How the New Indefinite Detention Provisions can be used on Americans

Congress just passed, and the President just signed, a bill that gives legal authority to the President to kidnap and perpetually imprison persons, including American citizens, without the benefit of due process.

Members of Congress, in the days leading up to the vote, tried to assure their constituents that they have nothing to fear — that the bill doesn’t apply to Americans.

Some were lying. Most were deceived.

Now, I don’t want to imply that Barack Obama plans to sweep up every one of his critics (or even a select few) because of statements they’ve uttered publicly. That is overstatement. The law doesn’t permit that. But consider the following scenario…

You object to the way the Federal Leviathan State is run. You gather, every other Tuesday, with others who share your values. We’ll call your fictional group the Constitution League (CL).

One night, a new fellow shows up. He’s frustrated and outspoken. He complains that the time for meetings is over. Something must be done — something that will “get their attention.” You’re uncomfortable with his remarks but unsure how to respond.

You hope he never returns, and he doesn’t.

What you don’t know, until months later, is that one of our CL colleagues, the chapter Vice President, followed the vocal man out to the parking lot. The two exchanged email addresses and phone numbers. Then, your local VP reached out to a third man, a member of a CL chapter in the nearest big city. The three met regularly. They plotted and executed their own terrorist plot on a U.S. Government facility.

Now, your group meeting was the place they met. The Vice President used his CL email account. CL is all over the news. CL is now, for all intents and purposes, a terrorist group.

And you? Well, you’ve donated to the terrorist organization. You’ve participated in its meetings. The night this angry man walked in, you didn’t call the authorities.

* Can the President have the military come and arrest you? Yes!
* Can he (or she) send you to a military tribunal for trial or just hold you indefinitely in a military facility, without charges? Yes!

Even the bill co-sponsor, Senator McCain, appears to agree with this assessment. Senator Rand Paul asked John McCain, on the Senate floor, “…under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?” McCain responded, “I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.” {Emphasis Added}

Wait a minute. Wasn’t there a provision in this bill that exempted Americans?

Despite what your Congressional office may have told you (if you called during the debate over this bill) the answer to that question is an emphatic NO!

The relevant sections of the bill are 1021 and 1022.

* Section 1021 asserts the President’s authority to arrest suspected (not convicted) terrorists and gives him the option to choose whether or not they even get a trial, and if so, what kind of trial.

* Section 1022 requires that a certain class of terrorist get no trial. Instead they must be held in military prisons, for as long as this President, or any future President desires.

SECTION 1021

Section 1021 is very expansive in its reach. It “includ[es] any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

* Who is “any person?”
* What is a “belligerent act?”
* What is “direct support?”

One could be safe in assuming these words mean whatever a creatively-minded prosecutor, a flexible judge, and an ignorant jury define them to mean — EXCEPT THAT, UNDER THIS ACT, ONE MIGHT NEVER GET AS FAR AS A COURT HEARING.

These terms will be defined by the bureaucrats in power.

They could be used against political opponents.

1021 has NO exceptions. There’s not even a hint of an exception. Remember, that section gave the President the authority to arrest you and a set of options on how you were to be handled. These choices are completely divorced from the 4th, 5th, 6th, and 8th Amendments, as well as the Treason provisions of Article III. The President’s new alternatives are…

1. Detention without trial by the military
2. Trial by a military commission
3. Trial by some other court of the President’s choosing
4. Shipping you off to a foreign jurisdiction (info here)

SECTION 1022

1022 is a REQUIREMENT — a binding mandate upon the President. President Obama threatened to veto the bill, but only because he feared 1022 would restrict his power too much. http://gawker.com/5866210/jon-stewart-bashes-obama-for-backing-indefinite-detention-bill

This section is for your fellow CL members/plotters. Whereas, you got snatched up for “support” or “aid” to the plot, they actually carried out an attack, or as the section itself indicates…

“…participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

Section 1022 requires the President to go with option #1 above — the other three options are off the table. In other words, no trial, either in a civilian court or military tribunal.

In the final version of the bill, after a public storm started to erupt, the title of the section was changed to indicate that it only applied to “foreign al-Qaeda terrorists.” However, titles are not normally considered part of the law but merely summary descriptions to the reader of a bill.

But this title is especially IRONIC, because it’s this section that includes the so-called exemption for American citizens. Why would you need to exempt American citizens from a section of law that applies to “foreign al-Qaeda terrorists?”

The answer is because the section applies to any kind of “terrorist,” domestic or foreign, no matter what the title says.

And here’s the so-called exemption, with the key word highlighted…

The REQUIREMENT to detain a person in military custody under this section does not extend to citizens of the United States.

That means that military custody, without a trial, is mandated by law, but that the President, at his discretion or by written policy, may issue a waiver on the basis that a person is an American citizen.

If this provision was a true safeguard for American citizens, then the line would’ve been written like this…

Military custody of citizens of the United States is still prohibited under this act.

See the difference? It’s a requirement that can be waived at discretion, as opposed to a prohibition.

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Now, do you realize Congress has given the Federal State the power to use military detention on its own citizens? And that they’ve made it possible to wage a war on peaceful activists, if they can just incite someone in your group to attempt something violent?

Don’t worry. It’s not like the FBI is busy infiltrating meetings, entrapping some dullard into a plot, equipping and financing his efforts, and then claiming credit for stopping another terrorist attack! Oh wait, that’s happened about 40 times since 9/11.

Thus, to complete our story, the angry man who showed up at the CL meeting might’ve work for the FBI. And he duped two idiots in your group, who put you and your fellow members in legal jeopardy.

