Archive for November, 2013

Which Constitution Am I Protected By?

Tuesday, November 19th, 2013

Which Constitution Am I Protected By?

Do you really want the Federal Government
to protect you from your State Government?

Gary Hunt
Outpost of Freedom
November 19, 2013

“We have Constitutional Rights!”  “They have violated the Constitution!”  We hear such exclamations on a regular basis.  However, have we ever really stopped to consider just what we are saying?  Just what we are supporting?  Just what we have represented by those exclamations, which are really contrary to our best interest, and the intent of the Framers of the Constitution and government?

Recently, there was a Rally in San Antonio, Texas.  The rally was called because a few weeks earlier, some “Second Amendment” advocates had settled down, armed in accordance with Texas law, on the sidewalk in front of a Starbucks coffee shop (Open Carry Texas harassed by SAPD).  Subsequently, a Come and Take It – San Antonio Rally was called, with no reference to the Second Amendment, though it did emphasize a phrase from that Amendment, “SHALL NOT BE INFRINGED”.  Such a rally, however, will draw national attention, as it did.

The Rally drifted toward the Second Amendment, as a result of speakers such as Alex Jones, who went so far as to include other cities, around the world, in his desire to protect Second Amendment rights (Gun Owners Defy Tyranny, Defend Constitution at the Alamo).

To me, it was simply amazing that so many people came out in support of a “Federalist” form of government.  Yes, that’s right!  They came out asking the federal government to intervene in, and take control of, their right to keep and bear arms.

“Well”, you say, “Isn’t that what the Second Amendment is all about?”  So, I will answer that question — “Yes”, and, “No”.  Yes, if it is the federal government that you are dealing with.  However, a distinct and definite “No”, if you are dealing with the state, and subordinate, governments.

Darn, that is tough to grasp!  I thought the Bill of Rights was to protect us from government assuming away those rights.  Well, yes, it is, but which government are we talking about?  The federal, or, the state, government?

Why would I go and say such a foolish thing?  We all know that we have Second Amendment rights:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Well, this poses a rather interesting question.  So, let’s look at the Texas Constitution.

Article I – Declaration of Rights:
§23.  Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State, but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

That sure doesn’t read quite like the Second Amendment, it says nothing about “”shall not be infringed”.  So why do we not accept the limitation imposed by the Texas Constitution?  We may not like it, but that is the way it is in Texas.  The federal Constitution was written only with regard to the relationship between the people and the federal, not the state, government.  The concern, and the reason for such separation, was that the Framers, and those that ratified the Constitution, did not want to relinquish any unnecessary power or authority to the federal government, except that which was necessary to allow that government to conduct the business of governing — only — the federal government.

Let’s venture back to 1833, when the country was still young, and some of the Framers were still alive.  Chief Justice Marshall, in a Supreme Court decision [Barron v. City of Baltimore, 32 U.S. 243], gives us an explanation:

The [U. S.] constitution was ordained and established by the people of the United States for themselves, for their own [federal] 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 people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests.  The powers they conferred on this [federal] 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.

So, each constitution, federal and state, creates a government and then binds that government to the provisions, as judgment dictated, granting power and authority, and reserving rights, to the extent of what was determined, at the state level, to be consistent with the will of the people of that state.

Going further in his explanation as to why the federal Constitution was limited, Marshall says:

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-not against those of the local governments.  In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states.  These amendments contain no expression indicating an intention to apply them to the state governments.

A review of the Preamble to the Bill of Rights will bear this opinion out:

The Conventions of a number of the States, having at the time of their adopting the [federal] Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the [federal] Government, will best ensure the beneficent ends of its institution.

Are we beginning to get the picture, yet?

Now, the Fourteenth Amendment provided a foundation for change, at least to some extent, though that is not the object of this discussion.  However, for those interested, there is an extensive study of the Fourteenth Amendment at The Fourteenth Article in Amendment to the Constitution – an Essay.

