ObamaCare: Bad 6th Circuit Decision Assures Supreme Court Review In Fall

From The Heritage Foundation:








Obamacare: Bad 6th Circuit Decision Assures Supreme Court Review in Fall















Yesterday, the Sixth Circuit Court of Appeals issued a decision upholding Obamacare against a constitutional challenge. While this is disappointing, there are several reasons to believe that this flawed decision is not predictive of how the Supreme Court will rule.



In recent years, the Sixth Circuit has achieved a growing reputation for not just reversals, but summary reversals at the Supreme Court. In a summary reversal, the Supreme Court unanimously reverses a lower court decision without hearing argument or





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even having a full merits briefing—because the decision is so clearly wrong. It is a sure sign of an activist court misapplying the law.



Among the liberal judges who have helped the Sixth Circuit achieve this less-than-stellar reputation is Boyce Martin. When he was the chief judge, he infamously manipulated the panel of an affirmative action case to make sure liberals outnumbered conservatives. He also shifted the timing of the review of an en banc case—he waited until conservative judges had left the court to circulate the petition, so that they would not be on the panel to hear the case. Martin is the author of today’s unfortunate opinion.



There are several reasons to believe this decision will be an outlier.

•Health insurance v. health care. First, the court blurs the line on which market is regulated, and the two judges in the majority opinion do so with the plaintiffs’ blessing. Judge Martin’s opinion notes that the plaintiffs “accept the class of activities that the provision purports to reach: participating in the national market for health care services without maintaining insurance that meets the minimum coverage requirement.” This is a massive (and unnecessary) legal concession. The government has sought to characterize the case as about regulating health care rather than health insurance—to avoid the inconvenient truth that it is seeking to force individuals who are not in the health insurance market into the market. By doing so, the government is regulating non-economic inactivity. But by shifting the argument to the health care market with the agreement of the parties, the Court was able to make the next big leap—that “far from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health care market.” This mistaken concession made it that much easier for the government, and it is not a mistake that the states or the National Federation of Independent Business (NFIB) have made in their litigation.



•Challenging precedent. Second, Judge Sutton’s decision concurring in judgment turns in large measure on an interpretation of facial challenges (challenges in which a plaintiff alleges that the statute is invalid under all circumstances) that is inconsistent with the Supreme Court’s interpretation and precedent on that question. Sutton’s view does not comport with leading cases in the Commerce Clause context or with recent decisions by the Supreme Court modifying the standard for facial challenges.


•Support for argument that mandate is unconstitutional. The dissenting judge, James Graham, called the question correctly when he wrote that “the mandate is a novel exercise of Commerce Clause power” and that Congress has never before “required individuals to purchase a good or service.” He concluded that the individual mandate is unconstitutional and that if this exercise of power is allowed, “it is difficult to see what the limits on Congress’s Commerce Clause authority would be.” Graham asks rhetorically, “What aspect of human activity would escape federal power?” Only through a constitutional amendment could a “structural shift of that magnitude…be accomplished legitimately.”



This is the first of the circuit court decisions to address the issue, but most court-watchers are fervently awaiting the decisions in cases raised by the states and the NFIB. Again, it is clear that the question of whether Congress has abused its power will ultimately be answered by the Supreme Court. The fact that this decision came down today—in the same week that the Supreme Court ended its current term—just about guarantees that the Court will have the opportunity to review the statute in its fall term.

Where It All Began...

From Lew Rockwell.com:

Where It All Began…


by Eric Peters

EricPetersAutos.com



Recently by Eric Peters: To Cheap Out – or Not Cheap Out?









It’s not hard to pinpoint the exact moments when the Constitution was explicitly disavowed by the robed shysters charged (by themselves) with “interpreting” it.



Once such moment was 21 years ago, in 1991, when the robed shysters of the Supreme Court “interpreted” the plain meaning of the Fourth Amendment to mean its opposite.



This was the year of Michigan State Police v. Sitz, the case that decided the legality of random roadside sobriety checkpoints on the basis of “compelling state interest,” as lead shyster and Badge Licker in Chief William Rehnquist put it.



Basically, the ends justify the means. “Getting drunks off the road” – anyway, anyhow – is what matters. Not the Constitution. Hence, screw the rule of law. Just git ‘er done, as they say.



But the Fourth Amendment does not have qualifiers – or exceptions. It reads simply:



“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.”





Note especially the part about “shall not be violated.” That’s pretty strident – and pretty plain – language. There’s no room for “interpretation” – just perversion and rationalization, the means by which our robed shysters traduce the legal protections they were charged by oath to affirm and uphold.



It’s despicable.



Men such as Rehnquist are far from stupid, which makes them all the more loathsome for the tyranny they rain down upon us.



You can argue until you’re blue in the face about the Importance of Getting Drunks off the Road (or Getting Terrorists – or whatever it maybe). That is not the question – and Rehnquist, et al. knew it.





The question is whether the Constitution is the law of the land – or not. And decisions such as the one rendered in Sitz prove that it is not. The law is the whim of the state and its “interpreters” – and, of course, its enforcers.



The Constitution’s protections do not provide exceptions for any reason – period – as noted in the Sitz dissent written by William Brennan: “…stopping every car might make it easier to prevent drunken driving… (but this) is an insufficient justification for abandoning the requirement of individualized suspicion.”



Exactly. There is no sufficient justification – other than specific, individualized suspicion – if the Fourth means what it plainly says.



Not that it matters.



And now, we reap the whirlwind.



The Sitz decision established the case law precedent – which is the real law of the land, as opposed to the Constitution. Ask any lawyer. What carries legal force is what the various Deeciders say the law is, not what the Constitution says the law is.





Endless ratiocinations – “compelling state interest” being one – provide the basis for Talmudic parsing by a profession dedicated to making the intelligible unintelligible, as well as arbitrary – precisely the opposite of the intent of the men who wrote our now-inoperative founding documents.



What made America unique in all the world – a country in which the individual’s rights were explicit and sacrosanct, without qualification, period – is gone. Has been gone, for many years now.





The case law precedent established by cases such as Sitz paved the way for the random gropes we’re now subject to at airports – on precisely the same basis of the (supposed) Greater Good, as defined by the robed shysters.



But perhaps the most depressing aspect of this is not the shitting all over the Constitution by the men charged to preserve and protect it. Rather, it is the slavish badge-licking endorsement of the same by “freedom loving” Americans. If the response to previous columns on the subject is indicative, there are large numbers of people out there who either don’t understand the Constitution or (worse) just don’t give a damn about it.



Give them some justification – some excuse – and they will gleefully do a jig on the document.



I’ve had several back-and-forths with one of these people, who constantly talks about the need to “get drunks off the road.” His mentality can’t connect the dots – or just doesn’t want to. He believes that because he doesn’t drink, he’s got “nothing to worry about.” But when I try to point out to him that drinking and driving is a sideshow, that once random and arbitrary laws are enacted – once the Constitution’s (ex) protections become inoperative or qualified at whim by the powers-that-be – we are all vulnerable by definition, because that is what arbitrary and random mean. It is akin to turning loose a driverless car with its gas pedal jammed to the floorboards. It can strike anyone – and “anyone” may just be you.



The founders wrote the Bill of Rights to put a driver behind the wheel. To make sure the “car” stayed on course and did not run off onto the sidewalk, leaving mayhem in its wake.



Oh, I know. The Clovers out there will huff that mayhem is not created by random checkpoints – or TSA gropes. Just a temporary indignity and minor inconvenience for the Greater Good.



