Outpost of Freedom blog

Habeas Corpus Suspended by the United States Supreme Court
The Sacred Writ has been Removed from the Constitution

Gary Hunt
Outpost of Freedom
December 5, 2013

What is Habeas Corpus?

There is only one Right embodied in the Constitution; the remainder are found in the Bill of Rights.  For the most part, the Constitution created a government and granted it only certain powers and authorities.  So, what right is so significant as to be included within the Constitution, while the Bill of Rights was not adopted until 2 years later?

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.  [Article I, §9, cl. 2]

What?  That says “Privilege”.  Well, a “Privilege” is a right that can be suspended, under certain circumstances.  Those circumstances are only in “Cases of Rebellion or Invasion”, and, being in Article I, of the Constitution, the authority to suspend that right lies only with the Congress.

If you were old enough, or fortunate enough, to have been taught about Habeas Corpus in your early schooling, you would know that it is the “sacred writ” and that it means, “produce the body”.  Well, that doesn’t tell you a lot, though it does demonstrate that even in school, the assurance that you had a rudimentary understanding of what Habeas Corpus was a part of the educational process.

So, what is Habeas Corpus?  We can look to Black’s Law Dictionary, 5th Edition, to find what a modern definition is:

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.

Perhaps we can look for a more specific explanation of just what it means by “the purpose of which is to test the legality of the detention or imprisonment.”  Detention, of course, would be simply “arrest”, while imprisonment is a consequence of conviction.  This is important to understand, as we proceed.  Now, we can see what some legal scholars, in the era of the framing of the Constitution, have to say.

First, we will look at the very foundation of Habeas Corpus in the Magna Carta, from 1215 A.D., which states, in Article 39, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

Now, as you continue to read, you will see reference to “ill nature [or] mere inattention of government“; “repels the injustice of unconstitutional laws or despotic governors”; and, that it is “the great bulwark of personal liberty.”  Understand, regardless of what you have believed, that the Framers were concerned, as they understood human nature, and provided for, not in the Bill of Rights, but, in the body of the Constitution, this single means, this right, to challenge unconstitutional laws, giving the people, themselves, the means to nullify such enactments that were contrary to the powers and authorities granted by the Constitution.

In 1768, William Blackstone, in his Commentaries, says of the writ, “A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government.”

In 1829, William Rawle, in his “A View of the Constitution of the United States”, tells us that 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 governors.”

Finally, in 1833, Justice Joseph Story, in his “Commentaries on the Constitution”, provides that, “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.”

There is another aspect of Habeas Corpus that is not addressed in any of the above descriptions, though, as we will learn as we continue down this road, the Supreme Court of the United States has also ruled that since there is both a federal constitution and a constitution within each state, jurisdiction is a consideration of Habeas Corpus, as well.

 

Demand for a Writ of Habeas Corpus

Habeas Corpus is two things; first, it is the demand for a writ of habeas corpus.  It is not automatic, and absent such request, there is no reason for the courts to even consider it.  Second is the issuance of a writ of habeas corpus, which, in past practice, required that the party incarcerated be brought before the court to determine if his imprisonment is legal.

So, we can look, once again, to the legal scholars, to see what they say about the demand.  However, before we do this, there is another source from which modern Habeas Corpus emanates, and we shall consider it.

In 1679, the first Habeas Corpus Act was enacted in England.  From that Act, we find:

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 aforesaid… shall 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…

So, we see that punishment for failure to respond to a writ of habeas corpus has penalties.

And, from Blackstone, we find, “it was, and is still, necessary to apply for it by motion to the court,… [that] 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, the question arises, can the court not issue the Writ of Habeas Corpus, without showing cause why it should not be issued?  To answer this, we must first understand just what “suspend” means.  From Black’s Law Dictionary, Fifth Edition:

Suspend – To interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily…

 

Is Habeas Corpus Suspended?

Habeas Corpus, being a “writ of right”, as explained above, has a status similar to an “objection” during a trial.  Once demanded, it must be answered, prior to proceeding, as the objection will be “sustained” or “overruled” before proceeding.  Habeas Corpus, once demanded, is treated equally, in that it must be answered, prior to proceeding.  That answer can be either a refusal to grant the writ, based upon grounds expressed by the opposing party, or it must be granted and the writ issued.

It is significant, in terms of timeliness, to understand that when the writ is demanded, from 28 U.S.C. § 2243:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith [immediately] award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

The writ, or order to show cause shall be directed to the person having custody of the person detained.  It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.

The judge or justice must respond to the demand immediately, and then the person having custody has three days, except for cause, which extends those three days up to twenty.  That is a requirement for a timely response, by the judicial branch, to a demand for habeas corpus.

So, we must begin at the beginning to understand that Habeas Corpus has been not only suspended, but has been blatantly ignored by the Judicial Branch of government, at every level; absent any lawful suspension by the Congress.

A Demand for Habeas Corpus was served on the jailers of Larry Mikiel Myers on January 27, 2012, direct to the Court.  This Demand was also mailed directly to the Sheriff, who should have forwarded it to the District Court Judge.  Mr. Myers received no response and was tried in the District Court beginning February 9, 2012.  The trial should not have commenced until the Habeas Corpus was answered.

A Demand for Habeas Corpus was prepared and sent, Certified Return Receipt, on February 10, 2012, to the District Court, the Sheriff, the 11th Circuit Court of Appeals, and, the Florida Supreme Court.  It was received by all parties on February 12, 2012.  The Sheriff and the District Court never acknowledged the service.

The 11th Circuit replied by returning the Demand for Habeas Corpus and saying that it must be filed with the District Court, and referenced FRAP (Federal Rules of Appellate Procedure) 22, which states, “Application for the Original Writ.  An application for a writ of habeas corpus must be made to the appropriate district court.  If made to a circuit judge, the application must be transferred to the appropriate district court.”  So, even though their rules state that THEY must transfer it to the District Court, They chose to pass it back to the Petitioner, avoiding dealing with their obligation to justice.

The Florida Supreme Court returned the Demand claiming that they had no jurisdiction — contrary to the record in which Wisconsin, in fulfilling its obligation to its citizens, twice, granted habeas corpus so that it could be taken to the United States Supreme Court.

So, the lower courts have failed to answer and return habeas corpus, effectively denying it, or, perhaps, since their own rules establish procedures, they “suspended” habeas corpus, arbitrarily and capriciously; and permanently.

This left only one recourse to assure that Mr. Myer could get a fair ruling on the constitutionality of the laws he was charged under.  If the Constitution still had standing in the government of the United States, original jurisdiction was forced, by inaction of the lower courts, to the United States Supreme Court — which is obligated to assure that the people of the United States have justice.

