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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