Just wait…







Reprinted with permission from EricPetersAutos.com.



June 28, 2011



Eric Peters [send him mail] is an automotive columnist and author of Automotive Atrocities and Road Hogs (2011). Visit his website.



Copyright © 2011 Eric Peters

Ignorance, Stupidity Or Manipulation

From Lew Rockwell.com:

Ignorance, Stupidity or Manipulation


by Walter E. Williams



Recently by Walter E. Williams: America's New Racists











Rep. Charlie Rangel, D-N.Y., referring to his race and the Constitution on John Stossel's recent show "The State Against Blacks," said, "I wasn't even considered three-fifths of a guy." The Rev. Al Sharpton, debating on Sean Hannity's show, said, "Any black, at any age at any stage, was three-fifths of a human." Even eminent historian John Hope Franklin charged the Founders with "degrading the human spirit by equating five black men with three white men." Statements such as those either represent ignorance or are part of the leftist agenda to demean the founding principles of our nation by portraying the nation's Founders as racists. Let's look at the origin of the three-fifths clause.





Northern delegates to the 1787 Constitutional Convention and those opposed to slavery wished to count only free people of each state for the purpose of representation in the House of Representatives and the Electoral College. Southerners wanted to count slaves just as any other person. By counting slaves, who didn't have a right to vote, slave states would have had greater representation in the House and the Electoral College. If slaveholding states could not have counted slaves, the Constitution would not have been ratified and there would not be a union. The compromise was for slaves to be counted as three-fifths of a person in deciding representation in the House and Electoral College. The compromise reduced the power of slave states relative to the South's original proposal but increased it over the North's original proposal.



My questions for those who condemn the three-fifths compromise are: Would blacks have been better off if slaves had been counted as a whole person? Should the North not have compromised at all and a union not have come into being? Would Rangel and Sharpton have agreed with Southerners at the Constitutional Convention, who argued slaves should "stand on an equality with whites" in determining congressional representation and Electoral College votes? Abolitionist Frederick Douglass understood the compromise, saying that the three-fifths clause was "a downright disability laid upon the slaveholding states" that deprived them of "two-fifths of their natural basis of representation."



Patrick Henry acknowledged reality, saying, "As much as I deplore slavery, I see that prudence forbids its abolition." With the union created, Congress at least had the power to abolish slave trade in 1808. James Wilson believed the anti-slave-trade clause laid "the foundation for banishing slavery out of this country."



Other Founders condemned slavery. George Washington said, "There is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of it." John Adams: "Every measure of prudence ... ought to be assumed for the eventual total extirpation of slavery from the United States. ... I have, throughout my whole life, held the practice of slavery in ... abhorrence." James Madison: "We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man." James Otis said, "The colonists are by the law of nature freeborn, as indeed all men are, white or black." Benjamin Franklin: "Slavery is ... an atrocious debasement of human nature." Franklin, after visiting a black school, also said, "I ... have conceived a higher opinion of the natural capacities of the black race than I had ever before entertained." Alexander Hamilton's judgment was the same: "Their natural faculties are probably as good as ours." John Jay wrote: "It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused."



Here's my hypothesis about people who use slavery to trash the Founders: They have contempt for our constitutional guarantees of liberty. Slavery is merely a convenient moral posturing tool as they try to reduce respect for our Constitution.





June 28, 2011



Walter E. Williams is the John M. Olin distinguished professor of economics at George Mason University, and a nationally syndicated columnist. To find out more about Walter E. Williams and read features by other Creators Syndicate columnists and cartoonists, visit the Creators Syndicate web page.



Copyright © 2011 Creators Syndicate, Inc.

Five Ways The Obama Regime Is Circumventing The Legislative Branch

From The Heritage Foundation:

Five Ways Obama Is Circumventing the Legislative Branch


For all of candidate Barack Obama’s campaign rhetoric promising to respect Congress’s authority to draft the nation’s laws, President Obama has demonstrated a persistent pattern of circumventing the legislative branch via administrative fiat whenever his agenda stalls. And though one of the Obama campaign’s legal advisers cautioned against a President who would "take the law into his own hands and shred it when it's convenient," he has done just that time and time again.



The Obama Administration generally employs one of two strategies to legislate without—and often in spite of—congressional action: (1) administrative decree establishing a new federal rule, or (2) a refusal to enforce existing federal law. In five separate policy areas, the President and the federal agencies under his command have spurned congressional authority to achieve Obama’s objectives.



1. Environmental Regulation: President Obama has made it his mission to impose economy-killing environmental regulations on America in spite of clear congressional opposition. Take the White House–backed cap-and-trade bill, which would have created a market for “carbon credits” that businesses would have to trade in order to emit carbon dioxide and other greenhouse gasses.

The measure passed the House in 2009 but was defeated in the Senate. Undeterred, the Obama Administration sought to ram its agenda into law without congressional approval. It managed to classify carbon dioxide as a “pollutant” under the Clean Air Act, thereby granting the Environmental Protection Agency the authority to regulate its emission—despite warnings even from Members of Congress who wanted to regulate carbon emissions but recognized the problematic nature of doing so without congressional approval.




2. Labor Law: Expanding powerful labor unions is another Obama Administration objective. On June 21, the National Labor Relations Board (NLRB) announced plans to dramatically reduce the time to conduct unionization elections.



But in 2009, the Senate moved in the opposite direction. It removed the “card check” provision from the misnamed “Employee Free Choice Act,” effectively sinking a measure that could have dramatically increased union membership by rescinding workers’ rights to a secret ballot election for union representation.



The NLRB’s new rule will reduce the length of elections from about six weeks to 10–21 days, thereby limiting employers’ abilities to present their own cases against unionization to workers—and making the formation of a union far more likely. Increased unionization was always card check’s purpose. The NLRB is now attempting to achieve the same goal without Congress’s approval.

3. Immigration Law: On immigration policy, the Obama Administration has not even waited for congressional action before charting its own legislative course. In May, Democrats reintroduced the DREAM Act—which would provide a path to citizenship for illegal immigrants who came to the United States before they were 16—after the lame-duck Congress failed to pass it late last year.




But rather than waiting for Congress to act, officials at Obama’s Department of Homeland Security have instructed Immigration and Customs Enforcement agents and attorneys to exercise “prosecutorial discretion” for illegal immigrants who have attended school in the United States, meaning far fewer such illegal immigrants will be prosecuted and deported. The agency cited a shortage of resources, but the decision amounts to a de facto implementation of the DREAM Act.



4. Selective Enforcement of Federal Law: Rather than push Congress to repeal federal laws against marijuana use, Obama’s Justice Department decided in 2009 that it would simply stop enforcing those laws. Proposals to legalize marijuana at the federal level consistently fail to win congressional approval, but the Obama Administration decided to implement its agenda in spite of that lack of legislative support.



The Justice Department again employed this tactic in February when it announced that it would no longer enforce another federal law: the Defense of Marriage Act. The Administration did not agree with the law, so rather than attempting to repeal it via the standard legislative channels, it decided to ignore it.

5. Regulating the Internet: Obama’s Federal Communications Commission (FCC) decided late last year to assume authority over Internet regulation despite a ruling by a federal appeals court explicitly denying the commission that authority. In contradiction of the court’s ruling, the FCC voted 3–2 in December to pass the first-ever federal regulations on Internet traffic. The House has voted to block those regulations, but Obama has pledged to veto any such legislation.




