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Posts Tagged ‘Bill of Rights’

U.S. ConstitutionThe no double jeopardy provision of the Fifth Amendment to the U.S. Constitution reads:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

The double jeopardy “loophole” is this; that where the accused is acquitted of a state crime, he/she is then tried for the same federal crime, and vice-versa.

The original intent of the Bill of Rights was to only limit the newly-created federal government, and not the States. Then, subsequent to the American Civil War, parts of the Bill of Rights have been progressively incorporated against the States.

It wasn’t that the principles of the Bill of Rights shouldn’t apply to the States, but the Bill of Rights didn’t apply to them for two main reasons:

1) Most of the States already had similar bills.

2) A federal Bill of Rights would be used to federalize the application of the Bill of Rights, which could lead to bad decisions applying to the entire country and subvert the federal design of the government, with the States sovereign within their respective jurisdictions.

Therefore, by original design, this “loophole” wasn’t a loophole because the federal government understood that it had no power to define and prosecute crimes that were completely within the exclusive jurisdiction of the States.

Where it became a problem and a loophole, was when the federal government stepped beyond its constitutional bounds and defined crimes that it had no valid constitutional basis for doing so.

The few and defined federal crimes in the Constitution are treason, piracy, counterfeiting and crimes against the laws of nations.

I don’t share the view of some that Congress had no power to define additional laws.

Article I, Section 8 of the Constitution specifically grants Congress the power to:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

This gave Congress the power to define any crimes it wanted that would apply to this District.

Outside of that District, I argue that Congress still has the power to define additional crimes. For example, crimes relating to its power to coin money. And we see from the 1792 Coinage Act, that death was the penalty for debasing the currency.

This is further evidenced by Article II, Section 4, which states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The mention of “other high Crimes” implies that Congress can define and punish other “high Crimes”, not only within the District, but outside, because of the mention of “all civil Officers”.

But, the restriction upon defining new crimes is whether it relates to what is “necessary and proper” for carrying out Congress’ 18 enumerated powers.

Therefore, federal “crimes” relating to cross-state drug “offences”, cross-state “terrorism” “offences”, etc., are completely invalid, and this is where the double jeopardy loophole applies.

How to deal with the federal government going beyond its constitutional boundaries in defining and punishing non-crimes? The States should nullify them by preventing state officials from providing any support or co-operation for the prosecution of these federal non-crimes.

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United States ConstitutionI fell for the myth of the “godless” U.S. Constitution until 2012.

Here are the reasons the United States Constitution is not “godless”, with thanks to Pastor David Whitney of the Institute on the Constitution for bringing up some of these points up during a presentation he made on Radio Liberty with Dr. Stan Monteith:

Starting with the preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Where do “Blessings” come from, if not from God?

And the Declaration of Independence makes it clear that the “Creator” is the author of “Liberty”, as we see from its text:

We 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.

Then, there are the references in the Constitution to oaths, such as this one:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.

The distinguishing feature between an Oath and Affirmation is that an oath is sworn to God, while an affirmation is only solemnly stated.

We see this from the Merriam-Webster dictionary’s primary definition for oath:

1a (1) : a solemn usually formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says

and with all definitions of affirmation, there is no mention of God:

1a : the act of affirming
b : something affirmed : a positive assertion
2 : a solemn declaration made under the penalties of perjury by a person who conscientiously declines taking an oath

The second definition shows that one makes an affirmation by conscientiously declining to take an oath, meaning that one doesn’t believe in God, or doesn’t feel that it is necessary to do so, while still believing in God.

Then, for the requirement of the President upon taking office:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Then, for the oath or affirmation required of Senators and Representatives:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The “no religious Test” requirement is internally supported in the Constitution by the ability to either swear an oath or make an affirmation, and its purpose was to prevent religious divisions among the many Christian denominations at the time, and later, among different religions.

The most cited reference made by those advocating a “godless” Constitution refer to the First Amendment, which states, in part:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

This is one of the most misunderstood parts of the Constitution. It only limits Congress from establishing any official national religion, and from prohibiting the free exercise of religion anywhere in the United States. It does nothing to prevent the States from doing so, within their respective jurisdictions. This is evidenced by the states of Massachusetts and Connecticut having official state religions after the U.S. Constitution was adopted.

And since the Executive can only execute laws passed by Congress, if Congress can pass no laws establishing an official religion, nor prohibiting the free exercise of religion, the Executive also cannot implement any regulations doing the same.

Then, since the judicial branch can only interpret laws passed by Congress, they are also prevented from doing the same.

