Saturday, October 23, 2010

Attorneys: Necessary evil?

The bar association. Loving, hating, or indifferent, lawyers seem to be part of the political and social landscape. The bar association was conceived in an effort to attempt to hold lawyers accountable, and to increase the quality of practice of law.

While the original goals may have been noble, I must question if the implementation actually accomplishes the original goals of accountability and safety, or if the practicing attorneys have established a system far beyond the original intent.

We've all heard the jokes, we've all heard the descriptions of lawyers. Multiple movies have been made about the unscrupulous attorney. It would seem that the attempt to police attorneys by those with a vested interest in preserving the respectability of that practice would be a good thing.

But is it, or has it given rise to new consequences and behaviors?The original stated goal was to attempt to self-police attorneys, and prevent those unscrupulous attorneys from practice, to protect the consumer, and to preserve the quality of representation. However, across the past seventy years, rules have been established that, in general, leave the layperson out in the cold.

These rules of civil procedure, rather than simplifying the law, often complicate it, requiring attorneys both for the interpretation of the law, as well as for the arguments of what law is appropriate, and the interpretation of simple things, right down to the famous 'meaning of the word 'is''.

Rules lawyering became famous in games, even to the point of parody.

Is the American Bar association accomplishing its goals, however, or has it created new problems which actually preserve the problems, while furthering its own ends?

There have been many instances of attorneys doing things against the best interests of the clients, up to and including failing to represent them, and choosing means of argument that are either not in the best interests of the client, or tangential to the case.

The argument by the court remains that attorneys take an oath, and have a vested interest in preserving the practice of law. However, in several instances, the prosecutor has engaged in practices of falsifying evidence, blocking exonerating evidence, and in most cases, is considered immune from prosecution for such actions.

Further, defense attorneys are generally considered immune from the consequences of failure to bring up points, even to the point of inaction or drunkenness, and are rarely held to account for their actions.

At least, prior to the foundation of the American Bar Association, any person could be heard in a court of law. Often, admittedly, there was some contention over who was human, but any 'freeman' could speak before the court, argue the law, and even make presentations of fact and law.

In many civil cases, the attorney is not paid for completing the action. In cases of probate, the attorney is paid for his time, rather than timely completion, or proper argument of the will or contract. In many cases, this can result in actions taken to prolong the trials, to the point of the attorneys fees consuming all the contents of the estate. It is sometimes in the attorney's best monetary interests to extend the suit, and thus their time involved, as long as possible. Often, as well, by contract, the persons hiring the attorney are left without recourse should the attorneys do so.

It is further to the benefit of attorneys to make the laws as confusing as possible, with as many deceptive or alternative meanings as can be raised, in order to preserve their effective practice.

This can be compared to promoting a 'lay language' which sounds good to the people, but keeping the benefits of a clerical education among the enlightened.

A good portion of the purpose of the constitution, and the republic for which our ancestors fought, was to provide means of recourse, both within and from the law. It was to provide for law that was clearly intelligible to all persons, and which had its meaning plain and straight out. Exceptions and vagueness were to be avoided, as in any case of exception, persons were under different burdens of law.

But what does it mean when the effective means of recourse is monopolized by those to whom it is most effective to preserve the most complicated means of law possible? When the laws in most (nearly all) jurisdictions require the bar association to approve your license before even quoting the most appropriate and applicable court case, where is your recourse when your attorney refuses to bring the case up?

Do you have the means, and right to effective recourse when nearly all attorneys and judges belong to the same association, an association that also simultaneously educates those same attorneys and judges into the 'art' of legalism?

What effective means of recourse might you have when those judges and lawyers make statements directly contrary to historic fact? How do you call a judge and attorney on errors in fact... when they have been educated to believe such is true, even when absolutely verifiable historical data contradicts it?

How do you hold judges, and attorneys, accountable when the only means by which they may be brought to account is by disbarment... by the same persons profiting from their continued practice?

And when judges and politicians willfully align, how can you hold the politicians, officers, or judges accountable, when the judges preserve the interests of the other parties.. who are often bar association members themselves?

It is foolishness to believe in neutrality in those who bear a vested interest in the preservation of the status quo, to do anything but to preserve that status, without outside force being involved.

When no matter how correct your argument, no matter how accurate your data, no matter how well-cited, referenced, and truthful your sources, they can dismiss the points without viewing them, or dismiss them and reject your application for relief as a vexatious litigant, where, then, is your recourse?

When they can, out of hand, reject your appeals, even with an attorney, where is your recourse and correction?

And should they have the power to arbitrarily deny you that right of recourse?

When the right of recourse itself is monopolized, does that not create a far greater trust violation and national security issue than any possible terrorist attack? When the interpretation of the constitution is left to lawyers, and not to the common people, when the meaning of terms wanders all over the map to become not just contrary to the initial idea, but absolutely abhorrent to it, where is your recourse then?

And how may you grasp it?

When the attorneys themselves break the law, and those sworn to uphold and protect the law break the law, and those sworn to uphold and protect the constitution in the making of law break the law... where is your recourse?

In matters related to civil rights, should not the refusal of the prosecutor or defense or judge or any other officer to prosecute a violation of the law, be a violation in its own right? When the prosecutor has 'discretion' to arbitrarily drop any case, or charge for different crimes in the same circumstances due to the 'class' of the violator, is that fair, just, or equal law?

And when the people themselves are denied the benefit of argument of the law before the jury, where is your recourse?

Should not you be capable of taking that recourse into your own hands, to argue both the facts and the law in controversy, as that law itself is part of the facts in the case?

Or are you stuck.. fighting a battle with attorneys who have driven the prices of that recourse out of the hands of the largest part of the American People?

I may, indeed, be a total idiot... but a necessary evil can never be aught but evil, nor can evil be done that is necessary.. only convenient.

If we mean to preserve our rights, and our liberty, we must perform our duty in keeping the law accessible to all, rich and poor, from the least to the greatest.

Otherwise.. liberty itself is damned and dead.

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Thursday, October 21, 2010

The case for rights: criminals

As per usual for my postings, I fully expect this one to be both controversial, and subject to vociferous disagreement. This is a subject that is full of emotions and disagreement, and like any such subject, is bound to attract attention both logical, and less than savory. Do criminals have rights? Do they, when they commit a crime, give them up?

I do a great deal of reading, and a great deal of thinking. It has grown to the point where people claim I do so too much, and that my arguments are abstracted from the real world. However, in this case, the argument itself spawns from the real world itself, from the history that is my specialty and stock in trade.The question does not spawn full-blown from my brow like Athena of legend, nor does it grow like dragon's teeth planted into an army, but in the way all such arguments do, from an idea.

Our current prison system spawned from such an idea, around two centuries gone, an idea in Philadelphia, an idea of a new way of doing things, rather than the execution of felons, of a place for their penitence, and reformation. The term penitentiary comes from this root, the idea that penitence and separation were a more fitting punishment for wrongs against a society than death.

In this penitentiary, the prisoners were granted a bible, and a plain bed, food and water, and a place of solitude. The idea was to allow them to grow penitent, and to humble themselves and restore themselves to society.

Like all ideas, however, this idea was taken up by those who had power, and intended to increase it. In any case for the pursuit of power, there must be two things present, a people to protect, and someone to protect them from. From its roots in British law, conviction offered a steady stream of persons to protect the society from, and a society that was indebted to those that made the laws.

In its initial formation in this country, the nature of felony was a seizure of property, specific properties, in fact. Blackstone's commentaries on the Laws of England, in fact, touched upon this in his articles 'On conviction and its consequences'.