On November 26, 2012, the Petition for Habeas Corpus was submitted to the United States Supreme Court.  It was directed to Justice Antonin Scalia as the designated Justice for the Fifth Circuit, where Mr. Myers is currently incarcerated.  The Rules provide that the appropriate Justice may hear a habeas corpus, and in a review of Supreme Court decisions where the original jurisdiction (first hearing) of a habeas corpus was before that Court, it was always heard and decided by a single Justice.  However, the Clerk’s office, through seven rounds of correspondence, refused to direct it to Scalia, changed the caption from “In Re Larry Mikiel Myers” to “In Re Gary Hunt”, where the record shows that the incarcerated person is the proper name for the caption, not the “attorney of record.”

In an effort to correct these errors, on September 22, 2013, an “Emergency Petition for Writ of Mandamus” (a Mandamus is an order for an official to perform his duty)  (Exhibits to Mandamus) was served on the Court.  Receiving NO response, whatever, to that Petition, a follow up letter was sent on October 12, and no response has been forthcoming regarding the Mandamus.  It would appear as if they can’t respond to something with legal authorities, they just don’t respond.

The final effort at disposing of the original Petition by the Clerk’s office was a claim that I had no right, as a non-attorney, to file a Petition of Habeas Corpus on behalf of another party, Mr. Myers (See Mandamus and Exhibit 9 to Mandamus, linked above).  A 1990 Supreme Court decision dispelled that claim (you would think that the Clerk’s office should know what decision the Court had made in that matter), wherein the decision did allow one in my position to file on behalf of Mr. Myers.  The Petition was finally put on the Docket on June 29, 2013, to be discussed in Conference on September 3, 2013.  That Conference then DENIED the Petition.  Subsequently, a Petition for Rehearing was filed, within the requisite time frame, for a November 26, 2013 (exactly one year after the first service to that Court — so much for being timely) Conference, and this, too, was subsequently DENIED on December 2, 2013.

 

Who can Suspend Habeas Corpus?

“Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ.”

“The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article.  This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department.  It begins by providing “that all legislative powers therein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.”  And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants [and legislative powers which it expressly prohibits]; and at the conclusion of this specification, a clause is inserted giving congress “the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

The above from Ex Parte Merryman, Circuit Court D, Maryland, April Term 1861, Decision by Supreme Court Justice Robert B. Taney.

Now, there may be some ambiguity in just what is meant by “suspend”, so we will refer to Black’s Law Dictionary, Fifth Edition:

To interrupt; to cause to cease for a time; to postpone; to stay, delay, or hinder; to discontinue temporarily…

However, if Congress were to suspend Habeas Corpus, it would have to be an enactment, by them, stating what the cause was, rebellion or invasion, and other matters that would advise us that they had temporarily, suspended habeas corpus, and when the “suspension’ would be concluded.  Any other denial of that right would be a blatant and unmitigated violation of the Constitution.  On the other hand, the United States Supreme Court has simply done away with Article I, Section 9, clause 2, of the Constitution — they have simply removed it from the Constitution — a blatant and unmitigated violation of the Constitution.

 

The Petition for Rehearing

Some of the arguments presented in the Petition for Rehearing include:

A court has a legal and constitutional obligation to answer and return a Writ of Habeas Corpus, when demanded.  When the District Court refuses to answer and return, the next step is the Circuit Court.  When the Circuit Court refuses, in violation of their own Rules, to send the Demand for Habeas Corpus to the District Court, and refuses to answer and return, that leaves only this Supreme Court in which a citizen may find remedy, by answer and return.

To Deny this Petition [for Rehearing] is to Deny the obligation on government created by Article I, § 9, clause 2.

To Deny to answer and return the Demand for Habeas Corpus is to Deny the Constitution, itself — and the government created thereby.

This last argument is based upon a decision by the North Carolina Supreme Court in 1787, they being cognizant of the relationship and responsibility of the government to its constitution.  The case is Bayard v. Singleton (1 N.C. 42):

But that it was clear that no act they [the legislature] 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. 

That is the consequence of a government failing to abide by its responsibility under a constitution.

 

* * * * * * * * * * * * *

From: Supreme Court Docket 13-5008

No. 13-5008 Title: In Re Gary Hunt, Petitioner v. Docketed: June 27, 2013 ~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~ Jun 19 2013 Petition for writ of habeas corpus and motion for leave to proceed in forma pauperis filed. Jul 3 2013 DISTRIBUTED for Conference of September 30, 2013. Oct 7 2013 Petition DENIED. Nov 1 2013 Petition for Rehearing filed. Nov 12 2013 DISTRIBUTED for Conference of November 26, 2013. Dec 2 2013 Rehearing DENIED.

 

 

~~Name~~~~~~~~~~~~~~~~~~~~~	~~~~~~~Address~~~~~~~~~~~~~~~~~~	~~Phone~~~
Attorneys for Petitioner:
Gary Hunt	25370 Second Avenue	(530) 384-0375
	Los Molinos, CA  96055
Party name:

* * * * * * * * * * * * *

So, there, you have it.  If you understand what the Supreme Court has done to remove that sacred right embodied in the Constitution, you might also realize that if this is to change, it will be to the benefit of ourselves, our Posterity, the Constitution, and the insight of the Framers who wanted to give us a form of government that would not find us resorting to our “duty”, according to the Declaration of Independence, to secure our Liberties”

“Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.  But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”

I believe that, if we can muster our forces, the Supreme Court needs to be put on trial in the Court of Public Opinion.  This would require a massive effort to get the information out to as many as possible, such as:

To your Congressional Representatives, as the Court has usurped their authority.

To radio and TV talk shows.

To patriot websites.

To everybody on your mailing lists, with a request that they pass it on to all of their lists, show hosts, representatives, etc.

Let the Court of Public Opinion Convene

The People and the Constitution v. United States Supreme Court

 A PDF of this article, suitable for forwarding to contacts or representatives:

Habeas Corpus Removed from the Constitution

 

There is more to this story at Another Story Behind the Story

 

Habeas Corpus Suspended by the United States Supreme Court
Another Story Behind the Story

Gary Hunt
Outpost of Freedom
December 5, 2013

[Note: This is the second part of the article, “Habeas Corpus Suspended by the United States Supreme Court – The Sacred Writ has been Removed from the Constitution” and deals with the impact on the Petitioner/author, as a consequence of filing the Habeas Corpus.]

I had often wondered if the Habeas Corpus would pose a serious problem within the government if what appears, by my research, to be a means of nullifying “unconstitutional laws”.  I had been doing some research on the subject of the “sacred writ” prior to the current case.  However, it was in December of 2011 that I received a phone call from the sister of the last member of those indicted as the “Florida Common Law Court“, who was going to stand trial after over 15 years from the first trial.

At that point, my serious research on the subject of Habeas Corpus began.  The first three-page Demand (Habeas Corpus, February 2012) was rather meager, however, anticipating our “day in court”, the hearing on Habeas Corpus would allow light to be shed on what I had, at that time, discovered.

