Friday, December 16, 2011

The real cost of freedom

We have long, as a people, sought freedom. We've turned our faces to the sky, looking out into the stars, and wondered where it lies, what it means. I've discussed in earlier documents what freedom is, what it looks like, how it's found and how that system came to evolve. This time, however, your poor and total idiot must discuss something far more dark, its cost. Like all things, freedom has its own costs. Many are aware of the cost of blood and heartache, but there are deeper costs, costs far more intrinsic to the makeup of freedom itself.

We all hold beliefs, and many hold these beliefs as sacred and as truth, bound by the wisdom of the ages. Not all agree on these beliefs, not all choose to follow the same Gods or guidelines, and thus, the separation of the power of the state from those powers of belief was established, to allow the power of conversation, rather than the power of government, to shape the right of conscience.

The greatest cost of freedom, of its creation, its maintenance, and safekeeping lies in these beliefs, and in our sacrifice of our power over our fellow man to force them to our beliefs. If we cannot force them by conversation, we certainly must not bring down the impersonal power of the government to bend their minds to our will.

Equally, we have costs in self-interest. If we cannot thrive by our own industry, and those working for us, we cannot bend the government to grant us advantage, or others penalties for doing things differently. We cannot support business upon the altar of the economy by government action. Monopoly has ever been the enemy of freedom, and it exists only so long as the government has the power to influence some for their benefit, and others for their penalty. It grinds our liberty and our ability for self-determination, and capability for our increase and profit under its bootheel.

We have costs in our abilities to levy weights upon others for their misdeeds. While we as a society have the authority to punish, such punishments must be laid out in the beginning, and enforceable under the law. We cannot lay separate law against one class of offender once the state's interest in incarceration is done, and a separate law for the rest of society. In this direction lies the loss of all rights for all persons.

We have costs in our feelings of security, for in a free society, there is no security save that which one may provide for himself in his rights of self-defense. No policeman may be everywhere at once, and still maintain that freedom. We have no right to be protected, nor are the police required to give that protection. All we may do is attempt to maintain the powers of an individual to protect himself, and those around him.

We have costs in our dominance over others. Whilst power seems a worthy end, power over others is the enemy to freedom. We have no more right to dominate the wills and properties of others, than for them to dominate our own will and volition.

We sacrifice numerous things on the altar of freedom, our ability for actions against the rights of others, our ability to target the law against others for our own benefit, our ability to steal via the powers of government, be that property the property in rights, or real or personal property. We sacrifice the power to enforce our definitions of marriage, of religion, of our beliefs and our faiths, or lack thereof, upon others.

We turn away from codified laws of the malum prohibitum, to the malum in se.. those things which are done, no matter whom they are done to, that are wrong in and of themselves, and go no further.

We must enforce the laws upon our president, and our congress, equally to our people and our courts. No exemptions may be made, no codicils, loopholes, or immunities. All must bear the burden of the law, and none are above it. The laws must be made for general benefit, not for the benefit of the few, and they must affect all equally.

This is true both at the state, and federal level, and at the county and city levels as well, as they are extensions of, and created by the state power.

And that is the greatest cost of all... you must give up power over your neighbor, and deal with your things in the way you see fit, and allow him to do as he sees fit, so long as it harms no one.

We must give up the belief that being offended is a wrong in and of itself, and abandon the belief that we have the right to determine the beliefs of others.

If we mean to be free, we must be also free to determine our own future, and leave others to determine theirs. Denial of that right to determine the future is a crime, in and of itself. It is malum in se.

Read more!

Thursday, August 4, 2011

Attainder occurring? How... quaint.

On July 1st, 2011, the Congress of the State of Idaho placed into active law a new set of Sex offender registry rules, with the following statement of purpose, enshrined in title 18, section 8302.
18-8302. Findings. The legislature finds that sexual offenders present a danger and that efforts of law enforcement agencies to protect their communities, conduct investigations and quickly apprehend offenders who commit sexual offenses are impaired by the lack of current information available about individuals who have been convicted of sexual offenses who live within their jurisdiction. The legislature further finds that providing public access to certain information about convicted sexual offenders assists parents in the protection of their children. Such access further provides a means for organizations that work with youth or other vulnerable populations to prevent sexual offenders from threatening those served by the organizations. Finally, public access assists the community in being observant of convicted sexual offenders in order to prevent them from recommitting sexual crimes. Therefore, this state's policy is to assist efforts of local law enforcement agencies to protect communities by requiring sexual offenders to register with local law enforcement agencies and to make certain information about sexual offenders available to the public as provided in this chapter.

This law requires, by its mere operation, that registrants give up email addresses and communication names to assist potential later investigation. there is no other purpose, and as such it is violative of the rights involved in the 4th and 5th amendment. We cannot require a person to give up information due to the purported possibility of putative future crime. Those protections operate equally against state and federal law. Further, those communication addresses and media are becoming the de facto communication methods with both state, and federal officers, through facebook and other social networking sites, and further, are used for anonymous political speech, a protected right under the first amendment. The possession of those addresses, by requiring seizure under the guise of 'regulatory function' is in violation of title 18, section 242 of the United states code, by acting as a chilling effect upon both political and common speech through a major artery of communication. The only means by which this information may be compelled give absolute immunity to all uses of this information, under Kastigar v. United States 406 US 441, (1972).

