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Prayer for Saturday April 14, 2018

It is God who arms me with strength and makes my way perfect.

Prayer

“It is God who arms me with strength and makes my way perfect. He makes my feet like the feet of a deer; he enables me to stand on the heights. He trains my hands for battle; my arms can bend a bow of bronze. You give me your shield of victory, and your right hand sustains me; you stoop down to make me great. You broaden the path beneath me, so that my ankles do not turn.”

Psalm 18:32-36

Psalm 18 32

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Amendment XII-Electoral College

The first reason that the founders created the Electoral College is that the founding fathers were afraid of direct election to the Presidency. They feared a tyrant could manipulate public opinion and come to power.

History has proven this fear to be justified by the creation of the “Imperial Presidency”

electoral college

“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves;”

The Twelfth Amendment sets out the procedures for the election of the President and Vice President: Electors cast one vote for each office in their respective states, and the candidate having the majority of votes cast for a particular office is elected. If no person has a majority for President, the House of Representatives votes from among the top three candidates, with each state delegation casting one vote. In the case of a failure of any vice presidential candidate to gain a majority of electoral votes, the Senate chooses between the top two candidates. The procedure for choosing the President and Vice President is set out in Article II, Section 1, Clauses 2–6, of the Constitution. This amendment replaces the third clause of that section, which had called for only a single set of votes for President and Vice President, so that the vice presidency would go to the presidential runner-up. In the unamended Constitution, the choice in the case of a nonmajority in the Electoral College fell to the House of Representatives, as it does under the amendment, and the runner-up there would be chosen as Vice President.

The Twelfth Amendment, the last to be proposed by the Founding generation, was proposed for ratification in December 1803 and was ratified in 1804, in time for the presidential election that year. The previous system had yielded, in the election of 1796, Federalist John Adams’s election as President, while his bitter rival and sometimes-close friend, Republican Thomas Jefferson, was elected Vice President. In the election of 1800, Republican, (the precursor of today’s Democrats), electors, though they clearly preferred Jefferson, sought to guarantee that Republicans won both offices, and cast seventy-three electoral votes for both Thomas Jefferson and Aaron Burr. This threw the election into the House of Representatives, where it was only resolved (in Jefferson’s favor) on the thirty-sixth ballot. The hardening of party lines and concomitant voting by party slates (which the Framers had not contemplated) and some dissatisfaction with the way in which electors were chosen in the states led to proposals for change, including a proposal that electors be chosen in separate electoral districts in each state. However, the only change successfully accomplished was that of separate voting for President and Vice President.

Electors in all but two states (Maine and Nebraska) do vote as a bloc, effectively ensuring a two-party system.

Most presidential elections have not generated Twelfth Amendment controversy. However, the provisions of the Amendment have surfaced from time to time, most commonly when a third-party candidate threatens to take a substantial percentage of the vote. In 1824, the failure of either Andrew Jackson or John Quincy Adams to garner a majority of electoral votes threw the election into the House of Representatives, where Adams won the presidency despite having fewer electoral votes than Jackson. In 1876, similar circumstances were resolved differently, when neither Rutherford B. Hayes nor Samuel Tilden received a majority of electoral votes, due to disputed votes in three Southern states. In that instance, Hayes won the presidency when a congressional commission awarded him all disputed electoral votes (and thus a one-vote majority).

The Electoral College was created for two reasons.

The first purpose was to create a buffer between population and the selection of a President.

The second as part of the structure of the government that gave extra power to the smaller states.

History has proven this fear to be justified by the creation of the “Imperial Presidency” first under Franklin Delano Roosevelt and later by Lyndon Baines Johnson; Richard Milhous Nixon and lately by Barack Hussein Obama. A charismatic and/or politically powerful leader combined with a complacent or complicit media can, very easily become a demagogue.

Hamilton and the other founders believed, wrongly, that the electors would be able to insure that only a qualified person becomes President. They believed that with the Electoral College no one would be able to manipulate the citizenry. It would act as check on an electorate that might be duped. Hamilton and the other founders did not trust the population to make the right choice.Their reasoning failed to take the rise in power of political parties into account.

The electoral college is also part of compromises made at the convention to satisfy the small states. Under the system of the Electoral College each state had the same number of electoral votes as they have representative in Congress, thus no state could have less then 3.

One aspect of the electoral system that is not mandated in the constitution is the fact that the winner takes all the votes in the state. While this tends to negate the power of the electorate, with the evolution of powerful political parties it concentrates great power in the hands of the “leaders” of those parties.

