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Thursday, October 11, 2012

America Abandons a Key Tenet of the Common Law: The Deletion of the Intent Requirement In Creating Criminal Laws in America

America Abandons a Key Tenet of the Common Law: The Deletion of the Intent Requirement In Creating Criminal Laws in America:

America has for some time now been abandoning the Common Law, or an important piece of it anyway, to the detriment of society and the rights of mankind.  America, both federally, state-wide, and locally has done this through it's abandoment of the requirement of mens rea in legislating crimes.  As William Blackstone wrote in 1765, in his highly influential "Commentaries of the Laws of England," an exposition of the English Common Law, which was adopted by the states of America,

"To make a complete crime cognizable by human laws, there must be both a will and an act. For though ... a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such a vicious will."

In other words, every crime, in order to be considered a crime and thus a just law, must have 3 key required parts in order for it to be considered a just and valid law; it must first describe the act to be forbidden, followed by an exact punishment for the committing of the act, which is to be apportioned to the type of crime committed; but even more important than these 2 requirements, is the requirement of intent, or mens rea in legal terms.  Thus, in order for an individual to be convicted of a crime, there must first be an act, or actus reas, as well as an intent to commit the crime, or mens rea.  

Elder H. Verland Andersen, a General Authority of the LDS Church and a professor at BYU, who taught business law for many years, and who was a UT legislator for the state legislature, put it more succintly in his marvelous book, "The Moral Basis of A Free Society."  He wrote in chapter 6,

"One of the natural laws discussed in Chapter III decrees that government must punish the intentional violation of duties in order to protect human rights. This function is performed under the criminal laws and we shall use the term “criminal law” to mean every law, ordinance, regulation or court decree which commands or forbids human conduct and provides a punishment for disobedience. It is the provision for a penalty which distinguishes a criminal law from laws of other types.

According to the foregoing analysis, we may formally define a criminal law as:

A decree or enactment by the state which commands or forbids certain conduct and provides an adequate penalty for disobedience.
The only penalties which have been found to be adequate are: (1) Death or bodily injury; (2) Imprisonment or some other denial of liberty; (3) A fine or some other deprivation of property or property rights.

According to this statement, there are two essential elements to every crime: (1) A vicious will, and (2) An act committed to accomplish it. Let us now define a crime according to the natural laws developed in Chapter III and then compare it with Blackstone’s Common Law definition.
The first two natural laws stated that government must, (1) Punish the intentional violation of duties; (2) Punish nothing except the intentional violation of duties. If these laws are obeyed, government can inflict punishment for a crime only where there is both an intent to violate a duty and an act to accomplish it. But if an “intent to violate a duty” means the same as “a vicious will,” then the definition of a crime according to our natural laws is the same as that at common law. In any event a wrongful intent is required in both cases."

This is the Common Law of England, adopted in America by the states and by the federal government where the federal government is constitutionally allowed to legislate crimes accoridng to its enumerated powers.  However, as of late, it has been substantially abandoned by America, both in the states and federally, to be replaced by crimes that ban certain acts with a punishment attached by lacking the requirement of intent.  The requirement of intent in criminal law is a sacred protection of the rights of the accused, one whcih has been thrown out carelessly by the American government.  Every one of us in America, given the abaondment of the requirement of intent in criminal law, commits some sort of crime at least once in our life, if not more, and mostly unknowingly.  The abandonment of the requirement of intent in criminal law has lead to the overcriminalization of law in America, creating criminals of every American citizen and resident.  But the problem is, according to Natural Law and the Common Law, which in this case are one, we are not criminals unless we had an intent to commit the act that is banned and considered a crime, or in some cases, an intent to fail to commit and act or fulfill a duty.  Thus, our government has created criminals of us all, or rather, given the American system of representation in the creation of legislation, we have made ourselves criminals, and most of us don't even know it! 

Indeed, Elder H. Verlan Andersen said as much in chapter 6 of "The Moral Basis of a Free Society.  He wrote,

"But over the years this fundamental requirement of a criminal intent has been dispensed with in some areas so that today under statutory laws it is no longer required in many instances. Current textbooks and dictionaries define a crime somewhat as follows:
An act committed or omitted in violation of a public law forbidding it. (Bouvier’s Law Dictionary, 1934 Ed.)
According to the theory expressed here, the state is free to forbid and punish any conduct it chooses. It is not limited to punishing those acts which are motivated by an evil intent.
Since the relaxation of the requirement of a criminal intent, the number of laws which provide for punishing good and innocent behavior have grown until today they are far more numerous than those which punish evil or harmful conduct."

Last month, I wrote the following that I would like to include in this note:

I would like all my friends to read this quote by Ayn Rand, and then read the following quote from my business law book.

"The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding cit
izens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt." ~Ayn Rand, "Atlas Shrugged."

"In recent years, an increasing number of laws and regulations have imposed criminal sanctions for strict liability crimes-that is, offenses that do not require a wrongful mental state [mens rea, as opposed to just actus reas] to establish criminal liability. The federal criminal code now lists more than four thousand [4000!!] criminal offenses, many of which do not require a specific mental state. There are also at least ten thousand [10,000!!] federal rules that can be enforced through criminal sanctions, and many of these rules do not require intent. Strict liability crimes are particularly common in environmental laws, laws aimed at combatting illegal drugs, and other laws affecting pubic health, safety, and welfare. Under federal law, for example, tenants can be evicted from public housing if one of their relatives or guests used illegal drugs-regardless of whether the tenant knew or should have known about the drug activity.

