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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