, itself, had moved in that direction, at the rate that was warranted by the people, not the government. Whether Jackie Robinson, Nat King Cole, or Fats Domino; acceptance of negros as a part of our culture, was in the works.  Society, itself, was approaching a degree of equality, voluntarily.

Instead, it turned to demonstrations (not the preferred form of legislative influence), by both sides.  And, since those early days of civil rights demonstrations, they often turned to violence, instigated by both sides. America has been in a near constant state of turmoil, since the time that the government stepped in and tried to privilege the second class even above the first class.  And some of that violence, today, perpetrated by those who believe that “change has not come fast enough”, is nothing more than rioting and thievery, perpetrated under the guise of equality, couched in phrases about social and economic ‘justice’.

These, groups, relying upon judicial intimidation and violence, have proven that their methods and goals are in conflict with the Principle Faction, the Constitution and its principles, and our way of life.

Woman’s right advocates:  Abigail Adams, wife of John Adams, is probably the best known advocate of women’s rights.  However, as much as she discussed the subject in correspondence with her husband, he never did advocate such a change in the legal relationship of women within that society.

Over the years, the nation evolved, not turning against the Founding principles, rather, in a social or societal form, with Wyoming being the first to enact women’s suffrage laws.  Rights of ownership of land and/or inheritance were becoming common, and barriers were falling, as well as advancing women in the society, without intervention by the federal government.

Finally, in 1920, with the ratification of the Nineteenth Amendment, the federal government intervened in an area that was reserved by the Constitution to the states.  As with the Fifteenth Amendment (race suffrage), the right of the states to determine who could vote in elections, both state and national, as protected by the Constitution, was now being assumed by the  federal government.

Not that it was a bad move, rather, that it was the abrogation of the right of the states to make such a decision, that was so appalling.  It was just seven years earlier that the right of the states to be represented, by senators chosen by their respective legislatures, in Congress, was removed by the Seventeenth Amendment.  This was, effectively, the end of states’ rights.

As contrary to the original construction of the Constitution as this was, it also opened a means of the presumption of federal authority in manipulating the society to the will of the powers in Washington, D.C., and those who influence such social change.

Over time, unconstitutional legislation has resulted the reduction of the male to a subordinate position in our society, where lawsuits and intimidation work in only one direction, to the detriment, and at the expense of, one half of the society.

Our society, which was based upon rewards for performance, was converted to one where rewards are mandated by quotas, with little regard to ability and performance.  This denies to society the making of the choices that were assured and protected by the Constitution.

The advocacy of federal intervention, as opposed to the normal evolution of these norms in our culture, is in conflict with the Constitution and its principles, and is inconsistent with the Principle Faction.

Christian militia:  Militia, the right to collective self-defense, is embodied in the Second Amendment, and has been a part of our heritage and culture since the Magna Carta.  Since 1215, that right has existed, and, since that time, the Militia have always been subordinate to civil authority and have been geographic in their composition.  From the Shires of England, to the counties, townships, villages and plantations of the seventeen hundreds, participation in the militia was a right and was a duty. The only exceptions were exclusions for certain people because of vocation, and those that were “inimical to the cause of American Liberty” (Tories).  To exclude people who do not claim to be of the Christian faith is contrary to the Constitution and the principles upon which it was founded.

Christian militia are inconsistent the Principle Faction

Islamic groups:  Islam is not just a religion.  Islam, in its current manifestation, is a social and political system, as well.  It is a social system that includes a number of practices that are considered abhorrent, by our culture. Its social/judicial system manifests extreme punishments for what our culture might perceive to be a minor transgression or no crime at all.

Though two hundred years ago, “Mohametmen” simply practiced as a religion, and were accepted as a religion by the Framers, their character has changed to be anything but just a religion.

We can look to Europe and see the consequences of the intrusion of Islam into a society.  Eventually, the demand for change or legal reform to comply with their social/political system takes many forms, including physical abuse against people that oppose them; and the obstruction of roadways so that they can hold collective prayer absent a facility for such service; exercising their form of justice, including capital punishment, contrary to the host country’s laws, and often exempt from prosecution for crimes that would otherwise result in incarceration, or worse.

Much like the illegal immigrants, members of the Islamic faith come here with a total disregard for our laws, our culture, and our society.  They come with the intention of forcing change, by intimidation, by their numbers, or any means that suits them.  Their presence in the country, under their present manifestation, is contrary to the Constitution and its principles, and contrary to the Principle Faction.

The Congress:  Congress, especially after their vote for the Debt Ceiling Increase, has demonstrated that they are a faction unto themselves, without regard for the Constitution or the will of the people.

The Congress acts in conflict with the Principle Faction of this country.

The Executive Branch:  The Executive Branch, tasked with enforcing the laws of the land, has continued to ignore existing laws regarding immigration, and when forced into enforcing such laws, does so with a leniency that is more encouraging to the violation of the immigration laws than deterring them.

The Executive Branch has declared that Tea Party members; Constitutionalists; Gun Rights (Second Amendment) advocates, combat veterans, and others, who fall well within the Principle Faction as “terrorist”.

The executive Branch of the government is in conflict with the Principle Faction of this country

The US government:  The government “erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance”,  to lie, steal and even murder, members of the Principle Faction, and has done so with immunity from prosecution.

The Administrative Branches of government are in conflict with the Constitution and its principles, and the Principle Faction.

State governments:  State governments, with rare exception, do not defy federal intrusions against the Principle Faction, and often participate in the enforcement of unconstitutional polices and laws, receiving compensation from the federal government for the submission to its assumed and unconstitutional authority.

The state governments are acting in conflict with the Constitution and its principles, and the Principle Faction.

Of course, within each of these factions are members who are adherents to the Principle Faction and the Constitution, though they may be facilitating that faction in opposition to the Principle Faction.  Rather than suffering guilt by association, they would be well advised to understand that adherence to the Principle Faction and assimilation is imperative.