Many states have also enacted laws that punish behavior as criminal without the need to show criminal intent. Under Arizona law, for instance, a hunter who shoots an elk outside the area specified by the permit has committed a crime, regardless of the hunter's intent or knowledge of the law.

Although proponents of such laws argue that they are necessary to protect the public and the environment, critics say laws that criminalize conduct without any required intent have led to overcriminalization, or the use of criminal law as the main tool to solve social problems, such as illegal drug use. These critics argue that the removal of the requirement of intent, or malice, from criminal offenses increases the likelihood of people committing crimes unknowingly-and perhaps even innocently. When an honest mistake can lead to a criminal conviction, the idea that crimes are a wrong against society is undermined."

~"Modern Principles of Business Law," Roger LeRoy Miller, pg. 140-41.

Here here, Mr. Miller! Even in the United States, the government(s) has grown so much and sought so much power (often unconstitutionally) that, so as to rule over the innocent and place burdens upon their backs, to enslave them, in the absence of not enough criminals, even when the government's intentions may be good or pure, so as to protect the general welfare or environment, it has created many, if not most of the criminals that now exist, have records, and flood our prisons, just as Ayn Rand stated in "Atlas Shrugged." And we still like to call ourselves a free nation? The government has created these many criminals, not because they are truly criminals according to Natural Law, having violated a law of society that is just, having its basis in Natural Law, such as murder, theft, burglary, etc., but only because of positive law-laws that are created by petty tyrants (good intentioned ones, even, but petty tyrants nonetheless) to impose their will and opinions on others, whether those others like it or not, to exercise unlawful and unrighteous dominion over those they are elected to serve. And many times, especially in republics and democratic nations, those petty tyrants are merely the puppets of even greater tyrants, the majority, ourselves, who feel they have some justified right to invade the just and sacred rights of the minority because they have the power to do so and because they want to impose their private opinions on everyone. But, mind you, all tyrants will receive their due in the end! And one way our government has created these criminals who would otherwise be perfectly law abiding citizens, even if we personally don't agree with their choices, is through strict liability crimes, making so many of them that it is virtually impossible to not exist and live life without violating a crime somewhere down the line in one's life. So, we must end the practice of enacting strict liability crimes, doing away with all them, both on the federal, state, county, and local level, and return the element of "mens rea," or intent, to all our criminal laws!

Take for example 76-9-702.3 of the Utah Code, concerning public urination.  
"(1) A person is guilty of public urination if the person urinates or defecates:    
(a) in a public place, other than a public rest room; and    
(b) under circumstances which the person should know will likely cause affront or alarm to another.    
(2) Public urination is a class C misdemeanor."

This statute lacks the requirement of intent; instead, it prohibits an act without the requirement of intent.  What if, for example a person had bladder control problems accidentaly urinates in public, under circumstances which this person knows will likely cause affront or alarm?  This is not unreasonable.  Elderly people have this problem, as do some adults as well.  Sometimes people can't control their bladders or bowels, even in public, and as such, they urinate/defecate.  Or sometimes if indidivuals haven't had the chance to go to the restroom for a while, and their bladder is so full that it cannot hold another ounce of urine, the bladder flows freely and the individuals pees his pants without any control of it.  I am embarrased to admit it, but this had happened to me before.  Or what about a person who is medically forced to use a cathedar and is out and about in public, carrying their urine bag on their wheel chair or elsewhere?  Under these circumanstances of uncontrollable urination, according to the statute, even these unfortunate people could be convicted of a class C misdeameanor, punished for committing an act that they had no intention of committing!  Thus, in order for this law to be considered just and valid, it must include the requirement of intent, being worded as follows:

"(1) A person is guilty of public urination if the person, having full control over his bodily functions, INTENTIONALLY urinates or defecates:    
(a) in a public place, other than a public rest room; and    
(b) under circumstances which the person should know will likely cause affront or alarm to another.    
(2) Public urination is a class C misdemeanor."

Or take as another example, manslaughter, which is defined as a crime, and only a crime, but a felony under 76-5-205 of the Utah Code:

"(1) Criminal homicide constitutes manslaughter if the actor:    
(a) recklessly causes the death of another;    
(b) commits a homicide which would be murder, but the offense is reduced pursuant to Subsection 76-5-203(4); or    
(c) commits murder, but special mitigation is established under Section 76-5-205.5.    
(2) Manslaughter is a felony of the second degree.    
(3) (a) In addition to the penalty provided under this section or any other section, a person who is convicted of violating this section shall have the person's driver license revoked under Section 53-3-220 if the death of another person results from driving a motor vehicle."