More Bureaucratic Legislating Ahead: All of these examples demonstrate a striking lack of respect for the role of the legislative branch in American government. Despite paying lip service to Congress’s constitutional role as the sole source of the nation’s laws, the Obama Administration has ignored Congress wherever the people’s representatives have declined to codify his agenda.



Nor is there any sign of this trend abating. Even now, the President is considering a number of proposals that would advance his legislative agenda without congressional consideration or approval, including re-regulation of campaign finance laws to circumvent a Supreme Court decision and waivers of the No Child Left Behind law in the face of congressional inaction.



Following the November elections, when President Obama’s party lost control of the House, Obama told America that where he can’t legislate, he will regulate. And that seems to be this Administration’s modus operandi: If Congress refuses to abide by Obama’s agenda, the President’s bureaucratic machine will make its own laws.

Constitutional Amendment Key To Debt Deal

From The Patriot Update:

Constitutional Amendment Key to Debt Deal




Written on June 29, 2011 by Dick Morris



8Share













After the government has racked up a budget deficit of $1.5 trillion and over $14 trillion in debt, it’s obvious to most Americans that some fundamental reworking of the system that permitted such extravagance is desperately needed and quite overdue.



To raise the debt limit in exchange for dollar-for-dollar cuts is one key element of an emerging deal. If Congress is to vote a $2.3 trillion increase in the debt ceiling, it must be matched by an equivalent amount of cuts in the 10-year budget. But what one Congress does, another can undo. And 10 years is a long time.



So this debt-limit negotiation is the time to seek the fundamental and permanent change that can only come through a constitutional amendment. The concept of a balanced budget amendment has been kicking around for four decades, but now is the time to pass it through Congress.



The state legislatures have never been the obstacle to passing a balanced budget amendment. Since they each have such a requirement in their own constitution, state legislatures will likely look favorably on a parallel federal requirement. The problem has always been to pass it through Congress with the requisite two-thirds majority.



With the Obama administration desperate for a debt-limit increase and the Republicans holding vast new power at the state level as a result of the 2010 elections, now is the time to demand these constitutional reforms. To pass a debt-limit expansion in return only for possibly evanescent spending cuts spread over a decade would be to squander a historic opportunity for basic structural change in our government.



A constitutional amendment should include:

– A requirement for a balanced budget with deficits permitted only by vote of a super-majority. This requirement will give the forces of fiscal responsibility the bargaining leverage they need to hold the big spenders in check.

– No tax increases — or changes in the tax code — except through a supermajority of both houses of Congress.

– A cap on the percentage of gross domestic product that can go to federal government spending; a permanent limit on the growth of government that can only be waived by a super-majority. The cap should not be onerous but should be appreciably less than the 25 percent of GDP the current federal appetite consumes. A phased-in ceiling of 21 percent — slightly above the historic norm — would be appropriate.

– A line item veto. Passed in the Bill Clinton years and thrown out by the Supreme Court, it is now time to embed this change in the Constitution. It will give the president the leverage he needs to stop excessive spending and nutty earmarking. With a Democrat in the White House, now is probably the time to pass it.

– Give the president the authority to impound money voted by Congress. The legislative branch stripped presidents of this authority during the realignment of power that took place during the Nixon presidency. The time has come to restore this power so that the president can rein in parochial, special-interest-driven appropriations voted by Congress. Again, with a Democrat in the White House, this may be the ideal time to pass it.



Some will object that provisions for waiving these requirements by a super-majority in Congress will give the big spending legislators just the opening they need to continue to rack up debt. But all will agree that some flexibility is needed in the event of war, natural disaster or economic necessity. A super-majority requirement will empower the most fiscally conservative of legislators and give them the bargaining power they need to force responsibility on the rest of Congress.



Without constitutional reform, the Republicans should not agree to raise the debt ceiling. The overspending of the past few years is so egregious that it is obvious that only permanent change embedded in our national charter can save us from ruin. And the political climate for such change is certainly ripe.



To find out more about Dick Morris and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com.







COPYRIGHT 2011 DICK MORRIS AND EILEEN MCGANN.

DISTRIBUTED BY CREATORS.COM

The Federalist Papers, No. 79: The Judiciary (cont'd.)

From Human Events--Guns & Patriots:




Federalist No. 79



The Judiciary Continued







06/28/2011















Independent Journal

Wednesday, June 18, 1788

[Alexander Hamilton]



To the People of the State of New York:



NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."



This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.



This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.



The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.



The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.



The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.



PUBLIUS

Save The Bill Of Rights!

From Human Events--Guns & Patriots:




Miniter: Save the Bill of Rights



Frank Miniter speaks to G&P's Kathryn M. DeLong about his new book



by Kathryn M. DeLong





06/28/2011















The book is a must-read for all Americans who feel that the government has undermined and dismantled the most important part of the United States Constitution.



“After kicking out King George III, the Founding Fathers saw the federal government as a threat to their own liberties. They wanted to restrict that threat,” Miniter said. “Granting any power or liberty to the government meant giving away some of their individual rights.”



“But there were certain rights that they refused to give up, and they listed those in the Bill of Rights,” the upstate New York resident said. “Right from the beginning, you have the individual versus the state.”



Like many conservatives and libertarians, Miniter said he is troubled by the fact that the Constitution itself has become a partisan issue. This stems, in part, from the individual/state dichotomy.



The other point of contention between conservatives and liberals relates to the way in which the Constitution was written, and thus, should be interpreted, he said.



“The Bill of Rights was written as negative liberties that place restrictions on the government,” Miniter said. “However, the left tries to treat the document as a series of positive rights that subject people to the whims of the government.”











Frank Miniter



In other words, conservatives maintain that the Bill of Rights is a means of protection from an overbearing government, while liberals see it as a tool of governmental power and control.



“The left sees state power as a good thing,” Miniter said. “The right doesn’t.”



Miniter said he is especially concerned with safeguarding the Second Amendment.



In the book, he relays the famous words of George Mason: “[T]o disarm the people, that was the best and most effectual way to enslave them.”



Miniter presents the Second Amendment as a series of words with fixed definitions.



Although Noah Webster’s 1828 dictionary was printed almost 40 years after the Bill of Rights was ratified in 1791, it is close enough to that time to be an accurate description of the meaning of the words used in the Bill of Rights, he said. This is further supported by the fact that Congress recognized the 1828 edition as the official standard.



In the 1928 edition, Webster defined the word “bear” as “to carry” or “to wear; name; to bear arms in a coat”. It also defined “arms” as “weapons of offense, or armor for defense and protection of the body,” he said.



Furthermore, he said, the militia was defined as: “…able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times to pursue their usual occupations”.



Opponents of gun rights often dispute the relevancy of the word “militia” in today’s society. But there is little room for this type of dispute when it comes to definitions presented in a dictionary with the credentials of Webster's.



Our Founding Fathers looked to these very definitions when writing the Constitution. From this information, we can see that, without question, they were granting us the right to carry a concealed weapon for our own protection, Miniter said.



“People who have concealed carry permits have gone through the process,” Miniter said. “So why can’t they protect their fellow citizens who chose not to get [a permit] or couldn’t, for whatever reason?



The liberal argument is that the Constitution should “evolve” because society undergoes change, he said.



“What the left is really saying is they want to ignore the Constitution altogether or semantically change a word in the Constitution to mean something,” he said. “That’s actually taking the will of the people away from the people.”



If the American people have a desire to alter the Constitution, it can be done through the amendment process, as outlined in the Constitution, he said.