While there are clear problems with the Electoral College and there are some advantages to it, changing it is very unlikely. It would take a constitutional amendment ratified by 3/4 of states to change the system. It is hard to imagine the smaller states agreeing. One way of modifying the system is to eliminate the winner take all part of it. The method that the states vote for the electoral college is not mandated by the constitution but is decided by the states. Two states do not use the winner take all system, Maine and Nebraska. It would be difficult but not impossible to get other states to change their systems, unfortunately the party that has the advantage in the state is unlikely to agree to a unilateral change.

Although “Power to the People” was a slogan much bandied about starting in the upheaval of the 1960’s, the truth of the matter is much closer to a quote attributed to Josef Stalin:

“It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”

–Joseph Stalin

Amendment XI- Suits against a State

So, once again we have an instance where the Constitution, (or in this case an amendment to the Constitution), means exactly what it says it means… unless the Supreme Court decides otherwise,

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Amendment XI

11th amendment flim-flam

The Eleventh Amendment was ratified in 1795 as a response to the Supreme Court’s decision in Chisholm v. Georgia (1793). Chisholm had held that the federal courts could hear suits by individuals against state governments for money damages, notwithstanding the sovereign immunity that the states had traditionally enjoyed. The resulting furor—based largely on concerns that the states would be held accountable for their Revolutionary War debts—gave rise in 1795 to the ratification of the Eleventh Amendment, which established a fairly narrow textual bar to jurisdiction in cases like Chisholm itself. Chisholm was the first major constitutional decision of the new Court, and the Eleventh Amendment reversed it, eight years before Marbury v. Madison (1803).

The notion of sovereign immunity predates the Eleventh Amendment, having its origins in the English common law. The Framers were clearly aware of the traditional doctrine that the states were immune from private lawsuits as sovereign entities, and some Anti-Federalists feared that Article III, Section 1, of the Constitution—which declares that the federal judicial power extends to suits “between a State and Citizens of another State”—would override that doctrine.

Several key Framers—including Alexander Hamilton, James Madison, and John Marshall—are on record denying that the Constitution would, of its own force, deprive the states of this immunity. The more difficult questions are ones that the Framers did not confront directly: Did the states’ immunity apply in suits based on federal law, as opposed to the state common-law claim relied upon in Chisholm? And was that immunity constitutional in stature, or could Congress abrogate it?

The Court answered the first question in the 1890 case of Hans v. State of Louisiana, holding that the Eleventh Amendment bars private suits against the states even where federal jurisdiction is based on a federal question rather than diversity.

After Hans, the Court extended the states’ immunity in a number of other ways inconsistent with the amendment’s text, holding that the immunity applies in admiralty (notwithstanding the textual limitation to “suit[s] in law or equity”) and in suits by foreign sovereigns and Indian tribes (notwithstanding the textual limitation to “Citizens” of a “State” or “Foreign State”).

The second question—whether Congress may abrogate the states’ sovereign immunity—has preoccupied the Court more recently. There is little doubt that the states enjoyed, at the Founding, the sort of sovereign immunity recognized in common law. Most common-law doctrines, however, are subject to legislative override. Debates at the Constitutional and ratification conventions focused on whether Article III was itself intended to override this traditional immunity; they did not address, however, whether Congress could do so by later legislative enactment.

In recent years, the Supreme Court has set forth specific conditions for negating a state’s
Eleventh Amendment immunity against money damages in federal courts under some federal statutes.

The first two conditions apply to Congress, the source of the legislation. First, Congress can express its intent to nullify, or “abrogate,” Eleventh Amendment immunity for states under a specific federal statute, making it possible for states to be sued. However, Congress may do so only by making its intention unmistakably clear in the language of the legislation, as determined by the courts. Second, the courts must be persuaded that Congress has sufficient authority in the Constitution to nullify Eleventh Amendment immunity.The alternative condition applies to the states, which are the recipients of the immunity. Specifically, the state may waive, or knowingly and voluntarily give up, the immunity. For example, the state’s acceptance of federal funds may constitute such a waiver, depending on whether this acceptance is ultimately determined by a court to be informed consent or coercion.

Debates at the Constitutional and ratification conventions focused on whether Article III was itself intended to override this traditional immunity; they did not address, however, whether Congress could do so by later legislative enactment. The Court’s 1996 decision in Seminole Tribe of Florida v. Florida held that Congress may not abrogate state sovereign immunity, at least when it acts pursuant to its enumerated powers in Article I of the Constitution. Seminole Tribe determined that the states’ traditional immunity was not a mere holdover from the common law but rather a basic principle of the constitutional structure.