We can, however, see an instance of the conversion of authority from state to federal from a well known, though this aspect is too often overlooked, 1973 decision, Roe v. Wade [410 U.S. 113].  The decision hinges on the right to an abortion, though Justice Rehnquist, in his dissenting (disagreeing) opinion, provides insight, not to abortion, rather, to the limitations of federal power, when he says:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental”.  Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the AmendmentAs early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.  1)  While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.  2)  Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.  The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

Since the Supreme Court ruled on Roe v. Wade, we have heard one side call for the decision to be overturned, while the other side praises the “wisdom” of the Court.  What the Court did was legislative in nature, contrary to the intention of the Framers and the Fourteenth Amendment.  However, neither side objected to the Supreme Court’s authority in dealing with the matter of abortion (have you found any mention of abortion in the Constitution?).

So, by acquiescence — by projecting this un-granted power to the Supreme Court — we have supported not the Union of States, under and by the Constitution, rather, we have agreed to make the federal government supreme in all matters concerning our lives (even our flush toilets).

In 1789, when the U. S. Constitution was ratified, it was the concern, in the states, that the Constitution would give the federal government too much power.  It was the state governments that insisted that there must be a limitation on the power granted to the federal government.  Those powers “reserved to the States respectively, or to the people” (10th Amendment), cannot be sustained, except by the will of the people, and their perseverance and support of their respective state and its constitutional power and authority.

Does this acquiescence, to such federal authority, by those who so support it and seek a reversed decision from the Supreme Court, make them Federalists, at heart?  After all, they have moved away, as far as possible, from any proposition that states, too, have powers protected by the Tenth Amendment — the few that still remain.

 

Bound by Moral Obligation!

Thursday, November 7th, 2013

Bound by Moral Obligation!
Surrendering the Moral High Ground

 Gary Hunt
Outpost of Freedom
November 7, 2013

Having touched upon the subject of Honor (Bound by Honor?), and Oaths (Bound by Oath!), we will now venture to the foundation of both Oath and Honor, the sense, or lack thereof, of moral obligation.

Whether morality is inherent, as some believe, or acquired, it is something that we all have; some with good values and others absent such values.  If the former, can it be extinguished by environment?  If the latter, then that upbringing is fundamental to the consequential development of moral values.  Regardless, however, of the source from which it emanates, by adulthood, it is most likely firmly established.

Honesty is, perhaps, the most demonstrable characteristic of good moral values.  This honesty, however, is not the consequence of being caught in an act, rather, is the up front, straightforward, admission of a fault.  This was demonstrated recently when 22 year old Matthew Cordle admitted to killing someone in a YouTube video.  He didn’t have to make such admission, though his moral character, regardless of the subsequent accusations that he wanted to get a lighter sentence, resulted in a frank and open admission of his guilt in the matter.

This is almost unheard of in our adversarial society, where “not guilty” is the standard plea, regardless of available proof, and legal efforts to suppress evidence and testimony.  After all, if everyone who was guilty of charges brought against them, and so admitted, then attorneys would be looking for their EBT (Electronic Benefit Transfer) cards.

Unfortunately, a society whose representatives in government are weaned on adversarial relationships, to go with conscience and admit guilt, absent overwhelming pressure, is an unacceptable mode of action.  Consequently, the talking heads of television and news services began their speculative denigration of Cordle, accusing him, not of honesty, rather, of attempting to sway the judicial process.  Ultimately, apparently, the judge agreed with the press, and Cordle was sentenced to serve 6 1/2 years (the Ohio average) of a possible 8 1/2 maximum sentence.

The primary purposes of imprisonment are retribution (vengeance) and rehabilitation.  Those who do not show remorse tend to have more severe sentences than those who show remorse.  Often, this is a result of a plea bargain, where the remorse is simply acted out to achieve that reduced sentence.  True remorse can only come from an un-coerced confession, without an agreed upon quid pro quo (this for that).  There is no doubt that the video confession was without coercion, unlike the plea form of remorse.  Further, the YouTube video is probably the most effective means of discouraging others from drunk driving.  However, this does not fit the societal norm.