The people themselves, further, have a protected property interest in self-defense, under the 2nd amendment to the United States Constitution, and District of Columbia v. Heller, 554 U.S. 570 (2008) This prohibition is extended to the state, however, the plain import of the statute, and the purposes for which it was defined, were also within that 1866 act, preventing all state and federal actions against that right under color of law. The omnibus crime control act of 1968 by itself constituted as well a bill of attainder, designating those against whom the right would be disabled, and its enforcement is equally against that 1866 act.

The people of the united states have, by the mere possession of life, a right to it, to liberty, to property, and to the means to defend the above, from which all rights flow. those rights are inalienable, under action of law there is no just means to disable them short of killing the offender. This was the plain import of the words of Blackstone,

"WHEN sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence by the common law is attainder. For when it is now clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no farther care of him than barely to see him executed. He is then called attaint, attinctus, stained, or blackened. He is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law.11 This is after judgment: for there is great difference between a man convicted, and attainted; though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of these disabilities: for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment: the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed: he may obtain a pardon, or be allowed the benefit of clergy; both which suppose some latent sparks of merit, which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of anything to be said in his favor. Upon judgment therefore of death, and not before, the attainder of a criminal commences: or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted. "

One might note, however, that the removal of rights in this instance due to crime was only upon sentence of death. There were lesser acts of attainder, known as 'bills of pains and penalties' and a secondary prohibition against ex post facto laws, which activated and operated retrospectively to remove rights in cases where the act being reached was lawful when done, or the punishment is increased for a past act, or different requirements of evidence are emplaced. In all cases, ex post facto laws are bills of attainder, and fall under that same prohibition, though they were such egregious methods as to deserve special attention. Bills and writs of attainder, by their nature, were the only means by which, under English law, property of any sort could be forfeit, including that property found within rights, and the right to one's own person, including the rights to have rights and life itself. This was clarified within Justice Story's Commentaries on the Constitution of the United States (1833) in book 3, chapter 32, section 1337-1339

"§ 1337. The next clause is, "No bill of attainder or ex post facto law shall be passed."

§ 1338. Bills of attainder, as they are technically called, are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties.23 But in the sense of the constitution, it seems, that bills of attainder include bills of pains and penalties; for the Supreme Court have said, "A bill of attainder may affect the life of an individual, or may confiscate his property, or both."24 In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions. Such acts have been often resorted to in foreign governments, as a common engine of state; and even in England they have been pushed to the most extravagant extent in bad times, reaching, as well to the absent and the dead, as to the living. Sir Edward Coke25 has mentioned it to be among the transcendent powers of parliament, that an act may be passed to attaint a man, after he is dead. And the reigning monarch, who was slain at Bosworth, is said to have been attainted by an act of parliament a few months after his death, notwithstanding the absurdity of deeming him at once in possession of the throne and a traitor.26 The punishment has often been inflicted without calling upon the party accused to answer, or without even the formality of proof; and sometimes, because the law, in its ordinary course of proceedings, would acquit the offender.27 The injustice and iniquity of such acts, in general, constitute an irresistible argument against the existence of the power. In a free government it would be intolerable; and in the hands of a reigning faction, it might be, and probably would be, abused to the ruin and death of the most virtuous citizens.28 Bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free, as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.29

§ 1339. Of the same class are ex post facto laws, that is to say, (in a literal sense,) laws passed after the act done. The terms, ex post facto laws, in a comprehensive sense, embrace all retrospective laws, or laws governing, or controlling past transactions, whether they are of a civil, or a criminal nature. And there have not been wanting learned minds, that have contended with no small force of authority and reasoning, that such ought to be the interpretation of the terms in the constitution of the United States.30 As an original question, the argument would be entitled to grave consideration; but the current of opinion and authority has been so generally one way, as to the meaning of this phrase in the state constitutions, as well as in that of the United States, ever since their adoption, that it is difficult to feel, that it is now an open question.31 The general interpretation has been, and is, that the phrase applies to acts of a criminal nature only; and, that the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime, when done; or whereby the act, if a crime, is aggravated in enormity, or punishment; or whereby different, or less evidence, is required to convict an offender, than was required, when the act was committed. The Supreme Court have given the following definition. "An ex post facto law is one, which renders an act punishable in a manner, in which it was not punishable, when it was committed."32 Such a law may inflict penalties on the person, or may inflict pecuniary penalties, which swell the public treasury.33 Laws, however, which mitigate the character, or punishment of a crime already committed, may not fall within the prohibition, for they are in favour of the citizen.34 "

The sex offender registry bears the onus of this as well, having had the Legislative branch, in HR 2355 (June 24, 2011), proposed by Representative Hartler, preventing dead prior offenders from being interned, or memorialized in federal cemeteries or receiving funeral honors.