Three years later, in Alden v. Maine (1999), the Court held that, notwithstanding the amendment’s limited application to “[t]he Judicial power of the United States,” Congress also lacked power to override state sovereign immunity for suits in state court. Alden frankly acknowledged that no such principle could be gleaned from the amendment’s text; the Court relied, however, on a structural principle that predated the text and applied much more broadly. The phrase “Eleventh Amendment immunity,” Justice Anthony Kennedy said, “is something of a misnomer….Sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.”

Notwithstanding Seminole Tribe and Alden, however, Congress retains power to abrogate state sovereign immunity when it acts pursuant to its power to enforce the Reconstruction Amendments (i.e., the Thirteenth, Fourteenth, and Fifteenth). Several reasons have been given for this: those amendments postdate the Eleventh; they were designed by the Civil War victors to cut back on state sovereignty; and their textual grant of power to Congress to “enforce” their provisions may be interpreted to extend to subjecting the states to monetary remedies for violations. Although the Court decided the leading case on the enforcement power—Fitzpatrick v. Bitzer—in 1976, its more recent decisions have all reaffirmed that precedent.

In order to use the Fitzpatrick exception, Congress and private litigants have sought to rethink a number of federal statutory schemes, originally enacted under the Commerce Clause, as efforts to enforce the Fourteenth Amendment. The Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) decision rejected Congress’s attempt to use Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity in patent and false-advertising suits as a means of preventing deprivations of property without due process of law. More recently, Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001) rejected claims that state liability under the Age Discrimination in Employment Act (ADEA) and Americans with Disabilities Act (ADA) would validly remedy violations of the Equal Protection Clause. Nonetheless, abrogation under the enforcement power is appropriate when a high proportion of statutory violations are also constitutional violations of rights protected by Section 1 of the Fourteenth Amendment. Thus, Nevada Department of Human Resources v. Hibbs (2003) held that Congress may subject a state to suits for money damages by state employees in the event of the state’s failure to comply with the family-care provision of the Family and Medical Leave Act (FMLA). Hibbs suggests that narrowly drawn abrogation statutes can pass muster under Section 5, particularly where the rights being enforced call for heightened judicial scrutiny.

In addition to abrogating state immunities under Section 5, Congress retains other important tools for holding state actors accountable for violations of federal law. Congress can, for example, require the states to waive their immunities as a condition for receipt of federal grants under the Spending Clause (Article I, Section 8, Clause 1). Furthermore, state sovereign immunity has never been understood to bar suits by the United States itself. Federal enforcement agencies thus may continue to enforce the ADEA and ADA against state governments. Nor does state immunity bar claims against state officers for injunctive relief or (when the officer is sued in his personal capacity) for money damages. So long as these options exist, the sovereign immunity embodied in the Eleventh Amendment and its extratextual background principles will tend to force suits against the states into certain channels without entirely eliminating the possibility of relief.

So, once again we have an instance where the Constitution, (or in this case an amendment to the Constitution), means exactly what it says it means… unless the Supreme Court decides otherwise, (regardless of the context or intent of the original Framers), in which case the Constitution means exactly what the Supreme Court says it means… unless the Congress decides that they are sufficiently unhappy with what the Supreme Court has ruled in which case they can craft legislation that contravenes the Supreme Courts’ decision on the matter. Clear as mud, no?

Once more we are given an indication that while the common meme is that we are a nation of laws, we are, in fact, a nation of men… and in many cases a nation of very confused men.

HumptyDumpty01

(c2018)

Of, by and for the people?

After all we are a “Representative Republic” are we not? Doesn’t the Constitution begin with the words “We the people of the United States”? We are a nation of law and the legislators who write the law and the administrators who run the country are elected.

Well, sort of

A Republic-if you can keep it

Under our particular republican form of government, sovereignty is supposed to be vested in the people, individually, and exercised by them, directly.

We currently live in an awkward tension in which ignorant and malicious government, with the support of majorities of the population, clamor to regulate the unregulateable, yet those not inclined to take heed simply decline to take heed and bury their heads in the normalcy bias that they have been indoctrinated with..

As envisioned by our Founders, government has so few delegated tasks that it is meant to be inconsequential who is elected, as the latitude they have to effect our lives is meant to be minimal.

Government has only a small number of well-defined tasks. Statute may read differently, but we, many if us, live our lives flouting those statutes because the state fears losing in court, and they won’t risk their confidence scam over one case here and one case there, but they quickly add up.

Well, sort of. Yes, some of them are elected. They are called “Representatives,” and they allegedly represent the people of their geographic House districts, (and that’s in single-member districts on a plurality basis, a most notoriously non-apportioned basis.)

That’s it.