 

Factions — The Chains of Oppression – Part II

Factions — The Chains of Oppression – Part II

The Greatest Obstacle to Restoration of Constitutional Government

Gary Hunt
Outpost of Freedom
August 25, 2011
This is Part II of IV Parts

Factions not in conflict with the Principle Faction

Let’s look at some factions that are examples of those consistent with the Principle Faction:

Christians:  Our nation was founded, without doubt, upon Christian moral values.  Some of those values, however, have been disputed between various sects of Christianity since before the Founding of this great nation.  In fact, the First Amendment, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof”, was adopted to assure that the ability to practice one’s religion, as one might chose to practice it, was a fundamental (God given) right.  Even “Mohametmen” were allowed to practice their religion, though the principles established by the Constitution retain the moral values of Christianity.  It was never implied that laws could be passed based upon Islam — only those based upon Christian moral values, and those, only locally, in order to provide a comfortable community for those who chose to live therein.  The idea that a law would be passed allowing the wearing of a Burka, contrary to norms for the community and country, was inconceivable.  It was the need for assimilation, in order to maintain that which was created by the Revolutionary War, that is necessary to maintain the greatness of the country.

Outlawing prostitution, gambling, alcohol, done at the local community level (often county level), was paramount in the concepts adopted by the Founders.  To assume that a state could enact and enforce such laws was not even under consideration during those formative years, and efforts to establish moral laws on a state-wide level were inconceivable.

Many Christians have beliefs that are not consistent with the beliefs of others, though there is a tendency to suppress expressing them outside of one’s own circle, in recognition of the rights of others to believe as they wish.  However, if we look back in history, we find that these ideals were expressed in newspaper articles, on soap boxes, and by legislators in assemblies, without fear of repercussion or arrest.  Absent the ability to express such feelings, we are denied the right to pursue legislation that we believe to be for the good of the country, the state, the county, or the town, in which we live — not to impose upon others, but rather to refrain from leaving those moral values behind.

So long as Christians adhere to the Principle Faction, and subordinate their beliefs, except as addressed above, to that Principle Faction, they are adherents to, and a product of, the United States.  They are what America stands for.

Boy Scouts of America:  Why would we even consider discussing a private organization such as the Boy Scouts of America under the heading of factions?  Well, they are a faction — one that has been around for over a hundred years.  Their principles are based upon the Christian religion, and the Constitution and principles of this great country.  Recently, however, the courts in this country have endeavored to impose upon the Boy Scouts rules of admission and acceptance that are absolutely contrary to the foundation of that organization.  They, like Christians, are able to practice as they choose, and allow only those who conform to their beliefs to become members of that organization.

Instead, the courts have ruled that the Boy Scouts cannot prohibit membership to those who don’t espouse the objectives of the Boy Scouts.  They are forcing change upon an organization that exists totally within the concept of adherence to the Principle Faction, and have every right, under the Constitution, to allow membership only to those who adhere to the principles of that organization.

The Boy Scouts of America adhere to the Principle Faction, and subordinate their beliefs, except as addressed above, to that Principle Faction, they are adherents to, and a product of, the United States.  They are what America stands for.

Jews: Jews don’t believe, with few exceptions, that Christ existed, or, that if he did, he was not the Messiah.  Well, this is definitely not consistent with Christianity, though it is not inconsistent with Christian moral values.  In fact, for many years, many Christians despised the Jews and held them in contempt. Often crimes were committed against them, in the name of Christianity.  In those instances, the Christians stepped outside of their adherence to the Principle Faction, though such instances are few and far between.

The Jews have established their own communities where they adhere to the precepts of their religion, and do not endeavor to impose their beliefs into the law, or upon others.  They adhere to the Principle Faction, and subordinate their beliefs, except as addressed above, to that Principle Faction, they are adherents to, and a product of, the United States.  They are what America stands for.

National Socialist Movement (in certain of its various forms):  Much like the Jews, the beliefs of many National Socialists are inconsistent with the general tenor of the country, and though outspoken in their beliefs, they have, for the most part, adhered to the Principle Faction.

Some participants in this faction have stepped outside of the law and impose injury, unjustly, on others.  These few, however, do not speak for the whole; the majority adhere to the laws, and their expression of their beliefs is consistent with the Constitution, though, perhaps, not politically correct.

Though they have chosen symbols (swastika and other Nazi representations) that are considered evil by most, what they hold to is not much different than the government’s support of Japan and Germany, since the end of World War II.  It was the whole of the people of each of those countries that stood firmly behind their governments — responsible for death and devastation, around the world.

So long as National Socialists do not break the law and adhere to the Principle Faction, and subordinate their beliefs, except as addressed above, to that Principle Faction, they are adherents to, and a product of, the United States.  They are what America stands for.

Anarchists (in certain of their various forms): The Founders enacted very few laws that acted directly on the people. For the most part, the laws enacted in the first few decades of the United States were laws to define, enhance, or protect the government.  The exceptions were the moral laws, also known as Blue Laws, which generally existed within the confines of a town’s ordinance, or, perhaps, even county ordinances, in an effort to establish a moral foundation that was comfortable to the majority of those residing there.  Otherwise, a degree of anarchy, at least by one definition, was a part of life of the times.

There is an old adage that Liberty is existent so long as your fist stops before it reaches my nose.  Our individual constraint on our own actions, so that we do no harm to others, is, perhaps, the best definition of that which should be.

The modern anarchist, even those who might espouse absence of government, altogether, are not inconsistent with much of what the Founders believed.  A minimum of government is, perhaps, best, and, is without a doubt, consistent with the Constitution and most state constitutions, at least as originally ratified.

So long as Anarchists adhere to the Principle Faction, and subordinate their beliefs to that Principle Faction, they are adherents to, and a product of, the United States.  They are what America stands for.