“We had prohibition, we got rid of prohibition. That’s how it’s supposed to evolve, instead of having some judge or legislator going around the Constitution to rewrite it semantically,” Miniter said. “That’s literally Orwellian. If you read ‘1984’, that’s what they did. They just changed the meanings of the words.”



Despite it all, Miniter said he is hopeful that American citizens can coalesce and fight to uphold the Bill of Rights.



“People first have to understand what these rights are in order to keep them from the government,” Miniter said. “We do have a right to self-preservation. In lieu of that right, you end up in control under the state.”



That being said, I encourage all Americans to read “Saving the Bill of Rights”. The book offers clear and succinct explanations for each of the ten amendments that are so crucial to our freedom as citizens of the United States.







--------------------------------------------------------------------------------

Kathryn M. DeLong is a student of the State University of New York at Buffalo and the leader of her school's College Republican Club. DeLong is a political science major and preparing to apply for law school. Follow her at: https://twitter.com/#!/kathryndelong

The Devil's Bargain: How Plea Agreements, Never Contemplated By The Framers, Undermine Justice

From The CATO Institute:

The Devil's Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice




by Tim Lynch

















This article appeared in the July 2011 issue of Reason.





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Most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments from the prosecution and the defense, then deliberates over the evidence before deciding on the defendant's guilt or innocence. This image of American justice is wildly off the mark. Criminal cases rarely go to trial, because about 95 percent are resolved by plea bargains. In a plea bargain, the prosecutor usually offers a reduced prison sentence if the defendant agrees to waive his right to a jury trial and admit guilt in a summary proceeding before a judge.



This standard operating procedure was not contemplated by the Framers. The inability to enter into plea arrangements was not among the grievances set forth in the Declaration of Independence. Plea bargaining was not discussed at the Constitutional Convention or during ratification debates. In fact, the Constitution says "the Trial of all Crimes, except in Cases of Impeachment; shall be by Jury." It is evident that jury trials were supposed to play a central role in the administration of American criminal justice. But as the Yale law professor John Langbein noted in a 1992 Harvard Journal of Law and Public Policy article, "There is an astonishing discrepancy between what the constitutional texts promise and what the criminal justice system delivers."



No one ever proposed a radical restructuring of the criminal justice system, one that would replace jury trials with a supposedly superior system of charge-and-sentence bargaining. Like the growth of government in general, plea bargaining slowly crept into and eventually grew to dominate the system.







Tim Lynch is director of the Cato Institute's Project on Criminal Justice.



More by Tim Lynch



From the government's perspective, plea bargaining has two advantages. First, it's less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code. Second, by cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes.



From a defendant's perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a "witness" who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a to-year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, "The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused."



One point often stressed by progressives is that trials bring scrutiny to police conduct. But when deals are struck in courthouse hallways, judges never hear about illegal searches or detentions. This only encourages further misconduct. Conservatives, meanwhile, are right to wonder whether



overburdened prosecutors give the guilty too many lenient deals. Why should an armed robber get to plead guilty to a lesser crime such as petty theft?



It is remarkable how few people will openly defend the primary method by which our courts handle criminal cases. The most common apologia for plea bargaining is a pragmatic argument: Courthouses are so busy that they would grind to a halt if every case, or even a substantial share of them, went to trial. But there is nothing inevitable about those crushing caseloads. Politicians chose to expand the list of crimes, eventually turning millions of Americans into criminals. Ending the disastrous war on drugs would unclog our courts in short order.



In any case, trials are one of the few things the government indisputably should be spending money on. If additional funds are needed, free them up by stopping the nation-building exercises abroad and the corporate welfare here at home. The administration of justice ought to be a top priority of government.

Wrong Boehner; Obama Is Breaking The Law Right Now

From The White House Watch:




Wrong Boehner; Obama is Breaking the Law Right Now





Posted on June 14, 2011 by Ben Johnson















by Ben Johnson, The White House Watch







Only in the liberal media can a weak entreaty to obey the law be considered an act of political warfare. The media have portrayed House Speaker John Boehner’s letter to Barack Obama, merely asking the president for another legal explanation for his war-by-decree in Libya, as “ratcheting up the pressure.” The New York Times correctly noted, “it is not clear if [Boehner’s Congressional] resolution and follow-up letter have any teeth.” It is actually a five-day pass to keep breaking the law.



The text of Boehner’s letter reads, “it would appear that in five days, the Administration will be in violation of the War Powers Resolution unless it asks for and receives authorization from Congress or withdraws all U.S. troops and resources from the mission.” After blasting the president’s “refusal to comply with the basic tenets of the War Powers Resolution,” Boehner invokes the Constitution – but not the section many legal scholars may have expected. Instead of noting what our Founding document has to say about the power to declare war, Boehner writes: “The Constitution requires the President to ‘take Care that the Laws be faithfully executed,’ and one of those laws is the War Powers Resolution, which requires an approving action by Congress or withdrawal within 90 days from the notification of a military operation.”



There are only four problems with Boehner’s letter: it’s wrong on the Constitution, it’s wrong on the law, it offers no consequences for wrongdoing, and it came 30 days too late. Obama is in violation of the War Powers Resolution right now.



The Constitution or Cronyism?



Democratic Congressman Brad Sherman of California gave a more accurate assessment nearly a month ago when he said Obama is “shredding the Constitution.” Today, the House passed an amendment Sherman authored to defund the military action in Libya, by a margin of 248-163. (Whether the final bill passes the House remains to be seen.)



More important than Obama’s violation of the law is his violation of the Constitution. Article I, Section 8 vests Congress alone with the ability to “declare War, grant Letters of Marque and Reprisal” and of “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” James Madison’s notes on the Constitutional Convention made clear he understood the term “declare” war as only “leaving to the Executive the power to repel sudden attacks.” Delegate Elbridge Gerry added he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” The Founders recognized from bitter experience that power belongs only to a tyrant.



Since the “kinetic action” in Libya did not repel a sudden attack – it was an act of aggression, not retaliation – the Constitution demands prior Congressional authorization, which Obama did not seek.



War Powers? Yes. Resolution? No.



Boehner apparently believes the War Powers Resolution allows the president to send troops into any conflict, for any reason, for 90 days before seeking a vote of approval. Yet that law, too, specifically limits the president’s powers to responding to “an attack upon the United States, its territories or possessions, or its armed forces.” It then requires the president to report his action to Congress and allows this situation to endure only 60 days, not 90. The relevant section states:





Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (Emphases added.)



The 60-day window likely makes the law unconstitutional. But accepting it at face value, the fact remains the president did not gain authorization in that time, nor did he claim the safety of the armed forces necessitated their remaining in Libya 30 more days. Remaining imperils them. Thus, the 90-days referenced in the law are irrelevant.



Obama is in violation of the law right now – and has been for nearly a month. His actions have triggered an unrecognized Constitutional crisis that requires consequences, up to and including his impeachment and removal from office.



Instead, Boehner weakly states, “I must ask you the following questions”:





Have you or your Administration conducted the legal analysis to justify your position as to whether your Administration views itself to be in compliance with the War Powers Resolution so that it may continue current operations, absent formal Congressional support or authorization, once the 90-day mark is reached? Assuming you conducted that analysis, was it with the consensus view of all stakeholders of the relevant Departments in the Executive branch? In addition, has there been an introduction of a new set of facts or circumstances which would have changed the legal analysis the Office of Legal Counsel released on April 1, 2011? Given the gravity of the constitutional and statutory questions involved, I request your answer by Friday, June 17, 2011.



He concludes his letter by stating, “I sincerely hope the Administration will faithfully comply with the War Powers Resolution.”