None of our other federal elected officials are elected by the people to represent the people. The Senate doesn’t represent the people; they represent their state’s government, and although they are now (ever since the 17th A in 1913) directly elected, that was never originally meant to be the case.

So the House is one of the two houses of Congress elected by the people to represent the people, sort of, by geographic district, and on the basis of plurality within the district’s.

Now look at the Executive Branch: both elected officials are elected by the states, who send electors chosen by any means they see fit. Some use winner-take-all state popular vote elections. Others use district popular vote apportionment.

Some states have entered into a compact that would defer their electors to the nationwide popular vote, which is unconstitutional, as the power to select electors is delegated to the states, individually, and is not delegable. The states could, of course, select any other manner of selecting electors, like gubernatorial appointment, state legislative appointment, or appointment by the US Congressmen whose number they represent.

All other Executive Branch officials are appointed.

The Judicial Branch is entirely appointed. Period.

So 1/2 of 1/3 (which is 1/6, if my 4th grade, non-common-core arithmetic is correct) of the federal government is “sort of popularly elected” to represent the people.

In reality, elections, (and therefore those elected), are controlled by the “leaders” of political parties. How so?

-States Send Delegates to the Electoral College that Represent Parties, Not People.

When envisioning the electoral college, the goal of the Founding Fathers was to send electors who were “free from any sinister bias” to select the next president. Today, however, electors are chosen because of their service, dedication, and loyalty to their political party. Most states have a ‘winner takes all’ electoral system, which presupposes that the electors cast their vote for president not “in the first instance to an immediate act of the people of America,” but because they are bound by their party to vote in unison and loyalty to that party’s nominee.

–Campaign Finance Laws Give Political Parties Special Exemptions Even in Nonpartisan Races

Political parties, through the legislatures they control, have written campaign finance laws to give their parties special advantages that no one else gets.

So how hard is it for someone to funnel money through a political party to simply skirt the individual donation limits?

In local elections, this imbalance makes it nearly impossible for those without major political party affiliations to compete, even in supposedly nonpartisan elections.

–Parties Draw District Lines to Insulate Themselves from Competition

Gerrymandering is the act of selectively drawing district boundaries so that voters of the opposing party are crammed into a small number of districts, allowing the party in power to win virtually every other district with impunity. An effective gerrymander will trap one party in a small number of safe districts, after which the other party spreads its voters out over the rest of the state. A tell-tale sign of a gerrymander is a district with mind-boggling shaped boundaries.

Often, both parties work together to draw districts so that as many elections as possible are made “safe” for the political parties in power. This is why approximately 90% of elections today are ‘decided’ in the primary.

Statistically, gerrymandering helped ensure that around 94% of House elections in 2014 were noncompetitive, meaning that only 6% of general elections even mattered. This means, if you couldn’t vote in the major party’s primary, you never really had a voice in the election at all.

Arizona’s legislature, for example, filed a lawsuit against its citizen redistricting commission, arguing Arizona’s voters didn’t have the power to take away the drawing of districts from the legislators in power. A recent ruling by the Supreme Court has resulted in the negating of the independent commissions in Arizona and five other states. (A case of “you scratch my back, I’ll scratch yours?”)

–Taxpayers Fund Primary Elections that Benefit Private Parties

Believe it or not, when the closed primary system was originally enacted, it offered a publicly-administered alternative to the smoke-filled room selection process by party bosses.

Closed primaries serve a private purpose: to select candidates that represent the members of a political party. And, each year, fewer and fewer voters identify with either major political party. And each year, fewer and fewer voters participate in the primary elections as a result. And finally, although only party members are allowed to participate in closed primaries, taxpayers foot the bill for these elections.

–The Media presents Issues Not Based on Merit, But on the Two Major-Party Positions, usually slanting the coverage toward their preferred bias.

The media has divided our political discussions into a two-sided debate between the red team and the blue team unequally divided into separate echo chambers for each team.

-Political Parties Are Directly Involved in Administering Elections

Although elections are supposed to offer an organized system by which we elect representatives, even the minutiae of that system is controlled by major parties. (“election judges” are, for example, categorized as Democrat or Republican, non non-partisan.) Many studies have shown how states have slowly outsourced election administration to both major political parties, often leading to patently illegal activities, such as voter suppression, voter caging, and voter intimidation.

–Chief State Election Officials Are Appointed by Parties

Thirty-six states have partisan secretaries of state or lieutenant governors who oversee the public election process. And thirty-two states have no restrictions on the partisan activity of its election officers. Of those with restrictions, many of them are slight, such as restricting election officers from holding another public office.

The dangers of having partisan election administrators are not trivial. Election overseers aligned with both major parties routinely implement policies that hamstring voters from the other party.

