Sunday, February 19, 2012

Natural Law and the Constitution:

With this blog and all my writings, I have only ever attempted to uphold, praise and politely demand what nature demands of all mankind, that of liberty, justice, and equality before the law, here in America at the very least, but I would prefer these to be recognized throughout the world, as nature recognizes them throughout the entire world.  For nature works itself upon all mankind, no matter the nation or section of the globe. 

1.) Liberty:
The law of nature, requires the upmost liberty of the individual possible in a state of society; The liberty of the individual in a state of society, where a social compact has been freely entered into by the members of that society and a government erected, will be a slightly manipulated liberty than there will be in a state of nature.  An example of this is man giving up his natural right to be, himself, judge of himself and others in a state of nature, putting this right into the common stock of society, thus becoming a civil right, to be judged by society, or those appointed by society to judge.  And in America’s case these judges are either our peers, in the form of  a jury or elected or appoint judges, appointed by  our elected officials.  Thus, the liberty of the individual in America, though it remains the same quantity as in a state of nature, is slightly manipulated in a state of society, practiced in a different way, through civil rights of the individual instead of natural rights of the individual to be practice by every single individual living in the society, where such is impracticable in a state of society, as in judicial matters.  Thus, nature demands we have the same quantity and type of liberty in a state of society as we do in a state of nature, except that that liberty will be manipulated and will be practiced in slightly different ways, so as to adapt to the necessities of living in a state of society.

2.) Justice:
The law of nature requires natural justice, and justice in a state of society will be the same as justice in a state of nature.  It is this simple.  There will be no diminution of either liberty or justice when individuals decide to form a social compact and government.  For no man in a state of nature can invade and violate the natural rights of others in a state of nature (such puts men into a state of war instead of peace), and because this is not allowed in a state of nature, how can man be allowed to invade and violate the rights of others in a state of society?  Simply, the answer is that they can’t.  If nature forbids an action, man cannot perform that action and be justified in performing it.  Thus, natural justice remains the same in a state of nature.

3.) Equality Before the Law:
All men and women are equal before the law of nature, or rather, the laws of nature apply to them equally and guarantee them their rights equally.  And thus, men and women must also be equal before the laws of mankind in a state of society, or rather, have those laws apply to them equally and guarantee to them and protect their natural and civil rights.  For if all mankind is equal before the law of nature, and this is good enough for the Creator of nature and nature’s law, so why then has man arrogantly and pridefully assumed he/she can make his fellow human beings unequal before the laws of man, if the laws of man must be governed by, rely upon, and cannot contradict the laws of nature?  Now, it must not be assumed that to say mankind is found to be equal before the law of both nature and mankind, that mankind is equal in everything, including faculties, talents, skills, desires, abilities, likes and dislikes, and material goods.  The very nature of individuals and individuality means that such qualities as these will never be equal and never can be equal.  Elsewise, individuals and individuality would cease to exist.  Rather, equality before the law means to be treated equally by the laws, having them apply equally to everyone, and the people having their rights, both natural and civil, guaranteed and protected by the law equally.  Equality before the law also means there are to be no individuals put artificially above others by the law, such a king or aristocracy.  This is what it means to be found equal before the law.  The law treats each person equally, favoring no one over any other, and the law applies to each person equally, meaning no one escapes the application of the law to them.  No one has special privileges to escape the application of the law due to their birth, race, skin color, gender, age, wealth, or any other outward characteristic.  The law also protects each person and his/her rights equally as well, and does not favor one person or his/her rights over others and the rights of others.  This is equality before the law, both before the law of nature and the laws of mankind established in societies under social contracts/compacts.  

Now, all this being said, these very ideas and laws were known to and espoused by the Founding Fathers of the U.S., and even by the Tories and Loyalists of England and America, as well as by the rest of enlightened Western Europe.  But in no place was it more known and espoused by the general population than in America.  Our first law and act as a nation, the one that established us as an independent nation, declared these very principles outlined above; “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  And it was the same men, who espoused and wrote such things that drafter and ratified our Constitution.  Thus, these same principles are represented in the Constitution, if not word for word, than by the ideas being present in the way our government was set up and in the debates in the actual framing and then the ratification of the Constitution.  Thus, these laws and principles are very much in the Constitution, but perhaps not word for word.