The very definition of manslaughter is the wrongful death of an individual caused by rekclessness without an intention to kill that person.  Recklessness is not the same as intent.  Recklessness means behaving in a way in which one fails to uphold his duty of proper behavior towards another, but it does not mean intent.  There is a reason why there is a criminal alw for murder and one for manslaughter; murder includes the requirement of intent, while manslaugter is merely the criminalization of negligence, even gross negligence, which cannot happen because as already proven, a crime is an intentional act that is prohibted by society in which the rights of another human being are invaded or violated, to which is affixed a punishment worthy of the crime.  Thus, negligence can never be made a crime, but remains only a civil action, a tort, capable of liability for restitution for having unintentionally deprived another of something that rightfully belongs to him/her, but never punishment.  There is a significant difference between restitution or a civil rememdy and punishment, in that restitution is a form of equitable civil remedy, applicableto only between individuals, whereas punishment is a form of restitution applicable toward all of society.  For that is what a crime is, its an offense against society, in addition to an offense against the actual victim, whereas a tort is an offense against an individual vitcim only.  The very definition of manslaughter is death by negligence, an accidental death, wrongful all the same, but still unintentional.  Yet in legislating manslaughter, we have made an unintentioanl act, wrongful all the same, yet unintentioanl, a crime, abandoning the Common Law tenet or principle of mens rea in legislating criminal acts!  How shameful!  The same precedent we have established to be applicable to others is now available to be applicable to us as well!  Think about yourself in the same situation; would you want to be considered a criminal for an unintentional act, such as the death of another, when you know it was an accident, even if you were negligent?  No!  Nobody in their right mind would want to be sent to jail because of something they did as an accident, even if the end result is as horrible as a death!  They would want to make restitution, to be sure and beg forgiveness from the victim and victim's family for their negligence, but they would not want to be punished by being deprived of their liberty and property for something that was an accident!  Thus, we have the Golden Rule to be our guide.  We must do unto others as we would have them do unto us.  If we would not want to be punished for an unintentional act, then we must not punish others for an unintentional act.  Manslaughter is not a crime; rather it is a tort only, precisely because it lacks the requirement of intent.  No law can establish a crime unless it includes the requirement of intent!

To be a just and valid criminal law, the statute must prohibit an act, done intentionally, or in other words, with malice, that violates the rights of another human being, and must affix an exact punishment equal to the crime.  This and this alone is the only just and valid definition of a crime.  All other other acts are torts.  Now can there be intentional torts, meaning the committers of intentional acts may be found liable for damages? Yes, it is true, there are such things as intentional torts, and all intentional torts may also be legislated a crimes as well, because they are the intentional harm of another's rights, and specifically note that the requirement of intent is included.  Thus, all crimes may be intentional torts and all intentional torts may be made a crime.  However negligence, a tort without intent, may never be made a crime!

I'm sorry this topic might seem a little crass, but it's even more crass and unbeleivable that our legislators have forgotton the Common Law in its writing of criminal laws!  Granted, one would hope that the judges or juries who might hear such a case as the ones described above would have the common sense to apply the Common Law principle of the requirement of intent within criminal laws, but as is plainly evident in America today, represented by this statute and other's lacking the requirement of intent required in criminal law alone, common sense has long since been abandoned by America.  And besides, even if the judge or jury had common sense to apply the requirement of intent in such a case, why would we want to leave it to chance in case they didn't have such common sense when we can fix the problem permanently by requiring every criminal law to have the requirement of intent included in it, thus avoiding leaving it to chance?  If America is losing it's common sense in so many ways, as is plainly evident today in America's laws and in society's actions, then why leave it to chance to have a judge or jury (especially a jury!) apply common sense in a criminal case that should involve intent when we can rule out chance by requiring intent in the statute itself?  Such is illogical!

And of course, no exposition on criminal law would be complete without an explanation as to the fallacy of victimless crime.  Today in America, we have numerous laws that make it a crime for an individual to harm himself, even intentionally, by doing drugs that have been outlawed or that outlaw actions that some deem immoral between two consenting people.  Such are not crimes because they do not match the definition of a true crime, which, again, is an intentional act that injures another idnividual and his/her rights.  This is a crime, and if the action harms no one else and violates no one elses rights, or if the action is consented to by the other individual, and both consenting individuals are competent to consent to the act, there is no crime, no matter how intentional the act may be.  A crime must be 1.) and intentional act, and 2.) this intentional act must injure/harm another human being by violating his/her rights.  Anything else, while perhaps a sin in the eyes of God, may not be deemed a crime by human law and have a penalty affixed to it.  Many religious individuals in America, no matter their religion, have become over zealous in their preaching of their religion and the truth to the point where they no longer use love and persuasion to turn man from his wickedness and sins, but rather use force to turn him from them.  It is important to note that while all true crimes (those acts matching the definition of a true crime as describe above) are sins or abominations before God, not all sins or abominations before God are crimes.  Such is the victimless act and the act between two competent, consenting individuals, in which no other person's rights are violated arbitrarily without the consent of the victim.  Thus, not only must we rid our criminal codes in the states, our individual towns/cities, and the criminal code of the federal government of all so-called crimes that lack the requirement of consent in the statute, but we must rid our criminal codes of all legislation deemed "criminal law" that punishes an action in which their is not victim and which violates no other person's rights.  Now, this does not mean that we as individuals or religious groups condone these acts by deleting them from our criminal code because they are not true crimes.  Rather, we as indiviuals can, and have the duty to condemn such immoral acts done by a person to himself/herself or done by two or more competent, consenting individuals, and preach righteousness and morality to the our fellowman through persuasion, as God does.   But we cannot use the color of law, under a false pretext of a crime, to ban and punish such behavior so as toforce those individuals not to do those acts out of fear of force and deprivation of their life, liberty and/or property.  Such individuals who commit such immoral acts that are truly sins and abominations before God, inasmuch as they harm no one else but themselves or consent to such harm, will be judged by God in the end and will recieve their due.