In effect, the felon, upon judgment, lost his right to property, lost his right to sit upon a jury, and lost his life. This was called attainder, the highest punishment any society could give. No longer was the individual a man, nor a human, but a monster to be hunted down and disposed of without qualm, no longer fit to live within society itself. This terrible consequence was only on judgment of guilt, and sentence to death.

This preserved the separation of the law-abiding from the law-breaking, and the largest punishment, and the most public spectacle, in old England, was death by drawing, then quartering. Tortures and hangings were also quite public, floggings, and hanging from a gibbet.

The idea of the new punishment was to be more humane, and more human. It was to offer opportunity for the offender to redeem himself both in the eyes of society, and his own. IT was, in many ways, a baptism by time, a remaking of the individual.

However, our politicians, in their zeal for someone to protect society from, and to control society by, decided that this was an excellent idea. It provided a ready-made excuse that emotions would dictate to us is a good one, for, after all, if one has violated the law before, does it not stand to reason that he may again? And certainly, precaution would seem to dictate that the restriction of those offenders would be a good thing, for after all, they have already set themselves against society.

From this argument spawned new laws, new arguments designed to remove the rights of human beings. After all, if a felon could not own a weapon, then certainly they would not be able to assault, maim, and kill so many. But yet, we ignore the other side of the coin. A felon is still human, still possessed of the right to live, and has no more right than any of us to demand police protection. There is no right to police protection in this nation, no matter the source.

It was always the most effective to have a vague nebulous class of persons out there that were the enemy. While targeted classes have their place in stirring up the public sentiment, vagueness has the advantage, from the eyes of the legislator, of deniability. It cannot happen to us, the reasoning goes, for we abide by the laws! That is for other people.

Lest we forget, the laws are made by those who would separate us into those to protect, and those to protect from. Moreover, by expanding the class to protect from, they expand the pool of persons entirely dependent upon their protection, which they need not give at all.

Let us also not forget that the rights enshrined within the Bill of Rights, and constitution, were deemed to be human rights, natural rights, established for the protection of all humanity, not merely the citizen. These principles were laid out in many later constitutions, to be agreeable to the federal. These rights were protected against that very government that now claims the power... to remove them for wrongdoing, and the power to eliminate them due to the violation of a law.

Why did our constitution not prevent this? It did. Article 1, sections 9 and 10 prohibit attainder. Attainder is the singular power by which any of this may be done.

"But how does this affect me?" the average citizen may cry. It affects you, because that power of attainder, and the principle of the loss of rights for the violation of a crime, will inevitably expand to the vacuum left by the people's lack of action against it. May I ask, what prevents the legislature from passing laws that declare an intimate aspect of life felonious? It is entirely possible for them to declare the excessive use of water a felony, and define excessive as two flushes of the toilet in a single day. It is equally possible for them to declare that the unregistered and unlicensed emission of co2 from any source exceeding 10,500L in a year becomes a felony for the owner of the property upon which the primary emission source occurs.

This, however, would include nearly every human being, as humans emit well over this amount every year, by simply breathing. The proof becomes a negligible exercise in mathematics, a simple statement, and you become a felon.

Sound extreme? Well, perhaps another example may be given.

You may become a felon for using, collecting, or possessing certain feathers without a license. You may become a felon for, in certain cases, engaging in the right to speech, engaging in the right to travel, or even having the temerity to fail to agree to a contract.

The nature of the power to protect, and the power to protect from, expands... and the more that the government may protect you from, the more that they may limit you in your everyday life.

It is by force, and force alone that government acts. Many of us have felt troubled through the years by the increased use of SWAT teams, by the increase in prevalence of violence by the police, but we dismissed it as a 'necessary' evil in the 'war on drugs'. We've allowed the stripping of rights from others, in order to protect ourselves... but the world gets crazier each day. We established 'free speech zones' in the capital, in order to protect politicians from ideas that may be contrary to their own. We allow persons within the United States to arrest with a self-written warrant, to incarcerate without trial, and thus to cause 'unpopular' elements to disappear... without ever speaking to an attorney, without representation, and without recourse. In our zeal for 'protection', we have established a 'constitution free zone' within 100 miles of the border.

We establish trials which, rather than the evidence being presented before a jury, and the laws being discussed, force the jury to either dismiss or rubber-stamp the actions of the prosecutor, and the charges are sealed under 'national security' as is the evidence, from both the defense, the judge, and the jury.

And we go along with it.

For our own protection, they discuss fully disarming our people, and removing the right to speak, if someone might be offended. They threaten and cajole, with lawsuit and cash, and today may seize your property it was involved in the commission of a drug crime... even if you gave no permission to allow it to be used thus.

Remember, protector and the protected. The more helpless that the government may keep you, the more force they may safely exert over you. With each encroachment, it becomes more difficult to push back, to restore your rights, and the rights of your children.

An arrest is not being taken into the station... an arrest is the mere act of stopping you. If you are stopped, and not free to go, that is an arrest, by its very definition, and is a crime without warrant, when an act has not been witnessed.

Consider the fact that prosecutors have said that there are certain crimes that are easy to convict, with minimal evidence, and they have immunity for fraudulently creating evidence to secure conviction.

The suspicion is often enough to convict.

Then ask yourselves if the idea of removing rights from felons... those same rights established to protect them from the government, and to do the same for you yourself, due to violations of the rules created by that same government, is a good idea.

After all, today the politicians present loopholes in the laws... for employees of the government, leaving themselves outside the law that is your burden.

Tax scandals, criminal scandals, drugs, sex, prostitution... and all swept under the rug by judicious application of money, which would leave any other man a felon.

Ask yourselves how this comports with the use of prisoners as laborers, to do dangerous and expensive jobs, at pennies per hour, then harvesting the outcome of their labor to pay for..tubes of toothpaste at vastly inflated prices.

Were we to do so as private citizens, we'd be convicted of involuntary servitude. It can hardly be argued that they are there willingly, or that in any other situation that they would volunteer their time, their energy, and their health for such wages.

Ask yourselves why nearly two percent of our population, a higher proportion than any other nation, are in prison... and a good four percent in addition to that have traveled through the prison system, and are now considered to be without rights.

Then ask yourselves again; "what separates us from them?"

The passage of a law,
By that very government that claims to protect you.

That flu shot? Perhaps by failing to take it you endanger others. Perhaps buying the wrong foods might endanger others. Perhaps, just perhaps, the mere fact of this posting, or the way you vote, the way you worship, the way you think, endangers others.

You might have to ask these questions.. for we are all felons in this nation, under some obscure law or other. The only difference at this point is if it has been enforced on you or not, and when they will choose to do so because you become inconvenient.

The country was established for one reason: the reason of protecting all rights within its borders. The government has no other legitimate purpose. it was for these ends that the states were given the powers of criminal justice, and for the correction of wrongs done against those rights the power of correction and punishment.

Not to 'protect' us from the things that go bump in the night at our own expense. But then.. I am a Total Idiot. What could I know?

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Monday, September 6, 2010

Down the rabbit hole

Today, we're taking a bit of a field trip from my usual idiocy, into more advanced and useless idiocy. We're taking a trip down the rabbit hole, not chasing a white hare, but chasing something far more elusive, and potentially far more a fever-dream or opium nightmare.

The truth. It's an intangible that the philosophers over the ages have tried to quantify, that humans have fought and died over, that people martyr themselves every day for.

Since I can't write THE TRVTH in the space allotted, we're chasing something a bit more ephemeral, a stray mote in the sunbeam of life.