So, let’s look at the societal norm.  First, however, let’s preface it with an observation.  In any business, the employees are, for the most part, a reflection of management.  If you go into a retail store where trash lays about, the floors are dirty, and the merchandise disarrayed, you can expect that the management does not give a damn, and that is reflected by the actions of the employees, often demonstrated by rudeness or inattention.  However, if you go into clean retail store, with the merchandise neatly stacked on the shelves, you can probably expect the service to be courteous and helpful.

Similarly, in society those “leaders” of the society — those elected to represent the people, set the example for, at least, business, especially in financial and moral values.  If the government sets the example of living in perpetual debt, many businesses will follow suit.  If the government is lacking moral values, then you can expect big business, again, to follow suit.

Back in 1972, under the direction of President Richard Nixon, a break in and theft of records from the Democratic Headquarters located in the Watergate Complex occurred.  Though there were no voluntary, as with Cordle, confessions, 19 people, staff and consultants, were convicted or plead guilty.  John Mitchell, Attorney General of the United States served 19 months in prison for his role.

It was about this time (1971) that Daniel Ellsberg, a military analyst, went public with what became known as “The Pentagon Papers”.  The “Papers” were designated “Top Secret”, though they had nothing to do with National Security.  They were first published by the New York Times, which was never prosecuted for publishing them.  They were primarily policy papers that demonstrated that the war (in Vietnam) could not be won, and would only result in much higher casualty rates, if the war continued.  They also proved that President Lyndon Johnson lied to both the public and the Congress, in his efforts to escalate the war in Vietnam.  Basically, the secrecy of the documents was to cover lies of government and poor judgment in policy, resulting in thousands of unnecessary casualties, and a policy that served no acceptable purpose toward the good of the country.  The war, however, was a boon to the Military-Industrial Complex, as warned of by President Dwight Eisenhower, and began a rampant escalation of national debt, that continues to this day.

Ellsberg released this information because of moral conviction — to stop an immoral war that was unwinnable and would only continue to cost many thousands of lives, both Vietnamese and American.

Ellsberg was charged with violation of the Espionage Act of 1917, though the charges were later dismissed, primarily as a result of the government’s (same players from Watergate) efforts to plant evidence to implicate Ellsberg.  Apparently, the administration felt that there were no grounds for a guilty verdict and endeavored to create both evidence and verdict.

Jump to the present.  In an operation known as “Fast and Furious”, the Attorney General of the United States, Eric Holder, lied during Congressional hearings, which was substantiated by subsequent evidence implicating him as having knowledge of the operation.  Apparent there were ties to the White House, though the “Justice” Department has refused subpoenas from Congress to provide records, testimony, and other information, which may implicate the highest office in the country.

Similar to Ellsberg, we have modern day “moralists” that are concerned with covering bad practices under the guise of “national security”.  First, let’s look at a foreigner, an Australian, and his organization.  Julian Assange and WikiLeaks have made a name for themselves, and have incurred the wrath of the U. S. Government, which has brought to bear almost every political resource it has to bring Assange to the United States for, hopefully, just a trial.  However, considering that the government has determined that various tactics can be used against foreigners, it is quite possible that those tactics will be used against Assange, should he be handed over by another country.

What Assange has done is simply republish information provided to him by other sources, much like the New York Times in the Ellsberg matter.  However, with the Internet, the readership is significantly larger than the Times.

If you have taken the time to read any of the release by WikiLeaks, those that the government claims would expose operatives and risk lives, you will find that WikiLeaks has redacted them, repressing information that would expose secrets or people that might be of national security value, as opposed to machinations of the government process, most often quite contrary to what the public has been told — unlike the exposure of Valarie Plame (addressed in Bound by Oath!) by the government.

WikiLeaks was exposing information that was embarrassing to secretive governments, though there is no case that can demonstrate a threat to the true interest of national security.  Like Ellsberg, Assange and WikiLeaks saw something wrong with government, and chose to take the risk of exposing it.