This new law is that serious. President Obama has claimed he won’t use this power. All that needs to happen now is a provocative incident. Then, all bets are off. Since these nearly unlimited, un-constitutional powers are now law, this President, or a future one, will be able to kidnap and disappear Americans. It could very easily be open season for the police state.

—–

Jim Babka is the President of Downsize DC Foundation and DownsizeDC.org, Inc.. DownsizeDC.org will soon launch a campaign to repeal these sections from the law.

Copyright © 2012 by Jim Babka. Permission to reprint in whole or in part is gladly granted, provided full credit to the author, DownsizeDC.org and TenthAmendmentCenter.com is given.

EDITOR’S NOTE: Most Americans take freedom for granted. Igor Prohorov does not. He was born and spent his childhood in a country that suffered under one of the most tyrannical regimes in modern history.  His experiences, and those of his family, make his message that much more poignant.

I was born in small port-city of Kerch, Ukraine in 1986. Although I was only 11-years-old when I immigrated to U.S. with my family, I can still remember all the chaos that followed the collapse of the Soviet Union. Gangs ruled the streets; people were selling their own children at the Bazaars to get some money to buy food and pay rent. There was corruption all around, to put it simply.

Although these were tough times, the real tyranny was during the Soviet era. As many of you know, Stalin was a ruthless leader, a murderer who is responsible for more Russians deaths than even Hitler.

One of the people to suffer during Stalin’s regime was my step-grandfather. He was generous enough to sit down with me and tell his story, but was hesitant to go into many details. Alex (he refused to give out his last name), was one of the millions of people that were picked up on a random sweep by the security forces (KGB), and sent to Siberia to work in the Gulags. He was never given a reason for why he was arrested, and ended up serving a couple of years in the slave camps.

These camps were a big secret in our country for many years, until a famous writer and a former Gulag prisoner, Aleksandr Solzhenitsyn, came out in public and wrote multiple books about it. One of the most famous books  by Solzhenitsyn is  Gulag Archipelago. This book was my mom’s favorite. She was a librarian, but was only allowed to have books that were approved by the state. And of course, this book was banned. She had to literally risk her life to obtain and hide this book in her home.

These are just a few examples of how our liberties perish under an all powerful state.

We live in the greatest country on earth, and our citizens are truly blessed to have the opportunity to practice their religion, to speak out about an issue of their concern, to petition the government, to bear arms, and most importantly, to have a right to due process under the law and the right to a fair trial.

Our Founding Fathers clearly understood the evils of big government, and the importance of civil liberties and privacy. They risked everything, including their very lives, to fight for freedom and justice. They gave us the greatest document of all time – the U.S. Constitution. The Constitution was written specifically to LIMIT the power of the Federal Government and not allow this country to become like Europe.

Over the past few years, I have seen our liberties slowly fade away. Our government is now allowed to read our mail (and e-mail), to check our financial transactions, to spy on us without a warrant and/or probable cause, and even assassinate U.S. citizens without a trial. Recently, much attention has been focused on a proposed  NDAA bill, which would allow the military to detain Americans indefinitely, just like the Soviet Union did to my step-grandfather. Moreover, we have had laws on the books for decades allowing the government to have almost unlimited power in an event of a national emergency.

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What is it going to take for American people to wake up and understand that tyranny has no borders, that it can spill over to our nation, and imprison our minds and our citizens? Russian people were way too apathetic and were scared to speak out against tyranny before it was too late, and look how many millions of people perished.

Will the American people finally stand up and say NO to big government and take back our country, restore our civil liberties, and our Constitution?

Time will tell…

Igor Prohorov is a young, independent and energetic Ukrainian immigrant who has seen with his own eyes the dangers of big government and the consequences that follow it. He has been spreading the message of liberty and limited government and has kept a close eye on those who don’t care for it. Contact Igor at igorprohorov1986@gmail.com.

EDITOR’S NOTE: At the recent GOP debate on CNN, the Patriot Act was the lead subject. Newt Gingrich told viewers that the act wasn’t strong enough. Herman Cain was willing to get rid of some it, but wasn’t willing to “throw the baby out with the bath water.” Candidate after candidate referred to the Patriot Act as good, neceesary, and something they would most-certainly be in favor of keeping, or strengthening. Ron Paul was the only candidate with the courage to say that the Patriot Act is both a violation of liberty and the constitution. Reinforcing this correct view – we present the following column on the Patriot Act, written by Judge Andrew Napolitano on December 16, 2005.

Congress once respected the Fourth Amendment until it began cutting holes in it. Before Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1977, Americans and even non-citizens physically present here enjoyed the right to privacy guaranteed by the Fourth Amendment. That Amendment, which was written out of a revulsion to warrants that let British soldiers look for any tangible thing anywhere they chose, specifically requires that the government demonstrate to a judge and the judge specifically find the existence of probable cause of criminal activity on the part of the person whose property the government wishes to search. The Fourth Amendment commands that only a judge can authorize a search warrant.

FISA unconstitutionally changed the probable cause of criminality requirement to probable cause of employment by a foreign government, hostile or friendly. Under FISA, if the government can demonstrate the foreign agency or employment status of the person whose things it wishes to search, the secret FISA court will issue the search warrant.

But even FISA respects constitutional liberty, since it prohibits prosecutions based on evidence obtained from these warrants. Thus, if a FISA warrant reveals that the embassy janitor is really a spy who beats his wife, he would not and could not be prosecuted for either crime because the evidence of his crimes was obtained in violation of the Fourth Amendment’s requirement of a judicial finding of probable cause of criminal activity. Instead of being prosecuted, he would be deported.