When that first Habeas Corpus was ignored by the Sheriff and District Court (assuming that the Sheriff had send it to Judge Merryday), it became apparent that the Petition, itself, would have to contain the argument that the laws that Mr. Myers was being prosecuted under did not apply to him, as all of the actions alleged were already covered by state law.

My receipts show that the Sheriff, the District Court, the Appellate Court, and the Florida Supreme Court all received their “service” on February 12, 2012.

Just a few days before, I had set up a webpage — the first time that Larry Myers’ name and mine were ever associated together on the Internet — to post the progression of the pursuit of justice under the “sacred writ”.

The next day, February 13, 2012, I found that there were at least forty hits to that webpage using the search term “Gary Hunt Larry Myers”.  I only briefly looked, as it didn’t strike me so much, at the time, what was happening, though I do recall that four of those addresses that did the search and went to that page were domain “uscourts.gov” and were from Rochester, Seattle, and San Diego (2).  The remainder of them, in that short period that I checked, were from phones and personal computers from various locations around the country.  In hindsight, I should have followed those visits through the remainder of the day, and, captured images of the “hits” on my statistics page.

At that time, I had no idea of just what this might be the beginning of, though the surprise would be forthcoming.

In November 2008, I retired, applied for, and began receiving Social Security benefits.  I had not paid income tax since 1984, so within a month of receiving my first Social Security check, I was notified that the Internal Revenue Service has taken a portion of my benefit — that should I have any questions, to contact the IRS, not the Social Security Administration.  I discussed this with my wife and she asked me not to challenge the IRS (the most feared government agency in the United States); that we could do well enough with the amount that remained.  So, I relented, and, for the next three years received the reduced “benefit”.

In Mid February 2012, an IRS agent visited me for the first time in well over a decade.  We had a conversation over the fence, with my dog looking on, and I refused a service from him.  In a letter from that agent, dated February 24, 2012, after nearly four years of not working and having no taxable income, I find that they have found that I owe them $188,489.41.  Not to be bogged down in the details, since 1985, I have dealt with various agents.  They always relented, and nothing came of any effort to collect what they might think I owed them, nor did they even attempt to garnishee my wages.  However, this attack, so timely made, was unrelenting.

I had begun checking my site visit stats a bit more regularly and I ran across this one from February 24, 2012 – a visit from the Treasury Department.

In a letter from the Social Security Administration, dated March 1, 2012, I was informed that they were increasing the benefit reduction, though they assured me that I would continue to receive the residue.  The amount was that I received was reduce to $812, but they assured me that I would continue receiving payments on the third of each month, thereafter.

In April 2012, I was again notified by the Social Security Administration that the IRS was to receive all of my Social Security Benefit, and I was to get none — after contributing to that system for 45 years.  This is also contrary to the IRS’ own rules that require that they exempt me from levy for a portion of my benefit (IRS form 1494).  Well, there goes forty-five years of contribution (full faith and credit in the government), down the tubes.

I had been involved in a few other patriot activities, during this time.  Two of them had rather interesting potential.  One was the Arizona Committee of Safety (ACOS), which was modeled on the historical example of the Revolutionary War era.  Though it was unnoticed, at first, by March 10, 2012, elements within the groups had created disturbances that became downright disruptive, eventually leading to the resignation of the Chairman.  Increasing turmoil resulted in the organization being taken over by parties who had completely lost sight of its purpose (as per the by-laws) and making it impossible for the group to remain viable.  By May, the Arizona Committee of Safety had fallen into ruin.

Another organization, the Patriot Unity Coalition (PUC), which came into existence in December 2011, was formed to discourage its members from participating in activities that disparaged other patriots or organizations, unless through a proper forum, such as the Committee of Safety – Common Law Court.  Internal turmoil, violation of the by-laws by some members, and total disruption of the PUC, resulted in its demise by April 8, 2012.  This resulted in starting over, again, with the Coalition of American Patriots (CAP).

Both of these organizations had been proceeding along constructive courses until all of a sudden, out of nowhere, disruption came on with such force that it could not be countered, resulting in both efforts being totally destroyed.

Now, it is possible that they would have followed the same course, absent any outside influence, however, if we look at the timing, and the fact that I was a principal player in each, perhaps there is more to their demise than meets the eye.

We can go one step further.  Back in 1995, Bill Cooper, a well-respected patriot, claimed that I was John Doe #4, and in Oklahoma City on April 19, 1995.  That allegation, which first found its way in fax networking, began floating around the Internet, though never to any significant degree.  From time to time, a discussion would be brought to my attention where the allegations of John Doe #4 arose.  I would join the discussion and ask the group to pick one of their members, who I would direct to a well-known patriot who was with me, in Florida that morning.  I chose this method in lieu of going public with the witness to my whereabouts, as it might have been disruptive to his business, if everybody wanted to call him to verify where I was.  So, the selected party would contact the witness, verify that he was who he claimed to be, and report back, thereby quashing one source that was perpetuating the allegation.

Frankly, that allegation problem wasn’t that serious, until sometime in March 2012, when many of my friends and contacts reported that the John Doe #4 story was proliferating on the Internet.  So, after 17 years, the time had come where I was to take the matter on, or succumb to the falsehood, which would result in a “no credibility” attachment to anything else that I wrote, or might write in the future.

Prior to the show, a Google search was done by at least three of the people I was working with.  The search “Gary Hunt John Doe 4 OKC” gave over 46,000 results.

On March 3, 2012, Randy Mack, host of “You Have Tread On Me”, aired an Internet radio show entitled “Gary Hunt Exposed as John Doe #4 at OKC“.  The show appeared to be quite effective, and a subsequent Google Search, same criteria, resulted in less than 4,000 hits — more than 40,000 hits removed from the search engines.

Now, it would be easy enough to write these occurrences off as “coincidence”, if it were just one or two.  However, in light of the timing, and the disruptive effect on my finances, reputation, and the efforts of others to come up with viable means to pursue a Restoration of Constitutional Government, that is a very hard pill to swallow.

This, then, leads to the final image from my stats.  On November 13, 2013, just one day after my Petition for Rehearing was docketed for conference, we get a visit from a DHS Fusion Center.

 

Note that in the Fusion Center (the information at the bottom comes from a government Fusion Center listing), the email address is to the local Sheriff’s Department, not a federal agency.

 

 

 

 

Habeas Corpus would stop such extension of authority over our local governments.