Natural rights and law theorist Lysander Spooner, also an 19th century lawyer, wrote a pamphlet titled “The Unconstitutionality of the Constitution,” which describes the very thoings I have written above, concerning this higher law of nature not only being present in the Constitution, but also concerning how all the laws of mankind owe obedience to and cannot justifiably contradict the the higher law, the law of nature.  Spooner writes:

‎"It is obvious that legislation can have, in this country, no higher or other authority, than that which results from natural law, and the obligation of contracts, for our constitutions are but contracts, and the legislation they authorize can of course have no other or higher authority than the constitutions themselves. The idea, therefore...of any inherent right in the majority to restrain individuals, by arbitrary enactments, from the exercise of any of their natural rights, is a sheer an imposture as the idea of the divine right of kings to reign, or any other of the doctrines on which arbitrary governments have been

-Lysander Spooner, "The Unconstitutionality of Slavery," 1860.

And can legislation be inconsistent or contrary to natural law and natural justice? No, because Constitutions themselves cannot be valid and be contrary or inconsistent with natural law and natural justice, thus, neither can legislation because legislation can't violate or contradict the constitutions, which can't violate or contradict natural law and natural justice. It's as simple as that. If only our courts would base our Constitution off of natural law instead of assuming its the highest law there ever was in America. Our constitution is the highest MAN-MADE LAW, but it owes its allegiance to an even higher, universal law, the law of nature, or as Spooner calls it, natural justice. Our courts practice invalid law if they don't recognize natural law in their rulings and thus their rulings are invalid and void.

So, what do you, my readers (again, if there be any) think?  Is there a higher law present in the Constitution by means of the Declaration of Independence, and does our Constitution owe obedience to this higher law, the natural law?  Or is the democratic principles of the will of majority the highest principle and law mankind must obey, to which if the will of the democratic majority wills it, the natural and civil rights may be violated in order to achieve the public good?  Before you answer this question though, I leave you with the principle that whatever we do to one man or portion of society, will establish a precedent that will reach even unto yourself, or if not yourself due to the shortness of life, then to your posterity.  This absolute is portrayed in the following quotes, one by Thomas Paine, and another by the 17th century English Civil War Leveller, Richard Overton.

"For sir, look: what bondage, thraldom, or tyranny soever you settle upon us, you certainly, or your posterity will taste of the dregs. If by your present policy and (abused) might, you chance to ward it from yourselves in particular, yet your posterity — do what you can — will be liable to the hazard thereof."

-Richard Overton, English Civil War/Revolution Leveller, 1640's

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

-Thomas Paine, 1792, speech to the French National Convention.

Sunday, February 5, 2012

The Unconstitutionality of the NDAA

Just watch this video that indicates how Mitt Romney, Newt Gingrich, Rick Santorum, and Senator Lindsay Graham would subvert the Constitution and trample on the natural and civil rights protected by it.  The video says it all.  It also says how the National Defense authorization act is unconstitutional, and a violation of the Due Process Clause in the 5th and 14th Amendment, as well as the Treason Clause under Article III, Section 3, which states:

"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

Those alleged of Treason must be convicted in a court of law, for that is what the word "convicted" means in America; the Congress has no authority to convict someone of a crime, and neither does the executive branch.  This authority lies solely with the Judiciary.  As far as I'm concerned, the NDAA contains portions that would deem it a Bill of Attainder, thus violating Article 1, Section 9, which says no bills of attainder shall be passed by Congress.

The NDAA and the US Constitution: Part 1

The NDAA and the Constitution: Part 2

The NDAA and the Constitution: Part 3

Friday, February 3, 2012

The Origins of "Judicial Review"

If you ask the question of any America, or even those beginning their studies of law, like myself, where in the Constitution the theory of "Judicial Review"can be found, they will find that the express words judicial review are not in the Constitution, particularly in Article III, which outlines the judiciary branch.  This is entirely true.
In fact, many will point to the case of Marbury v. Madison as the origins of judicial review, or where and when the judiciary assumed this power.  However, I have found a passage in a history book, a biography of James Madison, written by Pulitzer Prize winning historian and Stanford professor, Jack Rakove, that I believe gives insight into the origins of judicial review that predate Marbury v. Madison, and indeed stem from the Philadelphia Convention of 1787.

The book is titled James Madison and the Creation of the American Republic.  It's a short enough book, very easy to read and almost story like.  In the book, Rakove talks about Madison's Virginia Plan and the differences between it in its original form and the formal draft of the finished Constitution.  Madison wanted the federal government to have an absolute, national veto on all state legislation.  This, of course did not bear well with most of the other delegates to the convention, and it was voted down 7 states to 3, Rhode Island of course being absent.  Madison and James Wilson wanted a council of revision, in which the national executive and part of the judiciary would review and revise all state legislation, all the while wielding the threat of veto.  However, the rest of the convention didn't agree to this either, and their attempts at this council of revision were shut down.  