In short, states have routinely implemented electoral systems that put a conflict of interest between a voter’s right to fair and secure elections and a political party’s pursuit of power.

Imagine if the umpire at a baseball game was actually on one of the two teams!

– Political Parties Appoint the Judiciary and Control Judicial Elections

Although there are various methods of appointing judges, they are all centered around the political parties’ power. Seven states have partisan judicial nominations. Many other states leave their judges to the mercy of political-party influence: partisan elections are used in twenty states for local trial court judges, nine states also elect judges for courts of appeal, and seven states elect judges for state supreme courts.

Even the most powerful judicial body in the United States, the Supreme Court, along with all other federal judges, are appointed by the President and approved by Congress. This has made the Supreme Court so motivated by partisan influence that the justices are routinely categorized as “liberal” or “conservative.”

–Additionally, political parties are tax exempt, receive discounted postage rates, and have free access to voter registration records.

Historical voting records, for example, give partisan political operatives the ability to identify and ‘turn out their base’ much easier than nonpartisan candidates.
For the presidential election, the two major parties control the debate process (and in turn the public discourse). This is because the Commission for Presidential Debates is controlled exclusively by Republicans and Democrats who have made it nearly impossible for third parties or independent candidates to participate.

Private political parties have managed to influence nearly every aspect of our public election process. As a result, both major parties have managed to insulate themselves from meaningful competition.

In his farewell address George Washington addressed the idea of political parties:

“However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”

“If voting made any difference they wouldn’t let us do it.”
–Mark Twain

mark-twain-voting quote

Amendment X – Reserved Powers of the States

An historical accident was our undoing here. that historical accident was the intersection of the slavery issue and the right to secede issue.

In 1860, the Southern States were wrong (morally) about slavery, but they were right that they had a Constitutional right to secede from the Union. Conversely, the North was correct about slavery, but wrong in denying secession rights.

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.
Amendment X

Amendment X - American Vision

The Tenth Amendment expresses the principle that underpins the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth Amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system.

Because the Constitution created a government of limited and enumerated powers, the Federalist Framers initially believed that a bill of rights was not only unnecessary, but also potentially dangerous. The Federalists insisted that, under the normal rules of statutory construction, by forbidding the government from acting in certain areas, a bill of rights necessarily implied that the government could act in all other areas not forbidden to it. That would change the federal government from one of limited powers to one, like the states, of general legislative powers.

The Federalists relented and passed the Bill of Rights in the First Congress only after making certain that no such implication could arise from the prohibitions of the Bill of Rights. Hence, the Tenth Amendment—a rule of construction that warns against interpreting the other amendments in the Bill of Rights to imply powers in the national government that were not granted by the original document.

Despite the Framers’ concerns and the clear text of the Tenth Amendment, the Supreme Court indulged precisely this form of reasoning. In the Legal Tender Cases in 1871, declining to locate the power to issue paper money in any enumerated power, the Court wrote:“And, that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those enumerated, is shown by the amendments….They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from any one specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.”

While providing a rule of construction for the relationship between the Bill of Rights and the scheme of enumerated powers, the Tenth Amendment also affirms the Constitution’s basic scheme of defining the relationship between the national and state governments. The Founders were wary of centralized government. At the same time, the failure of the Articles of Confederation revealed the necessity of vesting some authority independent of the states in a national government. The Constitution therefore created a novel system of mixed sovereignty. Each government possessed direct authority over citizens: the states generally over their citizens, and the federal government under its assigned powers.

An historical accident was our undoing here. that historical accident was the intersection of the slavery issue and the right to secede issue.

Once states lost the right to secede through the War Between the States, they lost all leverage against the Federal government and the Constitutional balance attempted by the Ninth and Tenth Amendments was irretrievably upset.

One wonders what would have happened if the North would have let the South secede and then joined Europe in an economic boycott against the newly-independent Southern states. Sure, slavery would have lasted a bit longer, but I don’t think it would have lasted much longer. On the other hand, states would have retained the right to enforce the Tenth Amendment by (threat of) secession. It is also interesting to ponder whether present day North American blacks and whites would have be better off if slavery had died a more gradual, natural death in the South.

At the time of the Constitution’s Ratification, that once ratified, a state’s decision would be permanent, and any attempt to leave the Union would be met with armed invasion, then I don’t think there’s any question that the Constitution would never have been ratified. It barely was ratified anyway.

As things now stand the tenth amendment is certainly the most ignored. Congress runs a 50-state extortion ring, threatening to withhold education or highway money if the states do not comply… this seems to me to be a blatant violation of the 10th Amendment. This is how they keep web filters in our libraries… no child left behind… The Patriot Act… FISA Courts, etc.”