 

 

 

So, there, you have it.  If you understand what the Supreme Court has done to remove that sacred right embodied in the Constitution, you might also realize that if this is to change, it will be to the benefit of ourselves, our Posterity, the Constitution, and the insight of the Framers who wanted to give us a form of government that would not find us resorting to our “duty“, according to the Declaration of Independence, to secure our Liberties”

“Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.  But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”

I believe that, if we can muster our forces, the Supreme Court needs to be put on trial in the Court of Public Opinion.  This would require a massive effort to get the information out to as many as possible, such as:

To your Congressional Representatives, as the Court has usurped their authority.

To radio and TV talk shows.

To patriot websites.

To everybody on your mailing lists, with a request that they pass it on to all of their lists, show hosts, representatives, etc.

Let the Court of Public Opinion Convene

The People and the Constitution v. United States Supreme Court

 

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 Amendment.  As 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 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…

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)

Appeasement
Giving in, inch by inch

Gary Hunt
Outpost of Freedom
October 29, 2013

 

Appeasement
n. The action or process of appeasing.

Appease
v. pacify or placate (someone) by acceding to their demands.

So, what does appeasement have to do with anything?  Perhaps pacifying or placating someone would avoid potential problems.  It can’t be a bad approach, can it?

Perhaps a brief history of appeasement, as applied from a political standpoint, just about seven decades ago, will give us a better understanding of the consequences of appeasement.  So, let’s look at a brief history of appeasement leading up to the beginning of World War II.

Appeasement and World War II

At the close of World War I, the Treaty of Versailles set certain conditions on the losers, especially Germany.  Among those was a limitation of 100,000 troops in their army.  It also limited the size of their Navy in both manpower and ships.

In 1935, Germany began rearming beyond the limitations set forth in the Treaty of Versailles.  After discussions between Italy, Britain, France, and Germany, nothing was done to force Germany into compliance with the Treaty of Versailles.  This was appeasement.

In 1936, Germany, under Hitler, in violation of the Treaty of Versailles, sent military forces into the Rhineland, which had been demilitarized by the Treaty.  Though protests were made by Britain and France, nothing was done to stop this violation of the Treaty.  Britain claimed to lack the forces to back up France, leaving Hitler unopposed, and establishing a powerful strategic position.  This was appeasement.

In 1937, Neville Chamberlain became Prime Minister of Britain.  The following year, Hitler sought the reunification of Germany and Austria, in violation of the Treaty of Versailles, and sent German Wehrmacht troops into Austria to force the reunification.  Chamberlain’s reaction was to state, “The hard fact is that nothing could have arrested what has actually happened [in Austria] unless this country and other countries had been prepared to use force.”  This was appeasement.

In 1938, Germans, who found themselves living in the Sudetenland, a part of Czechoslovakia, because of the boundaries drawn up in the Treaty of Versailles, under instruction from Hitler, sought autonomy.  Chamberlain warned Hitler that Britain might intervene if Hitler ordered an attack on Czechoslovakia.  Chamberlain went to Germany to meet with Hitler and Hitler demanded the Sudetenland be absorbed into Germany.  He convinced Chamberlain that refusal would result in war.  Chamberlain, with agreement from France, told the Czechoslovakian president that he must hand to Germany all of the territory with a German majority population.  This included over 800,000 people, substantial amounts of industry, and substantial portions of the Czechoslovakian mountain defense installations, thus providing an insecure Western Czechoslovakian border, ripe for subsequent invasion.  In late September, Hitler, Chamberlain, the French Prime Minister, and Mussolini of Italy, met in Munich, Germany.  They agreed that Hitler could complete his occupation of Sudetenland.  This was appeasement.

On September 1, 1939, German forces invaded Poland.  France and England were forced to enter war against Germany.  The policy of appeasement had only encouraged Hitler, and in May 1940, Chamberlain stepped down and Winston Churchill, who had consistently opposed appeasement, became Prime Minister.

During the years of appeasement, Hitler increased his military and armament, increased his strength, increased his access to natural resources and food supplies, increased his industrial capacity, and increased the size of Germany.  While other nations apologized for Hitler’s actions, he continued on a course that compounded the difficulty of dealing with the problem, when the appeasers finally recognized the error of their ways.

Had appeasement not been the practice of the day, and a firm position taken in 1934, the problem could have been dealt with and would probably have been but a minor incident in history.  As each step of the appeasement progressed, the magnitude of the problem became greater.  After a mere five years of appeasement, the solution to the problem resulted in deaths of many tens of millions of people and many trillions of dollars both in fighting the war that followed and rebuilding after the destruction of that war.

Appeasement Today

One of the elements of the greatness of America was an immigration policy that, until the Civil War, limited citizenship to those of European ancestry.  Even after the war, immigration was based upon quotas and other educational or experience criteria, and, for the most part, was open to any that chose to come to America, assimilate into the American way of life, and contribute to its greatness.

In the past three decades, immigration standards have been reduced to an open door policy.  The quotas that provided for limited immigration, resulting in assimilation, were dropped.  We began becoming a relocation destination for refugees who stood on our side in the wars that we continue to start, and to lose.  These newer policies have allowed entire communities to retain the heritage, culture, and lifestyle of their country of origin, and have effectively nullified the concept of assimilation.

Under the guise of multiculturalism, we have also opened our doors to just about anybody, regardless of their motivation, allowing floods of people who have no aspirations of assimilation, rather who come here for what they can get without effort, or, perhaps, with even more devious intentions.  However, to pacify world opinion created by our support for multiculturalism, and, to placate those who wish to come here, we have developed a policy of appeasement on immigration.

What might be the consequences of this policy of appeasement?  Perhaps we can take an American city and evaluate the consequence of this rampant immigration.  So, we will look at Dearborn, Michigan.  Of the estimated population of over 98,000 people, 40,000 are either Muslim or from Muslim countries (Wikipedia).  At this point, it is safe to say that they constitute 40% of the voting potential, regardless of the makeup of the remaining population.  Considering normal voting turnout, with a little motivation, the Muslims would have a majority in local elections.  The consequence would be that rather than assimilation into the American lifestyle, we would see a conversion of Dearborn into a Middle Eastern city and could eventually expect that local laws would be changed by that majority into laws foreign to the nature of America.  Putting it bluntly, they would, by utilizing the mechanism of democracy, convert Dearborn into a city ruled by Sharia Law.  As those laws change so, too, will the culture of a once American city.

That was one American city.  Let’s look at a county.  The population of Los Angeles County is 9.9 million people (LA Times blog).  The Hispanic population is 4.9 million people (Pew Research).  That constitutes over 49% of the population.  Based upon estimates (Los Angeles Almanac), the illegal immigrant population of Los Angeles County is over 700,000.  This would raise the number of Hispanics to 53%.  La Raza and other Hispanic organizations, asserting that California was stolen from the Mexicans, may soon be able to vote Los Angeles County out of the United States and into Aztlán.