Every day, people are looking around themselves, as though waking from a daze, and wondering how we got here. We, as a people, are walking zombies, mindless things that see nothing past our next television episode, our current web comic, the next game or distraction. We dehumanize each other, make excuses for each others subjugation, and we think this is normal, as though this insanity is the way things are supposed to be.

There are three truths being sought:

1:) Where the hell are we?
2:) How the hell did we get here?
3:) How the hell do we fix this mess?

Waking up from the dream is painful. We've always been more apt to close our eyes against the pain of truth, and to cling to the delusive, and elusive phantoms that trammel our minds, drawing our minds to distraction.

Where are we? We're in a land where humanity is forgotten even as an ideal, where we as a people forget who we are, our own self-worth, and the essence itself of humanity. We know where we are, we, however, refuse to open our eyes to look at it, preferring the illusion of the perfect car and life to the reality of our own servitude. We walk each day in a daze, one store to another, one advertisement, seeking something fulfilling in our own lives, even as we work away our energy and hours in longer and longer stages seeking the same rewards. We see our retirements fading, our money dwindling, see the crime in the streets and the criminals that are supposed to protect us. Scarcely a day passes in these United States when we do not have some place where the police are acting as military in incursions, where rights are not violated. Even a minute without official, government-sanctioned violations would be an improvement over what we have.

But how did it get here? How the hell did such brutality become commonplace? Is it sanity to assume that becoming more brutal to deal with brutality accomplishes anything but... increasing the brutality? Did we forget the years we spent recovering from the brutality of the shoulder-strikers and fire brigades who chose to go outside the law to 'uphold' it? What happened?

The answer to that lies within the human mind itself. We happened. We allowed small brutalities to prevent larger ones. We decided, deep in our own hearts, that doing small things wrong was all right, after all, it was for the greater good. We allowed ourselves to forget that the real thing worth protecting was our rights, and that the only way to preserve them, was to preserve them for and from others.

Over periods of time, small transgressions enlarged, grew into more powerful transgressions against the law, and then became all-encompassing traps to the unwary. Principle gave way to the letter of convenience, and even to the transgression of the letter of the law into the realm of that which the law forbade. The principle of the matter was the why, not the what. The essence of the matter was the why, not the how. Our preservation of rights were the how... not the why. The why encompassed far more.

We grew numbed to the brutality against our fellow-travellers on this road of life, even as we chose more and more to leave our 'protection' in the hands of others. We chose, for whatever reason, to establish persons to 'protect' us, without ever giving them duty to protect, nor a right within that protection. When the protection failed, or the officers of the 'law' became the agents we needed protection against, what then? More and myriad brutalities, actions against rights, actions against property and the person, actions against the very essence of life and the things to preserve it became commonplace.

We know where we are... and how we got here. How do we get out? How do we change this?

That's the hardest question of all. The answer, however, the single and solitary truth I can find in this question, is one that cannot be easier answered than saying... by exercising the rights. No matter how unpopular that exercise is, no matter how unloved you are for so doing, we must exercise those rights. It is in that exercise that the truth of the matter comes out... that those rights are presented, and preserved as our best security in an uncertain world. We, as a people, have the right to live, and from that right, and that property within the right, comes the right to preserve that life. We have the right to property, which preserves that life, and the property within our labor, which helps support the life. We have the right to liberty, the right to determine by our own hands and our own decisions what that life is to look like and to be. We have the overriding right, from all of these rights, to be treated as equals under the law, and if that right fails, we have the singular, solitary, indefeasible right to abolish the government that would make us servants under the law, and to re-establish it for our mutual benefit, that our rights might be preserved.

We, as a people, have the right, the obligation, and the duty to preserve the rights of others, as well as the responsibility to take the blame when things go wrongly from our lack of such exercise, or misexercise of those rights.

Acts of force can never be anything but acts of force. The government's obligation was to free us of those acts of force by the states, and to preserve for us the benefits of a republican form of government.

It was to preserve for us the capability of recourse without necessity to resort to violence or resistance. The purpose was to preserve for us, for our children and grandchildren into perpetuity those rights which were established, not in our government nor in contract, but within our very being.

It cannot maintain its obligation if we fail to utilize those powers with which we established it.

Think about it for just a moment... would the government fear our possession of arms for our own defense, if they were not something that required defense... against? Could not we, as the people, be educated and trained into the capability of defending our communities, without the necessity for the police force save for investigating crimes?

Do we not possess the power, the authority, and the full might of the government, as it was from us those powers were ceded into other hands?

Can we not still utilize those powers when other hands have failed, in order to restore them to hands that may use them properly?

Think about this: That each and every human being within the United States owes money that they have no true say in the spending of, no real means of repayment, and their labor is charged, their properties are forfeited, and their lives and freedom may be forfeit for their failure to pay a debt... that they did not accede to. Is this consensual, or merely a new means of binding upon us the chains of those who would be our masters?

When we, our children, and our posterity owe a debt that can never be repaid, there is a grave problem.

How deep does the rabbit hole go, my dear Alice? All the way down to the bottom, my dear. All the way down to the bottom.

And yet we support those who would have us spend money to become rich, those who would have us be in debtor's prisons to be free, those who would charge us for feeding ourselves from our own labor, those who would harm us to prevent us from harming ourselves, those who would kill us to preserve us from the pains of life, charge our descendents for our having the temerity of dying, and those who believe themselves more knowledgeable than ourselves in the 'proper' use of our own lives, and choose who reaps the benefits and penalties of our death.

I do not know about you, readers... but I do know something about holes. When you realize you are in one... it's likely best to stop digging, and to look around for the person who is preparing to fill it in atop you.

I may be a total idiot, but I recognize slavery by debt is just another form of involuntary servitude foisted off upon this country in the guise of a benefit. I also recognize that until we realize that it is not supposed to be that way, and until we realize that things don't have to be like this, that things cannot change.

We cannot, and should not go back to the ignorance of the past, nor should we determine that our rights are too dangerous in this day and age... but we should establish and preserve those human rights for the benefit of all in our borders, to preserve them for ourselves. We cannot allow the license of any right, be it the right to live, the right to breathe, the right to choose gainful employment or to employ, the right to stand or fall by our own actions, or the right to defend ourselves from the actions and inaction of others.

Simply because we have made a generation or two of errors, does not mean we need to maintain them.

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Wednesday, July 28, 2010

The nature of rights: Humanity.

What is it to have rights? What do they comprise? How are they found? The rights I speak of are human rights, rights that are found at the basest essence of the human condition.
To have a right, it is required that one be capable of possessing a property. In the circular nature of rights, it is the very ability to have rights that makes one human, and the foundation of those rights is the humanity. But what makes one human? There are two aspects, the first is the capability to have and possess property, including the property of rights.

The argument of what it is to be human has been heard across history. In our history, it has been marred by the idea that people different than ourselves are less than human.

The essence of humanity, however, is not biological. Humans may lose a limb, may lose body parts, may have their heart replaced by machines, may use the liver or kidneys or lungs of another, yet still be human. The humanity is integral into the realms of the mind. The essence of humanity is the ability to create something unique, the ability to create property. Property is created, according to the old law, by an exercise of volition, creating a right to use that which was modified.

Volition is the core of humanity. Its exercise is the essence of what it is to be human. No human being, without that exercise of volition, is human. People may attempt to block the exercise of volition, for various excuses, but that volition is still invariably belonging to the individual. Others may kill the individual for that exercise, but it does not remove their humanity, nor the essence of volition.

There are old terms for the cessation of volition within an individual. When done by the government, attainder provided for the cessation of the right of property within individual rights, be that a right to own property, or a right to one's own life. Even in the British government under King George, that volitional termination required the judgment of termination of the individual's humanity and their life.