This is my cry and plea, that we restore to American criminal law the requirement of intent!  According to Natural Law, any criminal law lacking the requirement of intent is not a just criminal law, and is in fact void and of no effect.  The man accused of committing the crime, unless he had intent to do so, cannot be convicted and punished.  It is our duty as citizens of the U.S. to fix this problem , both federally and within our own states, counties and locales (cities, towns, etc.)  Our duty is to study the laws of our federal gov. and our state and local gov.'s, and locate those laws that are deemed criminal laws that lack the requirement of intent, and demand that they be rewritten/amended by our legislators so as to include the requirement of intent and demand of our judges and juries to rule as innocent any man accused of a crime that lacks the requirement of intent in the statute that makes it criminal, until our courts realize that this is the Common Law and the Natural Law, and that it shall not be ignored any further.  We must also demand of our courts that any law that defines any act as criminal that lacks the requirement of intent be ruled unconstitutional by the courts as well.

This is our duty, to protect the accused, and in so doing, to protect ourselves from injustice!  For what man would want to be punished for something he did accidentally and had no intent of doing?  What just God would punish his children for something they had no idea was unlawful and thus had no intent to do so?  Our God is a just and merciful God, and does not punish those without a knowledge of His laws nor does he punish those who have no intent on breaking His laws, but may do so accidentally from time to time due to human weakness and fallibilty.  And if our God would not do so, the Author of Nature and Nature's Law, we puny little men have no authority to do so either!  God will only punish those who had a knowledge of His laws and intentionally violated them.  Thus, we puny little men in our puny little governments must do only the same and go no further!

Bring back the requirement of intent (mens rea) to our criminal laws in America!

With regards to Utah, an easy way to fix all of Utah's unjust criminal laws lacking the requirement of intent would be to amend the Utah constitution, requiring that all criminal laws shall include the element of intent so as to be considered a crime and not a tort, and any statute making an act criminal yet lacking the requirement of intent is from henceforth void, consituting only a tort, and a victim can bring forth a civil suit in court for damages only, but not for punishment.  There is no crime if there is no intent to commit the act; what results when there is no intent on the part of the person who committed the act is not a crime but a tort instead, and the person who committed the act unintentionally may be found liable for negligence in a civil court.  This is an easy way to fix all of Utah's unjust criminal laws lacking the requirement of intent.  Of course, the Utah Code would have to be rewritten, expunging from the code book all voided criminal laws as a result of this constitutional amendment, but that is easy enough as well.

Saturday, July 28, 2012

Thoughts On Nullification and a Proposal for a National Superior Court to Decide On Contests Between the States and the Federal Government

As of late, I’ve been reading up on the principle of “nullification,” reading Tom Wood’s book “Nullification: How to Resist Federal Tyranny in the 21st Century,” as well as St. George Tucker’s “View of the Constitution of the United States.”  Within these writings about nullification, there are several beliefs I feel need to be addressed.  One of these beliefs is that that the states, being sovereign, were members of the federal compact, and that they created the Constitution and thus the federal government.  Thus, being the creators, they have the right and authority to decide on the meaning of the Constitution and to decide whether federal laws or actions go beyond the limited powers given to the federal government by the Constitution.  Also, nullificationists,of then and now, address the issue of having the federal government being its own judge, through the federal courts, of its own powers.  And finally, nullificationists don’t believe the federal courts have the authority to oversee the state courts and nullify state court rulings.

I will briefly address first the issue of state sovereignty and the idea that the states were members of the federal compact and the creators of the Constitution.  First and foremost, it was believed then, as it is now, that the people of the United States, or the people of the various states and territories that make up the United States, as well as the various localities, cities, towns, and counties that make up the states and territories themselves; these people are sovereign, all power extending from them.  Thus, if the people are sovereign, the states cannot be sovereign as well.   Rather, all sovereign power stemming from the people of the nation, the people have given up some of their sovereign power and delegated or loaned it, temporarily, to the different governments of the cities, towns, counties, states, territories and the federal government of the United States.   Thus, the people delegating some of their sovereign power to the different governments they reside under, the people themselves are the members of whatever governmental compact they form, be that on the town and city level, the county level, the state level, or the federal level.  Thus, concerning the federal compact that created the Constitution and the resulting federal government, the people were the members of the compact and not the states.  This reality is also reiterated by the fact that the Constitution was created by a sovereign convention, represent on the state level, since no other level of representation made sense, and was ratified or approved by the people through their specially elected representatives in ratification conventions, again on the state level, since no other level of representation made sense.  Thus, the states are not and were never members of the federal compact.  The states did not give of their powers to the federal government.  Rather, the people, through their specially elected representatives in the Philadelphia Convention of 1787 and the subsequent ratification conventions took limited powers from the states, and gave those limited powers to the federal government, to handle national issues.  The people themselves were members of the federal compact, and not the states.  If the states had been members of the compact, the state legislatures would have sent delegates to Philadelphia Convention, and would have ratified the resulting Constitution instead of special conventions established for those sole purposes of creating and ratifying the Constitution.  The states are not sovereign and neither is the federal government, or any level of government for that matter.  Rather, the people are sovereign, and have delegated certain of their sovereign powers to the different governments they choose to live under, including those governments on the town, city, county and state or territory level, as well as on the federal level.  Thus, the states themselves merely retain sovereign powers delegated to them by the people through their own constitutions, just as the federal government, but are not sovereign themselves.  This is represented in the 10th Amendment to the Constitution, when it says that any powers not delegated to the federal government are retained by the states or the people themselves.  Such wording reiterates the concept of popular sovereignty, or the people being sovereign.