The Patriot Community:  This is the most loose-knit community within the factions adhering to the Constitution.  It is comprised of people who have, generally, taken one issue or aspect of the Constitution, to be their cause.  Some of those aspects are taxation, the monetary system, the judicial system, the immigration policies (laws) that are not enforced, the First Amendment, the Second Amendment (either, or both, right to bear arms and militia), and, other lesser and greater causes.  They are as diverse, and, perhaps more so, than the Founders, at the beginning of the Revolutionary War, yet they are probably the most vociferous of factions that comprise the adherents to the Principle Faction. They do, without a doubt, adhere to the Principle Faction, and subordinate their beliefs to that Principle Faction.  They are adherents to, and a product of, the United States.  They are what America stands for.

Factions — The Chains of Oppression – Part I

Factions — The Chains of Oppression – Part I

The Greatest Obstacle to Restoration of Constitutional Government

Gary Hunt
Outpost of Freedom
August 25, 2011
This is Part I of IV Parts

Factions

Factions are rather interesting, though often ignored by most, in the world we live in.  Factions are “somebody else”, and we, individually, have no part in them, except those that we are a part of — though we don’t really see them as factions, only truth.  We know what we believe; we know our moral values; we know what right and wrong are; we know what we want to know; everybody else is, if they don’t agree with us, simply wrong.

So, let’s begin by understanding what a faction is.

Webster’s 1828 Dictionary:

A party, in political society, combined or acting in union, in opposition to the prince, government or state; usually applied to a minority, but it may be applied to a majority. sometimes a state is divided into factions nearly equal.

… whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

 

Or, the more simplistic:

A group of persons forming a cohesive, usually contentious minority within a larger group.

Factions are, however, a way of life.  We are all in factions and in many different areas.

For the most part, people perceive, with very few exceptions, that there are two political factions in this country; Democrats/Liberals, and, Republicans/Conservatives.  What the political philosophies of the two “factions” are is inconsequential, at least at this point, to the discussion.  The point to be made here is that we have perceived that there are only two factions, and anything else is hardly worthy of our consideration.

With regard to other aspects of our lives and our society, there are minor factions that we see, all of the time.  For example, the queer community is recognized as a faction, though most fail to recognize that there is a large faction, which is opposed to the smaller, recognized, faction.  That larger faction is those of us who, whether Christian, or not, understand the necessity for moral values and standards within a country.

However, legislation, political correctness, and/or influence through the press tend to either render illegal, or, at least minimally subject those who are a part of that larger faction, to ridicule for expressing themselves, in dispute with the faction’s principles.

The net effect is to render that larger faction as inconsequential, or illegitimate, providing a strong platform for the assertion of the values of the lesser faction, even to the point of additional legislation on their behalf.

Factions in history

We can look at history, and around the world, today, and see the affect of factions.

Let’s start by looking at revolutions.  After all, there have been many revolutions throughout history, though there has only been one that provided a rather smooth transition of government.  And all of them have been lead by factions — sometimes one, sometimes multiple, and, sometimes, begun by one faction where another faction became dominant before the job was done.

The French Revolution began in 1789, the same year that our Constitution became the framework of our own government.  That revolution lasted for a number of years, and during the entire course of it, the control of government passed from hand to hand, each hand being the one that, at any given time, had the most influence and power.  Often, those in power for the moment would require the execution (guillotine) of someone that was a partner in power, just months before.  The groundwork was laid, as the Revolution needed, to restore monarchy and the emperor, Bonaparte (twice).  So much for a smooth transition.

The Russian Revolution began in 1917.  The Mensheviks began the turmoil, and, eventually, the Bolsheviks gained control.  Then, the Bolsheviks became factionalized, Red verse White, leading, eventually, to Lenin obtaining power.  Again, not a very smooth transition.

Revolutions, at least those of the ordinary sort, tend to have factions that vie for power, even while the revolution is going on.  The resultant government is, generally, unstable and retains its authority by force.

Today, we see the beginnings of revolution in Egypt, Lebanon, Syria, Libya, and Yemen.  These “street” revolutions are lead by factions.  Most often those factions have a religious foundation, though often, there are factions within a religious group, of an ethnic nature.  There can be little doubt that the stronger faction will take control, though the conflict will not cease — until the opposition is exiled, imprisoned, or killed.

Factions in the United States

So that we can put in perspective the factions and the roles that they play in the maintenance of a country, or its destruction, we must first understand just what factions exist, what their role is, and whether they are acceptable, in terms of maintaining the United States of America, as intended.

In a recent series of articles (“We the People’, but, who are We?” – five Parts, linked to Part I), a review of the Founding documents, subsequent amendments, and, Supreme Court Decisions, provides us an understanding of just who “We the People” are, and, as Justice Taney described in one Decision, that this country is only for these “We the People”, but for no one else”.

Now, right there, with that last statement, I would expect that many would cringe and began to react in accordance with the decades of conditioning that we have been subjected to.  After all, haven’t we been raised to believe that this country was made for anybody who wants to come here, for any reason, even if their purpose is to change the nature and purpose of what the Founders willingly gave their lives for?  But, is it in the best interest of this country, our future, and our progeny, to accept that what was created just over 200 years ago should fall prey to changes which will destroy that which is our birthright?

So, let’s begin by understanding that though there may be smaller factions, with their own respective interest and objectives, that there is, and should be, a Principle Faction — upon which all else is subordinate.

Principle Faction

As explained in the “We the People” series, there are two classes of people that comprise the Principle Faction.  These are those who are described as the cause and purpose of the existence of the United States and its Constitution; and, those who were made citizens, though not fully empowered with the rights inherent within the Constitution, through the enactment of the Fourteenth Amendment, and are, or should be, of the Principle Faction.

However, within both of these classes, there may be many who, though of the nature and class of “We the People” or citizens of the United States, for other reasons, reject the principles upon which the country was founded.  These, though they may have rights, privileges and immunities, as described in that series, that do not adhere to the principles are no more a part of the Principle Faction as one who joins an organization to change its nature.

Absent adherence to the Constitution and the principles upon which it was founded, makes one a citizen by birth, though a traitor by attitude — as much as any spy who endeavors to subvert the country by his actions.

Subordinate, or lesser, factions

Factions are created when a significant number of people, having similar ideologies or purposes, realize that they are sufficient in number to create a “body politic” to champion their purpose.