Article 1, sections 9 and 10 of the U.S. constitution prohibit 'bills of attainder' to the legislature of the United states, and to any action of the states. This includes actions in the state constitution or laws, determining those upon whom the law will act, outside of general law, and inflicting upon them a penalty without trial. Penalties may be applied absolutely or conditionally, and may be enforced with threat of criminal punishment. They may be given effect conditionally by expurgatory oaths or actions, or in some cases, I contend, by continual expurgation upon fine and action.

Ex parte Garland, 71 U.S. 4 Wall. 333 333 (1866) 71 US 377
The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct. The exaction of the oath is the mode provided for ascertaining the parties upon whom the act is intended to operate, and, instead of lessening, increases its objectionable character. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation they are included.

This particular prohibition flows to legislating against groups that have voluntary membership, but how much more must the prohibition apply to those whose class, or grouping is created by action of the legislatures of whatever sort, against whom their rights were to be preserved? Is it not more egregious for the congress, for whatever purported reason, by inclusion or exclusion, to remove their rights, when the congress itself, with no other intervening body, has determined that the executive branch must enforce upon the people those deprivations of rights under colour of civil law? This question was answered within Cummings v. Missouri, 71 US 277, (1867) in pages 71 US 320-332, in exhaustive detail. In 71 US 330-331 are the most pertinent passages to our interests.

A question arose in New York, soon after the treaty of peace of 1783, upon a statute of that State, which involved a discussion of the nature and character of these expurgatory oaths, when used as a means of inflicting punishment for past conduct. The subject was regarded as so important, and the requirement of the oath such a violation of the fundamental principles of civil liberty and the rights of the citizen, that it engaged the attention of eminent lawyers and distinguished statesmen of the time, and, among others, of Alexander Hamilton. We will cite some passages of a paper left by him on the subject in which, with his characteristic fullness and ability, he examines the oath and demonstrates that it is not only a mode of inflicting punishment, but a mode in violation of all the constitutional guarantees, secured by the Revolution, of the rights and liberties of the people.

"If we examine it" (the measure requiring the oath), said this great lawyer,

"with an unprejudiced eye, we must acknowledge not only that it was an evasion of the treaty, but a subversion of one great principle of social security, to-wit, that every man shall be presumed innocent until he is proved guilty. This was to invert the order of things and, instead of obliging the State to prove the guilt in order

Page 71 U. S. 331

to inflict the penalty, it was to oblige the citizen to establish his own innocence to avoid the penalty. It was to excite scruples in the honest and conscientious, and to hold out a bribe to perjury. . . . It was a mode of inquiry who had committed and of those crimes to which the penalty of disqualification was annexed, with this aggravation, that it deprived the citizen of the benefit of that advantage, which he would have enjoyed by leaving, as in all other cases, the burden of the proof upon the prosecutor."

"To place this matter in a still clearer light, let it be supposed that, instead of the mode of indictment and trial by jury, the legislature was to declare that every citizen who did not swear he had never adhered to the King of Great Britain should incur all the penalties which our treason laws prescribe. Would this not be a palpable evasion of the treaty, and a direct infringement of the Constitution? The principle is the same in both cases, with only this difference in the consequences -- that, in the instance already acted upon, the citizen forfeits a part of his rights; in the one supposed, he would forfeit the whole. The degree of punishment is all that distinguishes the cases. In either, justly considered, it is substituting a new and arbitrary mode of prosecution to that ancient and highly esteemed one recognized by the laws and constitution of the State. I mean the trial by jury."

"Let us not forget that the Constitution declares that trial by jury, in all cases in which it has been formerly used, should remain inviolate forever, and that the legislature should at no time erect any new jurisdiction which should not proceed according to the course of the common law. Nothing can be more repugnant to the true genius of the common law than such an inquisition as has been mentioned into the consciences of men. . . . If any oath with retrospect to past conduct were to be made the condition on which individuals, who have resided within the British lines, should hold their estates, we should immediately see that this proceeding would be tyrannical, and a violation of the treaty; and yet, when the same mode is employed to divest

Page 71 U. S. 332

that right, which ought to be deemed still more sacred, many of us are so infatuated as to overlook the mischief."

"To say that the persons who will be affected by it have previously forfeited that right, and that, therefore, nothing is taken away from them, is a begging of the question. How do we know who are the persons in this situation? If it be answered, this is the mode taken to ascertain it -- the objection returns -- 'tis an improper mode, because it puts the most essential interests of the citizen upon a worse footing than we should be willing to tolerate where inferior interests were concerned, and because, to elude the treaty, it substitutes for the established and legal mode of investigating crimes and inflicting forfeitures, one that is unknown to the Constitution, and repugnant to the genius of our law."

Similar views have frequently been expressed by the judiciary in cases involving analogous questions. They are presented with great force in The matter of Dorsey, [Footnote 9] but we do not deem it necessary to pursue the subject further."

United States v. Brown (No. 399) 334 F.2d 488 elucidated more upon this, and to my opinion, nearer the heart of the matter.