Secondly, I wish to address the issue of the federal courts being judges of the extent of their own delegated sovereign powers.   As much as I disagree with the nullificationists on some of their ideas, this is one of their objections to the federal system that I believe has some merit to it.  It is dangerous to give the federal courts, a branch of the federal government, the authority to judge the extent of the powers of the different branches of the federal government, including their own branch, in interpreting the Constitution.  They can easily grant themselves more powers, as they have done in the past and will unfortunately most likely continue to do in the future. The people must always be jealous of their liberty and rights and be suspicious of all government, no matter what level and no matter who they elect to power.  Such suspicion is not only necessary to retain our rights and liberty, but common sense as well.  Just because a government is democratically elected doesn’t mean it, through the actions of those elected, can’t and won’t oppress the people, or rather, that the people won’t oppress themselves or minorities through their democratically elected representatives.  Thus, constitutional limits are necessary to bind every government the people live under.  However, digressing slightly, the people, having created the federal Constitution and government, ought to be the rightful judge of the extent of its powers, and not the states, as the nullificationists claim.  The nullificationists claim that being members of the federal compact, they have the right to be the judge of the extent of the federal powers by deciding which of the federal laws or actions are unconstitutional. But, as I’ve already explained and proved in the preceding paragraph, the people, and not the states, were the members of the federal compact.  Thus, the power to judge the extent of powers of the federal and state governments should come from them.  I therefore propose a modification of the federal government and constitutional compact, by an amendment to the Constitution, that would create a truly independent and supreme judiciary, one that is ultra-federal, superior to the federal and state governments, that would have the authority of deciding contests between the states and the federal government and the extent of the powers of the federal government.  I would also propose such a judiciary be proposed for every state, to decide on the extent of the powers of each state, to be judges of the constitutions of each state.  To make this superior court truly representative of the sovereignty of the people, I propose that the members of the this judiciary be elected by conventions on the state level, every 6 years, so as not to make this judicial court subject to democratic ills and political pulls.  Such a superior court would fix the problem addressed by the nullificationists of having the federal government being its own judge in contests between the states and federal government in and the extent of its own powers.  This way, the states would no longer need to claim a chaotic right to be the judge in contests between the states and the federal government and in the extent of federal powers.  The federal government was erected for the purpose of being an arbiter of disputes between the states and to be supreme to the states, so as to correct some of the excesses of democracy and the resulting laws harmful to liberty and the rights of the people in the 1770s and 1780s.  James Madison, author of the 1798 Virginia Resolutions, and author of the Virginia Plan that would become the Constitution, after some modification, wanted the federal government to have an absolute veto power over state laws.  He saw the states as the main culprits in violating the liberty and rights of the people.  As historian Jack Rakove stated in his book “Original Meaning: Politics and Ideas in the Making of the Constitution,” “[i]n monarchical regimes the chief danger arose from the excesses of the crown, but in a republic that distinction necessarily fell to the legislature.  And for Madison, the state legislatures were the main oppressors of the people.  But Madison didn’t get his absolute veto power over all state laws in the federal government.  Instead, that power was given to the federal courts, or the federal judiciary, to keep the states in check, to keep the states from interfering with the federal government and its duly delegated powers.  Or in other words, the power to keep the federal government supreme and from preventing the states from overcome the federal government and trample on its own sovereign powers was given to the judiciary.  The judiciary had the power to keep the federal government supreme.  To read more about this, check out Jack Rakove’s “Original Meaning,” from page 171-177.  But, I believe Madison and the rest of the Framers were somewhat foolish to suspect that the federal government would never act as the states did, in absorbing all power into its legislative branch by usurpations, oppressing the people by these usurpations and oppressive laws, and in the federal courts giving a complete pass to the federal legislature in its usurpations, absorption of powers it was not delegated, and enacting of oppressive laws that violate rights of the people.    Thus, nullificationists’s issue with the federal government being a judge in its own case of contests between the states and the federal government is justified, in that the federal government, given the Supremacy Clause, and the power of the Supreme Court to interpret the Constitution, can easily overcome the states and absorb all power, despite the enumeration of its powers in the Constitution and the 10th Amendment.  And this has indeed happened.  But to the have the states be their own judge in contests between themselves and the federal government, concerning the extent of federal power, brings about the same problem.  The states having the authority to be their own judge in their own case means that they states could easily overpower the federal government, thus thwarting the Constitution and reverting all power back to the states, something which the Constitution was designed so as to avoid.  No person or group should be a judge in his or her own case.  Therefore, an intermediary branch of government, neither federal nor state, but one that is superior to both the federal and the state governments, that represents the sovereignty of the people, must be created so that the rightful judge of contests between the states and the federal government, the people, can be the judge in such cases concerning which power lay in which level of government.  And to have this judiciary be truly independent and truly representative of the people, its members must be elected by conventions of the people, on the state level, and it must be neither part of the state governments nor the federal government, but must be supreme to both of them.