Via WikiLeaks, Bradley Manning exposed information that he accessed in his role as an Army Intelligence Analyst.  The most well known exposure was the infamous Baghdad video of aircraft crews gloating over hitting ground targets that were not what they were claimed to be.  Two of those killed were members of the press, and in a follow up attack, two adults and a child that were trying to give aid to those injured were attacked.  Many thousands of other classified documents were released by Manning.  Manning subsequently signed a plea agreement admitting to 10 of the only 22 charges against him.  It appears that Manning had based his decision to expose the information on “removing the fog of war and revealing the true nature of 21st century asymmetric warfare”, as well as saving both American and Iraqi lives.

Next, we come to Edward Snowden.  He was a former CIA (IT security) employee and then a NSA (National Security Agency) contractor.  In the latter capacity, he had access to information regarding extensive mass surveillance practices being conducted by NSA and other agencies.  Snowden later explained, “I don’t want to live in a society that does these sort of things [surveillance on its citizens]… I do not want to live in a world where everything I do and say is recorded… My sole motive is to inform the public as to that which is done in their name and that which is done against them.”  Apparently, Snowden, unlike most of those in government, has read the 4th Amendment, prohibiting illegal searches and seizures.

Subsequent claims by the government are somewhat revealing.  They claim that personal information that is gathered is stored, though not accessed.  This, however, would allow subsequent searches, based upon subsequent warrants, to go back in time and find something that might incriminate someone.  They claim that the information is not accessed and used, unless there is a warrant.

The problem here is one of credibility.  Based upon actions by government, elsewhere, it is probably safe to say about the government’s claims, “bull hockey!”  Understand that for the government to use the information as evidence, it must have been acquired by a legal warrant.  That doesn’t mean that the government cannot use the information, so long as they “develop” a court case by other means — those means being made available by using the illegally obtained information.  Now, many will say, “my government wouldn’t do that.  That would be illegal.”  So, let’s see if “my government” would do that.

The DEA (Drug Enforcement Administration) routinely gathers information by covert means (wiretaps, intelligence intercepts, and phone records — those records readily provided by cooperating phone companies).  Of course, the information gathered would not stand the legal test required to make it acceptable as evidence, however, it is intelligence.  So, they share this information with other agencies, who must, on their own, “develop a case”, since the information provided by DEA cannot be exposed.

Now, we have two options in which to look at this practice.  First, that it is only the DEA (and the agencies that receive this information) that is involved in this illegal activity.  Or, Second, that this is a standard practice in most, if not all, government agencies.  Remember what was said, earlier, about the employees following the example of their management?  Now, make your choice.

So, we can see that those who act on moral values, from Ellsberg to Snowden, run the risk of subjecting themselves to persecution and prosecution, by upholding those values.  On the other hand, those in government, from Nixon to Holder and his boss, seem to have lost sight of any moral, or constitutional, values.  The former assumes a Moral Obligation (An Argument for Moral Courage), while the latter assumes a moral superiority (Social and Political Superiority).

Bound by Oath!

Tuesday, November 5th, 2013

Bound by Oath!
Are there 3 Constitutions?

 

Gary Hunt
Outpost of Freedom
November 5, 2013

 

Having touched upon the subject of Honor (Bound by Honor?), we shall now venture into the subject of that Honor.  From the ratification of the Constitution, through today, it has been held that an oath is one of the requisites for office.  It was required of the President (Article II, § 1, clause 8) and the “Senators and Representatives … and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States” (Article VI, clause 3).  It was so important that a violation of that oath was enforced, after the Civil War, with a prohibition against holding public office to all who had taken such oath and then joined “in insurrection or rebellion” (14th Amendment, §3).  All state constitutions have, likewise, adopted requirements for an oath of office to hold positions of public trust.

It is reliance upon the obedience to that oath that is the framework that the Framers relied upon to maintain that institution created by the Constitution, the government of the United States, intact and honorable.

The introduction of the “United States against all enemies, foreign and domestic” provision dates from 1953, with the Immigration and Nationality Act of 1953.  Since 1966, the current oath, retaining the “enemies” provision, has remained unchanged

Unchanged, however, is the fundamental recognition to obedience to the Constitution, and, to the state’s constitution for all state offices.