…And that’s it. No impending consequences, no warning funds will be cut off, no threat of impeachment – just an expression of “hope” that the president will begin to keep a law he has broken for 25 days.



All Boehner really asks is that the president come up with another round of creative legal lies. The bar now virtually scraping the ground, all the president needs to do is answer this set of inept and ridiculous questions to his own satisfaction and he could continue the war indefinitely.



If Boehner does not care about the Constitution or the law, he should at least relish the fight for political reasons. Obama cannot withstand this assault, not only because his case is indefensible, but because he lacks the support of his own party. Dennis Kucinich has threatened impeachment. Jerrold Nadler, the bulwark of Bill Clinton’s House defense during the last impeachment, has charged Obama with acting like a king and dictator. Senator Jim Webb, who gave the Democratic response to the 2007 State of the Union Address, has been the most outspoken. Last Wednesday, he gave a blistering speech the Richmond Times-Dispatch called his “finest hour.” Even Ralph Nader has said, “Obama should be impeached.”



Yet the Republican leadership has been predictably disappointing. Boehner wrote a wimpy resolution demanding reports but saving Obama’s bacon. Senate Minority Leader Mitch McConnell whimpered, “The administration is going to have to decide whether it thinks [the War Powers Resolution] was triggered, and we’ll have to respond to that.” And Eric Cantor is trying to provide Obama legislative cover.



Real leadership is coming from the party’s despised Tea Party wing. Ron Paul has said the act is impeachable. Michele Bachmann has opposed the action from its inception. Five senators, including Rand Paul and Jim DeMint, have pressed the administration to adhere to the rule of law, and Tennessee Senator Bob Corker, in teaming with Webb on a joint resolution, called Obama’s actions “an unacceptable way of treating a co-equal branch of government.” And North Carolina’s Walter Jones has vowed to pursue the matter in court.



John Boehner is a sympathetic and likable figure, but he misunderstands his role in Congress. He was not elected to be the opposition party leader and compromise away his party’s principles with the president. He was not even elected to preside over the House of Representatives, as important as that role is. He was elected, mandated, and has vowed to uphold the Constitution of the United States of America. That requires more than afternoon letters, mid-day cigarette breaks, and mid-morning rounds of golf.



In the midst of this unprecedented assault on our system of government, Boehner is steadfastly refusing to uphold that sacred charge.

The Constitution And Its Critics

From The Hoover Institution and The Heritage Foundation:

The Constitution/Civil Liberties






The Constitution and Its Critics



by Thomas J. Main



Hoover Institution



June 13, 2011







In planning a freshman undergraduate curriculum with colleagues recently, the question arose as to what type of understanding we wanted to impart to our students about the Constitution. Is there some practical way to impart a critical understanding of the Constitution in just a very few classes? It turns out there is: Assign the students Sanford Levinson’s Our Undemocratic Constitution, or Robert Dahl’s How Democratic is the American Constitution?, Daniel Lazare’s The Frozen Republic: How the Constitution is Paralyzing Democracy could also serve this purpose. But at the heart of these works are two other types of supposed constitutional defects. Levinson and the other authors are all more or less critical of bicameralism, the presidential veto, and judicial review; the analysis of these institutions is what makes these books especially interesting though sometimes wrongheaded.





URL: www.hoover.org/publications/policy-review/article/80051

Have The Supreme Court Justices Lost Their Minds?

From Canada Free Press and USJF:

Have the ‘Supremes’ Gone Plumb Loco?




June 13, 2011 By NewsEditor















”….. a commitment in each of us to liberty and mutual respect?” What happened to that as the lofty goal of the judiciary and all other men? “Liberty” ….. a pipe dream, when an irrational ideology arises to trump it. That ideology is liberalism, progressivism, socialism and/or communism and for the last 100 years or more these companion ideologies have arisen to trump individual liberty, fully sanctioned by the U. S. Supreme Court and many lower courts.



In two recent U. S. Supreme Court decisions, the justices have evidently lost their minds and have become completely detached from “….. a commitment in each of us to liberty and mutual respect”, not to mention common sense. The 8 to 1 decision by the U. S. Supreme Court to grant the police broader search and seizure powers that literally gut the 4th Amendment, is hardly a commitment to liberty and instead brings us closer and closer to a Police State ….. if we aren’t there already. And Ruth Ginsburg, one of the most liberal justices on the court, was the only dissenting vote. Go figure!



The editorial staff of the Seattle Times, not known for its conservative view point, put it this way, in part:

“The ruling falls among a patchwork of exceptions to the 4th Amendment that the courts, unwilling to inquire into the subjective intent of law enforcement, have created. Yet, giving law enforcement such discretion in claiming exigent circumstances allows even more subjective intent between police and constitutional protections. ……. Requiring police to acquire a warrant should be the rule, not the exception.”



It sounds to us as just another illegal expansion of governmental powers that far exceed the intent of the framers and falls into the same category as the mis-named Patriot Act, that should be renamed “Security in Place of Liberty” Act. At what point will the Bill of Rights be nothing but words on a meaningless document and individual rights become an oxymoron?



The second decision by the U. S. Supreme Court to uphold California’s law that grants illegal aliens the benefit of in-state college tuition, once again flies in the face of”….. a commitment in each of us to liberty and mutual respect.” Why is it that people who break the law, are granted government benefits, or are rewarded in any other manner? How can they call that “mutual respect” with a straight face? How is it that non-citizens, who break our laws just coming here, are given a priority over legal citizens who must pay the taxes that provide the benefits to illegal aliens? That’s not just egregiously negligent, it is insane, if not bordering on treason.



Read More at Canada Free Press by Ron Ewart, Canada Free Press

The Persecution Of A Journalist By The State

From Lew Rockwell.com:


The Persecution of Juan Cole



Bush White House targeted Michigan professor



by Justin Raimondo, June 17, 2011



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The revelation by Glenn Carle, a former CIA official, that the Bush White House sought information on Prof. Juan Cole, an academic and critic of the Iraq war, in order to discredit him is hardly shocking, at least to anyone of my generation. After all, I reached political consciousness during the administration of Richard M. Nixon, whose hijinks – the Watergate break-in, the infamous COINTELPRO operation – are well known. Less well-known is the long history of police state tactics by previous administrations, running all the way back to FDR and Woodrow Wilson, two wartime presidents who set the pace for their successors.





Sure, now we have laws supposedly forbidding a repeat of history, and yet, existing right alongside these prohibitions, we have legislation like the PATRIOT Act, which empowers the feds to read our emails, monitor our political activities, and pretty much do what it pleases in the name of fighting our endless “war on terrorism.” Congress has renewed the Act, year after year, with clocklike regularity, and the nation’s liberals, as well as the supposedly “limited government” conservatives, aren’t making much of a fuss about it. As the first in a series of articles by Dana Priest and William M. Arkin in the Washington Post, “Top Secret America,” pointed out,





“The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.”





It’s the only growth industry we have left, apparently:





“Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States. An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances. In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.”





Granted near absolute power to operate with impunity – to collect information on us, through fair means or foul – this vast army of spies, stool pigeons, and “analysts” is bound to do precisely what they were doing to Professor Cole because that’s their job. The idea that the information-gathering function of our national security bureaucracy can be separated out from any malign intent – and that it was this intent, rather than the act of collecting information, that was the real transgression — is reflected in the New York Times’ account:





“The experts said it might not be unlawful for the C.I.A. to provide the White House with open source material — from public databases or published material, for example — about an American citizen. But if the intent was to discredit a political critic, that would be improper, they said.”