Notice that there is no “wall of separation between Church and State” mentioned here, or anywhere else in the Constitution. In fact, that reference is from a 1802 letter by Thomas Jefferson to the Danbury Baptists, which referred to a one-way wall of separation, with the newly constituted federal government unable to interfere with religious worship in any way.

Then, in the Fourth Amendment, we see a reference to an “Oath”.

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.

Long before 2012, I was aware of the mention of “the Year of our Lord” in the Constitution, and accepted the notion that it was just used as a convention at the time.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.

However, if it connoted nothing religious, then why did Thomas Jefferson’s aforementioned 1802 letter only show him signing the date and year, and mentioning nothing about “the Year of our Lord”?

Finally, the mention of most of the rights in the Bill of Rights are references to natural rights, and where do those natural rights come from? The signers of the Declaration of Independence made it clear that they are from the “Creator”, who is also “Nature’s God”.

For more on the godly nature of the U.S. Constitution and U.S. form of government, see my interview with Pastor David Whitney here.

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Dick Cheney, Vice President of the United States.

Showing that his ignorance of, or disdain for, the Constitution doesn’t only apply to nine of the 10 amendments that constitute the Bill of Rights, Dick Cheney said in his February 13, 2013 interview with Charlie Rose (at 41:17):

I think it’s very important we not infringe the rights granted to all Americans under the Second Amendment

Except that the Second Amendment granted no rights, and only affirmed existing rights, including the right of self-defense.

Further demonstrating his willful ignorance, given that he repeatedly swore an oath to uphold the Constitution, Cheney fails to realize that the sole purpose of the Second Amendment is to recognize the existing right to keep and bear arms as a bullwark against government tyranny, which is why the right to keep and bear arms is mentioned in connection with a well regulated militia.

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English: Antonin Scalia, Associate Justice of ...

From the November 27, 2012 interview with Supreme Court Justice Antonin Scalia on Charlie Rose:

  • 9m – Says he supports a reasonable, not a strict interpretation of the Constitution. This is, of course, how he justifies so called “reasonable” limitations on the enumerated rights in the Bill of Rights, such as “reasonable” gun control restrictions.
  • 17m – Says back in the good old days, judges used to lie when changing the meaning of the Constitution, but now they make it mean whatever they say it means
  • 18m – Says he has no more power to interpret the constitution than the President or the legislative branch
  • 19m – His Lincoln hypocrisy on habeas corpus, in criticizing it, yet ruling in Hamdan v. Rumsfeld (2006) that habeas corpus didn’t apply to a non-U.S. citizen detained at Guantanimo Bay, in the absence of a constitutional suspension by Congress, despite the U.S. Constitution restricting the power of the federal government, regardless of the citizenship or location of the detainee.
  • 35m – He expressed his surprise about Chief Justice John Roberts’ tax clause ruling in support for Obamacare
  • 37m – Claimed that the majority opinion in Bush v. Gore was based upon the Florida courts allegedly violating the Constitution, yet mentioned about the U.S. Supreme Court decision ending the vote counting so the U.S. wouldn’t be a laughing stock
  • 41m – Says judicial activism started under the Warren court
  • 46m – Says he had to do all of the originalist interpretation when he got on the court, since no one else was doing that
  • 49m – Charlie Rose said he promised Scalia he wouldn’t ask him anything he didn’t already know the answer to, showing how such interviews are tightly scripted and controlled

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Ellen BrownIn her January 15, 2012 OpEdNews article, Occupy the Neighbourhood: How Counties Can Use Land Banks and Eminent Domain, Ellen Brown writes:

Local governments have the power of eminent domain: they can seize real or personal property if (a) they can show that doing so is in the public interest, and (b) the owner is compensated at fair market value.

Eminent domain is the power of government to take private property for public use. It is governed by the relevant section of the Fifth Amendment to the U.S. Constitution, which states:

[N]or shall private property be taken for public use, without just compensation.

The term “public use” was always intended to mean owned by the public, and not by private entities.

This principle was overthrown nationwide by the U.S. Supreme Court decision, Kelo v. New London (2005).

If public use meant for private use, then well-connected private entities could use the power of government to seize private property for their own private use, and that is contrary to one of the goals of the Constitution, in protecting private property.

She writes that in the case of seizing properties being foreclosed on by the banks:

The public interest part is obvious enough.

Except that it’s not in the public interest to seize private property from one individual to give it to another under this clause of the Constitution.