The doctrine of separated powers is implemented by a number of constitutional provisions, some of which entrust certain jobs exclusively to certain branches, while others say that a given task is not to be performed by a given branch. For example, Article III's grant of "the judicial Power of the United States" to federal courts has been interpreted both as a grant of exclusive authority over certain areas, Marbury v. Madison, 1 Cranch 137, and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts, e.g., Muskrat v. United States, 219 U.S. 346. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.

The authors of the Federalist Papers took the position that, although, under some systems of government (most notably the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority,

in a representative republic . . . where the legislative power is exercised by an assembly . . . which is sufficiently numerous to feel all the passions which actuate a multitude; yet [p444] not so numerous as to be incapable of pursuing the objects of its passions . . . ,

barriers had to be erected to ensure that the legislature would not overstep the bounds of its authority and perform the functions of the other departments. [n17] The Bill of Attainder Clause was regarded as such a barrier. Alexander Hamilton wrote:

"Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense. [n18] [p445] "

Thus, the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.

"Everyone must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited -- the very class of cases most likely to be prosecuted by this mode. [n19] [p446]"

By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rulemaking.

"It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments."

Fletcher v. Peck, 6 Cranch 87, 136. [n20] [p447]

This issue was finally discussed to the point by the court:

We do not hold today that Congress cannot weed dangerous persons out of the labor movement, any more than the Court held in Lovett that subversives must be permitted to hold sensitive government positions. Rather, we make again the point made in Lovett: that Congress must accomplish such results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied. Under our Constitution, Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals. [p462]

This Court is always reluctant to declare that an Act of Congress violates the Constitution, but in this case we have no alternative. As Alexander Hamilton observed:

"By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. [n40] "

Further, the prohibition under law under title 18, sections 241 and 242 created by the Civil Rights Acts of 1866 had a clear, and unambiguous intention, expressed most clearly in Congress by Senator Lyman Trumbull, best quoted in several court cases involving these laws.

Under Jones v. Mayer Co. 392 U.S. 409 (1968) the Supreme court considered much of this law, and reported.

‘Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be [392 U.S. 409, 432] affected by them have some means of availing themselves of their benefits.'"(429-30)

‘the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.'" (440)

"Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom - freedom to ‘go and come at pleasure' 79 and to ‘buy and sell when they please' 80 - would be left with "a mere paper guarantee" 81 if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

"Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:

‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.'

‘The end is legitimate,' the Congressman said, ‘because it is defined by the Constitution itself. The end is the [392 U.S. 409, 444] maintenance of freedom . . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.'

This, however, was not the only case in which this set of laws were tried. Regarding the matter of putative civil immunity:
Under Ex Parte State of Va. 100 U.S. 339 (1879)

"But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and we think it was fully authorized by the Constitution." (346-47)

"We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience...It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent." (348)

Griffin v. Breckenridge 403 U.S. 88 (1971)
"Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629 -631; id., at 642-644 (concurring opinion); United States [403 U.S. 88, 106] v. Guest, 383 U.S. 745, 757 -760 and n. 17; Twining v. New Jersey, 211 U.S. 78, 97 ; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, C.J., dissenting). The ‘right to pass freely from State to State' has been explicitly recognized as ‘among the rights and privileges of National citizenship.' Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation." (105-6)

McDonald v. Santa Fe Trail Transportation Co. 427 U.S. 273 (1976)

"While neither of the courts below elaborated its reasons for not applying 1981 to racial discrimination against white persons, respondents suggest two lines of argument to support that judgment. First, they argue that by operation of the phrase "as is enjoyed by white citizens," 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination. Second, they contend that such a reading is consistent with the legislative history of the provision, which derives its operative language from 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, c. 31, 1, 14 Stat. 27. See Runyon v. McCrary, ante, at 168-170, n. 8; Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439 (1973). The 1866 statute, they assert, was concerned predominantly with assuring specified civil rights to the former Negro slaves freed by virtue of the Thirteenth Amendment, and not at all with protecting the corresponding civil rights of white persons.

"We find neither argument persuasive. Rather, our examination of the language and history of 1981 convinces [427 U.S. 273, 287] us that 1981 is applicable to racial discrimination in private employment against white persons." (285-87)

"The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a "bill . . . to protect all persons in the United States in their civil rights . . ." (emphasis added), and was initially described by him as applying to "every race and color." Cong. Globe, 39th Cong., 1st Sess., 211 (1866) (hereinafter Cong. Globe). Consistent with the views of its draftsman, 17 and the prevailing view in the Congress as to the reach of its powers under the enforcement section [427 U.S. 273, 288] of the Thirteenth Amendment, 18 the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as nonwhites. Its first section provided:

‘[T]here shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.'" Id., at 211. 19 (287- 88)

"The point was most directly focused on in the closing debate in the Senate. [427 U.S. 273, 290] During that debate, in response to the argument of Senator Davis of Kentucky that by providing for the punishment of racial discrimination in its enforcement section, 2, the bill extended to Negroes a protection never afforded whites, Senator Trumbull said:

‘Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?' Id., at 599.