Presumably, in the former, the population is a result of the lax immigration laws and open door policy.  In the latter, many are “old Mexican”, whose families have been here for generations, however, the remainder, except as noted, are comprised of those who became legal immigrants as a result of the 1986 amnesty, or, anchor babies and their associated families.

As these demographics continue to change, we can expect more cities and more counties to succumb to such consequences as we see in these two examples.  Appeasement, supported by court decisions, providing a spurious sense of blanket equality — even allowing non-citizens to vote in local elections (USA Today – Justices: Arizona voter registration rules go too far) — allows the growth of a problem that, as time goes on, will, as we saw in World War II, compound itself to the point that the solution becomes almost insurmountable, and will result in a hodgepodge of many pseudo-nations within the United States.

We have addressed to geopolitical aspects of appeasement and how they might affect the future of our once great nation.  Now, we can look into more subtle aspects of appeasement and the effect that they are having on our society.  You will note with both the above and those that follow, that one side (the appeaser) gives ground and weakens, while the other gains ground and strengthens.  Is this appeasement?

Appeasement on our children

ADHD Attention Deficit Hyperactivity Disorder (ADHD) is a relatively new disease.  It has resulted in the drugging of hundreds of thousands of juveniles with psychotropic drugs.  Those same drugs appear to be associated with nearly every school shooting by a student.  If we look at the statistics, we will find that community referrals are 3 to 1 more likely to occur in boys than girls.  In clinic referrals, we find that the ratio extends to 10 to 1 (NIH/National Center for Biotechnology Information).  And in the female occurrences, it is defined as “inattentive type”, being less severe.  These numbers suggest that either the male is far more susceptible to ADHD than the female, or, perhaps, it is a consequence of the male tendency to be more active, and less passive, than the female.  Since our educational system has, by various means, endeavored to feminize the educational process by prohibiting physical contact sports, suggestions of guns or violence, and forced the male to participate in activities that were, just a few generations ago, considered to be in the realm of female passiveness.  Is it possible that the observation and determination of ADHD is a consequence of the depression that is a result of leaving the football field and having to participate in activities that are more feminine?  When you remove the “slugs and snails and puppy dog tails” and forced the masculine gender into “sugar and spice and everything nice,” can you expect the consequences to be other than what is described as ADHD?  Is acceptance of the government’s explanation appeasement?

Appeasement on militarization of police

“To Protect and To Serve” has been the motto of most police departments, for at least the last half century.  Recently, however, we have seen a marked movement towards that “protection” being redefined as “officer safety” (WSJ / Rise of the Warrior Cop).  As a consequence, and as the equipment becomes militarized, where officers are far more protected than they were decades ago, we see an increase in the level of violence directed at citizens, quite often in the comfort of their own home.  In 2005, there were 364 “arrest related deaths” (DOJ / Arrest-Related Deaths in the United States,).  In that same year, only 162 officers died in the line of duty, of which only 60 were shot (National Law Enforcement Officers Memorial).  The government provides semi automatic and full automatic rifles to law enforcement, they provide military style helicopters to law enforcement, they provide military style armored vehicles to law enforcement, they have assigned drones to support law enforcement, and, they continue to provide additional military level equipment and training to law enforcement.  At the same time, many elements of government are attempting to restrict our right of self-defense, making us absolutely submissive to the law enforcement community.  Is this appeasement?

Appeasement on Christianity

This country was founded on Judeo-Christian moral values.  From courtroom to the executive office, the Bible has been the device upon which oaths were taken.  Christmas time and Eastertide have been celebrated throughout our history.  The United States Supreme Court building contains at least six depictions of Moses and the 10 Commandments.  Recently, however, we have seen rejection of Christmas displays and Easter celebrations in our schools and other government locations, under the guise that the First Amendment prohibits them, though they had been celebrated openly on government property from the founding of our country until just a few decades ago.  There can be no doubt as to the role of Christianity in our history and heritage; however, as they are pushed out, we find that we have laid a red carpet out for Islam.  Many minarets, with speakers, loudly announce prayer early in the morning.  Muslims are allowed to lay down their prayer rugs and pray in streets, sidewalks, airports, and other public areas.  We are told that we are not to offend their practice of their religion.  Is this appeasement?

Conclusion

Appeasement, like any other disease, if treated early, lessens the damage.  Like cancer, if caught soon enough, total remission is quite possible.  However, if untreated, it will continue to grow, leading ultimately to the demise of the host.

Its introduction, like the Trojan Horse, is subtle and accepted.  If not recognized before introduction, where it can be denied admission, then as early as possible, as soon as it is recognized, remedial action must be taken.  Absent such treatment, the objectives of the interloper, instead of the host, will be achieved.

Its introduction is usually preceded by the utilization of “Political Correctness”.  Under the guise of Freedom of Speech, the host tends to drop its guard, often under the fear of ostracization, or even judicial punishment.  Political correctness is foundational to creating an air of acceptability, where ones true thoughts are suppressed – under the guise of being for the “common good”.

Appeasement is nothing less than the creation of an advantage for the opposing side.  Unless and until recognized, it serves none other than the host.  Once recognized, remedial action is absolutely necessary, at the earliest possible moment, to avoid the consequences that will ultimately follow.  Acquiescence to appeasement has only one conclusion — the social engineering of a society, contrary to its very nature.

What did Timothy McVeigh really say?

Gary Hunt
Outpost of Freedom
November 14, 1997

 

If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me.  He wrote, “Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.”

That’s all I have.

Timothy McVeigh, August 14, 1997 — just prior to being officially sentenced to death

 

For weeks, now, I had been conjecturing, along with nearly everyone else in the country, what words would come forth on Timothy McVeigh’s day of sentencing. He had declared that he would make a statement — his first since he was accused of bombing the Murrah federal building in Oklahoma City on April 19, 1995 — and the word had spread, as had the anticipation. Many had expected a confession, remorse or denial of complicity. Very few, if any, expected so much acumen to come from McVeigh and just 47 words.

To fully understand the depth of McVeigh’s statement, it might be best to understand exactly what the Olmstead case was about. “Olmstead was the leading conspirator and the general manager of [a] business” (Olmstead v. United States, 277 US 438) which employed “not less than 50 persons,” including executives, salesmen, deliverymen, dispatchers and an attorney. The business was “unlawfully possessing, transporting and importing intoxicating liquors,..” The crime, then, was a violation of the statutes enacted under authority of the 18th Amendment to the Constitution (Prohibition) which was ratified in 1919.

The general argument of the court was that although postal mail, once sealed, was prohibited from intrusion by government officers seeking evidence, a telephone line was not, and, although Washington state law made it a misdemeanor to tap a phone, the evidence obtained thereby was admissible. The court, in its opinion, also made clear that the government need not be ethical in its acquiring of evidence.

Brandeis, in his dissenting opinion, stated that “Tapping of one man’s telephone line involves the tapping of the telephone line of every other person whom he may call, or who may call him.” He continued, [a]s a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.”

