12/19/15

Getting Around Protected Rights

BY T.F. STERN

This past week many sites, to include The Federalist Papers Project, linked to a video of Congressman Trey Gowdy’s public hearings. Acting on behalf of the American public he carefully and methodically destroyed Deputy Assistant Secretary Ms. Burriesci, representing the Department of Homeland Security, as government officials attempted to explain the ‘process’ by which American citizens could petition the government to restore rights which had been removed, those who’d been denied their right to own and purchase firearms, these same individuals who’d been placed on the Do Not Fly List.

Congressman Gowdy wanted to know more about the ‘process’; but what he really wanted was to remind Ms. Burriesci about a different ‘process’, one which was being ignored completely…

Congressman Gowdy thoughtfully explained his use of the word ‘process’ as he originally referred to it, to be more specific, the term is Due Process. He reminded the witness that our constitution limits government’s ability to infringe on any individual’s God given inalienable rights without Due Process.

For clarification purposes, Ryan Williams’s entry to the 2010 Yale Law Journal defined this term and concept more precisely:

“In United States constitutional law, substantive due processis a principle which allows courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.” That is, substantive due process demarcates the line between acts by persons that courts hold are subject to government regulation or legislation and those acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent.”

Timothy Sandefur recorded in, The Right to Earn a Living: Economic Freedom and the Law, as published via the Cato Institute in 2010:

“In contrast, substantive due process aims to protect individuals against majoritarian policy enactments that exceed the limits of governmental authority—that is, courts may find that a majority’s enactment is not law, and cannot be enforced as such, regardless of how fair the processes of enactment and enforcement actually are.”

In short, there are laws being enforced (far too many) which are outside of restrictions placed on government, restrictions intended to safeguard individual God given rights (or Natural rights) and it is important to remind those in government that they are not above the Constitution and have no such powers. We are, after all, a nation dependent on the Rule of Law.

Let me insert a partial transcription of Congressman Gowdy’s efforts…

“What process is afforded a United States citizen before that person’s Constitutional right is infringed. That [The President] is fine with doing it with the Second Amendment.

My question is, how about the First? How about we not let them set up a website, or a Google account?

How about we not let them join a church until they petition Government to get off the list? How about not get a lawyer? How about the 6th amendment?

How about you can’t get a lawyer until you petition the government to get off the list? Or my favorite, how about the 8th amendment?

We’re going to subject you to cruel and unusual punishment until you petition the government to get off the list?

Is there another Constitutional right that we treat the same way for American citizens than we do the Second Amendment? Can you think of one?”

“The No-Fly List itself is a violation of Constitutional rights all by itself, but to use that illegal list as a way to snatch other rights away from the people is abhorrent and sets a dangerous precedent for the future.”

When our government tries to get around the Rule of Law as if it were outside of restrictions placed on it by the Constitution, at that time we can say without equivocation that tyranny has replaced our representative form of government.

Dan Riehl wrote an article the day after the San Bernardino premeditated attack in which Muslim Terrorists proudly admitted their association with ISIS and then murdered 14 Americans. Riehl pointed out that Attorney General, Loretta Lynch, on behalf of the Department of Justice was more concerned about anti-Muslim rhetoric’s effect on those of that faith than the threat posed to the American public.

“Loretta Lynch, at a press conference yesterday, termed the San Bernardino shootings a “wonderful opportunity” to change the nature of police work: “We’re at the point where these issues have come together really like never before in law enforcement thought and in our nation’s history and it gives us a wonderful opportunity and a wonderful moment to really make significant change.”

The Obama administration continues to use any gun related tragedy as a means to launch additional gun control measures. They went to extreme measures to cover this event, as with other shootings as if guns walked in and shot all those folks without a Muslim Terrorist holding those guns.

Obama has threatened to implement extreme gun control actions via Executive Order, effectively bypassing Congress. If you put these two thoughts together we have a totalitarian effort (tyranny) to eradicate the 2^nd Amendment; but also destroy freedom of speech as protected by the 1^st Amendment.

So, back to Congressman Gowdy’s questions regarding our government’s attempts to get around the constitution, to get around inalienable God given rights and deny any American their right to own and bear arms, to express their thoughts without fear of government interference or imprisonment… to get around Due Process…

What part of Due Process, more specifically, what part of substantive due process do these department heads not understand? (Really, you actually consider that a possibility?) No, under the Obama administration there is a willful and calculated effort to get around the constitution.

David A. Patten, along with almost every other political correspondent, recordedBarrack Hussein Obama’s comments regarding the Constitution back when he was running for the presidency.