That purpose can take two forms; First, to achieve a recognition, though in so doing, not to affect the Constitution, the laws, or obtain any favor other than those enjoyed by all of the people; Second, to achieve recognition for the purpose of political gain, changing of laws, and obtaining favor that is not enjoyed by others.

The former has existed in this country throughout its history, and is comprised of people who were born into or have assimilated into the American culture — without intentions of changing that culture.

The latter, on the other hand, is inclined to adapt the culture to his beliefs, to effect change that is inconsistent with that which the Founders gave us, and, will often employ the pretense of Constitutional right, though the result will be the diminishment of the rights of others, in favor of their object, whether financial, legal, or both.  They choose not to assimilate, rather, to force change upon the Principle Faction and force that Faction to subordinate to their will.

Now, as we begin to look at lesser factions (any subordinate to the Principle Faction), they will come under two categories.  First will be those who are not in serious conflict with the Principle Faction.  Second, those who are in conflict with the Principle Faction.

“We the People”, but, Who are We? – Part V

“We the People”, but, Who are We? – Part V

Gary Hunt
Outpost of Freedom
August 3, 2011

 

In Part I, we established what the Supreme Court determined to be “We the People”, or, “citizens of the United States”, prior to the ratification of the Fourteenth Amendment.

In Part II, we saw that the Fourteenth Amendment conferred to those not of “We the People”, regardless of prior status, a new class of people who are granted “privileges and immunities”, though not the rights inherent with “We the People”.

In Part III, we see that within a few years of ratification of the 14th Amendment, the Supreme Court confirms that “rights” were not conveyed by that Amendment.

In Part IV, we found that the Supreme Court did recognize that there was a difference between a citizen of a state and a citizen of the United States, and that the latter was protected (jurisdiction existed) by the Fourteenth Amendment and to the former, it did not (no jurisdiction).

Now, we will move forward, 56 years, to 1964, to a case that reaffirms the classes of citizen, though begins to erode the protections previously provided to citizens of the United States.

The case is Malloy v. Hogan, 378 U.S. 1, and involves a discussion by the Court of just which Amendments (Bill of Rights) are extended to those who seek protection under the Fourteenth Amendment, when it says:

It was on the authority of that decision that the Court said in 1908 in Twining v.  New Jersey, supra, that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”

So, the question that arose in this case is, to what extent does the Fourteenth Amendment apply to the protection of rights, and, which rights are protected.  It redefines what was said in Twining, and requires that any right being protected “be a denial of the due process of law“.  This is a simple paraphrase of “the equal protection of the laws”, from the Fourteenth Amendment.  So, it simply expands that singular authority to include speech, press, and other rights within the first eight amendments, so long as “due process” can be brought into the equation.

It did not, however, even begin to address anything that would remove, or affect, the nature of the two classes of citizen.  They remain unimpaired and intact.

Since the Courts will use a stepping stone process in “revising” laws to a more modern “interpretation”, Malloy afforded the Court the opportunity to undermine the distinction between the two classes.  However, they chose not to walk upon that sacred ground.  Their absence of comment on the two classes leaves that distinction intact.

So, we can see that from Dred Scott (Part I), in 1854, the Court established a foundation of this country as being built upon, by, and for, a certain class of people.  This is probably best defined by the wording of Justice Taney, in that decision, to wit:

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded.  It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States.  And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

For the sake of discussion, this sacred class (within the United States) shall be referred to as “We the People”.  But, perhaps, we should endeavor, with a bit more precision, to define just what/who those “We the People” were/are, in light of what Justice Taney said.

After much thought, I can only come up with three possibilities that might shed light on Taney’s description of that class known as “We the People”.

  1. That it would include only those who are defined by the rather common acronym, “WASP”, meaning “White Anglo-Saxon Protestant”.  When we consider that in the Seventeenth and Eighteenth Centuries, Jews were not allowed to reside in some of the colonies; that loathing of Catholics (Popists) was common through most of the colonies, during that period, more effectually demonstrated by the objection to the Quebec Act of 1774, allowing Catholics to vote and hold office in Canada, are indicative of the sympathies of the times;
  2. Caucasians of European descent, which would include perhaps 99% of those who had immigrated to the colonies to begin life, anew; or,
  3. Those of Indo-European language groups (first defined in 1647 and including English, Dutch, Greek, Latin, Persian, German, Slavic, Celtic and Baltic languages), thus having a common heritage and culture, at least in the distant past.

There is no way that we can interpret, from what Justice Taney said, just who “We the People” were, though it is clear by the context of his description that it would include those above described peoples, or combinations thereof, “but for no one else.

Then, the Fourteenth Amendment was ratified and granted citizenship to people who were not of this class, “We the People”.  Further, it granted then only privileges and immunities.  It did not grant them rights.

This position (distinction between classes) is further supported by the ratification of the 15th Amendment (granting the right of suffrage (voting), regardless of “race, color, or previous condition of servitude”.

Then, in 1874, the Court, in Happersett (Part III), made clear that the Fourteenth Amendment did not convey rights.  However, the Constitution makes clear that there are rights retained by the people (We the People), so since there cannot be conflict between the Constitution and an AMENDMENT (unless expressly resolved in the amendment), the distinction is further enhanced.

So, for all intents and purposes, there are four classes of people in this country, today:

  • “We the People”, those descended from the Framers, or otherwise within the principles of the original Constitution, who have retained their rights;
  • Those made citizens by the Fourteenth Amendment, with the privileges and immunities granted therein, and any rights specifically bestowed, by subsequent amendments;
  • Those who are here, lawfully and in accordance with all laws, as visitors, and who have not violated any conditions of the permission granted to visit; and,
  • Those who are here unlawfully, that have entered in violation of our laws or have violated the conditions of their permissive visitation.

The foundation of this country, then, rests upon an understanding that the purpose of the Constitution, and the country, is to provide a home for those of the class, “We the People”.  That others who choose to assimilate into the American Culture do so with that understanding, and the understanding that they are the beneficiaries of all privileges and immunities, though only those rights specifically granted.