Although the comparison of any evidence gathering in the McVeigh case is inconsequential to the whole, the seizure of the papers in McVeigh’s car, his home, the homes of his friends and relatives, and the intimidation of his sister and the Fortiers falls well within the domain of what was once prohibited under the Constitution — but which has become an everyday occurrence under the federal government’s agenda.

I’m not so sure that this was all that Timothy McVeigh had to say when he uttered those few words — much to the chagrin of many. The implications of wrongdoing by government, and usurpation of authority not granted by the Constitution through the process of judicial review is much broader in its ramifications than this case, by itself, demonstrates. Brandeis does discuss other aspects of the Constitution, which have changed by their nature due to the nature of change in the society, especially from a technological point of view. How, for example, could the Founders have protected the right to communicate (theirs was limited to post and courier) over telephone lines when electricity had not been discovered. How, too, could they address the right to communicate freely on the Internet when just a few years ago the concept of this medium of communication was beyond the comprehension of most people. Brandeis states, with regard to the Supreme Court’s review of actions of the Congress, that “this court has repeatedly sustained the exercise of power by Congress, under various clauses of [the Constitution], over objects of which the fathers could not have dreamed.”

“Protection against such invasion of ‘the sanctities of a man’s home and the privacies of life’ was provided for in the Fourth and Fifth Amendments by specific language.” He continues, “[b]ut ‘time works changes, brings into existence new conditions and purposes.’ Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what was whispered in the closet.”

In appraising the consequences of the government’s overzealous tendencies to secure convictions, Brandeis discussed the actions of the government officials, and the government, itself. “When these unlawful acts [wire tapping in violation of Washington state laws] were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes… and if this court should permit the government, by means of its officers’ crimes, to effect its purpose of punishing the defendants, there would seem to be present the elements of ratification [of the crime committed by government officials, individually]. If so, the government itself would become a lawbreaker.”

Brandeis’ entire concluding paragraph is probably warranted. What McVeigh left out speaks volumes. From the record:

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”

The act of anarchy that McVeigh committed was an act induced by observation of the government’s violation of numerous aspects of the Constitution. In Texas, for example, §9.31 (C) of the Texas Penal Code states:

“The use of force to resist an arrest or search is justified:

“(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

There can be little doubt, regardless of your perception of what occurred in Waco, that the BATF and the FBI did create a situation in which the retaliatory action by the Davidians was fully justified, at least under Texas law. Other events in our recent history can lead us to conclude that the governments efforts at crime control have only generated a scenario where the government may commit crimes, with impunity, and convict others who have not committed a crime of the mere act of possibly contemplating a crime. A very far cry from what Brandeis spoke to some seventy years ago.

Some will suggest that I am attempting to justify McVeigh’s deeds. On the contrary, I have only attempted to explain them.

 

The previous post in this series about McVeigh,

An Essay on Hypocrisy, by Tim McVeigh

 

Does Anybody Really Know What Time It Is?

Gary Hunt
Outpost of Freedom
September 2, 2013

There comes a time when we are past the point of words; only action will achieve the goal that we have set.  That goal is founded upon our belief in, and our determination to support, the Constitution — and, the peaceful transition of the office of President.  Now, we must consider what to do when that transfer appears to be the harbinger of the total destruction of the way of life to which we are accustomed.

Every four years, the people of this country elect a new Executive to wield the reins of government.  To date, the United States of America is the only country in the world in which the government was truly created by the authority of the people.  In so doing, they required that the Executive take the following oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

All subordinate offices, which require an oath, are similar to the following: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

Interestingly, with the exception of the Executive, the oath includes, “I will support and defend the Constitution of the United States against all enemies, foreign and domestic.”  The stipulation “all enemies, foreign and domestic“, though omitted in the former, is included in all of the latter.

In a previous article (Sons of Liberty #14); the concept of self-government was discussed.  Part of that discussion dwelt upon the means by which governments are dissolved (dissolution).  First, they can be dissolved by force, by a conquering army, wherein they are absorbed within the government of the conqueror.

Second, they can be dissolved when an external force, not by outright conquest, instills a modified form of the existing government, albeit friendly to the external force, whereby through a slow transitional process, the existing government is modified to a new form.  (This, we impose upon countries under the guise of bringing them democracy.)

Thirdly, when an existing representative form of government is subverted by internal forces, such as: When the executive arbitrarily imposes his will on the elected representatives and the people; when the trust bestowed upon the legislative body is betrayed, by whatever means, whereby the ultimate authority is transferred from the people to arbitrary authority by the Legislative or the Executive, contrary to the document that brought the legislative body into existence; and, lastly, when the people become subject to the influence of a foreign power, thereby influencing the legislative body to pass laws inconsistent with the original foundation of the government.  It is of this last method of dissolution that we must concern ourselves.

Of these three forms of dissolution of government, we must concern ourselves with the third and its three basic elements.

Of the first, the Executive, we have seen in our history, a number of usurpations that don’t seem to be supported by the Constitution.  John Adams elicited legislative support for his Alien and Sedition Acts.  These Acts were to discourage dissent and criticism of the executive.  Of them, the Supreme Court overturned some; the remainder expired at the end of Adams’ term of office.  Later, Andrew Jackson refused to enforce laws enacted by the legislature.  During the Civil War, both Lincoln and the Congress enacted laws contrary to the Constitution.  All of these, however, pale when compared to recent usurpation of authority by the executive branch of government, resulting in their near dictatorial power, without regard to the Constitution, to which the executive oath was taken.

Of the next, the legislative, as discussed above, has been willing, under generally extraordinary circumstances, to enact laws contrary to the Constitution, has, recently, especially with the support of the judiciary, imposed upon the people of this country laws that are totally outside of any authority or power granted by the Constitution.  Beyond that, the judiciary has become legislative, and has broadened the interpretation of laws enacted by the legislature, and, by undermining the authority of the state governments to enact laws under their respective constitutions, provided us with, rather than interpretations of the Constitution, expansion of the authority of the federal government.

The consequences of the two above-mentioned usurpations has resulted in an electorate comprised of foreign interests, often illegally within this country, and often voting for those who promise them benefits and privileges that are greater than even those allowed to the people of this country.

The effect of the mis-administration of government according to the Constitution has resulted in a dissolution of government by the third method, which has been so subtle as to have been almost overlooked as it incrementally dissolved our freedoms.

Let’s look at some aspects of government, wherein we have seen the results of incrementalism and destruction of the foundations of our government.