I do want to point out that I part company with the majority of self-styled libertarians and conservatives who say that The Bill of Rights applies to corporations, of which banks are. I hold that the Bill of Rights applies only to individuals and non-corporate associations of individuals, since only individuals have “rights.” Corporations are creatures of government, as Stefan Molyneux so clearly espouses, and, therefore, they have no rights.

But the question of whether corporations are covered by the Fifth Amendment to the Constitution is separate from whether the “public use” provision refers to whatever government says is for public use.

I do find it odd that she takes the originalist position on the power of Congress to coin money as meaning only the power to strike coin, while not taking an originalist position on this and several other key provisions of the Constitution.

While it can be argued that “public use” has a flexible definition that “coin money” doesn’t, those who say coin money means the power to create money would take exception with that view. In any case, I don’t see her making a consistent application of originalist interpretation in these two cases.

For more on eminent domain, see my articles:
1) The Supreme Court of the United States isn’t interested in protecting liberty or property
2) A gold mine of opportunity and a deficit of principle

There have been times I have agreed with Ellen Brown, but on this, I can’t agree.

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Robert R. Livingston

To me, the American creed is best expressed in the Declaration of Independence:

We 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.

The past 10 years since the September 11, 2001 attacks have served as a great wake up call to me.

Growing up as a Canadian, I was told how Americans were fundamentally different from us Canadians. I was raised to believe that they don’t tolerate their government pushing them around like we Canadians do.

The events since September 11, 2001 have forever shattered that comfortable yet dangerous illusion I had grown up with.

July 4, 1776 was a momentous and unique day in human history. It was probably the closest that Americans came to realizing their true identity as sovereigns with natural rights, instead of citizens with privileges granted by government.

Historically, Canadians have had no problem sacrificing individual freedoms in the interest of protecting public safety, and the overreaching government actions that have taken place in the U.S. since 9/11 would not have been inconceivable had they taken place in a Canadian context.

But in a U.S. context? Such responses are completely alien to America’s founding creed.

The post 9/11 adoption of the so-called Patriot Act, which eviscerated several natural rights recognized by the Bill of Rights, and its repeated renewal under different Congresses and a different President who had promised “change,” showed me that the America of today is a very different one than the one I remember as a child.

The surprising results since 9/11 have been that the United States is now more socialistic than Canada, its federal government has higher taxes than Canada’s, only has a mostly free economy compared to Canada’s free economy, and its federal government is more centralized and expansive than Canada’s.

Since 2010, Canada has been pointing the way forward in forcing an overreaching government to retrench to some degree in the face of an otherwise general trend toward less individual liberty.

Even unintentionally, Canada has become more free in the past few years, with the Conservative minority Harper government pulling combat troops out of Afghanistan by 2011 as a consequence of fearing electoral losses for not pulling out.

They also scrapped the long-form census by 2011, even though it seems evident to me that it was purely for partisan reasons, and not out of a genuine commitment to personal privacy, to the point that it is less intrusive than the American census, despite the U.S. Constitution only calling for an enumeration of its residents for the purposes of determining representation in the House of Representatives.

Now, with the election of a Conservative majority government in May 2011, they are committed to ending the wheat and barley marketing monopoly, and scrapping the long-gun registry, and as a consequence, Canada will be more free.

Canadian Prime Minister Wilfrid Laurier once said that the 19th century belonged to the United States, but the 20th century will belong to Canada. Well, he was clearly wrong, but perhaps only with regard to his timeline. If Canadians embrace their successes and move forward in achieving greater liberty, than Canada can stand out from other nations as a beacon as the United States once did.

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Two hangman's nooses and gallows behind the co...

Some have argued that the death penalty is unconstitutional, including the Supreme Court itself in the case of Furman v. George (1972), citing the prohibition against cruel and unusual punishments in the Eighth Amendment to the U.S. Constitution, which states:

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

While I would agree that a specific application of the death penalty is unconstitutional if it violates the constitutional provisions of criminal justice, another amendment to the Constitution clearly shows the death penalty is a constitutional form of punishment for certain crimes.

The relevant sections of theĀ Fifth Amendment are:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,

and:

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

and:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

Since all 10 amendments to the U.S. Constitution, which constitute the Bill of Rights, were ratified on the same day of December 15, 1791, it is therefore clear that their provisions should be considered as a whole.

The fact that the Fifth Amendment mentions “capital crime,” “jeopardy of life,” and “deprived of life” as valid under certain circumstances shows that the death penalty is a constitutional form of punishment for certain crimes.

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