The slave debates were about humanity, about the essence thereof, for, after all, there was no question that humans had inalienable rights. The question was, at its core, what was human. Those that possessed and supported slavery had to throw the humanity of the slaves into question in order to maintain and support the slavery, and in order to still appear ethical within their own eyes.

In all aspects of history dehumanization and alienation have been a pandemic of government. They are a contagion created by desperation, a disease transmitted by acts believed necessary to preserve the society, and have, always and without exception, destroyed the society attempting that preservation.

The act of dehumanization, of separation, of laws affecting classes, be they serfs, felons, or lords, has always been the harbinger of arbitrary law, its greatest tool, and its most powerful self-fulfilling prophecy.

It is for the fear of losing power that they are created, and it is their extension that brings that society to the brink of civil war and dictatorship.

Perhaps Trop v. Dulles stated the result the best. However, one must ask, if statelessness and the loss of the right to have rights is forbidden, how much more forbidden must be the loss of the very right to be human?

We believe, as did Chief Judge Clark in the court below, [n33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination [p102] at any time by reason of deportation. [n34] In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. [n35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. [n36]

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. [n37] Even statutes of this sort are generally applicable primarily [p103] to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. [n38] In this country, the Eighth Amendment forbids this to be done.

In concluding, as we do, that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that, in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids.

We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.

The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we [p104] do not, the words of the Constitution become little more than good advice.

When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established, it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.

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Saturday, June 19, 2010

What is a law in the United States?

My detractors would claim that I promote lawlessness, and anarchy, but even a cursory examination of my arguments would reveal that is quite contrary to my purpose. I promote an absolute rule of law, absolute, and general. This is not a rule of law, however, to bind men's souls into the darkness which always hides tyrants, but to free them to be themselves.

The purpose of the law is to establish justice, justice for all, under that unbreakable rule of law. It is to abolish anarchy, to abolish the necessity for war between brothers and fathers, for all are bound by the same law, from the legislators to the electorate. It is a law of recourse, a law of means and ways for which to maintain the rights one has without resorting to acts of war.

It can be seen in no other light than as an act of war to remove recourse. It was said, in Paine's articles 'On War', that the state of war itself was when all recourse was removed from a man, when, in that state, there was no resort to law, nor to justice, no appeal, no power by which a man could regain his rights or his life, at that moment a state of war existed between him, and whoever would take those rights from him.

Story said much the same, in the Amistad trial. The federalist papers themselves spoke of the right, and intimately cojoined duty, to maintain and use those rights of recourse. Across the decades, centuries, and millenia, those rights of recourse have been used, and reused.

Manegold of Lautenberg spoke of the rights of man, as did John of Salisbury. The redes at Runnymede spoke of the recourses, as did Blackstone's commentaries on the laws of England. Thomas Paine's 'Common Sense' spoke of recourse, as did his 'The rights of Man.'

Those rights of recourse were sovereign rights, rights that could neither be given up, nor justly taken away. it was for the removal of those rights of recourse alone that the state of war could be justified, as a matter of self-defense.

Within the notes of Justice Story is found the story of his thoughts on recourse.

But in the next place, (and it is that which would furnish a case of most difficulty and danger, though it may be fairly be presumed to be of rare occurrence,) if the Legislative, executive, and judicial departments should all concur in a gross usurpation, there is still a peaceable remedy provided by the constitution. It is the power of amendment, which may be always applied at the will of three fourths of the states. If, therefore, there should be a corrupt cooperation of three fourths of the states for permanent usurpation, (a case not to be supposed, or if supposed, differs not at all in the principle or redress from the case of a majority of a nation or state having the same intent,) the case is certainly irremediable under any known forms of the constitution. The states may now, by constitutional amendment, with few limitations, change the whole structure and powers of the government, and legalize any present excess of power. And the general right of the society in other cases to change the government at the will of the majority of the whole people, in any manner, that may suit its pleasure, is undisputed, and seems undisputable. If there be any remedy at all for the minority in such a case, it is a remedy never provided for by human institutions. It is a resort to the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.

-- Justice Story, notes on U.S. v. Libellants of the Schooner Amistad.

Before even the start of our nation, when it was barely an inkling and the pains created by Britain could still be borne, Samuel Adams wrote:

The liberties of our Country, the freedom of our civil constitution are worth defending at all hazards: And it is our duty to defend them against all attacks. We have receiv'd them as a fair Inheritance from our worthy Ancestors: They purchas'd them for us with toil and danger and expence of treasure and blood; and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightned as it is, if we should suffer them to be wrested from us by violence without a struggle; or be cheated out of them by the artifices of false and designing men. Of the latter we are in most danger at present: Let us therefore be aware of it. Let us contemplate our forefathers and posterity; and resolve to maintain the rights bequeath'd to us from the former, for the sake of the latter. - Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude and perseverance. Let us remember, that "if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom." It is a very serious consideration, which should deeply impress our minds, that millions yet unborn may be the miserable sharers in the event.

– Samuel Adams, Boston Gazette, October 14, 1771

But, yet, we have declared that the protections of the Constitution do not apply to some, that we may, by civil means, without recourse, without appeal, maintain some in prison indefinitely for the accusation, and fear of future crimes.

But who among us can guarantee that we are not felons? Who, in all this world, is not a dangerous man? Let him step forth, and I will show you a designing man in sheep's clothing.

Humanity, in and of itself is dangerous. It is a creature of force, of power, of dominion, control, of establishment of property and territory. He is a hunter, but also a healer, a steward and sometimes a wastrel. He is a saint and sinner, wrapped into one, a hope, and a horrific fear.

In this nation, we are all subject, in order for a law to be just, to the same law. The same acts, no matter who we are, must be equally illegal. The acts are what is targeted, not the person.

It does not matter who is doing the act, be it the highest executive officer, to the least prisoner in the darkest jail cell, if it is a crime, it is a crime for all.

The attainder clauses in the United States constitution equally apply to both state and federal governments. It does not matter who targets the law, only that the law is targeted. It does not matter who executes the power of that law, so long as all incidents are enforced equally. it does not matter who judges the law, so long as the law is judged equally.

The government is a creature, an incorporation of the Constitution. It can do nothing which the Constitution does not allow, and still be a legitimate entity created thereby. The moment any official steps outside of those bounds, they are not acting under that constitution, and may be treated as any other offender.

One cannot break the law... to enforce the law.

`The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.’ `Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…’ `No one is bound to obey an unconstitutional law and no courts are bound to enforce it.’
” 16 American Jurisprudence, 2nd Edition, section 177.

"When a legislature undertakes to proscribe the exercise of a citizen's constitutional rights it acts lawlessly and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all."
- Justice William O. Douglas

Even the state constitution may not be altered to give an unequal burden of law to any person within the state.

All states are institutions, created by and under that constitution, restricted from the original powers, and established as incorporated entities under new obligations, and new restrictions. All counties, cities, municipalities, are equally bound. No incorporated entity can go beyond the purposes of its original corporation. They may not subcontract outside of those boundaries.

Those boundaries forbid the taking of any property, including the property of rights, without just recompense. For the property involved in the life of the person, there is no just recompense. For the property in the liberty, and in the right to property and right to have rights itself, there is no just recompense.

Those are things that are irrevocably the individual's, and well within the individual's right to defend.

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Saturday, June 5, 2010

What is punishment?

I find that any idiot can understand punishment, but adults make it more complex than it is. Punishment is a taking, a restriction placed against an individual of those things which are his. The argument is not about this, but about those things that belong to a man, and the complexities adults who play at law bring to the picture.