A year later in 1978, cutting yet another hole in the Fourth Amendment, Congress revealed its distaste for fidelity to the Constitution and its ignorance of the British government’s abuse of the colonists by enacting the Orwellian named, Right to Financial Privacy Act. This statute, for the first time in American history, let federal agents write their own search warrants, but limited the subjects of those warrants to financial institutions. Just like FISA, it recognized the unconstitutional nature of evidence obtained by a self-written search warrant, and banned the use of such evidence in criminal prosecutions.

In 1986, Congress continued to cut. It disregarded yet again the Fourth Amendment’s protection of privacy when it enacted the Electronic Communications Privacy Act which allowed federal agents to serve self-written search warrants on collectors of digital financial data, but continued to recognize that evidence thus obtained was constitutionally incompetent for criminal prosecution purposes.

The deepest cut came on October 15, 2001 when Congress enacted the Patriot Act. With minimal floor debate in the Senate and no floor debate in the House (House members were given only 30 minutes to read the 315 page bill), Congress enacted this most unpatriotic rejection of privacy and constitutional guarantees. Together with its offspring the Intelligence Authorization Act for Fiscal 2004 and the Intelligence Reform Act of 2004, the Patriot Act not only permits the execution of self-written search warrants on a host of new subjects, it rejects the no-criminal-prosecution protections of its predecessors by requiring evidence obtained contrary to the Fourth Amendment to be turned over to prosecutors and mandating that such evidence is constitutionally competent in criminal prosecutions.

The new version of the Patriot Act which the Senate will debate this weekend purports to make all of this congressional rejection of our history, our values, and our Constitution the law of the land.

So, if your representative in the House has voted, or your Senators do vote, for the House/Senate conference approved version, they will be authorizing federal agents on their own, in violation of the Constitution, and without you knowing it, to obtain records about you from your accountant, bank, boat dealer, bodega, book store, car dealer, casino, computer server, credit union, dentist, HMO, hospital, hotel manager, insurance company, jewelry store, lawyer, library, pawn broker, pharmacist, physician, postman, real estate agent, supermarket, tax collectors, telephone company, travel agency, and trust company, and use the evidence thus obtained in any criminal prosecution against you.

Why would Congress, whose members swore to uphold the Constitution, authorize such a massive evasion of it by the federal agents we have come to rely upon to protect our freedoms? Why would Congress nullify the Fourth Amendment “guaranteed right to privacy for which we and our forbearers have fought and paid dearly? How could the men and women we elect to fortify our freedoms and write our laws so naively embrace the less-freedom-equals-more-security canard? Why have we fought for 230 years to keep foreign governments from eviscerating our freedoms if we will voluntarily let our own government do so?

The unfortunate answer to these questions is the inescapable historical truth that those in government from both parties and with a few courageous exceptions do not feel constrained by the Constitution. They think they can do whatever they want. They have hired vast teams of government lawyers to twist and torture the plain meaning of the Fourth Amendment to justify their aggrandizement of power to themselves. They vote for legislation they have not read and do not understand. Their only fear is being overruled by judges. In the case of the Patriot Act, they should be afraid. The federal judges who have published opinions on the challenges to it have all found it constitutionally flawed.

The Fourth Amendment worked for 200 years to facilitate law enforcement and protect constitutional freedoms before Congress began to cut holes in it. Judges sit in every state in the Union 24/7 to hear probable cause applications for search warrants. There is simply no real demonstrable evidence that our American-value-driven-constitutional-privacy-protection-system is in need of such a radical change.

Learn the truth from Judge Nap

A self-written search warrant, even one called a national security letter, is the ultimate constitutional farce. What federal agents would not authorize themselves to seize whatever they wished? Why even bother with such a meaningless requirement? We might as well let the feds rummage through any office, basement, computer, or bedroom they choose. Who would trust government agents with this unfettered unreviewable power? The Framers did not. Why would government agents bother going to a judge with probable cause seeking a search warrant if they can simply write their own? Big Brother must have caught on because federal agents have written and executed self-written search warrants on over 120,000 unsuspecting Americans since October 2001.

Is this the society we want? Have we ultimately elected a government to spy on all of us? The Fourth Amendment is the lynchpin of our personal privacy and individual dignity. Without the Fourth Amendment’s protections, we will become another East Germany. The Congress must recognize this before it is too late.

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel, and the host of  FreedomWatch on the Fox Business Network. His latest books are Lies the Government Told You: Myth, Power, and Deception in American History, (Nelson, 2010), and his newest release, It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom.

Copyright © 2011 Andrew P. Napolitano

Have we forgotten our liberties as we trudge along in our daily lives as they are stripped away without notice?  We wake up in the morning, throw on the coffee and grab something to eat before we start our day.  Some read the paper and some do without because the reporting in them is pretty bad today.  We go to work, put in our day in order to make a pay day and provide for ourselves and our families.  After work, maybe a quick beer with coworkers or friends to talk about the latest sports news or maybe make plans for the weekend.  We come home and see the family and ask the kids how school was today.  We sit down to dinner and then relax before we get some sleep and start again tomorrow. 

But what really happened?  Were your liberties preserved or did something else happen that you are unaware of?  How can that happen, our founding fathers drafted a document in order to form a more perfect union.  A union of states comprised of sovereign citizens.  A more perfect union under our Constitution that guarantees our liberties.  Sadly, our Constitution has been twisted, crumpled and stood on its head for a long time now.  Where is it? 

When I was stationed in Norfolk, Virginia, I used to drive up to Washington D.C. once or twice a year and spend time in the museums.  But my favorite place was the National Archives.  Walking into the majestic Rotunda  and staying inside that velvet rope as I walked along the display cases.  Ever vigilant guards on the lookout for trouble, there to protect those valuable documents.  I always found it amazing as I approached and looked at the Declaration of Independence, The United States Constitution and Bill of Rights.  There they are safe and sound.  Under heavy glass and an environmentally controlled atmosphere.  No climate change in there, no sir!  