Government is government, no matter what its level, local, state or federal, and every government made of fallible men and women seeks to extend its powers beyond its constitutional chains.  Government is condoned by God for the use by man, but mankind being imperfect and having the natural tendency to exercise unrighteous dominion over their fellow man when given a little power by their fellow man, these imperfect men forming government, government naturally always becomes a black hole, absorbing as much power as it can beyond its constitutional limits, no matter what level of government it may be.  Thus, having a continual power grab between the states and federal government, and having the states and the federal government claiming to be judges in its own case in a contest between the states and the federal government, it’s better to have a truly independent judiciary that is representative of the sovereignty of the people to be the judge between contests between the states and the federal government over power, as to whether that power belongs to the federal government or to the states.  Thus, the state governments will always seek more power than they constitutionally have, chained down and limited as they are by their state constitutions and by the federal Constitution, and forcefully heave themselves beyond their constitutional bounds to oppress the people, just as the federal government will do the same.  Trust no government with absolute power; but also trust no government to stay within the bounds of its limited powers, declared by mere parchment barriers.

This is my suggestion to fix the on-going war between the states and the federal government over power.  This is the true “rightful remedy,” not nullification as Jefferson demanded.  And if the people do not like what this super-judiciary rules concerning the meanings of the Constitution and extent of the federal government’s power, the rulings of this court can be overruled by means of a Constitutional amendment, or the amendment process.

Thursday, April 12, 2012

Constitutional Issues Concerning the National Defense Resources Preparedness Executive Order

Read the following news coverage of a new executive order by President Obama:


The executiv order, as read in the title of this post, is the "National Defense Resource Preparedness Executive Order.
According to this news article,

"The newExecutive Order states that the president and his secretaries have the authority to commandeer all U.S. domestic resources, including food and water, as well as seize all energy and transportation infrastructure inside the borders of the United States. The Government can also forcibly draft U.S. citizens into the military and force U.S. citizens to fulfill 'labor requirements' for the purposes of 'national defense.'"

If this be true, there are a few constitutional issues with this executive order.  First, the law that backs up the executive order is the Defense Production Act of 1950.  Executive orders must be based in congressionally passed law first and foremost, before they have any binding authority.  Else-wise the executive branch would become a law making branch unto itself, which power is given specifically to Congress via Article 1, Section 1 of the Constitution.  If the president can use executive orders to essentially create new laws that govern all the people of the country and not just the executive branch, then there is no separation and balance of powers between the three governmental branches.  Indeed, the executive act states:

"By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.), and section 301 of title 3, United States Code, and as Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows..."

Thus, the President is citing congressional law as at least one of the sources for the authority to do the things explained in this executive order.  There are a few problems with the President citing the Commander in Chief clause of Article II of the Constitution, but more will be said on that later.  

But what remains to be determined is whether Congress has the constitutional ability to A.) seize property that belongs to the states (the domestic resources and energy and transportation infrastructure and maintain America's system of federalism, and B.) whether Congress can delegate its power to seize private property with just compensation for the public use to the executive branch.  From the article, it seems as if the President and the executive branch is asserting that it can automatically seize control and ownership of private property in the form of water and food resources, as well as energy and transportation infrastructures via the Defense Production Act.  But can Congress truly delegate its sole authority of eminent domain to another separate but co-equal branch of the government, in this case, the executive, to be exercised at the will of the executive branch and the President?  Our constitutional system seems to indicate that it cannot, indeed, as seen in Youngstown Sheet and Tube Co. v. Sawyer (1952), which says that Congress cannot delegate its lawmaking authority to another branch of government.  If Congress cannot delegate its lawmaking authority to the executive, then it cannot delegate the authority of eminent domain to the executive branch to be exercised at the will of the executive, because eminent domain is lawmaking.  More will be said concerning Youngstown later.  For that is what seizing private property is, is lawmaking, as described in Youngstown.  Thus, if the Defense Production Act gives the executive branch the authority to seize domestic resources and energy and transportation infrastructures within the U.S., then it seems that Congress have delegated its Eminent Domain authority to the executive, one of its law making powers, and this law would be thus be unconstitutional.  Congress can allow executive agencies to regulate domestic resources and energy and transportation infrastructures via congressional law, in that the executive agencies become the ones to execute the laws passed by Congress, but Congress cannot delegate one of its lawmaking powers to the executive branch.