"So advised, the Senate passed the bill shortly thereafter. Id., at 606-607." (272-73)

It is clear, at this point, that the people were, in their whole body, whatever their colour, or prior state of servitude (including servitude under the law for past offenses) were vindicated upon the end of the state sentence in their rights, and equally allowed the recourse at law under those rights, and equally protected in those rights against both federal and state action. The rights in the bill of rights were established to limit government action, and to limit them against the powers of licensure and permit. A right that must be given permission by another to use is no right at all, and enforcement of a prohibition from using such a right is at the heart of the purpose and intent of the prohibitions in title 18, 241 and 242 of that U.S. code, to prevent ever again a person from being the master of another.

in the case WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al., PETITIONERS v. VILLAGE OF STRATTON et al. 536 U.S. 150 (June 17, 2002) it was stated:

" That the Jehovah's Witnesses are not the only "little people" who face the risk of silencing by regulations like the Village's is exemplified by our cases involving nonreligious speech. See, e.g., Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Thomas v. Collins, 323 U. S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases discussed above, the Court observed:

"As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly... .

. . . . .

"If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." Id., at 539-540. "

The United States has engaged, and continues to engage, in a pattern of behavior, at both the state and federal levels, against those rights. An example of this is the 1968 Omnibus crime Bill, wherein felons were prohibited the constitutional right to keep and bear arms. At the same moment, the law is both attainder, and a felony in its enforcement by that 1866 act, and the operation of the plain prohibitions of the 13th and 14th amendment, and the laws established under that act.

It has further, recently, chosen to further weaken the protections of the 4th amendment, and the 5th, with self-written warrants, no-knock entries and seizure of property with self-written warrants under the Patriot Act.

The most recent and egregious actions in pursuit of these goals appears to be the so-called 'operation gunrunner' wherein the ATF, an organization developed to uphold firearms laws, has chosen to ignore the laws to exacerbate the situation on the border apparently to deliberately create situations for international agreements for more stringent controls.

If the union is to be preserved, these rights must be returned to the people, to whom they belong, from whom the just power of law flows. The purpose of this suit is to prevent the growing turmoil from becoming general enough to cause an insurrection that is forced to be put down by force of arms, and thereby to defend the constitution and laws of the united states, the just power of the judiciary, the executive branch, and Congress itself.

The states, and federal government itself in a limited republic, may not act in a manner in which they are prohibited, nor in a manner in which they are not allowed. Laws passed outside the powers of the constitution are no law at all, and are void for any purpose, create no offices, establish no duties, have no obligations to be upheld nor any power to compel the victim to comply.

And the legislative cannot bind the Executive branch to commit felony or other unlawful acts, nor may the offer immunity for so doing, nor may they engage the power of selection exclusively limited to the power of the judiciary for that purpose.

Title 18, section 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

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Friday, June 3, 2011

The right to?

It may fairly be said that the nation is a nation of rights, that it is a nation created with the intent of limiting both the power of government, and the people's power over each other. Dangers were recognized in the beginning to those fledgling, awakening rights, and means and procedures were established to protect them.

But what are the nature of rights? A right is a power to do a thing, or not do a thing. It is a system of powers and forebearances. In its most basic sense, it is, in some ways, a tautology, a right being both a property, and the right to that property.

Rights in property are defined by several aspects, the primary being dominion and control, with subsidiary powers from that dominion and control exercised with delegation, dimunition, dissultion, destruction, alienation, rent, lein, and fee-simple obligation.

However, some rights are not subject to these powers, those rights considered inalienable. Alienation of property comes from the original definition of transfer, and a property or right that was inalienable implied sovereign powers: i.e. that there was no higher authority that could lawfully or justly seize it for any purpose.

Inalienable rights are the category of rights that actually make the law itself. They are both the foundation of law, in a common-law jurisdiction, and the limit of law.

Those rights must, and are, rights that require exercise, rights that require the active capability of their maintainance and expression.

The rights under the constitution are of similar variety, rights expressing the capability of resistance to involuntary or oppressive measures taken by government or others against those rights.

It was extended under the 1866 Civil Rights act against the powers of the states themselves, making it a felony to enforce any law which went against the rights of any person under the U.S. that were enjoyed by any other person under U.S. control.

Both civil and criminal charges aplied (title 18, sections 241-245 and title 42, section 1981-1984).

But what happens when such a law is not enforced? By what means are rights to be enforced when the transgressor against them is the very government established to protect them?

There were also means, both civil and criminal, for that recourse, which was also an inherent right.

The first means was by convincing others that your position was correct, by the pulpit, soap box, or media.

The second means was by the vote, removing those who make laws against rights.

A tertiary means was by the jury, nullifying criminal cases that acted against rights, the constitution, and common sense.

The fourth means, was the most dangerous of all. It was spoken of by the founders themselves, by the Supreme Court, by many of the oldest philosophers who shaped our nation.

In the first case, you had the right to protest, to assemble, to speak and transmit information freely and without reserve, subject only to consequences for libellous and slanderous comments... and even those comments were protected if they were truth.