It can also be concluded that any who have designs contrary to the support and continuation of the United States, as intended by the Framers, and described herein, are inconsistent with the purpose of the country, and, as such, are against the Constitution and should be deemed unacceptable and unwanted visitors.

If the United States is to return to its former stature as the beacon to the world of freed enterprise by a free people, we must return, also, to the concept that allowed such concepts of freedom to prosper, and grow, in a rather short history, to what it had become by the end of the Nineteenth Century.

It can return to that stature only if we do return to those principles that made this nation great.  Absent a dedication to that purpose, we are destined to be nothing more than a footnote in history.  And, that will be our rightful place, if we fail to act to secure that which we hold so dear.

Thus concludes this series.

* * * * *

Part I can be found at “We the People”, but, Who are We? – Part I

Part II can be found at “We the People”, but, Who are We? – Part II

Part III can be found at “We the People”, but, Who are We? — Part III

Part IV can be found at “We the People”, but, Who are We? — Part IV

 

“We the People”, but, Who are We? – Part IV

“We the People”, but, Who are We? – Part IV

Gary Hunt
Outpost of Freedom
July 21, 2011

 

In Part I, we established what the Supreme Court determined to be “We the People”, or, “citizens of the United States”, prior to the ratification of the Fourteenth Amendment.

In Part II, we saw that the Fourteenth Amendment conferred to those not of “We the People”, regardless of prior status, a new class of people who are granted “privileges and immunities”, though not the rights inherent with “We the People”.

In Part III, we see that within a few years of ratification of the 14th Amendment, the Supreme Court confirms that “rights” were not conveyed by the Amendment.

This must lead us to question whether there is any substance to these very significant acts and decision. Is there any long-lasting affect, as a result of them?  If so, has anything changed them? If there have been no changes, are there still two distinct classes of people in this country?

Do answer these questions, we need only jump forward another 34 years, to 1908.  This Supreme Court decision will clearly lay out that there are, indeed, two classes of people, and that one is subject to federal jurisdiction and protection, while the other is not.

The case is Twining v. State of New Jersey – 211 U.S. 78 (1908). It has two elements, at least pertinent to this discussion.  First was whether there was jurisdiction, under the Fourteenth Amendment, to a state citizen; and, what did the Fourteenth Amendment extend to a “citizen of the United States”.

Albert C. Twining and David C. Cornell were indicted by a Grand Jury, and, convicted of providing “false papers” to a state banking examiner.  They were sentenced to prison terms, and Twining appealed the action of the New Jersey Court.  He held that the requirement to turn over papers to the examiner, absent a court order, denied him “due process” under the Fourteenth Amendment.  He lost that case and pursued a remedy in the Supreme Court.

Justice Moody provided the decision of the Supreme Court.  In summing up the case, he posed the following:

“. . .  whether such a law [state law] violates the 14th Amendment, either by abridging the privileges or immunities of citizens of the United States, or by depriving persons of their life, liberty, or property without due process of law.  In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: First, that the exemption from compulsory self- incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar.  The first proposition naturally presents itself for earlier consideration.  If the right here asserted is not a Federal right, that is the end of the case.  We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.

Well, that last point, “If the right here asserted is not a Federal right, that is the end of the case.”, will lead to the final decision of the Court, though we must first look at why they denied Twining the protection, under the Fourteenth Amendment, that he sought.

The Court brought out that two states, Iowa and New Jersey, had provisions that did not allow compulsory testimony against one’s self, and, that those two did have limits on compulsory testimony, though not as broad as the other states.  This was felt to satisfy the intent, since it was a state decision based upon their view of the intention of the Fifth Amendment (“No person . . . shall be compelled in any criminal case to be a witness against himself”), that established the right of the state to enact a law requiring the turning over of the papers to the examiner.

So, the question resolved itself to whether the federal interpretation of the Fifth Amendment was superior to the state law, and, if so, under what circumstances.

Since Twining and Cornel were both citizens of New Jersey, and the case was not between parties of different states, or any other qualifiers for federal intervention, they retained their status as state citizens, dealing with the laws of that state, without “Federal right[s]” being conferred to them.

Let’s separate the points of significance in this case:

  1. Is there a difference between state citizens and “citizens of the United States”, as established by the Fourteenth Amendment?
  2. If so, to what extent does the Fourteenth Amendment confer rights to those who are protected thereby?

The Court goes on to give us some insight into the second point.

“It is obvious . . . that it has been supposed by the states that, so far as the state courts are concerned, the privilege had its origin in the Constitutions and laws of the states, and that persons appealing to it must look to the state for their protection.  Indeed, since, by the unvarying decisions of this court, the first ten Amendments of the Federal Constitution are restrictive only of national action, there was nowhere else to look up to the time of the adoption of the 14th Amendment, and the state, at least until then, might give, modify, or withhold the privilege at its will.”

So, the states were within their rights, as they existed prior to the Fourteenth Amendment, and that those rights did not, until the Fourteenth was ratified, include the restrictive first ten amendments.  Prior to the Fourteenth Amendment, the Court recognized that the Constitution did not apply to the states, so long as they were not in conflict with the Constitution.  Essentially, they are conferring all privileges of those first ten amendments, to those who so qualify, for the protections afforded by the Fourteenth.

The Court continues:

The 14th Amendment withdrew from the states powers theretofore enjoyed by them to an extent not yet fully ascertained, or rather, to speak more accurately, limited those powers and restrained their exercise.  There is no doubt of the duty of this court to enforce the limitations and restraints whenever they exist, and there has been no hesitation in the performance of the duty.  But, whenever a new limitation or restriction is declared, it is a matter of grave import, since, to that extent, it diminishes the authority of the state, so necessary to the perpetuity of our dual form of government, and changes its relation to its people and to the Union.”