But are they safe?  No, they are not.  They are not, because we have trusted others to protect them and forgotten the price for our liberties.  We have forgotten that an eternal vigilance is the price of liberty.  Samuel Adams proclaimed in a letter to James Warren in 1775,

“No people will tamely surrender their Liberties, nor can
any be easily subdued, when knowledge is diffused and Virtue is
preserved. On the Contrary, when People are universally ignorant,
and debauched in their Manners, they will sink under their own
weight without the Aid of foreign Invaders.” 

We have been sinking under our own weight and ignoring events as our liberties have been stripped away from us like loggers clear cutting a mountainside.  We surrender our property to bureaucrats who spend it wastefully or give it away.  A government that has overstepped its bounds for way too long.  They tell us how much money we owe them, what kind of car to drive, what kind of gas to buy, what to eat and drink.  These are all liberties that we have watched freely as they have been stripped from us.  Without so much as a fight in most cases we have allowed this to happen, much under our watch. 

It does not take a constitutional scholar to understand the constitution.  The powers of the government are enumerated and clearly defined.  Some like to take a phrase or two out of the preamble or claim power because of a couple words found elsewhere.  If the founding fathers intended for the “General Welfare” clause to grant the federal government powers to do whatever they wanted than why did they take the time to list the enumerated powers?

A number of prominent citizens were alarmed at the omission of individual liberties at the draft of the Constitution.  George Mason and others refused to sign it.  Thomas Jefferson, serving as the US Minister to France at the time, wrote to James Madison that he was concerned about “the omission of a bill of rights…..providing clearly……freedom of religion…..freedom of the press…..protection against standing armies and restriction against monopolies.” 

George Washington, at his first inaugural address urged the Congress to propose amendments that offered “a reverence for the characteristic rights of freemen and a regard for public harmony.”   12 articles were proposed and articles 3-12 were ratified in 1791 and became the first ten amendments of our constitution.

So, is it too late?  Have we failed as a society?  No it is not.  That is why the Tenth Amendment is important to each of us.  It is not a left or right idea, not a republican or democrat idea.  It is part of our Constitution and it is our duty as citizens to see that our state representatives perform that which they are “duty bound” to do.  To protect the sovereign citizens of the state. 

Resolved,

Reach out to your representatives, your coworkers and friends.  This is our watch and our time to become vigilant, our time to bring our Constitution back from exile.

“In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” – Thomas Jefferson

Bernie LaForest is the Outreach Director for the Wisconsin Tenth Amendment Center.

In the Preamble to the US 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.

we find this list of goals:

• 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

This essay, will look at the final goal.  How does the Constitution “secure the Blessings of Liberty” to anyone?

Default Deny or Default Allow

There are two concepts from security that are especially relevant to understanding the Constitution.  These are, the white list and the black list.  The white list, or default deny, precludes everything except for a list of allowed objects.  The black list, or default allow, permits everything except for a list of disallowed objects.  According to Wikipedia,

A whitelist or approved list is a list or register of entities that, for one reason or another, are being provided a particular privilege, service, mobility, access or recognition. As a verb, to whitelist can mean to authorize access or grant membership. Conversely, a blacklist is a list or compilation that identifies entities that are denied, unrecognised, or ostracised.

Renowned security expert, Bruce Schneier writes,

Whitelisting vs. Blacklisting

The whitelist/blacklist debate is far older than computers, and it’s instructive to recall what works where.  Physical security works generally on a whitelist model: if you have a key, you can open the door; if you know the combination, you can open the lock.  We do it this way not because it’s easier — although it is generally much easier to make a list of people who should be allowed through your office door than a list of people who shouldn’t–but because it’s a security system that can be implemented automatically, without people.

To find blacklists in the real world, you have to start looking at environments where almost everyone is allowed.  Casinos are a good example: everyone can come in and gamble except those few specifically listed in the casino’s black book or the more general Griffin book.  Some retail stores have the same model — a Google search on “banned from Wal-Mart” results in 1.5 million hits, including Megan Fox — although you have to wonder about enforcement.  Does Wal-Mart have the same sort of security manpower as casinos?

Note, especially, two of Schneier’s remarks.  First, “To find blacklists in the real world, you have to start looking at environments where almost everyone is allowed.” and second, “you have to wonder about enforcement“.

Securing access with a white list is relatively easy.  Everyone is kept out except for those few people who can prove that they’re entitled to enter.  In a white list, the people to be allowed entry are few and defined.  The list of people to be kept out is numerous and indefinite.

As Schneier notes, securing access with a black list is much harder and more expensive.  The people to be allowed in are numerous and indefinite, while the list of people to be denied are few and defined.  Often, the blocked person is not identified until after they have already obtained access.

Black Lists and White Lists in the Constitution

As noted, one goal of the Constitution was to “secure the Blessings of Liberty to ourselves and our Posterity”.  To this end, the framers used a mix of white lists and black lists.

Article I, Section 8 of the Constitution provides a list of powers which the Congress is allowed to perform.  By allowing congress to perform these powers, a white list is implied.  If we analogize to the physical world, the people have used the Constitution to build a wall to protect these powers.  The people and the States are outside the wall with all of the secured powers.  The Congress has been given a key to be able to access these powers (and only these powers).

Article I, Section 10 of the Constitution provides a list of powers which are denied to the States.  The nature of this list implies that it is a black list.  As Schneier said, “you have to start looking at environments where almost everyone is allowed” — in this case, it’s an environment where almost everything is allowed.