For what purpose would the CIA or any similar government agency be collecting information on American citizens other than to discover facts that might bring discredit on them? The idea that such intelligence gathering is basically benign, and can only be considered illegal and/or impermissible on account of intent, is how they manage to get away with it.





As the Washington Post series showed, the sheer number of resources being absorbed by Top Secret America’s parallel universe of intelligence operatives is so immense it can’t even be accurately calculated. Even under the strictest legal constraints, some portion of this intelligence trove is more than likely to be leaked – especially if there’s some political advantage to it. In Washington, unsurprisingly, this happens all the time.





A couple of years ago, Prof. Cole, who teaches at the University of Michigan, was being considered for a teaching post at Yale: the matter became a cause célèbre in the blogosphere, and in the neoconservative media, where an organized campaign to deny him the position was launched. Yale eventually caved in to the pressure: Cole continues to teach in Michigan.





In retrospect, I think there can be little doubt that the campaign to deny Cole the Yale tenure-track position was directed from the White House. As the Times reported, the effort to dig up dirt on Cole started in 2005: the next year, when the Yale position was up for consideration, he was accused of being “pro-terrorist,” anti-Israel, and called every name in the book. When David B. Low, Carle’s boss, called Carle into his office, he said of Cole: “The White House wants to get him.”





Well, it looks to me like they got him.





Prof. Cole has reportedly called for an investigation, and good luck to him in that. Each and every member of the faculty committee at Yale that voted on Cole’s proposed appointment should be asked – and probably will be asked – to reveal their contacts with outsiders regarding the matter. I have no doubt that the trail of defamation will lead straight to Washington, D.C.



The larger lesson to be learned from all this is that none of us is safe. If you stick your head up above the tall grass, and are critical of whatever gang is in charge at the moment in Washington, you are taking a very big chance. Your career, your private life, your financial and professional existence – all are put at risk. And the idea that, under the Obama administration, we are going to catch a break is laughable: the FBI has been given more leeway in pursuing domestic intelligence targets, and that’s for a very good reason – because they intend to use it.





You can bet Prof. Cole wasn’t the only one on the Bush White House’s “enemies list” who suffered damage to his professional reputation inflicted by US government operatives. We’ll probably never know the identities of the targets, or the methods used to smear, slander, and marginalize them.





What I want to know is: who’s on Obama’s enemies list? Because, as sure as Washington real estate prices will continue to rise while plummeting in the rest of the country, these very same activities are continuing under the present administration. The heat is off Prof. Cole, at least for the moment – having endorsed Obama’s latest war, in Libya, the prominent lefty blogger probably has nothing to worry about. However, this administration has so far faithfully emulated its predecessors in so many other important ways that one has to assume the heat is still on the rest of us: indeed, given the Obama administration’s record on national and domestic security, one must assume domestic spying efforts and other covert actions have escalated.





In short, the persecution of Prof. Cole is just one example of America’s emerging police state – emerging into the daylight, that is, because it’s been thriving in the dark for quite some time.

The State Or The People: Who Is Sovereign?

From Lew Rockwell.com:

The State or the People: Who Is Sovereign?


by John Tyner

Johnnyedge



Recently by John Tyner: An Ounce of Prevention











A few months ago, I wrote an article about what I saw as the demise of the rule of law. In it, I used the Obama administration's aggressive war against Libya to illustrate that the United States are no longer ruled by law(s). Instead, I argued that the federal government essentially does what it pleases because not only does it make the laws, it is also (solely) charged with enforcing them, and also with interpreting whether those laws are legal. (The legality of laws is a subject for another post.) I pointed to the U.S. Constitution as the source of authority for the federal government and also as the limit of that authority. However, as I've intimated in the past, and said outright in the "rule of law" post, the federal government has become the arbiter of its own power.



That post prompted a series of emails between a reader and myself about the nature of the federal and state governments, the U.S. Constitution, and sovereignty. The reader told me that the U.S. Constitution, in and of itself, was never meant to restrain the federal government. When one really stops to think about it, there's no way that it could. As I pointed out above, the government makes, enforces, and determines the legality of the law(s); there's nothing to stop it from doing whatever it wants. In addition, the U.S. Constitution doesn't even grant any branch of the federal government the authority to carry out that last task. The Supreme Court arrogated that power unto itself in Marbury v. Madison, but I digress.





Instead, the reader contended that it was up to the states and the people of them to restrain the federal government. He continued, though, that the War Between the States essentially crushed that ability. The following Supreme Court case of Texas v. White declared the act of secession illegal. By declaring secession illegal, the federal government was basically declaring the states were not sovereign (any longer). These occurrences, in his view, were the real source of the demise of the rule of law, at least as I portrayed it in my writing. If the states are not sovereign, if the federal government is the supreme authority, then the 9th and 10th amendments to the U.S. Constitution were and are worthless.



Now, the notion that the states were independent, sovereign nations is not foreign to me. It has always been my understanding that the U.S. Constitution was not an act of the states giving up their sovereignty to create a central government but rather one of delegating some of their authority to the federal government in order to smooth and strengthen economic and/or foreign relations. The reason they delegated the authority is not important; what is important is that the authority was delegated, not relinquished. What was foreign to me was what this reader said next: [T]he people of each state are the state's true ruling sovereigns [...] and all government was simply their delegated representatives, not appointed supreme sovereign rulers. Therefore, the People of a state could exercise their national sovereign authority, to overrule those delegates at any time—just like the King of England could overrule his ambassadors.



Until hearing this, my understanding of American government was that the states and/or the U.S. (as a whole) were sovereign nations, that the "government" was, collectively, its ruling sovereign, and that phrases like "of the people, by the people, and for the people" were simply figures of speech meant to convey the idea that there is no divine right to rule (i.e. no king or queen), that the people control the government (via the ballot box). This was the first time I had been introduced to the idea that the people, themselves, were the true ruling sovereigns. Tom Woods explains it quite succinctly:





In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.



Where does this idea originate? Is it true? If so, how did I miss it? Since the aforementioned reader pointed to the War Between the States as ending state sovereignty, I started there. I already mentioned the case of Texas v. White in which the Supreme Court ruled that secession is illegal under the U.S. Constitution. I also came across a quote from Lincoln's first inaugural address:



The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect Union."

This quote asserts the idea that the Union predates the U.S. Constitution but also gives rise to the idea that the states were created by a central government, not the other way around. The former is obviously true – the "union" existed in various iterations prior to the Constitution – but the latter has no basis in fact. In reality, the Articles of Association merely created a loose association by which the colonies (at the time) banded together to boycott British goods in retaliation for the Intolerable Acts. No central government was created by these articles. In fact, enforcement of the articles was left entirely up to the colonies themselves. Then, just prior to the Declaration of Independence, the Second Continental Congress recommended that the individual colonies "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents".





It's probably worthwhile, at this point, to stop and look at a few of the constitutions drawn up by the colonies. New Hampshire: "The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state". Massachusetts: "The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state". North Carolina: "All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only [...] The people of this State have the inherent, sole, and exclusive right of regulating the internal government". Virginia: "A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers".