So, the Court recognizes an obligation to “enforce the limitations and restraints whenever they exist”.  This implies that they are addressing both points, mentioned above.  First, to determine the extent of the authority (jurisdiction of the state) imposed by the Fourteenth; and, Second, to determine to what extent the first ten amendments convey obligations to the state.

The Court continues:

“The defendants contend, in the first place, that the exemption from self incrimination is one of the privileges and immunities of citizens of the United States which the 14th Amendment forbids the states to abridge.  It is not argued that the defendants are protected by that part of the 5th Amendment which provides that ‘no person . . . shall be compelled in any criminal case to be a witness against himself,’ for it is recognized by counsel that, by a long line of decisions, the first ten Amendments are not operative on the states.”

Twining has asserted that he is of the nature of a “citizen of the United States”, and, therefore, the state may not abridge those “privileges and immunities”.  He has declared a status as a “citizen of the United States”.

The Court then, referring to a previous case (subsequent to the Fourteenth Amendment), In Re Slaughter-House Cases, 83 U.S. 36 (1872), and citing with the decision of that case, given by Justice Miller, in affirming that there were two classes of citizen.

“The 14th Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the state, by recognizing or creating and defining the former. ‘  It is quite clear, then,’ he proceeds to say, ‘that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual.

So, this Court is affirming what the Court decided 34 years prior, in that there are distinct differences between the “citizenship of the United States and a citizenship of a State”.  One case, shortly after the ratification of the Fourteenth Amendment, and another, three decades later, that affirm the conclusion of just who are “We the People”.  Can there be any doubt as to the existence of a distinction between the two classes?

The Court, after a lengthy discussion of “due process”, concludes:

The decisions of this court, though they are silent on the precise question before us [due process], ought to be searched to discover if they present any analogies which are helpful in its decision.  The essential elements of due process of law, already established by them, are singularly few, though of wide application and deep significance.  We are not here concerned with the effect of due process in restraining substantive laws, as, for example, that which forbids the taking of private property for public use without compensation.  We need notice now only those cases which deal with the principles which must be observed in the trial of criminal and civil causes.  Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction.

And, they conclude that the court that has jurisdiction over the parties will prevail in a conflict of interpretation.  Since they leave the interpretation to the state court, there must be an absence of federal jurisdiction in the current case.  The Court sees Twining and Cornell to be state citizens, therefore, not afforded the” privileges and immunities”, meaning that federal jurisdiction fails to include them — an absence of federal jurisdiction.

In affirming that view, the Court said:

“Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.”

They tighten up on that conclusion, to wit:

We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.

Now, this would not be true if the case involved a party of one state against a party from another state, nor would it be true in the extension of “privileges and immunities” conferred by the Fourteenth Amendment, to “citizens of the United States”.

So, we can conclude that the “citizen of the United States” is a separate and distinct entity than the citizen of a state.  That the jurisdiction of the United States Supreme Court extends only to those who have been brought into jurisdiction by the Constitution (parties of different states, etc.) or by virtue of they being the subjects brought into that jurisdiction by the Fourteenth Amendment.

Now, some will say that this case is over one hundred years old, and things have changed, since then.  But, have they?  And, if so, how have they been changed?  I can find no amendment that changes what is presented here, and must suppose that nothing has been changed.

So, in the next Part, we will see if this decision, from 1908, still has merit over half a century later.

* * * * *

Part I can be found at “We the People”, but, Who are We? – Part I

Part II can be found at “We the People”, but, Who are We? – Part II

Part III can be found at “We the People”, but, Who are We? — Part III

Part V can be found at “We the People”, but, Who are We? — Part V 


“We the People”, but, Who are We? – Part III

“We the People”, but, Who are We? – Part III

Gary Hunt
Outpost of Freedom
July 20, 2011

So, we have established that “rights” were not conveyed by the Fourteenth Amendment, only “privileges and immunities”.  Or, have we?  Of course, to this point, it is only words and omission of words that can lead us to that conclusion.

Understand, however, that the Constitution, the Bill of Rights and early legislation was written so that all could understand what was being required.  After all, as James Madison said (Federalist Papers #62), “Law is defined to be a rule of action”.  If it is a rule of action, then it must be written so that anybody can understand it.

Let’s see if we can determine whether the premise that rights were not conveyed is properly construed, as presented.  To do so, we must, once again, return to the past — to those who lived the times and understood what the intention of the 14th Amendment really was.

Our answer can be found in another Supreme Court decision, decided just 7 years after the ratification of the 14th Amendment.  The case is Minor v. Happersett, 88 U.S. 162 (1874).

At issue was whether the Fourteenth Amendment conveyed the right to vote to a woman, since she was made “a citizen of the United States” by that Amendment.  Understand that many states did not recognize woman as being full citizens and they were denied the right to vote, own land, sue in court, inherit property, or hold office; or portions of some of these restrictions, depending on the state.

Understand that this case was heard just seven years after the ratification of the 14th Amendment, and all parties were fully aware of the Amendment, its interpretation and ramifications.  They lived the times, unlike those of us who have to search back to find the intent of laws and amendments.

The case introduces the problem with the following statement of facts:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains:

‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.  No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States.  Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.’

And the constitution of the State of Missouri thus ordains:

‘Every male citizen of the United States shall be entitled to vote.’

 

Minor, as described by the Court, set forth the following arguments:

1st. As a citizen of the United States, the plaintiff was entitled to any and all the ‘privileges and immunities’ that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States.

2d. The elective franchise is a ‘privilege’ of citizenship, in the highest sense of the word.  It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to participate in his or her government.

3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government,-the Constitution of the United States.  If not found there, no inferior power or jurisdiction can legally claim the right to exercise it.

4th. But the Constitution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’

5th. It follows that the provisions of the Missouri constitution and registry law before recited, are in conflict with and must yield to the paramount authority of the Constitution of the United States.

The Court (in the decision) then posed the question:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.