Looking at these two sections in conjunction, we see that Madison was correct, when he wrote in Federalist #45,

The powers delegated by the proposed Constitution to the federal government, are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

Article I, Section 8 delegates a white list of few and defined powers to the federal government.  Article I, Section 10 uses a black list to declare that the powers which remain to the states are numerous and indefinite.

But wait… There’s more!

At this point, we have a logically complete description, but many of the people at the time of the ratification conventions were unsatisfied by the implicit nature of the protections, and demanded a “Bill of Rights”.  If seen by themselves, Amendments 1 through 8 would imply a black list.  A list of things which the government may not do is established.  If the government is not allowed to infringe these powers, it might be assumed that others, not listed, could be infringed.  However, Amendment IX prevents that erroneous inference.

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

Even if a right isn’t explicitly protected by the Bill of Rights, it still cannot be infringed without an explicit authorization elsewhere in the Constitution.  Conservative commentators often get this one wrong when they rail about the Supreme court “discovering” Constitutional rights.  There are, of course, no Constitutional rights.  The Constitution was intended to protect the People’s Natural rights.  The Ninth Amendment tells us that a right does not need to be explicitly itemized in the Constitution in order to be protected.

Similarly, the tenth amendment reaches all the way back to Article I, Section 8 and changes the implicit definition of that white list to an explicit one.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This clearly spells out the “default deny” nature of the powers of Congress.  This creates a wall which can only be opened if the federal government uses the keys provided by its enumerated powers.

The Pernicious Nature of Case Law and The Living Constitution

If a stated goal of the Constitution is to Secure the Blessings of Liberty, against whom are those blessings being secured?  It should be obvious, I hope, that one intent of the Constitution was to protect our Liberties from our Government.  The claim that the federal government must reinterpret the Constitution to fit the times, then, works exactly in opposition to the goal of securing the Blessings of Liberty.

For example, when the Constitution was ratified, “Interstate Commerce” in Article I, Section 8, meant interstate commerce.  Case law and the living constitution have effectively changed the meaning of “interstate commerce” to “anything the Supreme Court doesn’t reject” (or “anything we damned well please”).  If a farmer growing wheat in his own field to feed his own livestock is engaged in Interstate Commerce, then anyone is.

In fact, what the Living Constitution has done was to replace the white list found in Article I, Section 8 of the Constitution with a black list whose rare restrictions are recorded in case law, not in the Constitution, itself.  Worse than simply changing the meaning of some of the words, the “Living Constitution” has been used to fundamentally transform the nature of the protections afforded by the Constitution!

If we want to Secure our Liberties, we must get back to the meaning of the Original Constitution.  Article I, Section 8 of the Constitution was intended as a white list which would secure our liberties.  The federal government wants us to start seeing it as a black list, where “almost everything is allowed”.  If we are going to protect the Liberty we have left and reclaim Liberty that has been lost, the States and the People must refuse to tolerate this surreptitious and fundamental restructuring of the Constitution.

Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center.

On a typical day, Mary leaves her home in the morning to go to work. Once on the road, her vehicle passes by multiple traffic and red light cameras that monitor her driving in the event that she might break a traffic law. Upon arriving at work, she is monitored by security cameras as she enters the building and rides in an elevator up to her desk. After work, Mary stops by her local grocery store to pick up a few items, where her every move is tracked by closed circuit security cameras from the time she enters the parking lot to the time she leaves. On her way home, she is stopped at a police sobriety checkpoint, where she is required by law enforcement to hand over her driver’s license for review and submit to a breathalyzer test even though there is no reason to suspect that she is impaired.

John travels by plane frequently for his business. Today, after picking up his ticket, he is selected for enhanced security screening. John knows that he can choose to opt out of the body scanners, which take naked pictures of his body through his clothes, because of the questionable safety of the devices. Instead he opts for a pat down. He is required to leave his personal items unsupervised while his body and genitals are probed and prodded by a TSA agent. While he is receiving his pat down, John also notices a small child being subjected to the same pat down. When John’s pat down is complete he is allowed to return to his property, he discovers a TSA agent going through his credit cards, cash, receipts, and other items in his wallet.

Obviously Mary and John are fictional characters, but their stories are real and shared by millions of Americans every day. Our world is one in which we have been so conditioned to tolerate gross invasions of our persons and property that we simply can’t fathom what it is to be truly “secure in our persons.”

The Fourth Amendment to the U.S. Constitution states:

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.

To understand the Fourth Amendment, we need to go back to the conditions that led the Founders to write it into the fabric of the Constitution. During the colonial era, the British government would issue documents called writs of assistance to authorize law enforcement to perform searches. These writs of assistance were a major source of controversy in the years leading up to the American Revolution, as unlike a modern search warrant, the writs were vague in nature. A writ of assistance did not require probable cause in order to be issued, nor did it have to specify the place to be search or the items for which law enforcement was to search. Any items that were suspected to be untaxed or illegally imported could be seized – with or without proof of any illegal activity. Often the officials who seized these items could keep or sell whatever they seized, leading to rampant abuse of the writs of assistance.

The Founders wanted to prevent these kinds of governmental abuses in their newly formed republic. They wanted people to be truly free to live as they pleased without interference by an overreaching nanny state. Because of their wisdom, Americans were once free to travel from place to place without their every move being recorded on surveillance cameras, without drivers licenses, and without being stopped randomly by police or searched by Transportation Safety Officers in the name of “safety” when there was no suspicion of a crime. This is what it meant to the Founders to be secure in their persons.

The state and local governments are by no means innocent in this downward spiral of personal freedom and security. It is the state and local governments that have either implemented or allowed traffic cameras, red light cameras, and warrantless stops by police with no suspicion of wrongdoing – all in the name of “safety.” Further, the state governments have neglected their constitutional duty to interpose themselves between the federal government and the people when the federal government oversteps the boundaries set forth in the Constitution. Clearly the battle the be secure in our persons is not limited to the federal level.