All of the states' constitutions of the time contain similar language. Even Hawaii, the last state admitted to the union, has very similar language in its constitution: "All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people". The point of this exercise is to demonstrate that 1.) the states predate any central/federal government, 2.) the states were independent, sovereign nations, unto themselves, and 3.) the people of the states were their sovereign rulers. These facts are recognized in other documents of the time. The Declaration of Independence: "We [...] solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States". The Articles of Confederation: "Each state retains its sovereignty, freedom, and independence". The Treaty of Paris in 1783: "His Brittanic Majesty acknowledges the said United States, [list omitted], to be free sovereign and independent states". The 10th amendment to the U.S. Constitution which confirms that powers were delegated, not relinquished: "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."



In short, the states are sovereign nations, and according to their constitutions, the people are their sovereign rulers. I've pointed to a number of old documents confirming this, but here is something more recent. The Department of State lists (see page 289) the Treaty of Paris' Article 1 (the article mentioned above) as still being in force as of January 1, 2010. Even the federal government, however obscurely, still recognizes that the states are sovereign. It is up to the people to (re)assert this sovereignty.



In light of the recent 60 Minutes report on CBS about Sovereign Citizens, it is worth noting that I am not now, nor have I ever been a member of the movement depicted in the report. While I obviously support the idea that the people of the United States are its/their rightful "rulers", I don't support support the violence perpetrated in the name of furthering this idea.



Reprinted with permission from Johnnyedge.



June 18, 2011



John Tyner [send him mail] is a software engineer in Southern California. He occasionally writes about economics, politics, and constitutional issues.



Copyright © 2011 Johnnyedge

National Press Photographers Association Slams Cops' Camera Crackdown

From Prison Planet.com and Vision to America:

National Press Photographers Association Slams Cops’ Camera Crackdown



Cops Arrest Woman On Her own Property For Filming Traffic Stop



Steve Watson

Prisonplanet.com

June 24, 2011



Cops in Rochester, New York, arrested a woman who was merely standing in her own front yard filming them conducting a traffic stop in front of her house, once again raising concerns over the continuing unconstitutional crackdown on filming police officers.



28-year-old Emily Good has been charged with obstructing governmental administration after she politely refused a police officer’s order to stop filming, leave her front yard and go back into her house.



The resulting video, capturing the entire incident, has gone viral online.



As WHEC-TV reports, Ms Good’s tape shows one of the officers telling her that he feels “threatened” by her standing “behind” him because she appeared to be “very anti-police.”



“This is my front yard, I’m just recording what you’re doing. It’s my right,” Good tells the officer.



The officer then orders her to go back into her house, claiming she is on the sidewalk and she cannot film police from there.



Good replies “I’m going to stay in my yard if that’s OK”.



The officer then walks over and once again says he does not feel safe with her “standing right behind us”, even though Ms Good is clearly more than 5 meters away from the police and facing them.



“I’m going to ask you one more time to go back into your house” the officer states.



“All I have is a camera, I’m clearly wearing nothing… I have no weapons.” Good replies.



“It does not matter,” the officer states, “you are not listening to our orders.”



After Ms Good says she does not understand what she is being ordered to do or why, the officer says “I am not going to explain myself to you, you’re going to end up going to jail.”



As she stands her ground and continues filming the officer says “You know what, you’re going to jail, this is not right.” He then cuffs Ms Good and takes her away as she breaks down in tears, saying “I did nothing, I did nothing”.



Ironically, the man who was stopped, hand-cuffed and subjected to a police search was released without so much as a ticket.



Watch the video:







The Rochester Police Union President defended the officer’s actions to reporters, noting “I think she was certainly trying to engage the officers, in my opinion, and that’s what’s so dangerous because it’s a distraction to what these officers are doing,”.



Good’s attorney, Stephanie Stare, has filed a motion to have the misdemeanor charge of obstructing governmental administration thrown out. They are also considering a civil action.



“Basically the grounds for the motion to dismiss are that her actions did not rise to the level of a crime,” the attorney said. “It doesn’t fit the statutory elements of obstructing governmental administration.”



The incident has sparked a reaction from the National Press Photographers Association, a regular campaigner for the protection of the right to take photographs and film in public.



In a letter to Rochester Police Chief James Sheppard and Rochester Mayor Tom Richards, NPPA General Counsel Mickey H. Osterreicher demanded that the charges against Good be dropped



Osterreiche writes: “While it may be understandable that your officers had a heightened sense of awareness, that is still no excuse for them to not recognize a citizen’s right to take photographs/video of an event occurring on a public street.”



Osterreicher added that the NPPA regularly receives complaints about incidents like this involving police and citizens, noting that they “are happening across the country on almost a daily basis.”



——————————————————————



Steve Watson is the London based writer and editor for Alex Jones’ Infowars.net, and Prisonplanet.com. He has a Masters Degree in International Relations from the School of Politics at The University of Nottingham in England.

Un-Constitutional Authority

From The CATO Institute:

Unconstitutional Authority




by Doug Bandow

















This article appeared on American Spectator (Online) on June 17, 2011.





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Presidents routinely claim the authority to take America into war. Congresses just as routinely fail to prevent presidents from doing so. President Barack Obama, a one-time law professor, is proving to be no different.



First he ignored the Constitution's clear division of powers. Article 1, Sec. 8 (11) of the Constitution states that "Congress shall have the power... to declare war." Declare means initiate.



The Founders were unambiguous. John Jay complained that dubious motives often led kings "to engage in wars not sanctified by justice or the voice and interests of his people."







Doug Bandow is a Senior Fellow at the Cato Institute and the Senior Fellow in International Religious Persecution at the Institute on Religion and Public Policy. A former Special Assistant to President Ronald Reagan, he is author of Beyond Good Intentions: A Biblical View of Politics (Crossway).



More by Doug Bandow



However, the Constitution solved this problem. The president's authority was "in substance much inferior" to that of the English monarch, declared Alexander Hamilton: "It would amount to nothing more than the supreme command and direction of the land and naval forces... while that of the British king extends to the declaring of war." James Wilson explained that the power to start wars had been transferred to Congress: "It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is in the legislature at large."



For good reason the Founders intended to allow presidents to repel sudden attacks. The president also may initiate limited military action not intended to create a state of war — killing Osama bin Laden, attempting to rescue hostages in Iran.



There will be some gray areas between the two poles, but most cases are easy to judge. Three years of brutal conflict with North Korea and China was not a "police action." It was a war. Similarly, three months of attempting to overthrow the Libyan government of Muammar Gaddafi is not a "kinetic military action." It is a war.



President Obama had an obligation to go to Congress before he intervened in Libya.



Nevertheless, he ordered the bombing of Libyan military forces and installations without legislative approval. Still, he acted to comply with the War Powers Resolution, which set the clock ticking on March 19. The alarm went off two months later, when the WPR required the president either to end hostilities or win congressional authorization.



The U.S. had spent two months killing Libyan personnel, destroying Libyan materiel, and attempting to overthrow the Libyan government. The secretary of defense had admitted that if he was a Libyan being targeted by American weapons, he probably would perceive it as a war. The secretary of state extolled Washington's contribution to the war effort while lobbying the Europeans to do more.



However, the president explained to Congress that the U.S. wasn't actually doing much at all — just some "limited" operations in a "supporting" role. Really nothing to worry about or even notice. Certainly not enough to call a war. Legislators should just go back to their offices and let him get on with his splendid little kinetic military action!



In a rare bipartisan moment, legislators fought back. Plans for a pro-war resolution in the Senate foundered when support proved lacking. The House nearly passed a resolution by Rep. Dennis Kucinich (D-Ohio) demanding withdrawal. House Speaker John Boehner diverted votes to a sickly substitute that still criticized the president. Moreover, on Tuesday the speaker challenged President Obama to comply with the WPR.