To approach punishment, we must go back to the cases, and laws, where it was discussed. The primary of these was Cummings V. Missouri.

The Attorney General for the State of Missouri argued that punishment was only those things that were absolutely one's own, These things were life, liberty, and property, and in the nature of punishment, one could not be punished by taking that which was not his own. The farmer, recovering his cow from someone to whom he had loaned it, did no punishment. There was no punishment in retrieving stolen goods from a thief. He argued that a man did not own the right to have a job, nor anything else.

The supreme court wisely, and properly rejected this statement. According to the court in the past, our rights are not limited merely to those set down in that Constitutional bill of rights, but are a whole, indivisible, delivered via blood and toil of our worthy ancestors. They, Too, are a property.

We have a property in our own lives, a property most dear, and precious, for without that life we may enjoy no other property. We have a property in our liberty, for without that liberty, the enjoyment of our life is limited and restrained to that of the basest serf in a feudal land. We have a right within our property, as well, for without the right to property, we cannot have the property inherent in the other two rights. The fourth right is equally important, the right to defend life, liberty, and property against all takers.

But we also have a right to sue, in court of law, against all takers of our intangible property, and if necessary, to defend them. If a man attempts to restrain us against our will, it is an assault and battery. If a man stirs up a majority, and passes legislation to do the same, it is no less an assault and battery upon the individual thus restrained.

The court has repeatedly found that limiting the idea of punishment to that which seizes life, liberty and property only is false. Lesser assaults, bills of pains and penalties, are also attainder. Some of those bills and laws, refer to past acts in their establishment, and are no less attainder.

Punishment is any thing that sets the individual at a separate burden of law. While in the prison, for the protection of prisoners and others, you are restrained in the exercise of your rights for the time of the sentence. This, and the isolation from the society that you have wronged, is part of the punishment. Punishment as well as being retributive may be preventative, in order to bring about a desired prevention of the repeat of the act. It may be a separation from society, a mark placed upon the individual to forever set them apart from civilization.

Attaint, attinctus, blackened, or stained... no longer fit for society, set apart by the mark, society feels no further obligation to the individuals thus attained, save to see them executed.

Punishment is not a power of legislature. It can set guidelines, it is the judge, and jury that determine the nature of punishment, even to the point of defying the judge, and legislature themselves.

The court is not, and has never been, bound to accept the excuses the legislature gives for restriction. A setting of separate burdens of law, creation of crimes that for no other class of citizen is crime, an establishment of laws restricting where one may work, live, educate one's self, and how and where one must believe, all are punishment. They are taking rights which are irrevocably the individual's.

Restrictions upon the use of private property are also punishment. It is not a crime to use the property as one sees fit, so long as there is no danger to human life or the neighbor's property. There is no right to restrict one's neighbor's property to retain your own property value. If one chooses to destroy the value of their own property, that is their choice.

There is a right in our own sovereignty, a right to our own self-willed choosing of the future, a right that is, indeed, even the foundation of our right to life, liberty, and property. (Chisholm v. Georgia).

We have the right to have, and maintain, the best, and most-limited government for the purpose of maintaining those rights, and to alter or abolish those governments if they go out of bounds.

We have no right to try to restrict the rights of others, for any reason, by our own hands, or the hands of the government. It is no less punishment, and in many ways a far more insidious and damaging one, to use the force of government to steal that which you wish, than to use your own hands to murder, to pillage, or to enslave.

One might ask themselves... if I allow the removal of rights for those I do not like... how many do not like me? How many may be brought, by lies, or by confusion, by malice or fraud, to dislike me?

It is that security in rights that is part of the general welfare, and the purpose of government itself. We punish for violations of those rights of life, liberty, property, and the myriad other rights which are also property. The right to have an opinion is equally a property as your home, your land, and your body. The right to speak that opinion without reserve, is equally a right, not to be subject to a man's offense, but only for those things spoken and written to be knowingly, maliciously and damagingly untrue.

We have a right to self-defense, a right to worship, to believe, to walk down the street and breathe clean air. So long as you leave every other person the same right, it is a right. One does not have a right to pollute public lands, for the enjoyment of those lands, pristine, is a right. One does not have a right to kill others, except in self-defense, for the enjoyment of that life is also a right.

Punishment, therefore, cannot be simply those things that restrict life, liberty, and property, but those things that restrict, and damage those things which make the life, liberty, and property worth exercising dominion and control over. The properties of one's labor, the properties inherent in one's ideas and consciousness, the properties inherent in that very essence of the pursuit of happiness.

We do not have the right to have happiness delivered to us... we only have the right to pursuit, capturing it is up to us.

The congress has no rights, only powers, and none of those powers allow them to determine those upon whom the law is to land, but only general legislation is allowed. (U.S. v Brown.)

I may indeed be a total idiot... but at least I admit it. I still see these things clearly. I may not be an idiot in the nature of language and thought, but I approach things from ignorance and logic.

I sometimes wish, that there were more idiots out there that would.

It may have a salutory effect upon understanding to read the words of Chisholm v. Georgia, , Cummings V. Missouri, Ex Parte Garland, Aptheker v Secretary of State, and U.S. v Brown.

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Tuesday, May 18, 2010

Who owns the nation?

One of the stickiest issues of current legal thinking is that of sovereignty and ownership. The federal government maintains that it is the sovereign, and that the states and people serve it. The states maintain that the federal government and people are the servant.

Which view is correct? How do we determine it? Perhaps the best explanation was given in a very old court case, Chisholm v. Georgia.

The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.
— CHISHOLM V. GEORGIA, 2 U. S. 419 (1793)

The real answer, it appears, is neither of the above. The states and federal government belong to the sovereign, each of us individually holding that shared sovereignty.

We have no right to give it up, for ourselves or others. Sovereignty is not something that can be given or taken away, it is an inalienable property. It is something that holds itself outside of law, for it is the founder of law.

We are each lords, with sovereign powers in our own rights. This does not extend to the power to remove sovereignty from the persons of others, nor does it extend to the power to, with impunity, disarm and make war against others. It extends to the right to defend the self from any unprovoked attack, no matter who the aggressor is, and the right to maintain that sovereignty with any power that is at our disposal.

We cannot simultaneously own the government, and have created it, and have it own us. One or the other will struggle to dominance... and we are inattentive in our defenses against the government.

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

YICK WO v. HOPKINS, 118 U.S. 356 (1886)

Our rights are a property. They are our gifts, given from our ancestors, to be passed down, well-honed and ready for use, to our children, maintained for our neighbors, kept bright and in good repair for newcomers into the society. Those rights of sovereignty belong, not merely to American citizens, but to any person that enters the nation. Along with those rights come duties to respect the sovereignty of others.

One might ask why I say rights themselves are a property. A property, in the strictest sense, is not an object, but a right to an object. it is a right to dominion, and control of an object. While property may involve dimunition, severance, and dissolution, inalienable properties cannot have those powers justly exercised. The right to an object in which you hold value, if that object be tangible or an idea, is property. It was for this reason that the civil court system was established, to offer recourse beyond the laws of war, beyond the powers of men and courts.

That essence of recourse is what made our country prosper. For the first time in history, property was sacrosanct, not because of law, but because to seize a property without just recompense was prohibited. Outside of that recourse, where it was not available, is the state of war, where man reverts to his individual sovereignty.