Now the federal government wants to go even further. We have government health care that will likely overtake and wipe out private health insurance for most people, and as a result the federal government will now have access to all sorts of detailed information on the state of our breasts, prostates, and colons among all the other information they collect on us. Where in the Constitution does it say that the government should be able to surveil our colons? That’s right, it doesn’t. The government is probing more and more deeply into our lives, into places where the Constitution says it has no business being. So what the heck happened between then and now?

“If you want to control the future, you must strip the next generation’s ability to imagine anything different.” – Ernie Hancock

We Americans have become so conditioned to accept whatever our government throws at us in the name of “safety” that we have completely forgotten what it is to live free and be secure in our persons. Our lives are so filled by surveillance cameras, worries about terrorism, fears about food safety, fears about illegal drugs, and other issues that we have forgotten the basics of our republic’s founding. As Mr. Hancock’s statement points out, if we can no longer imagine what it is to be free, then our future is going to be one where we lose more and more of our freedoms to the surveillance of the nanny state. Patrick Henry didn’t give his impassioned speech demanding “give me safety, or give me death.” He was prepared to give up safety and in fact his very life when he said:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

What would Patrick Henry say if he had to go through airport security today? I imagine some TSA agents and all Americans present would get a very fiery and passionate earful about allowing the freedoms that he and the rest of our Founders fought so hard to gift us to waste away. Just as we imagine Patrick Henry giving TSA agents a tongue lashing, we also have to start imagining the world in which we want to live just as Mr. Hancock pointed out. This is not easy, as quite frankly, it’s a world in which most people alive today have never lived. It was a world in which our Founders had never lived either, but they dared to imagine a different world and worked to bring their imagining to reality. Thanks to them, that world existed here once, and it can again. Like our Founders, we must imagine that world and work to make it happen at all levels of government – federal, state, and local.

So one we imagine true freedom and security, how do we make it happen? Fortunately, our Founders foresaw the day when America might not be the free republic they created. They didn’t want future generations to have to suffer through a bloody war to reclaim the freedoms for which they fought. That is why the Founders gave us the tools to peacefully re-imagine our republic in the form of the Tenth Amendment to nullify the unconstitutional actions of the federal nanny state. It’s up to us to fire up our imaginations and step up to the plate and use the tools our Founders gave us to take back those freedoms so that we can once again be truly secure in our persons.

Lesley Swann [send her email] is the state chapter coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Copyright © 2011 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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The past two years have seen an increased discussion on liberty, the role of the Federal government, and the US Constitution.  Much focus has been on the US Constitution due to Washington’s egregious overreach in 2009 & 2010, and adding the last straw to the camel’s back with National Health Care.   It is refreshing to see more Americans regularly reading the US Constitution and other writings by the founders to understand original intent and get us back on track.

What is a Constitution?

As part of our reading, how many have asked what a constitution actually is and also what it is not?  The word constitution is sometimes thrown around loosely and often implied to mean different things to different people.

A constitution is defined as a set of fundamental principles or established precedents according to which a state or other organization is governed.  Our US Constitution is simply the framework for operation of the Federal government.  It establishes the Federal Government as an agent to act on behalf of the sovereign states in certain limited areas.  The powers granted are specifically the enumerated powers in Article 1, Section 8 of the Constitution.  Most of the document discusses how the different branches of the Federal government work- judical, executive and legislative.

More than the Federal Constitution

Just as we don’t look to Washington alone, so to should we not look solely to the US Constitution.  It is not the all defining, all governing document.  It only discusses how the Federal government is meant to operate.  As our 9^th and 10^th amendments make clear, there is a whole other universe of governance and rights:

• 9^th amendment- the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• 10^th amendment- the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As James Madison said,

“The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”  So why do we focus so much on the US Constitution when so much lies elsewhere?

The Bill of Rights and Beyond

The US Constitution is not the only place to fully understand the rights and liberties of the States and individuals.  Although our US Constitution includes a Bill of Rights, the Bill of Rights was primarily an explicit check on the Federal government by anti-federalists.  Their concern was that the language in the US Constitution could be misconstrued to provide the Federal Government with too much power at expense of the States and the People.  At the time, the Constitutional convention was meant to amend the Articles of Confederation and not create an entirely new Constitution.  Anti-Federalists saw the creation of an altogether new Constitution as going too far, especially with regard to the initial language before the Bill of Rights was added.  Author Albert Nock contends in his book “Our Enemy, the State” that the Convention was effectively a coup d’etat.  At a minimum, time has proven the anti-federalists correct.

Dusting off The Declaration and our State Constitutions

So how frequently do we look to sources outside the US Constitution to understand our liberties and retained powers?  Not as often as we should!  The basis for our liberties are best articulated in the Declaration of Independence, and in individual State Constitutions.

I keep a large copy of the Declaration of Independence framed in my den.  It is the ultimate controlling document that describes the aspirations and intent of the Founders.  As Jefferson penned,

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,  —  That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This is what we are about as Americans, and why generations of legal immigrants have sought citizenship and our shores.  It captures our spirit and essence.   The US Constitution is just the cold architecture of federal governance to partially meet these ends on our behalf.

Most of the architecture of governance resides amongst the Constitutions of the individual, sovereign States.  Few people have taken the time to read the Constitution that is most important in their lives-  that of their home state.  Part of it is due the deviation we have taken as a country where we have treated the States as administrative entities of a “national” government.  We have neither a national government nor administrative entities.  The States are powerful sovereigns, and the Federal government is just a limited agent.

So what’s in a State Constitution?