This leads us to look into that subject of the oath, the Constitution.  However, to understand this relationship, we need to look very closely at the document, and what it means.

I believe that this can be best understood by looking at the Constitution in a perspective of the application of the document, and just what the perception, by the oath takers, is of that document.

So, let’s begin at the lowest level — the on the street enforcement level.  The cop (Sheriff’s deputies, other armed agencies, including federal) perceive the Constitution that they took an oath to as what they have been told by their superiors is entailed in the Constitution.  Let’s refer to this as Constitution #1.  For example, and the Supreme court has played a role in this, if they are told that they can make searches and arrests based upon their individual judgment — if they believe that a crime either has, or may be committed — they are within their power to search and/or arrest people of whom they have suspicion.

This has become manifest because it was practiced by law enforcement, in violation of the Constitution.  Once challenged, it can go before the courts, and, eventually, to the Supreme Court, where that Court will rule, often contrary to the Constitution (see About Ashwander v. TVA), which now gives us Constitution #2, that being the Constitution, as determined by the Supreme Court.  However, if they had determined not to rule on the Constitutionality of a matter before them, “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” (Ashwander, rule #4), then are we to assume that their rulings are actually interpretations of the Constitution?

This, then, leads us to Constitution #3, the Constitution as written and intended by the Framers and those who ratified it.  The Constitution is comprised of about 4,400 words.  Add the first Ten Amendments, including the Preamble thereto, for another 700 words.  Simple, yet easily understood; written in the English language, not in legalese; intended to be understood by any literate person, not subject to interpretation, except where construction failed to address certain conflicts that might arise, the Constitution was written for us, by our ancestors, to be the foundation for the continuation of a self-governed people, so long as we understood and abided by it.

We must first understand that our separation from English rule was predicated on the concept that the people “are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”  It was for the protection of Life, the preservation of Liberty, and the ability to acquire property, that lead to those Founders taking action to re-secure that which had been denied them — the Rights of Englishmen — by the British government.

We know that the purpose of government, as declared in the Preamble to the Constitution, is “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”  We need only understand that “promote the general Welfare” is preceded by “promote”, not “provide”, for us to proceed.

Clearly, no matter what our own emotions may suggest, there is nothing in the Constitution that makes any provision for the government to become a “charitable organization”, taking from some and giving to others.  In fact, this would be contrary to the principles of self-government, in that government has become the master and determines just whom he might favor with gifts (and the inherent votes that will follow from the beneficiary).

Let’s look at some more of the precise wording of Constitution #3, as well as comments with regard to what was intended:

Article I, Section 8, clause 11: The Congress shall have the Power … To declare War…

Congress has not declared war since December 1941, yet we have the longest war in our history going on, right now.  The war in Afghanistan began in 2001.  That is twelve years — the longest war in our history.  The Framers realized that the decision to go to war, and to invest the lives of America’s youth, should lie with the representatives of the people, the Congress, and not with an individual.  Why has Congress collectively rejected their oath by enacting legislation that allows the President to go to war, so long as Congress doesn’t object?  Quite simply, they can absolve themselves of the responsibility that they agreed to take upon themselves, when they took their oath.  Quite possibly, their abrogation of responsibility results in substantial ‘support’ from the Military-Industrial Complex that President Eisenhower warned us of, when leaving office.

Article I, Section 8, clause (15) The Congress shall have the Power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

This recognition of the Militia, whether called forth, or not, recognizes the Militia as an inherent part of the concept of self-government.  Further, 10 U.S.C. § 311 states that “[t]he militia of the United States consists of all able-bodied males at least 17 years of age and… under 45 years of age.”  So, how is it that those who have taken an oath to the Constitution can object to, and demonize, those citizens who recognize their obligation to the Constitution.  After all, is “all”, ALL?  Less, of course, those specifically exempted.