Secondly, the authority of the government to seize and control domestic resources, as well as energy and transportation infrastructure within U.S. borders, throws the balance of federalism between the states and the national government completely out the window.  Since when can the national government seize anything that belongs to the states, specifically property-wise, like resources, energy, and transportation infrastructures like roads and such?  Those things belong to each respective state, and Congress alone has authority to regulate the commerce between the states and the national waterways, including the ocean, not the executive branch, as stated under the Commerce Clause in Article 1, section 8 of the Constitution.  Congress cannot delegate this authority to the executive branch without violating the separation and balance of powers established in the Constitution.  It can give the power to oversee such regulations laid out by Congress to the executive branch, to be sure, as it has, but the executive branch cannot make new rules concerning the national waterways and commerce between the states, nor can it seize domestic resources and energy and transportation infrastructures within U.S. borders without Congress's approval first.  Congress alone, via the 5th Amendment can take private property; and even then, Congress may not seize any private property for national use without just compensation.  This leads into the next constitutional issue regarding this executive order.

Thirdly, as described briefly before, the power to taking private property, such as is at least some energy infrastructure in the U.S., as well as domestic resources like food and water, is given solely to Congress via the 5th Amendment.  The asserted power of the executive branch to seize these things and bring them under the control and ownership of the executive branch seems to disagree with the Supreme Court ruling in 1952 case of Youngstown Sheet and Tube Co. v. Sawyer.  In Youngstown, the President tried to have the executive branch seize production facilities of steel in the U.S. because of strikes at the plants nationwide which temporarily shut down production.  The Supreme Court ruled that the president does not have authority under his title of Commander in Chief to seize and operate the steel mills of the nation, even during times of war, and that such results in lawmaking.  And as such, this power belongs solely to Congress, which must give just compensation when seizing private property for the public use.  Justice Black, who wrote the majority opinion, said the following in the Youngstown ruling:

"Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forced Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.  In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.  The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.  And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.  It [Congress] can authorize the taking of private property for public use.  The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.  The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times."

Like Youngstown, the President is asserting authority of the executive branch to seize private property or the property of each respective state, and as such, he and the executive branch is seeking to make law, which authority belongs solely to Congress, and thus is disrupting not only the system of federalism, but the balance of powers between the legislative and executive branch as laid out in the Constitution, and reestablished in Youngstown.  The President had asserted authority to seize these things described in the executive order due to his being the Commander in Chief.  But Youngstown specifically says that the President, as the Commander in Chief, cannot assert authority to seize and operate private property under the arm of the executive branch because such is lawmaking and belongs solely to Congress.  Thus, there is another constitutional issue regarding President Obama asserting such authority as is expressed in the executive order by way of his being Commander in Chief.

Fourthly, the authority of the executive branch to "force U.S. citizens to fulfill 'labor requirements' for the purposes of 'national defense'" is akin to slavery, or involuntary servitude, which is outlawed in the United States via the 13th Amendment, which says: 

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

These are the constitutional arguments against this executive order, if the accusations against it and descriptions of it, made by the Huffington Post, are indeed accurate.  It remains for me to review both the  Defense Production Act and the executive order considered here to see if the news article cited is indeed correct in its accusation concerning the executive order.

Thursday, March 22, 2012

The Unconstitutionality of EPA Practices, Including Fines, As Well as the 1972 Clean Water Act

Watch the following video concerning the thuggery of the EPA against the Sacketts:

Now read the 8th Amendment to the Constitution:

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

I wonder if the Clean Water Act and the EPA in general, with there huge fines, could be brought to court as unconstitutional for violating the 8th Amendment.  I would think so.  Not only are the fines represented in the Clean Water Act constitutionally suspect as "excessive," thus violating the 8th Amendment, but it looks like the EPA is allowed to fine individuals separately from the courts all by itself, without a trial, AKA due process of law.  I don't think this is right, nor constitutional.  What think yee, my readers (if there be any?)

The video makes clear that the EPA imposes excessive fines, as does the Clean Water Act.  They should have challenged both the act and the EPA fines in their case against the EPA as unconstitutional for violating the 8th Amendment.

Mind you, there are some other constitutional issues concerning the EPA brought up in the video, particularly the practice of the EPA confiscating private property via congressional acts without just compensation (let alone any compensation) and without due process of law.  Thus, it seems to me that the EPA should be brought to court for unconstitutional practices.  But, according to this video, it seems they are insisting they can't be brought to court.

Wednesday, March 14, 2012

The Constitutionality of Female Governmental officers Affirmed:

In 1845, lawyer, political philosopher, and abolitionist Lysander Spooner wrote and published “The Unconstitutionality of Slavery,” in which he asserts that the Constitution, given the wording of it and the legal meanings of the wording, do not sanction slavery, but rather the wording of the Constitution lawfully prevents slavery from happening or being lawfully practiced or present in the U.S.  Tucked away in this condemnation of slavery is another claim by Spooner, one that at his time would probably bring very little controversy, but in todays world, if made, would probably ruin one’s reputation and be near to suicide, given today’s ultra-feminist and politically correct world.  In a note in chapter VIII The Constitution of the United States, Spooner asserts that given the use of the pronouns “he” and “his” in the description of the President of the United States in Article II of the Constitution, only males may run for and be elected president.  Spooner writes, “That is, male persons. The constitution, whenever it uses the pronoun, in speaking of the President, uniformly uses the masculine gender—from which it may be inferred that male persons only were intended to be made eligible to the office.”