Take the time to read your State Constitution and discover what it contains.  Unlike the US Constitution, nearly all State Constitutions start with a Declaration of Rights or Bill of Rights.  These important sections reinforce the liberties and rights of its citizens and many describe the nature of the relationship of the State to the Federal Government.

As shown in Table 1 at the end of this article, many State Constitutions established prior to the War Between the States mirrored the Declaration’s intent that the people have the unalienable right to alter or abolish government to meet our ends.  These State constitutions truly captured the spirit and intent of the Revolution and the founding unlike the US Constitution.  However after the Northern use of force beginning in 1861, the language in subsequent State Constitutions was often weakened or conditioned upon certain limitations and prohibitions related to perpetuity of the Union or recognition of supremacy over State Constitutions.  This pattern is very apparent with those Constitutions established between 1863 and 1912.  The presence of these limitations in early-admitted states such as North Carolina and Mississippi represent Reconstruction related changes.  It should be noted that the such negative prohibition ceased with Arizona and were gone by the time Hawaii and Alaska became part of the United States reflecting the diminishing fervor of Reconstruction related thinking.

Detailed aspects of our State Constitutions are certainly worthy of exploration and should be subject to further discussion and perhaps future articles.

Summary

As citizens, the US Constitution deserves our recognition and attention to understand how our Federal government works and is limited.  However, if you believe in the original intent of the Founders and are a true “tenther”, take more the time to read the Declaration of Independence and the especially the State Constitutions.  As the Founders told us, these are most important sources.  Share what you uncover with neighbors, friends, the grassroots and your State officials so that we can correctly regain the true nature of our governance and liberty.

-Jim Vetter [send him email] is the Outreach Director for the Pennsylvania Tenth Amendment Center.

In the art and science of perfumery, it is understood that a precise admixture of the right oils makes the perfect perfume.

The master perfumer selects the desired smells from the palette of aromas known as head chords, heart chords, and base chords. Once chosen, the skilled composer harmonizes these raw notes of odor into a seductive olfactory symphony.

If we wish to assure that our children and grandchildren continue breathing the sweet air of liberty, then we must carefully identify the essential oils of which our Constitution — our freedom — is composed and preserve them at all cost. Then, we must anoint the body politic with this enlivening balm.

What are the head chords, heart chords, and base chords of the American republic? Which of all the fragrances did our Founding Fathers mix to concoct the sweetest, most aromatic bouquet ever devised by the political perfumers of history? The evidence is in the product itself, and the various component spices are readily recognizable by one with a trained and discriminating nose.

First, the head chord of American constitutional liberty is the separation of powers. From Aristotle to Polybius, from Montesquieu to Madison, the greatest political minds of all ages sing with one voice in praise of the necessity of the separation of powers in an enduring republic. Whether called “mixed government” or “checks and balances,” the principle is constant: powers must be kept distinct and each must be prevented from exercising too direct an influence over the others.

The authorities have unanimously recommended this arrangement for those seeking to establish a good government.

From Charles –Louis de Secondat, the Baron de Montesquieu:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

From the Greek historian, Polybius:

Lycurgus…did not make his constitution simple and uniform, but united in it all the good and distinctive features of the best governments, so that none of the principles should grow unduly and be perverted into its allied evil, but that the force of being neutralized by the that of the others, neither of them should prevail and outbalance another, but that the constitution should remain for long in a state of equilibrium like a well-trimmed boat….

And finally, from the father of our own constitution, James Madison:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, hat the members of each should have as little agency as possible in the appointment of the members of the others.

Next, we turn to the heart chord, that is, the essential oil that is added to the head chord as the next step in creating the most pleasing government. That element is federalism. Again, we turn to the leading lights of political science.

Once again, from Montesquieu:

This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body,

and:

A republic of this kind, able to withstand an external force, may support itself without any internal corruption. The form of this society prevents all manner of inconveniencies.

Scottish Enlightenment philosopher David Hume agrees with the notion that a federal system would prevent the public interest from being attacked by factions united by “intrigue, prejudice or passion.” States, the smaller republics, would retain most power while granting to the central authority only those limited and specific powers necessary to protect the whole of society.

In the Federalist Papers, Alexander Hamilton supports the American expression of this timeless principle:

The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.

And his Federalist Papers collaborator, James Madison, cogently crystallized the point this way:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

Finally, if the perfume is to be long-lasting and memorable, the base chord must be added to the blend. Without this final ingredient, the scent would quickly dissipate and linger on only in memory.

The foundational additive in the enduring fragrance of American liberty is popular sovereignty. We, the people, are the ultimate and natural authority in our republic and it is only through our voluntary accession that government has any power whatsoever.

John Locke, whose powerful influence was felt by many of our own Founding Fathers and the documents they crafted to create our government, wrote in his Two Treatises on Government:

Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent…. (emphasis in the original)

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Again, from the illustrious Scot, David Hume:

When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could at first associate them together and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty and received laws from their equal and companion.

And, appropriately, the last word on the fundamental nature of the principle of popular sovereignty is from James Madison:

We may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people;

and finally,

As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived…

There is nothing sweeter than the refreshing smell of freedom. For over two hundred years Americans have enjoyed the liberty and stability that is the product of the salubrious atmosphere of self-government. If this fresh fragrance is to endure, however, we must study the recipe handed down to us by the artisans of our constitution and require that all those who serve in the laboratory of our government to commit themselves to using only those ingredients, those essential chords, that time and experience have taught us produces the lasting perfume of liberty that is our birthright.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee with his wife, Sarah. Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author

“And the things that we fear are a weapon to be held against us…” – The Weapon, Neil Peart, Rush

Rahm Emanuel had the gall to say it out loud, but the principle seems to exist inside the skull of virtually every politician on the planet – you don’t ever want a crisis to go to waste.