The president has responded with more obfuscation. The White House released a 32-page report, a propaganda document filled with unintended humor. For instance, it restated the unfounded claim of impending massacres — essentially the humanitarian equivalent of WMDs in Iraq. The president claimed that intervention in the civil war shows "the people of the Middle East and North Africa that America stands with them at a time of momentous transition," even though the administration merely scolded the government of Bahrain and hesitated to do even that to the government of Syria.



Moreover, the document warned of the possible "spread of violence and instability in a region pivotal to our security interests." If North Africa is "pivotal to our security interests," is there any place which is not? Libya has a small population, poor economy, and modest oil reserves. It is located between two other unstable nations which had their own popular revolutions earlier this year. To the south lies a continent where even Washington policymakers have trouble concocting alleged "security" interests. No wonder outgoing Secretary of Defense Robert Gates acknowledged that America had no "vital interests" at stake in Libya's civil war.



The administration glossed over the fact that it used a clear bait and switch: the United Nations resolution authorized action to protect civilians and the president asserted that the U.S. was not engaged in regime change. Indeed, he explained: The experience in Iraq "is not something we can afford to repeat in Libya." Now, however, he is demanding Gaddafi's ouster. As Paul Pillar notes, it is "nonsensical" to try to divorce the supposed military goal of protecting civilians from the overriding diplomatic goal of ousting Gaddafi.



Worse, after having put American and alliance credibility on the line for at best peripheral, even frivolous interests, the administration claimed that "NATO's credibility would be damaged with significant consequences for U.S., European, and global security" if Congress terminated Washington's participation. Actually, it isn't clear what those consequences would be, since NATO has little credibility apart from America's role. The real problem of credibility is the fact that the Europeans want to play act as a world power, but don't want to spend the money or risk the casualties necessary to do so.



As for the Constitution, the report emphasized "congressional consultation," providing a long list of meetings and briefings where administration officials told legislators what the president was doing. The report devoted only two paragraphs to analyzing the constitutional and legal issues his acting unilaterally.



Explained the White House, because of "the limited nature, scope and duration of the anticipated actions, the President had constitutional authority" to act. Moreover, "U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground forces, nor do they involve the presence of or any significant chance of escalation into a conflict characterized by those factors." With an apparently straight face, State Department legal adviser Harold H. Koh, who criticized previous unilateral Republican war-making, declared: "We are not saying the president can take the country into war on his own."



Of course, that is precisely what he is saying. The White House memo offers well-calculated sophistry. Noted Rep. Scott Garrett (R-N.J.), chairman of the Constitutional Caucus: "a progress report from the White House is no substitute for congressional authorization."



The U.S. government is working with allies to overthrow another government which, until now, was recognized as "legitimate" within the international system. Washington used aircraft and missiles to destroy Libyan air defenses and attack Libyan ground forces. The administration then used equally deadly drones to destroy command-and-control facilities and combat forces. A quarter of the combat sorties have been American. The report noted that U.S. forces are providing 70 percent of the intelligence-gathering and a majority of the refueling in support of treaty allies thereby "enabling coalition aircraft to stay in the air longer and undertake more strikes." U.S. aircraft (and drones) have avoided "exchanges of fire" because the Libyan forces are weak, not because they are unarmed.



But the administration says America is not at war!



Ten congressmen have sued the president, though the courts are likely to dismiss the case on jurisdictional grounds. So Congress must act. The legislature has a clear constitutional and legal obligation to act. Congress also has an institutional interest in doing so. Despite the attempt by extreme centralists to turn the president into something akin to an elective dictator, the Constitution gives more foreign policy powers to Congress than to the president.



Congress is to create and fund the military, write the rules of war, decide when the nation goes to war, approve treaties, and confirm ambassadors. The president's power is formally much more limited: he commands the military created by Congress in peace and in wars authorized by Congress. Yet modern American presidents take for granted that they have the powers of past British monarchs. Legislators should disabuse this president and his successors of such a heretical constitutional notion.



President Barack Obama has violated the Constitution and law. Congress has a responsibility to act. It's as simple as that.

Geert Wilders Has Won An Important Legal Victory For Free Speech For All Of Us

From Europe News:

Jonathan Kay: Geert Wilders has won an important legal victory for all of us














National Post 24 June 2011

By Jonathan Kay



Geert Wilders is Dutch, not Canadian. And his acquittal this week on hate-speech charges was decided by a court in The Netherlands, not Canada. Nevertheless, his case deserves close scrutiny in our own country, because it points the way toward the correct balance between free speech and multiculturalism in all nations.



Mr. Wilders is perhaps the best-known third-party political leader in the world. That’s not only because his populist Freedom Party holds the balance of power in the Netherlands’ minority government, but because he has been full-throated in his denunciation of the threat to liberal values posed by unassimilated Muslim immigrants – a problem that most other Western politicians have dared not tackle.



Central to Mr. Wilders’ viewpoint is the idea that Islam – in the way it is presented in the Koran, and interpreted by fundamentalists – is a political ideology as much as a religion; and that this ideology is fundamentally incompatible with modern Western liberal values such as pluralism, feminism and gay rights.



"There is no ‘moderate’ or ‘immoderate’ Islam,” he recently told me in an interview. "Islam is Islam, and that’s it. This is the Islam of the Koran. Now, you can certainly make a distinction among the people. There are moderate Muslims – who are the majority in our Western societies – and non-moderate Muslims. But Islam itself has only one form. The totalitarian ideology contained in the Koran has no room for moderation. If you really look at what the Koran says, in fact, you could argue that ‘moderate’ Muslims are not Muslims at all. It tells us that if you do not act on even one verse, then you are an apostate.” (...)









Posted June 24th, 2011 by pk

Wilders To Ezra Levant: Hate Speech Laws Should Go

From Europe News and Gates of Vienna:

Video: Wilders to Ezra Levant - Hate Speech Laws Should Go








Gates of Vienna 24 June 2011



The video, below the fold, is a conversation between Wilders and Ezra Levant following the former’s acquittal. In sum, Mr. Wilders says hate speech laws have to go. To which I will add, "Amen”, though not nearly as fervently as does the battle-tried Mr. Levant.



The following quote is excerpted from the Youtube notes put up by user sdamatt, who posted the video:



















…in his closing statement, Wilders said that his controversial statements against Islam were protected by the right to free speech. Wilders said he believed the process of Islamization presents a threat to Europe and that it is his right and duty to warn the public about it.



If he had been convicted, Wilders could have faced up to one year in jail or a fine of up to €7,600 ($10,865). At the peak of the controversy over his statements, Wilders was once even banned from entering the United Kingdom.



[…]



Wilders’ comments sparked a massive debate on the integration of Muslims in Europe that has helped fuel other populist movements around the continent. In Germany , politician Thilo Sarrazin wrote a bestselling book warning that Muslim immigrants were dumbing down the country.





Meanwhile, don't forget the OIC is certain that the phenomenon known as Geert Wilders is due solely to those naughty Swiss who voted to ban minarets (no I don't have the link anymore. Look for their 2009 summary. It's a pdf and a real slog).



OIC officials continue to harass the Swiss government. They are sure the Swiss could simply void that referendum if they wanted. It appears that the OIC is not ready for prime time when it comes to a full grasp of the elements of democracy. We may have a chasm here that no amount of explaining will bridge.



Mr. Levant’s "Victory Conversation” with Wilders is below the fold…



Notice the tone of both voices. Very happy warriors indeed.











Posted June 24th, 2011 by pk