Education:  In 1867, an “Office of Education” was established within the federal government.  Its purpose was to provide information and arrange for land grants to establish state colleges for agricultural and mechanical purposes.  Curriculum and all administrative matters were determined at the local level.  In 1953, a position was created and known as “Health, Education, and Welfare”.  At that time, curriculum and all administrative matters were determined at the local level, though in some cases subject to state intrusion.  Today, we have a dictatorial federal agency that mandates curriculum, testing, and social engineering, without regard to any more than token input from interested parties, leaving all decisions in the hands of a few select administrators.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Religion:  We have transformed the constitutional prohibition of government enacting any “law respecting an establishment of religion”, to an unconstitutional, and undesirable, “separation of church and state”, to the point that United States Supreme Court, with numerous engravings of the 10 Commandments or Moses on the edifices of that institution has summarily dictated that any representation of Christian belief cannot be demonstrated in, and in some cases even spoken of, in buildings owned by the public.  Meanwhile, atheism, through the same Court, has caused the forced removal of Christian symbols that have stood for decades, or longer, asserting that they are unconstitutional.  The tenets of Islam (Shariah Law) have, however, found standing in the lesser courts to justify actions that have been held as unlawful for centuries.  Likewise, they have allowed promotion of Islam in the same locations that they have denied the promotion of Christianity.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Police:  Even after World War II, police were courteous, helpful, protective, polite, and friendly, matching the phrase “to serve and to protect”.  Today, they serve search or arrest warrants, with no less than half a dozen militarily armed SWAT teams; breaking down doors, even if unlocked; shooting dogs and terrorizing the occupants; and, often at the wrong address.  The more they are equipped militarily, purportedly to provide officer protection, the more they are inclined to utilize force, even deadly force, in the conduct of their duties.  Their own personal safety has become paramount, with a total disregard for the safety of the public.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Criminal Justice:  “Hate crimes” have become the watchword in criminal justice.  If an act of violence is initiated by a white person (or even Hispanic), then the full force of justice will be imposed upon the perpetrator.  If, however, the act of violence is initiated by a black person on a white person, most often it will be asserted as a robbery, whether property was taken, or not.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Constitutional Justice:  Federal judges have, in numerous instances, determined that state constitutional amendments are unconstitutional, even though the amendments were enacted in accordance with state constitutions (Republican form of government) and are consistent with federal law (as in the federal definition of marriage, 1 U.S.C. § 7), or consistent with existing law and common sense (ruling barring Shariah law as a defense in Oklahoma).  These same federal courts have become the source of unlawful legislation to accomplish, by subjective means, social engineering, not authorized by the Constitution.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Debt:  They have imposed upon, not only us, but also our great grandchildren, a debt beyond comprehension.  The ability to pay down that debt is nonexistent, making it perpetual, though they continue to borrow and increase that debt, making us a destitute nation.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Welfare:  They have provided a smooth and easy path to dependency for those unwilling to fend for themselves.  With more people receiving food stamps, than there are working for a living, we can only wonder, should this trend continue, just who is providing for the food stamps.  The dependence upon government is at an historical high, and the continuation of this policy has no end in sight.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Immigration:  They have provided an open door, complete with financial incentive, to those who can find a better life, with less effort, by violating existing laws within this country.  This open door policy denigrates the very concept of what it means to be an “American”, which in times past, was the pursuit of those who entered this country abiding by the rules, with the intention of assimilation rather than invasion.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Veterans:  Young men are sent, by the government, to impose destruction and death upon perceived enemies of “our freedoms”.  Once returned, those who were willing to risk their lives “in defense of America” find that the same government that sent them on those dastardly deeds has now labeled them as enemies of the state.  Do we need to continue to pile incident upon incident to create a case?  Or has the time come for action?

Are those same veterans now willing to, once again, risk their lives for really protecting our freedom and liberty — from those who have used them and then tossed them aside?  Do they still have the courage and the desire to do what must be done?  Perhaps they need only look around and understand that the people, not the government, need their willingness, once again, to fight, and die, if necessary, to preserve those freedoms.

It has always, throughout history, primarily fallen to the young men of our nation, whether they have prior military service, or not, and those who support them, to preserve this “grand experiment” of self-government, the United States of America, or to abandon it to those who have corrupted that which was our birthright, and allow their children, their posterity, to submit to a slavery that they are becoming subject to, at this very moment.

There is no longer any need for “a line in the sand”, as it will surely be moved, once again, after we have allowed the incremental expansion of dictatorial government to remove even more of that which made us great.  It is now upon us — it is time to ACT.

“Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  Forbid it, Almighty God!”

Patrick Henry, March 23, 1775

Surrender is not an option, though if we continue to submit to the encroachments that are daily imposed upon us, it will surely be the result of our inaction.

Suggested reading:

Let’s Talk About the Constitution

The Constitution is NOT a Suicide Pact

Introduction to Committees of Safety

The Other (not so) Thin Line

A Simplified Explanation of “The Plan for the Restoration of Constitutional Government”

A Thought on Leadership

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:

•  Introduction to Habeas Corpus
• Court Cases and enactments affirming Habeas Corpus in the United States, during its first century
• The Fourteenth Amendment and its effect on the citizen
• The Fourth Branch of Government, and,  who is subject to that unconstitutional branch
• Summation – that puts all of the pieces neatly into place

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 aforesaid… shall 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 governors.  After 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 Government…if 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 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.

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 nature.  So 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 government.  It 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

 

 

The Other (not so) Thin Line

Gary Hunt
Outpost of Freedom
July 5, 2012

There is a very thin line between what we believe to be our rights and what the government believes our rights are.  Unfortunately, that line continues, either by police action or court decisions, to move against us, allowing even greater power and control over our lives by the government.

There is another line that we might want to consider, though this line tends to ‘flow’ in a different direction.  If we look at the Patriot Community as a whole, and then endeavor to define the progression of those who have joined that community, from entry through, well, wherever they might be now, we, perhaps, can understand just what we are dealing with.

Let’s take a line that runs from left to right, with no political affiliation, philosophy, or ideology, in mind.  At the right end of the line are those who have been members of the Patriot Community for quite some time.  Their experience, research, and observations, along with their current mindset, have moved to the point of no return — that “state of Nature” that the Framers understood.  They might easily be referred to as extremists, as were those “Indians” who made tea in Boston Harbor.

On the left end of the line, we have those who have only recently began to see something amiss in government.  To provide a bit more perspective, if we revisit the nineteen-fifties, they John Birch Society had already seen the evil potential of the United Nations.  They, as a group, comprised a majority of those who might first be defined s “Patriots” by our modern understand.

