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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