Wouldn’t the 10th prevent the Federal Government from being involved in these other things. States rights mean that these other programs should be funded and run by the state. There is no reason that the federal government should be giving the states any money at all according to my reading of the 10th. If states funded it themselves then they could easily blow off the Fed and do things the way they want them done without having to worry about federal funding drying up.

In the end it comes down to a line from the movie “All The President’s Men”: “Follow the money”.

Amendment IX – Rights Retained By The People

…there are rights that people have which are not created by the constitution but precede it, and these rights are recognized by the U.S. Constitution just as much as rights such as free speech that are “enumerated” or explicitly stated.

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

9th amendment

The Ninth Amendment was written to accomplish the following objectives: (1) to prevent the application of the statutory rule of interpretation, inclusio unius est exclusio alterius (the inclusion of one thing necessarily excludes all others); (2) to permit the Federalists to save face by affirming the argument they had made against the necessity of a bill of rights; and (3) to confirm the republican principles, espoused by Federalists and Anti-Federalists alike, that the people retain their communal right of self-governance.

In arguing against the inclusion of a “Bill Of Rights” the Federalists posited; “If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.”

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against.
–James Madison

Madison was attempting to guard against the well-understood rule of inclusio unius est exclusio alterius, whereby the very listing of certain rights as immune from congressional regulation would necessarily imply a grant of general legislative power in Congress to legislate over all others.

Madison’s proposed amendment, then, was an attempt to avoid the result feared by the Federalists. The State of Virginia stalled the adoption of the Constitution for over two years over the questions that Madison attempted to address with the 9th amendment. Yet withing two years of adoption, the Federal government began overreach which was commented on in 1886 by Lysander Spooner;

“But perhaps the most absolute proof that our national lawmakers and judges are as regardless of all constitutional, as they are of all natural, law, and that their statutes and decisions are as destitute of all constitutional, as they are of all natural, authority, is to be found in the fact that these lawmakers and judges have trampled upon, and utterly ignored, certain amendments to the constitution, which had been adopted, and (constitutionally speaking) become authoritative, as early as 1791; only two years after the government went into operation.

If these amendments had been obeyed, they would have compelled all congresses and courts to understand that, if the government had any constitutional powers at all, they were simply powers to protect men’s natural rights, and not to destroy any of them.

These amendments have actually forbidden any lawmaking whatever in violation of men’s natural rights. And this is equivalent to a prohibition of any lawmaking at all. And if lawmakers and courts had been as desirous of preserving men’s natural rights, as they have been of violating them, they would long ago have found out that, since these amendments, the constitution authorized no lawmaking at all.”

The 9th U.S. Circuit Court of Appeals confirmed on March 14, 2007 that the Ninth Amendment to the United States is now null and void. The judges did not explicitly express those statements in their ruling, but that is the implication. The case involved a woman whose life, according to her doctor, can only be preserved with medical marijuana. The judges ruled that the federal government may nevertheless prosecute her for violating federal laws regarding drugs.

The U.S. Supreme Court had already ruled that medical marijuana users could be convicted for violating federal marijuana laws even if legal by state law. Therefore, the specific issue in this case was whether the U.S. Constitution recognizes a natural right to life as an unenumerated right recognized by the Ninth Amendment to the U.S. Constitution. That Amendment states, in its entirety, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The meaning of the Ninth Amendment is that there are rights that people have which are not created by the constitution but precede it, and these rights are recognized by the U.S. Constitution just as much as rights such as free speech that are “enumerated” or explicitly stated. The supreme natural right of a person is the right to live and to protect one’s own life. If this supreme right is “disparaged,” hence ignored or disregarded, or denied, then no other rights have meaning.

The judges ruled that the defendant could be prosecuted by the federal government. They ruled that the right to life is not implicit in the Constitution, which implies that these judges disparage and deny the Ninth Amendment itself. This judgment has killed the Ninth Amendment. That section of the Bill of Rights in the U.S. Constitution is now null and void, no longer recognized by the federal judiciary.

The fundamental moral purpose and authority of government is to protect life and liberty. Government is not morally justified by democracy or a constitution or religious authority but only from enforcing a rule of law that protects human rights. In the United States, the heart and soul of the U.S. Constitution has been the Ninth Amendment, which recognizes all our natural rights, and explicitly prohibits the federal government from denying and disparaging these rights.

Congress is at fault for enacting laws that violate the Ninth Amendment, but the way the U.S. government works is by the judicial branch of government having the last say, overruling laws that violate the Constitution.