In the second case, the right to vote was to be kept inviolate, there was to be no transgression that removed that right, as it was a right by which all other rights are protected. How, after all, could they protest, should they be removed from the right to vote?

In the third instance, the jury box, it dates back to Throckmorton, Zenger, and Bushell, the inability of the government to punish or sanction a jury for finding against the judge's instructions, or finding for their own conscience. They were the arbiters of both the facts of the case, as well as the law of the case, without which there would be no case at all.

In the fourth instance... well, the fourth instance is of the gravest sort of all, and is only in effect when there is none of the prior means allowed. Where there is no recourse, or the recourse becomes impossible due to machinations of that government.. the gravest right of recourse applies. As was said by Supreme Court justice Story, in the case of U.S. vs Libellants of the Schooner Amistad:

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.

In what place are we?

We are told, that for our own protection, we may be searched without warrant, have our properties seized, arrested upon suspicion without warrant, and be placed in custody indeterminately without trial or hearing. We are told that this is for our benefit, and that without it, our lives are endangered. We are further told that resistance to warrantless entry of our own homes is a crime, and that to resist is enough for the police to use force.

We are told that we have no right to recourse through the government, that the government itself is sovereign, and that we have no right to question, petition, and that only those whom are in possession of sufficient monies may have their recourse by law.

We are told that we may not find for our consciences in the jury, that we may not be allowed to determine our futures, that we will purchase the products the government says that we should purchase, that we cannot question the will of faceless bureaucrats, that the will of officers of the law is supreme in all things.

We are told that we may not resist the molestation of ourselves or our youth by officers of 'the law' without facing the repercussions of that law.

We are told we may not film those officers, and gather evidence in our own protection.

We are told that we must travel by the virtue of the civil graces of our government and that said government may determine who may travel, and by what means.

Arguments are being made that we must do those things that the government demands to receive the putative benefits of the things they demanded we purchase.

And we are told that our property may be seized without trial, without charges, and that they may seize the ultimate of our properties, without trial, without hearing, torture us, and kill us without repercussion.

And that this is being done, not by the majority, but a tireless, unrelenting minority that believes it knows better than us what is good for us, without regard for our realities in life.

Now they attempt, by virtue of 'copyright' and other actions to cause our exercise of free speech, parody, commentary, and education to become a felony act, for which they purport to further strip our rights away.

The vote is being taken on insecure machines, by persons with direct vested interests in the outcome of the vote, without chain of custody of the vote, and via secret code which no person may be allowed to see.

And now they purport the power to take away that final means of recourse.

That section 1983 of Title 42, as well as title 18's section 242 was not merely against racially biased action, but, according to the congressional record:

A "bill . . . to protect all persons in the United States in their civil rights . . ." Cong. Globe, 39th Cong., 1st Sess., 211 (1866)

Trumbull's own argument:
‘Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?'
Id., at 599.

How insidious that we should allow men to work against those rights, for purported security.. wherein by working against those rights any purported security is not only abolished, but made impossible to regain?

It goes back to Manegold and Locke...

Sec. 91. For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly, and indifferently, and with authority decide, and from whose decision relief and redress may be expected of any injury or inconviency, that may be suffered from the prince, or by his order: so that such a man, however intitled, Czar, or Grand Seignior, or how you please, is as much in the state of nature, with all under his dominion, as he is with therest of mankind: for where-ever any two men are, who have no standing rule, and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the state of* nature, and under all the inconveniencies of it, with only this woful difference to the subject, or rather slave of an absolute prince: that whereas, in the ordinary state of nature, he has a liberty to judge of his right, and according to the best of his power, to maintain it; now, whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or to defend his right; and so is exposed to all the misery and inconveniencies, that a man can fear from one, who being in the unrestrained state of nature, is yet corrupted with flattery, and armed with power.

(* To take away all such mutual grievances, injuries and wrongs, i.e. such as attend men in the state of nature, there was no way but only by growing into composition and agreement amongst themselves, by ordaining some kind of govemment public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govem, by them the peace, tranquillity and happy estate of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves; they knew that however men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men, and all good means to be withstood. Finally, they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some, whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another, Hooker's Eccl. Pol. l. i. sect. 10.)
(Locke, second treatise of civil Government, chapter 7.)

"If the king ceases to govern the kingdom, and begins to act as a tyrant, to destroy justice, to overthrow peace, and to break his faith, the man who has taken the oath is free from it, and the people are entitled to depose the king and to set up another, inasmuch as he has broken the principle upon which their mutual obligation depended."

"It is not only permitted, but it is also equitable and just to slay tyrants. For he who receives the sword deserves to perish by the sword.But 'receives' is to be understood to pertain to he who has rashly usurped that which is not his, now he who receives what he uses from the power of God. He who receives power from God serves the laws and is the slave of justice and right. He who usurps power suppresses justice and places the laws beneath his will. Therefore, justice is deservedly armed against those who disarm the law, and the public power treats harshly those who endeavour to put aside the public hand. And, although there are many forms of high treason, none is of them is so serious as that which is executed against the body of justice itself. Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public. For if all prosecutors may be allowed in the case of high treason, how much more are they allowed when there is oppression of laws which should themselves command empeors? Surely no one will avenge a public enemy, and whoever does not prosecute him transgresses against himself and against the whole body of the earthly republic."
-- John of Salisbury: Policratus

In short, our rights are the means by which slavery of our people becomes impossible. How then do we become more secure in our possessions, in our lives, in our liberty, by their removal?