And hence it is that he who attempts to get another man into his absolute power does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life. For I have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power unless it be to compel me by force to that which is against the right of my freedom - i.e. make me a slave. To be free from such force is the only security of my preservation, and reason bids me look on him as an enemy to my preservation who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me thereby puts himself into a state of war with me. He that in the state of Nature would take away the freedom that belongs to any one in that state must necessarily be supposed to have a design to take away everything else, that freedom being the foundation of all the rest; as he that in the state of society would take away the freedom belonging to those of that society or commonwealth must be supposed to design to take away from them everything else, and so be looked on as in a state of war.
This makes it lawful for a man to kill a thief who has not in the least hurt him, nor declared any design upon his life, any farther than by the use of force, so to get him in his power as to take away his money, or what he pleases, from him; because using force, where he has no right to get me into his power, let his pretence be what it will, I have no reason to suppose that he who would take away my liberty would not, when he had me in his power, take away everything else. And, therefore, it is lawful for me to treat him as one who has put himself into a state of war with me - i.e., kill him if I can; for to that hazard does he justly expose himself whoever introduces a state of war, and is aggressor in it.
9. And here we have the plain difference between the state of Nature and the state of war, which however some men have confounded, are as far distant as a state of peace, good will, mutual assistance, and preservation; and a state of enmity, malice, violence and mutual destruction are one from another. Men living together according to reason without a common superior on earth, with authority to judge between them, is properly the state of Nature. But force, or a declared design of force upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow subject. Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature; force without right upon a man's person makes a state of war both where there is, and is not, a common judge.
-- John Locke, Second Treatise on government, On the State of War.

Indeed, it was James Madison, one of the Framers of the constitution that stated:

In the former sense, a man's land, or merchandize, or money is called his property. In the latter sense, a man has property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has property very dear to him in the safety and liberty of his person. He has equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his possessions. Where there is an excess of liberty, the effect is the same, though from an opposite cause.

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right. To guard a man's house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man's conscience which is more sacred than his castle.

That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property.
-- James Madison, property and liberty

And what recourses do we have? There, in the most fundamental term, are four.

The Soap Box, the Ballot Box, the Jury Box, and the Cartridge box.

This trite statement, sadly, has its accuracy in the blood with which it has been forged. The soap box, the right to convince others of the truth of your statements, and the power to speak freely of your ideas without reserve.

The ballot box, the ability to vote your just laws into existence, without diminishing the sovereignty of others.

The Jury box, the ability to nullify the law where it is outside the constitution, and act as the conscience of society. To try both the facts, and the law of the case, to remove disproportionate punishment, and abolish arbitrary legislation.

And the cartridge box... for when there is no other recourse, and any person attempts to get you bound down, helpless, for the operation of their arbitrary will.

Each of these are in danger.. the government claims the power to remove each of them for the commission of crime. It simultaneously determines what things are crimes within the nation.

Something to think about.

If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave.
-- Samuel Adams

Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can.
-- Samuel Adams.

... whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience ... [Power then] devolves to the People, who have a Right to resume their original Liberty, and, by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society.
-- John Locke

If you think these things do not affect you... I pity you.

It is the good fortune of many to live distant from the scene of sorrow; the evil is not sufficiently brought to their doors to make them feel the precariousness with which all American property is possessed. But let our imaginations transport us for a few moments to Boston, that seat of wretchedness will teach us wisdom, and instruct us for ever to renounce a power in whom we can have no trust. The inhabitants of that unfortunate city, who but a few months ago were in ease and affluence, have now no other alternative than to stay and starve, or turn out to beg. Endangered by the fire of their friends if they continue within the city, and plundered by the soldiery if they leave it. In their present condition they are prisoners without the hope of redemption, and in a general attack for their relief, they would be exposed to the fury of both armies.

Men of passive tempers look somewhat lightly over the offenses of Britain, and, still hoping for the best, are apt to call out, Come we shall be friends again for all this. But examine the passions and feelings of mankind. Bring the doctrine of reconciliation to the touchstone of nature, and then tell me, whether you can hereafter love, honor, and faithfully serve the power that hath carried fire and sword into your land? If you cannot do all these, then are you only deceiving yourselves, and by your delay bringing ruin upon posterity. Your future connection with Britain, whom you can neither love nor honor, will be forced and unnatural, and being formed only on the plan of present convenience, will in a little time fall into a relapse more wretched than the first. But if you say, you can still pass the violations over, then I ask, Hath your house been burnt? Hath you property been destroyed before your face? Are your wife and children destitute of a bed to lie on, or bread to live on? Have you lost a parent or a child by their hands, and yourself the ruined and wretched survivor? If you have not, then are you not a judge of those who have. But if you have, and can still shake hands with the murderers, then are you unworthy the name of husband, father, friend, or lover, and whatever may be your rank or title in life, you have the heart of a coward, and the spirit of a sycophant.

This is not inflaming or exaggerating matters, but trying them by those feelings and affections which nature justifies, and without which, we should be incapable of discharging the social duties of life, or enjoying the felicities of it. I mean not to exhibit horror for the purpose of provoking revenge, but to awaken us from fatal and unmanly slumbers, that we may pursue determinately some fixed object. It is not in the power of Britain or of Europe to conquer America, if she do not conquer herself by delay and timidity. The present winter is worth an age if rightly employed, but if lost or neglected, the whole continent will partake of the misfortune; and there is no punishment which that man will not deserve, be he who, or what, or where he will, that may be the means of sacrificing a season so precious and useful.

It is repugnant to reason, to the universal order of things, to all examples from the former ages, to suppose, that this continent can longer remain subject to any external power. The most sanguine in Britain does not think so. The utmost stretch of human wisdom cannot, at this time compass a plan short of separation, which can promise the continent even a year's security. Reconciliation is was a fallacious dream. Nature hath deserted the connection, and Art cannot supply her place. For, as Milton wisely expresses, "never can true reconcilement grow where wounds of deadly hate have pierced so deep."

Every quiet method for peace hath been ineffectual. Our prayers have been rejected with disdain; and only tended to convince us, that nothing flatters vanity, or confirms obstinacy in kings more than repeated petitioning- and nothing hath contributed more than that very measure to make the kings of Europe absolute: Witness Denmark and Sweden. Wherefore since nothing but blows will do, for God's sake, let us come to a final separation, and not leave the next generation to be cutting throats, under the violated unmeaning names of parent and child.
--Thomas Paine. Common sense, 1775

So long as injustice exists within the society, it will come to your doorstep. The longer the wildfire burns, the more tenacious, the more powerful it grows. When fanned into the flames of war, can we stop it any longer, or are we but kindling in its path?

We all have the responsibility, the duty, and the right to stop this before it grows to that point. Have we failed in that duty?

I wouldn't know. I'm a total idiot.

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Friday, April 30, 2010

The true enemy of the nation, and your liberties.

I keep hearing people asking on the street of late, what the hell happened to our country? The answer is fairly simple, if one is willing to hear it.

What has happened to our country, at its deepest level, is a simple issue of unequal law. Our nation was founded, and operated on the principles of general law in greater or lesser extents, but has never fully operated within the principle established within the attainder clause (article 1, section 9 and 10) in the Constitution.

The nature of law is a principle of force, and in that principle it operates. It does not cajole, it does not lead, it simply forces people into its path, and leaves in its wake destroyed lives, and destroyed homes. It is an essence of force, the power by which the majority often controls the minority, and the power by which slaves were made and maintained.

But it is a truth, a truth that may be denied, may be ignored, and may be mocked, but a truth none the less, that the only way slavery could be maintained was via the action of unequal law. Some would have to have different laws applied than others. With great irony, it was the British that pointed out this fallacy within our law, within their letters to each other, and it was recognized by the founders as a problem. It was not corrected until far after the time allocated for its correction.