Where does that leave American citizens? We no longer have a real rule of law, but a rule of men who can decide what portions of the constitution to live by and which to disparage.

The day that the judges killed the Ninth Amendment they murdered the spirit of the U.S. Constitution, the spirit of liberty and the vision of our Founding Fathers.

On March 14, 2007 the U.S. government lost its remaining moral authority.

Rights are not gifts from government

A Prayer for Saturday April 7, 2018

“Seek the peace of the city where I have caused you to be carried away captive, and pray to the Lord for it; for in its peace you will have peace”

–Jeremiah 29:7

Prayer

“Seek the peace of the city where I have caused you to be carried away captive, and pray to the Lord for it; for in its peace you will have peace”

–Jeremiah 29:7

Lord God, we desperately need your wisdom. You have given us a great country, founded on principles and truths from Your Word. We need men and women who will honor You, trust You, and lead us once again back to You. We pray for servant leaders who love the things You love and who care more about others than themselves.

Give us leaders with discerning hearts, bold faith, and wise minds that model Your character. Teach them—and us—not just what is good, but what is best. Guide them in the way our country should go. Give them purity in their intentions, and godliness in their convictions. Energize their spirits and bodies physically and spiritually, and keep them emotionally secure in the knowledge of who You are—and whose they are.

AMEN

Pray for the Nation

Amendment VII & Amendment VIII

Bill of Rights

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….
—Amendment VII

Toward the end of the Constitutional Convention, Hugh Williamson of North Carolina noted that “no provision was yet made for juries in civil cases and suggested the necessity of it.”

It was a costly oversight, for the omission of a guarantee of civil juries occasioned the greatest opposition to the Constitution in the ratifying conventions. Of the six ratifying conventions that proposed amendments to the Constitution, five included a right to a jury in civil cases.

The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly “suits at common law,” particularly when “public” or governmental rights are at issue.

In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither “implicit in the concept of ordered liberty,” Palko v. State of Connecticut (1937), nor “fundamental to the American scheme of justice,” Duncan v. Louisiana (1968). Accordingly, in company with only the Second Amendment and the Grand Jury Clause of the Fifth Amendment, the Seventh Amendment is not “incorporated” against the states; it applies only in the federal courts.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
—Amendment VIII

In both English and American practice, the level of bail is determined on a case-by-case basis to ensure the defendant’s presence at trial. The court often takes into account the character of the charged offense and the previous behavior of the defendant. The Supreme Court has declared that a bail amount would be “excessive” under the Eighth Amendment if it were “a figure higher than is reasonably calculated” to ensure the defendant’s appearance at trial. Stack v. Boyle (1951); see also United States v. Salerno (1987). Procedurally, the defendant must file a motion for reduction in order to contest a bail as excessive.

More recently, the Supreme Court has approved a state statute allowing pretrial detention of some juveniles, Schall v. Martin (1984). In United States v. Salerno (1987), the Court upheld the pretrial detention provisions in the Bail Reform Act of 1984 that applied to persons who were arrested for serious crimes and who might pose a danger to the community. Based on the Bail Reform Act, a federal district court has upheld detention without bail of persons with alleged terrorist connections. United States v. Goba (2003).

If some of this sounds familiar, you might want to refer back to our blog posting on Amendment VI.

Where does someone accused of a criminal act wait those years before they are brought to trial? They wait in jail.

We don’t think twice about this because we’ve been doing it so long. But why on Earth should someone be imprisoned before they are found guilty of a crime? Jail is for convicted criminals, not people awaiting trial.

It’s a holdover from our past, the early 1800s, when the wait for a trial was a few days at most and the authorities wanted to make sure the accused showed up for trial and didn’t skip town. It seemed reasonable to have them wait in jail those few days. As the wait got longer, we came up with a horrible solution: posting bail.

This seems like a very small thing. If you’re arrested, you can post bail to stay out of jail until your trial. That seems fair.

But it’s not fair, because it gives those who have money an advantage over those who don’t. If you’re rich you can post bail; if you’re poor, you can’t. So poor people go to jail, while others don’t.

Why should anyone have to pay to stay out of jail when they haven’t been convicted of a crime? The only reason this terrible system remains in place is that bail money helps fund state governments.

Putting innocent people in jail for years is wrong; putting people whose innocence or guilt has not been established is wrong. Both violate the Constitution.

Speedy Trial 02

Amendment VI – Compulsory process; Right to Counsel

Unlike other Sixth Amendment guarantees, the right to call witnesses is totally at the defendant’s initiative. It is not unlimited, but subject to reasonable* restrictions.