Section 4– The United States shall guarantee to every State in this Union a Republican Form of Government…

Just a single example, among many currently available, is the 2008 California Proposition 8, titled “Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment”.  The voters, in accordance with the California Constitution and laws, approved the Preposition, which resulted in making it a part of the California Constitution, which is an act of the “Republican Form of Government” guaranteed by the United States Constitution.  After all, no authority was granted to the federal government that had anything to do with “marriage”, except its recognition of marriage in 1 U.S.C. § 7, Definition of “marriage” and “spouse”.  “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”

However, California Supreme Court justices, who had taken oaths to both the California and federal constitutions, ruled, in “In re Marriage Cases”, (43 Cal. 4th 757), that held that laws treating classes of persons differently based on sexual orientation should be subject to strict judicial scrutiny, and that an existing statute and initiative measure limiting marriage to opposite-sex couples violate the rights of same-sex couples under the California Constitution and may not be used to preclude them from marrying. However, in reviewing the California Constitution, I can find no reference to “same-sex couples”.

On appeal to the federal courts, they, too, held, though on slightly different grounds, that the Proposition — the will of the people of California — was unconstitutional.  They have yet to rule on the statute (1 U.S.C. §7) cited above, though apparently it has been constitutional for many decades.  Those judges only took an oath to the federal Constitution, though, again, I find no reference that would grant the federal government to become any more involved in marriage than to recognize what it has been, for centuries.

Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Contrary to many opinions, it does not say that there is a “separation between Church and State”, which is attested to be the numerous depictions of Moses and the Ten Commandments on the United States Supreme Court building.  So, let’s look at what it says.  “Congress shall make no law respecting an establishment of religion” Those cities and towns that have adopted Sharia Law have certainly done so.  However, many states or counties had laws that were derived from the Ten Commandments.  , even though many of those laws based upon the Ten Commandments have been removed.  However, there is a law that requires that a religion must pass certain steps (Internal Revenue Code) to qualify as a religion, thereby becoming exempt from taxation.  That, in itself, seems to be a law respecting the establishment of religion, since the religion is not established (at least in the eyes of government), unless it abides by the law that establishes it as a religion.  Once established, laws come into play that restricts what can be said by the religious exercise of the congregation.  However, those who have sworn an oath to the Constitution, either as elected representatives, or, appointed, or hired, agents of government, have promulgated laws that, by reading of the words, and a review of how those words were applied by the Framers, we can conclude that the oaths have been violated, even though many of them were taken on a Bible.

Amendment 2: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I have trouble understanding why people can’t understand, “the right of the people to keep and bear Arms”, which along with the Militia (previously mentioned), cannot be infringed.  However, those who have taken an oath to the Constitution seems to be as remise in understanding what this means as they are in understanding the oath that they took.

Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Searches are often conducted without a warrant, or at least a warrant served on the person whose property is to be searched.  Legal process, for such as subpoenas, requires that paperwork be served.  There are numerous methods of legal service, however, the constitutionally prescribed warrant is held to a much lower standard than, say, serving divorce papers.  Divorce, however, is not protected by the Constitution.

The Amendment also requires a sworn statement of probable cause, and “describing the place to be searched, and the persons or things to be seized.”  Two hundred years ago, warrants were specific, describing exactly what was to be seized, and where it was located.  More recently, a warrant might include the entire house, or property, seeking all papers, computers, discs, tapes, books, and anything else that might be found.

We also find that searches, with the blessing of the courts (whose judges have taken an oath), have allowed the police to make searches almost any time, relying on their nose, their ears, or their instinct, to justify the search.  This, without question, is appalling.  And, if nothing is found, there is no remedy for the person whose liberty has been lost, for the time involved, which doesn’t even begin to suggest that there is any accountability on the part of the police.  Roadside stops and searches have become a mainstay of law enforcement.  Didn’t law enforcement officer, too, take oaths?  Perhaps to Constitution #1.

Did the Constitution intend a police state, or a free state, where the obligation was on the government, not on the people?

Amendment 5: No person shall … be deprived of … property, without due process of law; nor shall private property be taken for public use without just compensation.