Spooner is a stickler for words and legal definitions of words throughout his entire argument in this work.  Indeed, Spooner says,

“It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning.”

“…this rule…requires courts to give an innocent construction to all words that are susceptible of it…”

“This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.”

But it in his assertion that because only the male pronoun in used in the description of the President in Article II of the Constitution, only males are constitutionally allowed to qualify for the presidency, Spooner rejects his own rule that whenever two definitions exist for a word, the one that encourages more liberty and right is the one to be accepted as the legal definition.  Indeed, Spooner assumes the pronouns “he” and “his” used in Article II to describe the president have only the meaning of the male gender.  But Spooner fails to realize that these pronouns, while having one meaning of the male gender, have another grammatical meaning and use, when used to refer to nouns that contain no gender, words like “president.”  The word “president” denotes no gender, and in fact many general nouns in English do not grammatically denote gender, but remain neuter.  And there is a grammatical rule, dating back to Spooner’s time, that when the pronoun “he” is used and its antecedent is a neuter noun, such as the word “president,” the pronoun “he” refers to mankind or persons in general, not one particular gender, in this case the male gender.  I will explain in further detail:

The definition of pronoun “he.”  Spooner is wrong in when he says only men can run for president because he fails to take his own laws regarding meanings of words to heart.  He says that if there is ever a meaning of a word favorable to liberty, then that meaning must be accepted and put to the word as the legal meaning.   Spooner fails to do this with the word “he” as used in the Constitution, particularly regarding eligibility to be the President, and even Senators.  The word “he” has the acknowledged meaning of the masculine sex, true enough.  But it also has the definition “Of things not sexually distinguished.”  And in the case of the Constitution, Article II, the antecedent of the word “he” in all cases is either the word “president” or “person,” words of no sexual distinction, and he is merely used instead of “he/she” because “he/she” was not used in that time, and “he” refers to any person who is elected to be president, whether male or female.  There is no specification as to whether the president must be male or female, for the words “president” and “person(s)” are not descriptive of a particular sex.  The words are neuter.  Thus, the pronoun “he” that refers back to “president” and “person(s)” does not refer specifically to the masculine form of the pronoun, for the antecedents are of the utmost importance, linguistically.   The masculine pronoun “his” also appears in Article II, referring to the president, but again, “his,” while masculine, has in truth a neuter meaning, for its antecedent is a neuter word, “president.”  Thus, grammatically, there is no specification as to whether the president must be male or female.  This is the intention of the ratifiers of the Constitution, “We the people,” for such a grammatical understanding of the words “he” and “his” existed in their time, they knew of it, and such is the liberal sense of the word, the one that guarantees the most liberty, right and honesty to all people, and so such is the legal meaning of the word that must be adopted by the courts, and indeed, seems to have been adopted since women have run for president and we have women representatives and senators.

This definition of the pronoun "he" comes from the Oxford English Dictionary:


2. Of things not sexually distinguished:”

Another piece of proof of this is that there is no seeming grammatical prohibition against female representatives in the Constitution in Article 1.  Never does the pronouns “he” or “his” appear.  The terms are completely neuter.  It’s silly to assert that the intention of the Constitution or of the ratifiers is to allow female representatives, but not female senators and a female president, for in the time of the ratifications, no man, let alone a woman, could have expected women governmental officers given the extremely patriarchal society of that time, and as such, it would have been silly to assert they would have allowed female representatives but not female senators and a female president.  They did not even see women as governmental officers, for politics was a man’s subject, dominated by the male.  But either way, the way the wording of the Constitution is, dictated to them and to us today that there was and still is a possibility of women governmental officers, for the grammar shows such, and the more liberal of the meanings, or rather, the meaning that promotes the most liberty, as asserted by Spooner himself, must be adopted as the legal meaning of the word.  Thus, Spooner is wrong in his interpretation of the Constitution regarding eligibility of women as Presidents.

Thus, linguistically and logically, according to the words present and lacking in the Constitution, women are fully capable of running for all governmental offices, including representatives, judges, senators, and the presidency, etc.  And the history of this country has proven this, especially as of the 20th century.  There is no natural law that prohibits women from running for governmental offices.  Any such laws that exist in the world come from the unrighteous and unlawful domination of man over women, for nature made man and woman equal before its sight in terms of their humanity, and as John Locke has said, make man and woman joint rulers or governors. So therefore, because nature has made man and woman joint governors, each capable of governing their family,  man-made governments cannot prohibit women or men from holding government office and governing their society they have chosen to live in.  Of course, to say that man and woman are equal as human beings and governors of society in the eyes of nature, does not mean they are equal in all ways and things, for they are not, not sexually, not physically, and not natural skills-wise, among other things.  Only women can bear child.  Only men can fertilize the eggs of women.  Only women have their sexual organs and features while only men have theirs.  Man is naturally stronger and rougher than women, while women are naturally weaker in strength than men and more peaceful and emotional than men.  Thus, while nature sees man and woman as equal before it’s sight as human beings with rights and as governors of the world and society, they are not completely equal in every way.