In providing an answer to the question, we find:

Looking at the Constitution itself we find that it was ordained and established by ‘the people of the United States [Preamble to the Constitution],’ and then going further back, we find that these were the people of the several States that had before dissolved the political bonds which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth [Declaration of Independence], and that had by Articles of Confederation and Perpetual Union, in which they took the name of ‘the United States of America,’ entered into a firm league of friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever [Articles of Confederation].

Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen-a member of the nation created by its adoption.  He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens.  As to this there has never been a doubt.  Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.

* * *

Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States.  In this respect men have never had an advantage over women.  The same laws precisely apply to both.  The fourteenth amendment did not affect the citizenship of women any more than it did of men.  In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment.  She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship.  The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her, that she had before its adoption.

* * *

It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.  This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption.  If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected.  But if it was not, the contrary may with propriety be assumed.

When the Federal Constitution was adopted, all the States, with the exception of Rhode Island and Connecticut, had constitutions of their own.  These two continued to act under their charters from the Crown.  Upon an examination of those constitutions we find that in no State were all citizens permitted to vote.  Each State determined for itself who should have that power.  Thus, in New Hampshire, ‘every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request,’ were its voters; in Massachusetts ‘every male inhabitant of twenty-one years of age and upwards, having a freehold estate within the commonwealth of the annual income of three pounds, or any estate of the value of sixty pounds;’ in Rhode Island ‘such as are admitted free of the company and society’ of the colony; in Connecticut such persons as had ‘maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate,’ if so certified by the selectmen; in New York ‘every male inhabitant of full age who shall have personally resided within one of the counties of the State for six months immediately preceding the day of election . . . if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State;’ in New Jersey ‘all inhabitants . . . of full age who are worth fifty pounds, proclamation-money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election;’ in Pennsylvania ‘every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been assessed at least six months before the election;’ in Delaware and Virginia ‘as exercised by law at present;’ in Maryland ‘all freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election;’ in North Carolina, for senators, ‘all freemen of the age of twenty-one years who have been inhabitants of any one county within the State twelve months immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election,’ and for members of the house of commons ‘all freemen of the age of twenty-one years who have been inhabitants in any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes;’ in South Carolina ‘every free white man of the age of twenty-one years, being a citizen of the State and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or ( not having such freehold or town lot), hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government;’ and in Georgia such ‘citizens and inhabitants of the State as shall have attained to the age of twenty-one years, and shall have paid tax for the year next preceding the election, and shall have resided six months within the county.’

[Note: you may want to review the list of voter qualifications, above, and consider that we were strong and building our country into the greatest nation in the world, when the voters had to be above debt to vote — rather than able to vote themselves “a chicken in every pot”.]

* * *

And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth, as follows: ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.’  The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States.  If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.?  Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part?

* * *

… Women were excluded from suffrage in nearly all the States by the express provision of their constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the amendment which declares that no person shall be deprived of life, liberty, or property without due process of law, adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection he must first show that he has the right.

So, clearly, from this decision, rendered shortly after the Fourteenth Amendment was ratified, we see that there is a distinction between “rights” and “privileges and immunities”, and that any grant of right would require a constitutional amendment to confer it on any other than “We the People”.

This does beg the question of whether the Fifteenth Amendment confers more than the right to vote.  Does it also confer the right to hold office, when the requisite for that office is “Citizen of the United State” [Art. I. Section 2, clause 2, and, Art. I, Section 3, clause 3, Constitution], and, “a natural born Citizen of the United States” [Art. II, Section 1, clause 5, Constitution], unless such “right” is specifically conferred?

 

Part I can be found at “We the People”, but, Who are We? – Part I

Part II can be found at “We the People”, but, Who are We? – Part II

Part IV can be found at “We the People”, but, Who are We? — Part IV

Part V can be found at “We the People”, but, Who are We? — Part V 

“We the People”, but, Who are We? – Part II

“We the People”, but, Who are We? – Part II

Gary Hunt
Outpost of Freedom
July 19, 2011

In the first part, Justice Taney [Chief Justice of the Supreme Court who delivered the Decision in Dred Scott v. Sandford, 60 U.S. 393 (1856)], speaking from the past, explained who was, and, who was not of that class of people known as “We the People.  Recapping that post:

We think they [descendents of slaves, whether free, or not] are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.  On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

* * *

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else.  And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded.  It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States.  And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

So, the rights and privileges were not conferred upon those who were not citizens at the time of adoption of the Constitution, and their descendents and others.  Those rights, too, are defined as inclusive, regardless of whether he is in his state or another state.

So, in 1867, the 14th Amendment to the Constitution was ratified.  However, it did not convey rights, only privileges and immunities, to wit [Fourteenth Amendment]:

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, this Amendment did not change or undo that which Taney had described as the “citizens of the United States”, though a new class was created by the 14th Amendment.

Now, I know a lot of people don’t see it that way.  They believe that the 14th Amendment merged the ex-slaves and their descendents into the same class of people that had previously held the title of “citizens of the United States”, or, “We the People”.  However, if you will note the wording of the 14th Amendment, you will see that “rights” were not conveyed, only “privileges and immunities”.  Now, this may seem small, or insignificant, though that is because we have been subjected to “political correctness” and mountains of legislation establishing “civil rights”.  However, the Framers never referred to the rights protected by the Constitution as civil, since civil implies granted by government — which is exactly what the legislature has done — enact laws granting civil rights.  These fundamental rights granted by God are not granted by government, and, they are not civil rights.  They were the object and goal of the colonists from April 19, 1775 to the ratification of the Constitution, 14 years later.

What is very important to understand is that when a law is enacted, or a constitution or amendment ratified, the intent at the time of enactment or ratification is, and must be, what was intended — at that time.  To think otherwise is to allow the legislation, or even the Constitution, to mean what was not intended by the sleight of redefining words, concepts, or even enforcement.  If that is how we are to operate, we are not a nation of laws rather, of man, and that man who sits in Washington; Member of Congress, President,. Justice or Administrative Agency head is free to promulgate what he wants the law to be and applies not what was intended to be, rather, what he desires it to be.