And yet, today, we still have unequal law. We still have persons forced, by power of law, to be unable to leave or enter places, where others may legally enter and leave.

This is a far cry from the ideal of 'one law for all' 'equal under the law' 'inalienable rights'.

Unequal law is furthered in three major methods of unequal application, to wit: the power of the law to define the law in a way that affects a group, the power to execute the law unequally, and the power of the law to apply the punishment unequally.

Each of these cases were specifically prohibited. Each of them had specific recourse granted. But each of them still exists today, and recourse has been placed farther and farther from our hands, for reasons of lack of means, and lack of time.

Unequal law is the essence of arbitrary law. It is the very definition of that material, arbitrary law wherein there is no rhyme nor reason to the law, no pattern, and the law itself may fluctuate before any man knows the change.

The purpose of the limitations of government was to establish a system that prevent unknowable, arbitrary law, and thereby prevented the oldest recourse of all, re-establishing a government by force. That original right of self-defense was to be guarded from all takers, precisely to prevent the government from growing powerful enough... to take the other rights with impunity.

We have a protected property interest in that equal law. It is a thing, a physical property which has no possibility of a set value, and thus the only recourse is to restore it.

It is best said by Yick Wo v Hopkins:

When we consider the nature and the theory of our institutions of government, the principles upon which they are sup- [118 U.S. 356, 370] posed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society, according to its will, under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights. In reference to that right, it was declared by the supreme judicial court of Massachusetts, in Capen v. Foster, 12 Pick. 485, 488, in the words of Chief Justice SHAW, 'that in all [118 U.S. 356, 371] cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right in a prompt, orderly, and convenient manner;' nevertheless, 'such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulating, should subvert or injuriously restrain, the right itself.' It has accordingly been held generally in the states that whether the particular provisions of an act of legislation establishing means for ascertaining the qualifications of those entitled to vote, and making previous registration in lists of such, a condition precedent to the exercise of the right, were or were not reasonable regulations, and accordingly valid or void, was always open to inquiry, as a judicial question. See Daggett v. Hudson, 3 N. E. Rep. 538, decided by the supreme court of Ohio, where many of the cases are collected; Monroe v. Collins, 17 Ohio St. 666.

Where are we going in our society? If it be, by fear, fraud, or mistake, further to unequal law... it would seem we make our own hell to live within.

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Thursday, March 25, 2010

What is a right?

What is a right? This question has been asked thousands of times over the course of history, been debated by philosophers and far wiser men than this total idiot, and, forgive me if I should parrot their arguments without going too deeply into them. The nature of rights was discussed by some of the greatest liberty-minded men, and equally discussed by the greatest despots.

There are those that insist rights lie in the majority, that it is the will of the majority that establishes and creates rights. This will, this power, ideally benefits the majority more than it inconveniences the minority. This is the nature of pure democracy, the power of the majority determining what all will receive, for better or ill.

This document, however, discusses rights in the nature of a constitutionally limited republic, under the common-law tradition, as understood and argued by the founders of the United States government. Rights in this system are not things established or created by social contract, not placed under the heel of the majority or minority, but discussed as intangible, but vital property. One of these rights, in fact, is a circular one, a right to have property... as well as an essential property within that right. Rights, in this system of government, are individual, existing even outside of the majority.

To understand rights, therefore, one must understand the nature of property. A property, in the loosest sense, is anything in which the individual or society places value. Any property has several essences, the first, dominion, the second control, and the third disposition. Some properties are considered inalienable, properties protected even from the action of the owner, prohibited from transfer by any means, including by consent. Other properties are considered to be alienable, capable of being transferred. There are properties in fee-simple arrangements, in arrangements of trust, of lease, and more complex contractual estate and escrow.

The essence of property is something that one has a right to, and has dominion and control over, something that one places value within, and that one has increased with his or her work. Property is not the thing, it is the right within the thing.

This seems yet another circular argument, but remember that one of our rights is to have property, and, as Madison said, also a property in our rights. This right to property in rights, is the very right to have rights. It is an inalienable property, as we establish the value ourselves, and according to our effort, defend that value. The right to have property, and the right to have rights, may well be the essence of the argument.

We have a right to live, a right shored up by the arguments of our founders, and the works of Manegold, John of Salisbury, and many of the philosophers. That right was bound within the Declaration of Independence, and recognized by the Common Law and the Constitution and laws of the states. We could not commit murder without depriving another of that right, and for that loss of right, we forfeited our own lives. We could not steal the property of others without losing that property, and making just recompense from our own for any dimunition of it. We could not take things from another's property, without recompense. If we took wood from the property of another and made it into furniture, the wood must be paid for in a fair market value, but the property within our labor remains ours.

Perhaps the best definition of a right is a property interest that leaves all others to enjoy the same property, without dimunition. If one takes the right to breathe, all others share that same right. If one chooses to defend his or her home against those who would take it, he or she still leaves all others that same right. If a person takes another person's property, he does not leave the other the same right within their property. If a person takes another person's life... he cannot give just recompense for that life.

A right, therefore, to be a right, must be something that allows all others the same use of the same right. The right to have, own, and protect property, for instance, is not the same as a right in any given property, but is a right to the property of one's own opinions, one's own hands, and one's own work. If this leads to property in a real, tangible sense, than it is a right to dominion and control over that property.

We have the right to live our lives in a way that does not diminish the lives of others. We have the right to property. We have the right to liberty, for liberty leaves all with the same enjoyment of rights. We have the right to equality under the law, without regard to our station, without regard to our past, without regard to any status humanity may place upon us. That is liberty. We have the right to property, so long as we leave others the same right. We have the right to defend all of the above against all takers, so long as we leave others free to do the same.

The moment we restrict those rights of another, our own are fundamentally insecure. We are outside of our rights when we choose to limit what rights another may exercise, while still enjoying that right ourselves.

At that moment it ceases to be a right, for we are diminishing the rights of others.

There are established ways and means of suspending these rights, as punishment for a crime until the sentence is complete. This is the means of judge and jury, as well as having the jury know the full punishment for the crime the person is being charged with. The jury is the full arbiter of both the facts in the case, the law in the case, and the moderator against the excesses of the legislature.

That is a social right, the right to a fair and speedy trial. It is likewise a right to have the punishment be of limited, express scope, and only for a very limited period of time.

Otherwise, what happens? We may make laws applicable to some, but not to others. This is called attainder. When the legislature determines those upon whom the law is to operate, rather than making general laws, attainder applies. The only just and applicable power applies to all, regardless of situation, equally.

That is the rule of law. It does not matter if the law is criminal or civil, if it only applies to some, it is attainder. It does not matter what the past of the individual is, if the court, and jury adjudicate that the person is to be limited, that is within the powers of the jury, not the powers of the legislature.

Given this power, the legislature makes monopolies rise, benefits their friends at the expense of the general public, and creates scapegoats to take the aggression and attention of the people from their own misdeeds. They give handouts on one hand, take things on another, and exempt themselves from their own laws.

This can never be beneficial to a society, even in the short run. It destroys the government, destroys the respect in the rule of law, and the nature of law. It can never be allowed to gain foothold and flourish in our constitutional republic, and even the states themselves are prohibited from exercising such powers.

But do the protections still exist? Look around you. Even this total idiot sees what has been done. Are you willing to see?

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Wednesday, March 24, 2010

Universal health insurance?