The reason the rest of the convention delegates disliked a council of revision composed of the national executive and judiciary is because they felt "it was improper to involve the judges in the task of legislating.  Most members seemed to assume that judges would act ore effectively by declaring laws violating the constitution void-through what would come to be known as the power of judicial review."
(Chapter 6, pg. 73)

Thus, we see that the concept of judicial review was one the framers of the Constitution were already familiar with and expected to be the role of the judiciary under the new national government.  I believe this is what they intended as "the judicial power," as stated expressly in Article III, Section 2 of the Constitution.  They knew what the judicial power was, jus dicere, as it was known to them at the time, or in other words, "to declare the law" or state what the law says, either constitutionally, statutorily or via the Common Law, which was praised by the Americans.  Indeed, as early as 1764, James Otis, Jr. explained what the role of the courts would become after the ratification of the Constitution and the congress's Judicial Act, explicitly that of jus dicere, in his pamphlet titled The Rights of the British Colonists Asserted and Proved, which can be read in full here.

"The supreme power in a state, is jus dicere [to declare the law] only:-jus dare [to give or make the law], strictly speaking, belongs alone to God."  

Granted, Otis at this time wasn't speaking of the courts, especially because the Americans were yet independent and yet learned in the knowledge of politics and government they had in the 1770s and 1780s, knowledge gained from their experiences of the Revolution, especially experiences in government.  Rather, Otis was speaking of human government in general.  In his time, the lines between judiciary, legislature and executive branches were blurred, and each often assumed the roles of the others.  But jus dicere, I believe, is what the framers of the Constitutions had in mind as the "judicial power," as stated in Article III Section 2 of the Constitution and the role the courts would take in reviewing both national and state legislation.  Thus, I believe the concept of "judicial review" was existent from the beginning, or rather, since the very creation, debating, drafting, and ratification of the Constitution.


Thursday, February 2, 2012

Tough Targets: When Criminals Face Armed Resistance from Citizens | Clayton E. Cramer and David Burnett | Cato Institute: White Paper

I've already written on the topic of gun/weapons control and the unconstitutionality of Congress or the state legislatures (due to the Incorporation Doctrine) limiting or banning certain kinds of arms/weapons, given the nature of the wording of the Second Amendment and the history and semantic analysis of the word "arms." That can be read here.  I understand that U.S. Case Law and legislative law says otherwise, but I disagree with these, and maintain that such laws and rulings are unconstitutional, given the reasons laid out in my referenced article on the word "arms."  

However, concerning gun regulation laws passed by Congress and the state legislatures, this article published by the Cato Institute provides clear evidence that instead of lowering gun violence and violent crime in general, gun regulations actually increase or in the very least maintain current levels of gun violence and violent crime in general.  This isn't necessarily a constitutional issue, but take a peak at what Cato has to say on the topic below and feel free to post your thoughts and opinions.  And let it be known, I do not own a gun, nor am I obsessed with them.

Tough Targets: When Criminals Face Armed Resistance from Citizens | Clayton E. Cramer and David Burnett | Cato Institute: White Paper

"The ostensible purpose of gun control legislation is to reduce firearm deaths and injuries. The restriction of access to firearms will make criminals unable to use guns to shoot people. Gun control laws will also reduce the number of accidental shootings. Those are the desired effects, at least in theory. It is important, however, for conscientious policymakers to consider not only the stated goals of gun control regulations, but the actual results that they produce.

What would be the effect of depriving ordinary, law-abiding citizens from keeping arms for self-defense? One result seems certain: the law-abiding would be at a distinct disadvantage should criminals acquire guns from underground markets. After all, it is simply not possible for police officers to get to every scene where they are urgently needed.
Outside of criminology circles, relatively few people can reasonably estimate how often people use guns to fend off criminal attacks. If policymakers are truly interested in harm reduction, they should pause to consider how many crimes — murders, rapes, assaults, robberies — are thwarted each year by ordinary persons with guns. The estimates of defensive gun use range between the tens of thousands to as high as two million each year.
This paper uses a collection of news reports of self-defense with guns over an eight-year period to survey the circumstances and outcomes of defensive gun uses in America.
Federal and state lawmakers often oppose repealing or amending laws governing the ownership or carrying of guns. That opposition is typically based on assumptions that the average citizen is incapable of successfully employing a gun in self-defense or that possession of a gun in public will tempt people to violence in "road rage" or other contentious situations. Those assumptions are false. The vast majority of gun owners are ethical and competent. That means tens of thousands of crimes are prevented each year by ordinary citizens with guns."