Over the next forty years, those entering the community were few, and most were those how had begin to understand that the “income tax” (3% in the forties) was unconstitutional and basically a theft of personal property.  This activity brought a prolonged surge into the Community, though it extended over many years.  The issues were separate and singular, so there was no adhesive element to the Community.  Basically, there were “Get Us Out of the United Nations” and “Income Taxes Are Unconstitutional”

Then, in 1993, the federal government, primarily the BATF, raided a Church in Waco, Texas, on a Sunday morning.  A siege of epic proportions, under the authority of the Federal Bureau of Investigation, lasted for 51 days — until the occupants remaining in the Church, with few exceptions, died in the fire that consumed the Church in tens of minutes.  Though there had been a militia element in the Patriot Community prior to Waco, there was a new surge, this occurring over a very short period.  The militia community was rather large; however, there was another large segment of people filled with disgust over the events then occurring.  Waco touched hundreds of thousands of people.  National news and alternative media (fax networks) brought a story to millions, unlike previous events.  This resulted in two more elements added to the Patriot Community, “Militia” and a contingent simply disgusted with the misdeeds of government and the broad assumption of authority that accompanied such an activity.  The Patriot Community had become more diverse (that word is not used in the politically correct context).

The next significant contribution to those who consider themselves to be part of the Patriot Community, though as in the past, many may not have come to that realization, yet, came just a few years ago, as it became apparent that our economy was beginning to collapse.  This infusion, the largest, by far, is also the most diverse.  That diversity is both about issues and means of achieving change (again, not the politically correct definition).  In fact, the apparent disparity might incline someone to believe that there is little, or nothing, in common within, let’s call it the “Tea Party Crowd”, let alone, the Patriot Community.

However, as time goes on, there is a tendency for the issues to merge, or, at least, have a degree of commonality with other issues.  Likewise, the means of achievement tend to focus away from the ineffective.

In these observations, I have intentionally omitted the anti-war groups, though they tend to be consistent with the John Birch Society.  Their omission is based upon the fact that, once the war they oppose is over, they either return to the comfort of the couch, or have, by association, joined in with another of the common causes of the Patriot Community.

Now, let’s stand back and look at this line.  Towards the right, we see a rather narrow but constant thickness to the line.  As we move towards the left, there is a very small bubble, very near the center, that reflects the “Waco” infusion.  Then, way over towards the left end is a rather large bubble that represents the Tea Party Crowd.  Of course, each of the bubbles taper of both left and right, the left being those moving along more slowly, the right, those progress more rapidly.

The problem that we face, however, is that the average will always shift to the left when there is a new infusion of members into the Patriot Community.  It is almost like undoing that which was done before, and the median is constantly shifting away from the fortitude that is necessary to affect real change.  The average is constantly shifting back towards “vote them out of office”, “Support the Republican Party”, or an effort to enact new laws (as if we need any new laws).  And, as those near the left move along to toward the right, they will soon find out that they, too, are outnumbered by the constant flow in on the left.

So, let’s leave the current line behind, for now, instead, let’s look at history.  In April 1775, most of the colonists would have been well to the left on the above-described line.  Any thought of violence would only have occurred in parts of Massachusetts and in North Carolina.  Contentment and peaceful change were the mean, and that was how it was, just as it is, today.  For example, in Albany, New York, word of the “Kings Troops” commencing “Hostilities” was received, via a letter from the Committee of Correspondence, on April 26, 1775.  The response to the letter received indicated that any real threat was “entirely Groundless”.  On May 1, a public meeting was held to determine if the citizens wished to take a position on the matter and appoint people to look into forming a District Committee of Safety and to prepare a plan to deal with the King’s “Ministerial Plan”.  Finally, on May 3, they began enrolling a Militia unit.

Had a role call been made of all of the colonists who were otherwise unsympathetic to the British intrusions into the colonist’s rights, the majority, most assuredly, would have voted against such action.  It was only after events were acted out that made continued “Hostilities” inevitable that the shift in thought — the joining of one side, or the other, was an inescapable necessity, regardless of prior reluctance.

To argue, now, to avoid the inescapable reality, that force will ever be necessary, flies in the face of historical fact, and, reality.  Or, to phrase it in the language of those days, “Load, shoot, or get out of the way”, but don’t attempt to hinder those who have been here longer and realize that there is but one means by which we will achieve our goal of restoration of Constitutional Government.

Until our line hardens sufficiently to keep their line from constantly encroaching, we will remain on the downhill side of achievement of our goal.

Habeas Corpus
A New Understanding

Gary Hunt
Outpost of Freedom
June 19, 2012

 

The Constitution provided for a separation of powers both within the federal government, and, between the federal government and the state governments (Republican Form, Art I, Sec IV, clause 4, Const.). There were limitations of, and grants of, authority given to the federal government. And, by the Tenth Amendment, those powers not granted were retained by the states or the people.

There is also a rather obscure provision that provided the means to protect the states and the people from encroachment by federal authority. When I say “obscure”, I do so because I am at a loss for the proper word. After all, nearly everybody in the country knows that “The Privilege of the Writ Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Art. I, Sec. 9. Clause 2, Const.). Most people also understand that Habeas Corpus is also known as the “Sacred Writ”, however, I would suggest that only a small handful really understand exactly what Habeas Corpus ad subjiciendum, really is. After all, the last time the United States Supreme Court heard a case on Habeas Corpus ad subjiciendum was in 1876 (EX PARTE PARKS, 93 U.S. 18), yes, 136 years ago — long before any practicing attorney or judge ventured into law school to learn the “law of the land”. Given the number of generations between that last occurrence, is it any wonder that the concept, and the understanding of the significance, of Habeas Corpus has been lost?

Just a few historical quotations regarding the Sacred Writ:

“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.”. [Abelman v. Booth, 62 U.S. 506 (1858), at 519]

“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 Government.  And as the Constitution is the fundamental and supreme law, if 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 grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws; but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress” [Abelman v. Booth, 62 U.S. 506 (1858), at 520,521]

“Rights and immunities created by or dependant upon the Constitution of the United States can be protected by Congress.  The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide.  These may be varied to meet the necessities of the particular right to be protected”. [U S v. REESE, 92 U.S. 214 (1875), at 215, 216]

“A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government“. [William Blackstone, Commentaries (1768)]

“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 governors“.  [“A View of the Constitution of the United States”, William Rawles (1829)]

“The national code in which the writ of habeas corpus was originally found, is not expressly or directly incorporated into the Constitution.

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.” [“A View of the Constitution of the United States”, William Rawles (1829)]

“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. [“A View of the Constitution of the United States”, William Rawles (1829)]

“§ 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,” [“Commentaries on the Constitution”, Joseph Story (1833)]

Though we have seen that the state legislatures have failed at nullification of unlawful enactments of Congress, perhaps, however,  we can see that there is a remedy within the Constitution that, if properly applied, will achieve such end. Unless, of course, the “Sacred Writ has been suspended — without the requisite act of Congress and the Constitutional conditions met.

To understand more about Habeas Corpus, and, the apparent suspension (not enacted suspension, as required), go to Habeas Corpus 2012

Also:

Habeas Corpus 2012

Has Habeas Corpus Been Eliminated

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