I am a total idiot. Being such, one must ask questions that may seem foolish to the outside individual, in my maundering, mouldering mind lost in untrammeled paths, ceding sense by the moment. I am a being of contradictions and paradoxes, and in my foolishness believe logic must be used to find the truth.

That being aside, the congress has just passed a bill that, in their own language, purports to extend an explicit right. Such a thing is within the power of the congress, to recognize and protect the rights of the people, however, I have wondered if they have fully thought out the nature of such a right.

The maintenance of rights is, and remains, by recognition of numerous court cases and the founder’s own papers, the purpose of government. The preservation of those rights against all takers is paramount in the nature of the social compact, and the essence of the republic.

Rights, by their nature, cannot come into conflict. If two rights appear to come into conflict, the one of them cannot be any right at all, but merely the illusion of a right.

Such, to this idiot’s mind, seems to be the case of health care. The essence of rights is that no person may have a right for which they must ask permission prior to use, gain authorization, make amends or payment. The exercise of that right must be left to the discretion of the user. Rights in the original sense, in the unalienable and fundamental sense, are not established by social contract, but by the innate nature of the human being.

We have the fundamental right to our own lives, our own properties, our own liberty, and our own ability to protect the above. Without regard to laws that purport to modify it, or to restrict it, these were the reasons for the creation of government.

From the Jehova’s Witnesses, to the cases of laundries in San Francisco, we’ve had many court cases establishing that right as a property, eligible for suit within the courts of law. Yick Wo v Hopkins went so far as to state:

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

The judgment within the Jehova’s Witnesses cases was similar.

We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish 'without a license what formerly could be published only with one.' 1 While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the [303 U.S. 444, 452] constitutional provision. See Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556, 10 Ann.Cas. 689; Near v. Minnesota, 283 U.S. 697 , 713-716, 51 S.Ct. 625, 630; Grosjean v. American Press Company, 297 U.S. 233, 245 , 246 S., 56 S.Ct. 444, 447. Legislation of the type of the ordinance in question would restore the system of license and censorship in its baldest form.

If it is a right, one cannot license it, one cannot put limitations upon the places or means with which one utilizes to exercise the right, save those that are directly injurious to others. One cannot place a right within a box, and then determine the means by which it may be lawfully exercised, after taxation, nor may it establish that the exerciser may be limited by prior action. The right is universal, not to be licensed, sold, or taxed, and unlimited in both scope and bearing. It is a property subject to judicial suit for its lack.

One cannot presuppose doctors will work for free, nor donate their hours, their lives, and their time to that which does not give them gain, or even food upon which to live. Their investment of time is their own property. One cannot require someone to give their property, even for the greater good, without just recompense. To do so would be, as Yick Wo v Hopkins said, ‘nothing less than the essence of slavery itself’. To tax for the exercise of a right is also not congruent with the nature of a right. It is a licensure, and but for that licensure, a procurement or use of that right would automatically be unlawful.

One side or the other must fall. Either the doctor’s property in their own lives is immaterial, or the people’s right to health care is not a right at all. One cannot force a doctor to labour with no recompense without falling under the thirteenth amendment prohibition against slavery, an absolute prohibition extended and expanded under the 1957 treaty for the abolition of slavery, and institutions like slavery.

Where two rights appear to conflict, one right is no right at all. The right of property within the doctor's own life conflicts with the supposed right to universal health care. While one can recognize the 'right' to universal health care... the doctors do not have to provide. To force them to provide is just another means of servitude.

Where a legislative right comes up against an absolute, human right, the legislative right must fall.

Furthermore, any right under the constitutional mandate is not merely extended to citizens, but by, and under international law, extended to all who operate and live within our borders. This was recognized as late as 1910. The legislature does not have the power to alter this. If there is a right to health care, all must receive the same care, from the richest to the poorest, and all have the right to the best health care, medications, and treatment available for their problem.

No matter where they are from.

For free. Forever.

When a legislative, or executive panel determines the nature, the quantity, and the allowable costs of health care, it cannot be a right. It cannot be that a panel can defer responsibility for their decisions in a patient’s care to a doctor who is under duress to follow their orders, allowing malpractice suits upon the doctor rather than the panel.

No doctor could knowingly operate in such a fashion and still be ethical. They must give the best care, the best treatment, and the best, and most appropriate decisions for their patient’s care. To say a panel can determine what is ‘best’ and the doctor is left holding the responsibility for their decisions is also a matter of involuntary servitude.

Moreover, there can be no delay in the exercise of an established right. The right must be available immediately, and in its final form, not in the form of the choosing of the legislature. Not in four years... today.

If it is a 'right to health insurance', rather than a 'right to health care', the people should have the choice of exercising the right, or not... just as they choose to exercise the right to alter or abolish their government... or not.

As wonderful as the idea of total health insurance appears on paper, this total idiot, at least, recognizes that the only way to accomplish it is to force labor in their behalf, to ration it to those ‘deserving’ of care, and to actually create a far worse fiasco than if the system were left alone with all of its issues. It would actually be better for the nation if full deregulation took place than if we attempt to, by legislative fiat, determine that nature of care without regard to the human lives involved.

But what do I know? I’m a total idiot.

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Monday, March 15, 2010

Our most valuable property

Our nation shudders to the core when heinous crimes occur, and again when news of their terrible import reaches our ears. We are right to be angry, within our rights to direct that anger, and well within our rights to try to fix the problem.

Anger is a powerful force, one wrought in the deepest essence of the human soul, where in our pride, our fear, and our fury we eke our our vengeance upon those bodies that have brought us wrong.

Anger, and the associated vengeance are both necessary, and to some limited extents, healthy. They are survival essences wrought in the forge of the universe, winnowed and sharpened by time, and targeted to eliminate problems with brutal force where needed.

But is it applicable to the problem of heinous crimes? Certainly, those who violate the laws of society bear the condemnation of those very laws. Certainly, as well, we have the right and duty to see to it that justice is carried out.

But even that right and duty is limited in the nature of crimes. While we may restrict the individual from actions, within the confines of the law, we cannot restrict individuals who have not created a new crime. Those restrictions are forbidden us.

It is for the preservation of rights that we have entered into society, the preservation of the essence of that which it is to be human. A tree cannot have rights, nor can a stone, nor a machine that cannot think. We, the human being, the thinking beings have those rights.

They are not something, by tradition, to be picked up or laid down by others, and some rights were so all-compelling that they could not even be laid down rightfully or justly by our own hands, nor stolen by the hands of others, including the hands of the law.

It is, and has always been an act of war to use force to take that which is not yours. The limited interpretation of the law today cannot change that, cannot alter the fundamental purpose of the law itself.

Our greatest property of all is not our land, nor our liberty, nor our lives, nor even the thoughts in our own mind, but is, rather, the very right to have rights. That essence is core to human thought, human behavior and perception, and the very essence of our right to property... the right to sue, or if necessary, to make war to preserve that very right to have property. The right to life, the right to liberty, and the right to defend that property all reinforce the intimate essence of the property within our selves, and in that which we think, perceive, and create.

It is an essence so intertwined in who we are, that we cannot lay it down justly. We have the power, the right, the authority to protect that right with whatever means we may, should the courts fail to preserve them against takers.

That is the very substance of the Second Amendment, and those Bills of Rights through the ages: A method of preserving an intimate, irrevocable, property for which no price, no lien, no attainder, nor alienation may be allowed.

After all... should you vote to remove those inalienable properties of others.. how long until your own are removed?

Without those rights to property, and the means to defend them against all takers, are we human, or have we become property to be disposed of as well?

I am a total idiot, but how may one resist acts of war, without a force sufficient to counter the barbarians? This idiot... wonders.

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