As James Madison said, in Federalist Papers #62:

It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

So, as you contemplate what is said in this Part, understand that only the words of those who were alive at the time of these activities can tell is what they meant.  It is only their words, not what some ACLU lawyer might try to make them out to be, that we must be obedient to.  To be obedient to any other interpretation is, at best, disobedience to the Constitution.

We have seen the affect of the 14th Amendment on the right, privileges and immunities of those who were and were not of the class known as “We the People”.  Now the question arises as to whether the 14th Amendment changed who “We the People” are, and, if so, what proof do we have that only “privileges and immunities, not rights, were conveyed by that Amendment.  That will be the subject of the Part III.

 

Part I can be found at “We the People”, but, Who are We? – Part I

Part III can be found at “We the People”, but, Who are We? — Part III

Part IV can be found at “We the People”, but, Who are We? — Part IV

Part V can be found at “We the People”, but, Who are We? — Part V 

 

“We the People”, but, Who are We? — Part I

“We the People”, but, Who are We? – Part I

Gary Hunt
Outpost of Freedom
July 18, 2011

In some research for another article (The Fourteenth Article in Amendment to the Constitution), I ran across a rather enlightening revelation.  It was, just 60 years after the Constitution, a clear and concise definition of just (and only) who the “We the People”, in the Preamble to the Constitution, really are.

Now, most of us will assume that any citizen of the United States is one of, “We the People”.  I must admit that until recently, I, too, believed this to be the case.

Regardless of the (political) correctness of this assumption, we must understand that the law is what it was intended to be, not what we might want it to be.  There is only one means by which that can be changed, and that is the amendment process defined in Article V, of the Constitution.

So, here is what was revealed to us, by the Supreme Court of the United States, with regard to a definitive answer to the question.  The case is Dred Scott v. Sandford  –  60 U.S. 393 (1856)

As recently as ten years before the Fourteenth Amendment was submitted to the States by the Congress, an historical, and often referred to, case was heard by the Supreme Court.

Scott was born a slave, in Missouri.  As such, he was not a citizen.  His “owner” laid hands on Scott, his wife and 2 children.  Scott sued Sandford for assault.  Scott was awarded his freedom by a Saint Louis County, Missouri, Circuit Court.  The case was appealed to the State Supreme Court and reversed.  The Circuit Court then reheard the case.  Scott made exception to the instructions to the jury.  The jury then ruled against Scott.  Based upon the “Exception”.

The case eventually ended up in the Supreme Court.  In its decision (below), the Court pointed out that Scott had claimed to be a citizen of Missouri, which would give him standing to sue Sandford.  It found that though Scott was not a citizen of Missouri, or, of the United States, that standing for the Court to hear the case was based upon the Courts acting on the fact that the question of citizenship was not in the plea that brought the matter before the Court.

You will see that even though Scott had no standing, the Court decided to hear the case, anyway.  If you do not challenge jurisdiction (Sandford’s obligation), the Court may assume jurisdiction, the laws of the land notwithstanding..

Chief Justice Taney delivered the opinion of the Court.  Excerpts are from that decision.

“That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.  If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.  It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.

Since the matter of citizenship was not in the plea that brought the matter before the Court, the Court will not rule on Scott’s standing.

However, the Court now finds that it has a forum to define just what a citizen is — a point that had only been addressed in rather ambiguous terms in the Constitution, and not since addressed by the Congress, or the Court.

Taney goes on to ask this important question:

Can a negro, whose ancestors were imported into this country, and 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?

Further defining the question, he says:

The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States.

While the decision covers many aspects, and many ways, of addressing the question, I will provide only those that are concise and indicative of the sense of the Court and the decision held to.  Remember, as you read, that this decision predates the 14th Amendment.

The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.  They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.  They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.  The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty?  We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.  On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Well, there is an interesting phrase, used in the discussion of the Fourteenth Amendment by the Senate, “remained subject to their authority”.

In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union.  It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States.  He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State.  For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights.  But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States.  Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States.  Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States.  The rights which he would acquire would be restricted to the State which gave them.  The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so.  Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States.  It cannot make him a member of this community by making him a member of its own.  And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endow him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained.  And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else.  And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded.  It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States.  And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

Well, that makes pretty clear who could not be a “citizen of the United States”.  So, let us look, from the other side, at who was a “citizen of the United States”.

“It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.  And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations.  We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Now, clearly, it is those who initiated the fight for independence that are of the class recognized by the Constitution as “citizens of the United States”.  Many have pointed out that one of the first to “die for the cause” was a negro named Crispus Attucks, who was shot to death in the “Boston Massacre”, in 1770.  This, however, in the eyes of the Court, does not qualify him as one of the people — for which the country was intended.

Though the decision of the Court continues to give examples of just how the Court perceived this relationship, I would prefer to not include too many more of the over one-hundred and ten thousand words in the Decision.  There are some words, however, that warrant our attention in fully understanding what was intended by the founding of this nation, and so I will provide these few additional paragraphs:

“The language of the Declaration of Independence is equally conclusive:

It begins by declaring that, ‘when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.’

It then proceeds to say: ‘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 them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood.  But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men-high in literary acquirements-high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting.  They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.  They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them.  The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.  It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity.  It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen.  It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people.  It uses them as terms so well understood, that no further description or definition was necessary.

Therefore, an attempt to apply the standards upon which this nation was founded to the morality of today, or, even, of 1856, when this case was heard, would be to deny the intention of the founders.  This does not preclude the utilization of the Fifth Article (Amendment Process) of the Constitution to effect change, which was to be partially achieved eleven years later.  It simply explains what a “citizen of the United States” was, prior to the Fourteenth Amendment.

Now the question arises as to whether the 14th Amendment changed who “We the People” are, or not. That will be the subject of the Part II.

* * * * *

Part II can be found at “We the People”, but, Who are We? – Part II

Part III can be found at “We the People”, but, Who are We? — Part III

Part IV can be found at “We the People”, but, Who are We? — Part IV

Part V can be found at “We the People”, but, Who are We? — Part V