Less than 48 hours after a man gunned down Arizona Congresswoman Gabrielle Giffords, the politicians quickly went to work capitalizing on this horrible act.

Rep. Robert Brady, D-Pa., announced Monday that he plans to introduce legislation making it a federal crime to use symbols “that could be perceived as threatening or inciting violence against a Member of Congress or federal official.”

“The rhetoric is just ramped up so negatively, so high, that we have got to shut this down,” Brady said during a CNN interview.

While Brady shuts down expression,  Rep. Carolyn McCarthy seized on the shooting to advance her pet cause – gun control. The New York Democrat wants Congress to ban high capacity ammunition clips for handguns. Sen. Frank R. Lautenberg (D-N.J.) says he was prepared to introduce a similar bill in the Senate.

“The only reason to have 33 bullets loaded in a handgun is to kill a lot of people very quickly,” Lautenberg said in a statement. “These high-capacity clips simply should not be on the market.”

It’s easy to scream, “We have to do something!” and demand immediate action when caught up in the emotion of a national tragedy. But that reaction roots itself in fear. And as Peart wrote, fear serves as a weapon far deadlier than any 33 bullet clip.

Alexander Hamilton warned in Federalist No. 8 that people will willingly hand over their liberties when staring into terror’s face.

“To be more safe, they at length become willing to run the risk of being less free.”

Politicians understand this and use it to their advantage, twisting tragedy into opportunites to consolidate power and advance their causes.

Keeping this in mind, perhaps we should slow down for a moment – pause in the heat of our emotion and consider Benjamin Franklin’s admonisment.

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Amazingly, a voice of sanity comes from a man who truly suffered a loss in this tragedy.

John Green’s 9-year-old daughter died Saturday. Christina-Taylor Green was born on 9-11 and was the only girl on an all boy baseball team, intelligent and interested in the political process.

As the father of a daughter, I can’t even fathom John’s suffering. If anybody has a right to lash out and make demands, he does.

But he refuses to bow to fear.

“In a free society, we’re going to be subjected to people like this, but I prefer that to the alternative,” he said.

Editor’s Note: This article was originally published in December, 2002. A previous version of it was published on December 25, 1966, dedicated to Harry’s then 9-year-old daughter.)

It’s Christmas, and I have the usual problem of deciding what to give you. I know you might enjoy many things – books, games, clothes.

But I’m very selfish. I want to give you something that will stay with you for more than a few months or years. I want to give you a gift that might remind you of me every Christmas.

If I could give you just one thing, I’d want it to be a simple truth that took me many years to learn. If you learn it now, it may enrich your life in hundreds of ways. And it may save your having to face many problems that have hurt people who’ve never learned it.

The truth is simply this:

No one owes you anything.

Significance

How could such a simple statement be important? It may not seem so, but understanding it can bless your entire life.

No one owes you anything.

It means that no one else is living for you, my child. Because no one is you. Each person is living for himself; his own happiness is all he can ever personally feel.

When you realize that no one owes you happiness or anything else, you’ll be freed from expecting what isn’t likely to be.

It means no one has to love you. If someone loves you, it’s because there’s something special about you that gives him happiness. Find out what that something special is and try to make it stronger in you, so that you’ll be loved even more.

When people do things for you, it’s because they want to – because you, in some way, give them something meaningful that makes them want to please you, not because anyone owes you anything.

No one has to like you. If your friends want to be with you, it’s not out of duty. Find out what makes others happy so they’ll want to be near you.

No one has to respect you. Some people may even be unkind to you. But once you realize that people don’t have to be good to you, and may not be good to you, you’ll learn to avoid those who would harm you. For you don’t owe them anything either.

Living your Life

No one owes you anything.

You owe it to yourself to be the best person possible. Because if you are, others will want to be with you, want to provide you with the things you want in exchange for what you’re giving to them.

Some people will choose not to be with you for reasons that have nothing to do with you. When that happens, look elsewhere for the relationships you want. Don’t make someone else’s problem your problem.

Once you learn that you must earn the love and respect of others, you’ll never expect the impossible and you won’t be disappointed. Others don’t have to share their property with you, nor their feelings or thoughts.

If they do, it’s because you’ve earned these things. And you have every reason to be proud of the love you receive, your friends’ respect, the property you’ve earned. But don’t ever take them for granted. If you do, you could lose them. They’re not yours by right; you must always earn them.

My experience

A great burden was lifted from my shoulders the day I realized that no one owes me anything. For so long as I’d thought there were things I was entitled to, I’d been wearing myself out – physically and emotionally – trying to collect them.

No one owes me moral conduct, respect, friendship, love, courtesy, or intelligence. And once I recognized that, all my relationships became far more satisfying. I’ve focused on being with people who want to do the things I want them to do.

That understanding has served me well with friends, business associates, lovers, sales prospects, and strangers. It constantly reminds me that I can get what I want only if I can enter the other person’s world. I must try to understand how he thinks, what he believes to be important, what he wants. Only then can I appeal to someone in ways that will bring me what I want.

And only then can I tell whether I really want to be involved with someone. And I can save the important relationships for those with whom I have the most in common.

It’s not easy to sum up in a few words what has taken me years to learn. But maybe if you re-read this gift each Christmas, the meaning will become a little clearer every year.

I hope so, for I want more than anything else for you to understand this simple truth that can set you free.

Harry Browne (RIP 1933-2006), the author of Why Government Doesn’t Work and many other books, was the Libertarian Party presidential candidate in 1996 and 2000, a co-founder of DownsizeDC, and the Director of Public Policy for the American Liberty Foundation. See his website.