Both “Eminent Domain” and “Asset Forfeiture” come to mind, when we read the wording of this Amendment.  The former is lawful, though limited, while the latter is unlawful and unconstitutional, without equivocation — unless you are an attorney intending to subvert the Constitution for financial gain.

So, we can start with the purpose, “public use”.  Public is not the government, it is us.  The concept of eminent domain goes back centuries and was intended to make inviolate your right to own and posses property, with the sole exception of the “public good”.  So, what is this “public good”?  Well, roads, canals, rivers, lakes, parks, even easements allowing utilities to be put across your land to serve others of the public.  To extend this concept to land being condemned by eminent domain, and then sold to a private developer, who will then be paying a higher tax on the property than the previous owner(s), is bizarre.  It is chicanery utilized to transfer one’s property to another, and require that transfer to be forced, rather than voluntary, regardless of the compensation to the owner(s).  The courts, however, by judges and justices sworn to the Constitution, have acquiesced to such chicanery.

Asset forfeiture, without any compensation, is clearly outside of any constitutionally vested authority.  [N]or shall private property be taken … without just compensation” leaves no room for any other construction of the intent.  However, to those who have taken oaths, it is simply a matter of obfuscation to distort what was intended to that which will serve their friends and allies.

Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Based upon the above, have we retained those rights that were not enumerated in the “Bill of Rights”?  Even those enumerated, which we have addressed here, are been denied, as has been explained.

Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

We have also seen that powers not delegated, such as marriage, have been assumed into “authorities” that were not delegated by the Constitution.

So, we can conclude that those who take oaths will take them to one of the 3 Constitutions.  The police, for the most part, take them to Constitution #1.  Most administrative officials, at all levels of government, being, perhaps, a bit more intelligent, tend to take their oath to Constitution #2.  Few, if any, take it to Constitution #3, and that includes the highest powers — the Justices of the Supreme Courts — in government.  They are more inclined to assist those others in government to increase their stranglehold on the people, and usurp powers that were never intended by the Constitution, or the state constitutions.

It is only when the people take an oath in court, or when military personnel take their oath upon induction, that the law expects them to abide thereby.

The Constitution has a provision (Article V) for making changes.  The oath, however, has no such provision.  Once given, the oath taker is bound thereby.  Absent a change in the Constitution (Constitution #3), the violation of oath should result in immediate removal from office.

We have discussed what was intended, though some might suggest that what has been discussed is not what was intended.  For those who want some insight into the intention of the Framers, we can look to how they practiced what they had written.

What could be more demonstrative of intent than actions, which put that intent into practice?

Regarding juries, I would suggest Essay on Trial by Jury (PDF) (1828)

Regarding searches, arrests, and the authority of law enforcement, I would suggest Are Cops Constitutional? (PDF)

Bound by Honor?

Saturday, November 2nd, 2013

Bound by Honor?
Secrecy vs. Honesty

 

Gary Hunt
Outpost of Freedom
November 3, 2013

 

There is an inherent tendency to suppose guilt, when someone lies about an incident.  Many applauded when Martha Stewart was sent to prison for 5 months for lying to investigators about some stock dealings.  The charge was not perjury, rather, “obstruction of justice” If someone lies about, say, a relative’s whereabouts, though the lie may have been told to protect someone’s privacy rather than obstruct justice, it is a presumption of guilt on the part of the person “hiding” information, as well as the object of the investigation.  Quite frankly, we have been conditioned to accept that lying is an implication of guilt, without regard to the cause for the lying.  This, of course, is instilled in us by the big brother mentality of being protected by the government.

Perjury, the willful telling of a lie while under oath, is criminal.  It always had been, and, it always should be.  This, perhaps, is the foundation of the above, yet in many cases, an oath is not a part of the lying, though still held to the standard of proof of guilt.

So, we can conclude that either by law or by implication, the people believe themselves bound to truthfulness, when dealing with the government.

What of those in power, whether a policeman in traffic court, a politician running for office, those elected to run the machinery of government, or those holding the highest offices of trust in this nation?  Are they not bound, while in their official capacity, whether an immediate oath is required, or they are simply bound by their oath of office, “to support and defend the Constitution” and in the realm of state officers, of the constitution of their state; are they not even more bound to truthfulness?