In all criminal prosecutions, the accused shall enjoy the right to… have compulsory process for obtaining witnesses in his favor….
–Amendment VI

compulsary process clause

For centuries, Britons had struggled against the common-law rule that forbade an accused from calling witnesses in his defense in cases of treason or felony, or, even when allowed, not to permit the defense witness to be sworn under oath. The common-law rule survived in the American colonies even after England had abolished it by statute.

After the Revolution, however, a number of state constitutions established in one form or another the right to call defense witnesses. The clause assured that the accused in a criminal case was guaranteed not only the right to call witnesses but also a process to obtain witnesses, so that defense evidence could be evaluated by a jury or, in a nonjury criminal case, by a judge. It was, in sum, an essential part of the right of an accused to present a defense.

Unlike other Sixth Amendment guarantees, the right to call witnesses is totally at the defendant’s initiative. It is not unlimited, but subject to reasonable* restrictions. Taylor v. Illinois (1988). The ordinary rules of evidence apply to the exercise of the right. The Compulsory Process Clause, for example, does not guarantee a defendant the right to use polygraph evidence in a jurisdiction that forbids such evidence. United States v. Scheffer (1998).

(*OPINION: Reasonable? According to whom?)

In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.
–Amendment VI

Patriot act-6th amendment

By affording a right to assistance of counsel, the Founders specifically meant to reject the English practice of prohibiting felony defendants from appearing through counsel except upon debatable points of law that arose during trial. After the Glorious Revolution in England (1688), Parliament passed a statute allowing those accused of treason to appear through counsel. The Framers clearly meant to extend the right to be heard through counsel to cases of felony as well as treason.

As to the level of criminal charge that triggers the right to counsel, the courts have never complied with the literal meaning of the Sixth Amendment. In this instance, at least, “all” does not mean “all criminal prosecutions”: it means some. Petty offenses have been adjudicated without counsel from the time of the Founding to this day. The traditional understanding of petty offenses included misdemeanors punishable by less than six months in jail. The modern Supreme Court has held that no offense can be deemed petty for purposes of the exception to the right to counsel if the accused does in fact receive a sentence that includes incarceration, howsoever brief.

Amendment VI is contravened by Patriot Act provisions vis-a-vis the right to legal representation. The government may monitor conversations between attorneys and clients in federal prisons and deny lawyers to those accused of crimes. Under the anti-terrorism laws, the government may jail Americans indefinitely without a trial.

Despite the existence of a tradition in the United States of respect for the rule of law, and the presence of self-correcting mechanisms under the US Constitution, it is sad that a number of important mechanisms for the protection of rights have been removed or obfuscated under law and practice.

(OPINION: “Land of the free?”)

surveillance puzzle

Amendment VI – right to be informed; right to confront witnesses.

In order to accommodate some hearsay… the Court has allowed exceptions to the basic rule, but only where the Court finds the resulting evidence sufficiently “reliable” in the absence of confrontation.

In all criminal prosecutions, the accused shall enjoy the right to …be informed of the nature and cause of the accusation….
–Amendment VI

Notice of intended prosecution

The Constitution requires that an accused criminal defendant be informed of the nature of the charges against him. As Justice Hugo L. Black has written:

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. Cole v. Arkansas (1948).

Initially, the function of the constitutional requirement was to provide the accused with adequate notice of the charges against him so that he could prepare a defense. As the concept of double jeopardy developed, the notice requirement came to serve the secondary purpose of allowing the accused to plead a prior acquittal as a bar to a second prosecution for the “same offense.” It also came to serve as a means of informing the court of the nature of the charges so that the court might determine their legal sufficiency.

“In all criminal prosecutions, the accused shall enjoy the right to… be confronted with the witnesses against him….”
–Amendment VI

The Confrontation Clause guarantees an essential element of the adversarial trial process. The clause envisions a trial where the accused sees and hears prosecution witnesses testify in person, in open court, in his presence, and subject to cross-examination.

As the Supreme Court declared in its first major Confrontation Clause opinion, “The primary object of [the clause] was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness.” Mattox v. United States (1895).

In sum, the Confrontation Clause prescribes an adversarial trial process that is designed to get at the truth by allowing defendants to challenge prosecution witnesses through face-to-face testimony and cross-examination. In order to accommodate some hearsay, and to allow for extraordinary cases where witnesses are incapable of testifying in the normal court setting, the Court has allowed exceptions to the basic rule, but only where the Court finds the resulting evidence sufficiently “reliable” in the absence of confrontation.

(OPINION: So, once again, the law says exactly what is says it is… unless the court decides that it doesn’t!)

HumptyDumpty01