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Wednesday, April 13, 2011

Preserving rights: What is the recourse?

As an idiot, another question must be asked. If a law exists, intended by congress to be “preservative of all rights” do we have a right to its enforcement? If, further, the congress passed a law stating that a pattern of failure to enforce the law would give rise to its own sanctions, does that not lead to the conclusion that such law must be enforced? What happens when the laws, preservative of our rights, are refused to be enforced.. by the very individual whose action the Congress specified for our recourse?

There may be those unfamiliar with the law of which I speak... I refer, of course, to title 18, part 1, chapter 13, section 242 of the U.S. Code. There are ancillary codes regarding this subject, however, and I pray you will be patient with me as I bring them to light.

Whoever, under color of any law, statute, ordinance, regulation,
or custom, willfully subjects any person in any State, Territory,
Commonwealth, Possession, or District to the deprivation of any
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States, or to different
punishments, pains, or penalties, on account of such person being
an alien, or by reason of his color, or race, than are prescribed
for the punishment of citizens, shall be fined under this title or
imprisoned not more than one year, or both; and if bodily injury
results from the acts committed in violation of this section or if
such acts include the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire, shall be fined under this
title or imprisoned not more than ten years, or both; and if death
results from the acts committed in violation of this section or if
such acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse, or an attempt to commit aggravated sexual abuse, or
an attempt to kill, shall be fined under this title, or imprisoned
for any term of years or for life, or both, or may be sentenced to

This particular section is also backed up by civil penalties, and an absolute revocation of sovereign immunity for individuals other than judges engaged in such action, under title 42, section 1983 of the U.S. code.

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.

In addition, title 42 also covers, in section 1990, the duties of a U.S. Marshall in conjunction with this section of code.

Every marshal and deputy marshal shall obey and execute all
warrants or other process, when directed to him, issued under the
provisions of section 1989 of this title. Every marshal and deputy
marshal who refuses to receive any warrant or other process when
tendered to him, issued in pursuance of the provisions of this
section, or refuses or neglects to use all proper means diligently
to execute the same, shall be liable to a fine in the sum of
$1,000, for the benefit of the party aggrieved thereby.

Note that this $1000 dollars was in gold dollars at the time of 1866, a substantially larger sum in today's currency... well over a year's pay for many.

To cojoin with this prohibition, there is title 42, section 14141.

(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) [1] has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.

While of a far more recent vintage, it was designed to hold up the earlier law... yet, what happens when it is the very individual who is charged with upholding this law refuses to prosecute violations of rights by the states or federal government?

Do we have a right to have the law enforced, or not? Remember, the police, and federal or state officers in general hold no duty to protect you. We also must recognize that the police, as an entity, has much room for abuse and corruption. Where is our recourse if the rights they are established to protect... are being denied by those who are engaged and bound to their protection?

Do they maintain their office when they are working contrary to the founding of that office? Does not the very inaction transgress the bounds and oaths of the office to the constitution and laws of these United States?

Action outside of those offices, or within them under title 18, section 242, would be equally wrong. There is no immunity to the crime, and all officers and judges, are equally under rules, regulations, laws, traditions, and customs.

The Cruikshank case, for instance, said:

'The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a [106 U.S. 629, 639] member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, and no more. The power of the national government is limited to this guaranty.'" (638-39)

How, therefore, can the federal government pass laws to limit rights for specific classes of citizens, once the state interest in their punishment is passed? How may they, claiming 'civil regulation' promote a regulatory scheme under which they may restrict the rights of individuals by creating a new crime that attaches only to that particular class of individual?

Remember, that at the time of Blackstone, that 'felony' referred to a severance of property, generally the property of life. it was by attainder that such a property was severed from the individual, upon sentence of death by the courts, or by the power of attainder written into law by the legislature, resulting in banishment, execution, or property forfeiture, and often corruption of blood.

If that power of attainder is prohibited to any action by the states, including constitutional amendment (as per Cummings v. Missouri), and the state acts by the legislative, the judicial, and the executive branches only (and by no other means per Shelley v. Kraemer) how may they engage in powers they are prohibited without penalty?

Only by the failure to enforce the law...

Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.
-- Federalist 44, James Madison

"The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection."

-- John Stuart Mill

Not self-protection against imagined, possible harm, but actions taken against rights. Those actions are cause for self-defense. No matter who exerts the force, no matter who creates the harm, the defense remains. Upon aggression, you have the right to resist.

Even if it is a police officer engaged in an unlawful arrest.

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Arbitrary law and you!