It seems, however, whether the cop in court, an elected official running for re-election or standing before Congress and/or the people, the Attorney General of the United States, or even the Executive Officer (president) of the United States, have a flagrant disregard for their oaths and the people of the nation.  They, and the press that supports them, seem to be immune to such a lowly concept as a sense of honor.  To most other people, lying is both dishonorable and criminal.

In Congressional hearings, an official of the United States, flat out declared that he knew nothing about “Fast and Furious”, which sent hundreds of legal and illegal arms south of the border.  Subsequently, the evidence shows that he did know and probably condoned that operation, yet he still holds his high office, at our expense.  The extent of punishment is, at best, a mild rebuke.

Similarly, we have an Executive and congress-critters that make promises.  Should those promises, absent a well-justified reason to the contrary, be held to the highest standards of honor?  And, if made frequently, deemed to be lies, based upon a lack of intent to fulfill when offered?

National Security is the mask behind which the government seeks to hide information.  A search for a definition of “National Security” in the United States Code (US Code) yields no results; however, it does contain rather ambiguous references to protecting national security.

Wikipedia provides some insight:

There is no single universally accepted definition of national security.  The variety of definitions provide an overview of the many usages of this concept.  The concept still remains ambiguous, having originated from simpler definitions which initially emphasized the freedom from military threat and political coercion to later increase in sophistication and include other forms of non-military security as suited the circumstances of the time.

From that same source, we can find some apparent contradictory definitions:

Arnold Wolfers (1960), while recognising the need to segregate the subjectivity of the conceptual idea from the objectivity, talks of threats to acquired values:
“An ambiguous symbol meaning different things to different people.  National security objectively means the absence of threats to acquired values and subjectively, the absence of fear that such values will be attacked.”

The 1996 definition propagated by the National Defence College of India accretes the elements of national power:
“National security is an appropriate and aggressive blend of political resilience and maturity, human resources, economic structure and capacity, technological competence, industrial base and availability of natural resources and finally the military might.”

The former inclined toward protection of the nation from external efforts to change its “values”; in other words, to protect the nation and its people.  The latter, however, appears to be more inclined to protect the government from its own people, and to bear no responsibility or accountability.

So, let’s look at what happens when government officials break the law and lie about it.

Valarie Plame was inducted as a CIA officer in 1985.  From that point forward, she acted as a covert operative for the CIA until, in July 2003, Robert Novak, using information obtained from Richard Armitage at the US State Department, exposed her as an operative.  Plame eventually resigned her position in December 2005.

This, exposing an agent, can, without a doubt, by considered a breach of national security, as it divests the government of continued utilization of the agent for the purpose for which that person was trained.

Subsequent investigation by a grand jury resulted in the indictment of Lewis “Scooter” Libby for his role in the divulgence of the name of the agent.  In March 2007, Libby was convicted of obstruction of justice, making false statements, and two counts of perjury.  He was acquitted on one count of making false statements.  He was not charged for revealing Plame’s CIA status.  His sentence was 30 months in prison and two years of probation.  In July, President George W. Bush commuted Libby’s sentence, removing the prison term but leaving in place the probation.  Libby, who did violate the concept of national security and did obstruct justice by lying, served less time, four months, than Martha Stewart did.

Based upon the legal ambiguity of “national security”, it can be turned against the people, when it serves the government, and it can be used to protect those who work for the government, since there is no legal definition.  It is a subjective determination by the prosecutor, who is an agent of government.

So, we can see that lies are bad, when told by the public, even without an oath that is required by jurisprudence to rise to the level of criminal.

On the other hand, government, from traffic cop to President, can lie under the guise of national security, and is subject to discipline only when the press (the elite press, as much a part of government as other officers — and, which lies to us, daily) or other circumstance rise the incident to a level of national public attention.

It follows, then, that citizens are held to be honorable, while those serving the government are not, in the least, Bound by Honor.