My friends. I am an idiot... a total idiot, one of those creatures wondering entire at the world around him, incapable of doing aught save absorbing those things which I study and pondering upon them for the myriad hours my mind is idle. Whilst turning a wrench or writing a program, whilst doing dishes or traveling in the desert or mountains, my mind is busy pondering uselessly upon the many things which concern me.

I however, submit a question. Should we allow arbitrary law, law determined, not by court and jury, not by standards of fairness, but by positions written by bureaucrats, attorneys, and pandering politicians for their own gain?

Did we not fight a war to end arbitrary law, and prohibit ourselves from those same seizures by attainder of the properties of the Tories and British citizens? Did we not argue, eloquently, even at the Boston Massacre for the rights of the individuals who fired those rounds? Did we not consider the natures of government, past and present, ponder upon their fall, and judge those things to be put aright that we might have a lasting peace and prosperity?

Did we not fight another war, in 1861, to establish and preserve that nation, to try to end the arbitrary rule of slavery in the south, and the equally arbitrary and unconstitutional tariffs between the North and South? Was it not the purpose and the intent of the constitutional 'commerce' clause to preserve the free, and regular flow of commerce between the states, not by regulation to terminate certain commerce disapproved by persons in the federal government?

How may we lawfully do those things by the power of the state and federal government that we may not lawfully do as private individuals? Are not those powers engaged, created, and then passed to the hands of the states for those uses that are best preservative of the rights of those very individuals?

The states act in several manners... the legislative, the judicial, and the executive branch. They may also act by their federal representatives in the Senate, and by the representatives of their people in the House, but such are still actions by the state, under the state mandate. There have been myriad court cases over these last two centuries, attempting to establish both what the law is, was, and may be.

The ultimate foundation, and intent of law was to preserve to the people that which is their own. It is from this intent that criminal law arises, to punish those who worked against the rights of property, against the rights of persons to not be maliciously harmed. It was for these purposes the criminal and civil courts arose, to preserve the rights of the people, to punish and to restore, respectively.

We fought in the courts in Yick Wo, to attempt to remove that arbitrary law by selective enforcement, we fought in Cummings v. Missouri and Ex Parte garland to remove that power from the hands of the state governments, for the moment that they may target the law to the detriment of any, they may target the law to enrich the few at the expense of the many.

The battlefield has been wide and varied, covering centuries, some steps forward, other steps back. We gain hope when our rights become more important than the agenda of false and designing men, only to despair when prosecutors may not be punished for falsifying evidence, or withholding exonerating evidence. We hold our breath, waiting and wondering what abomination or hope might come from the court next... but yet, the rule of ethical law is very simple.

One should never establish a law under which the whole of the society will not be equally affected. If a thing is to be made a crime, it must be made a crime for all in the jurisdiction, from the judge to the governor to the president. Exempting anyone from the law is the fastest way into tyranny.

It takes an honest man to vote against a law which will not affect him. It takes an equally honest man to vote against a law that will benefit him, or to abstain from such a vote. It costs a tyrant nothing to vote for a law that is to his benefit, or to vote for a law that will affect others.

For the past two centuries, we have seen laws designed to divide upon race, upon religion, upon socioeconomic status, upon past acts, upon all the myriad excuses our government could find.

We find ourselves here today due to the deliberate creation and manipulation of schism, created by law designed to benefit some at the expense of others. We find ourselves here not because of malicious intent, in most cases, but because of strongly-held, intimate beliefs upon what is right and wrong, and upon the belief of those same individuals that they are strong enough to tame the lion that has slain so many good intentions.

We would not need limits in law, were we governed by angels. We are not so governed, however, so the law must lay limits as to the power of the grasping, the greedy, and the aspiring, to prevent them from laying down the law in such a manner as to deliberately interfere with the rights of the minority.

The only means by which this may be done, in instances with men of poor character or good, with persons both well-intentioned and malicious... is to ensure that not only must they live under the same law that they create, so must all their friends, their benefactors, and the whole of society, and to impress upon their minds that should they attempt to legislate beliefs, be they ever so noble, that go against the beliefs of others, that their own beliefs may be next to be legislated against.

It has ever been true that in the marketplace of ideas, only errors require force to ensure their continued and repeated purchase. That same force exists when law is used to enforce ideas against the rights of individuals, due to the beliefs of others of their unworthiness to use those rights... or an inaction is taken in enforcing the law preservative of those rights.

Should we not, rather than enforce that belief, enforce the existing laws wherein active trespasses against rights are punished, and otherwise, where there is no crime, those individuals are left alone?

Or should we continue, by creating artificial classes and schisms, the feudal insanity that led our nation to schism from its parent country in the eighteenth century?

I am an idiot... I will only and ever be an idiot, for I believe in things that may be impossible. Indeed, I make it a habit and a philosophy to engage in the mental debate of the impossible, for it is only in that way that, in truth, we may discover if it is truly impossible... or merely a cover for the desires of others.

I may be an idiot, but rights are what they are, a form and function of personal property, an essence and nature that cannot be seized without execution of the possessor. One may be a slave, one may be bound to the cart but that does not negate the right to be free... only acts as an eternal condemnation of those who would deny that right for their own benefit.

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