“Democratic presidential candidate Barack Obama described the U.S. Constitution as having “deep flaws” during a September 2001 Chicago public radio program, adding that the country’s Founding Fathers had “an enormous blind spot” when they wrote it.

Obama also remarked that the Constitution “reflected the fundamental flaw of this country that continues to this day.”

Obama’s promise to America has been, and continues to be a great Transformation, to make it what (he thinks) it should be. His actions support his promise.

America will no longer be a land of liberty; but instead will become a totalitarian communist state where your constitutional republic, your God given inalienable rights as set down by the Founding Fathers, and without question, Due Process and the Rule of Law will become a faded memory.

The Moral Liberal’s Senior Editor, T.F. Stern,is a retired City of Houston police officer, self-employed locksmith, and gifted political and social commentator. His popular and insightful blog, T.F. Sterns Rantings, has been up and at it since January of 2005.

02/13/15

Mark Levin: Who gives us unalienable rights?

01/25/15

The Ten Big Ones

01/12/15

The Dismantling of Federalism

By: Nancy Salvato

It wouldn’t be surprising, if polled, that many United States citizens would feel disenfranchised when it comes to politics. Though the right to vote and petition the government is supposed to make sure the people’s interests are considered, we the people are not given standing to question the constitutionality of laws, i.e. The Affordable Care Act. Political parties are no longer able to moderate the positions of the most extreme members of our society, who feel compelled to take law into their own hands, i.e. exhibiting anarchy against the rule of law in response to the Grand Jury’s decision not to indict in the events surrounding Ferguson. Extremism, lack of understanding, apathy, an agenda driven 4^th Estate, all work against the citizenry in exercising their rights and responsibilities with fidelity in today’s society. How did it come to this?

One of the earliest Supreme Court cases to set precedent (A decided case which is cited or used as an example to justify a judgment in a subsequent case—ninja words) for our rule of law was Marbury v Madison. What happened is this. Before leaving office at the end of his term, 2^nd President John Adams appointed a slew of judges to the federal courts to maintain an ongoing Federalist Party influence during upcoming Democratic-Republican President Thomas Jefferson’s tenure in office. John Marshall was unable to deliver all the commissions before our 3^rd President began his term of office and Jefferson refused to have the remainder of the commissions delivered. William Marbury, who was to receive a commission, was not pleased with this turn of events and applied to the Supreme Court for a writ of mandamus, to force delivery of the commissions.

Angered by the appointment of the “midnight judges” Jefferson and the Democratic-Republican Party controlled congress attacked the Federalist controlled courts, removing many of the appointees by repealing the Judiciary Act of 1801, under which authority many of the appointments were made. To prevent an appeal on the subject, they determined the Supreme Court would not reconvene until 1803. By doing so, the executive and legislative branches appeared to be cementing their authority over the judicial branch.

The newly appointed Chief Justice John Marshall was in a bind. He did not want to further anger the Democratic-Republicans, fearing the administration would go as far as to simply ignore any decision made by the Supreme Court, if it appeared to further a Federalist agenda. Yet, he truly believed that Marbury’s commission was legally binding and should have been delivered. He resolved this conundrum, at the same time elevating the judiciary branch as co-equal to the other branches, by determining that the power to issue a writ of mandamus –given to the Supreme Court as part of the Judiciary Act of 1789, was actually “unconstitutional.” Therefore, he could not issue a mandate regarding the commission, satisfying Jefferson. At the same time, Marshall established the power of judicial review, ensuring the other branches abide by the Constitution, as interpreted by the Judicial Branch. In doing so, this elevated the status of the Judicial Branch, giving it the sole power to determine the constitutionality of law – a power for which it was never intended, but is now associated with this branch.

Influenced by Baron de Montesquieu, the Framers intended to prevent tyranny by dividing the powers delegated to the federal government into three branches of government, which could check and balance each other. In addition, according to the 10^th Amendment, powers not delegated to the federal government were to remain with the states and the people. If the constitutionality of a law is in question, this determination is presumably up to the states and the people to decide. The precedent for this is called nullification.

“If the feds pass a law that a state deems to be outside the boundaries of its proper constitutional authority, the state will simply ignore the law and refuse to comply with it.” – The New American

This idea, that the states could declare a federal law null and void because it violates the compact between the states and the federal government, eventually leads to the secession of the southern states from the union.

Because most people associate the Civil War with making good on a promissory note to those who were not treated equally under the law, the precedent for nullification is lost on the majority of citizens. This is problematic because citizens have no standing to bring questions of constitutionality before the Supreme Court and states have lost the main check and balance intended to ensure their interests were defined and respected by the federal government with passage of the 17^th Amendment—which eliminated the choosing of senators by the state legislatures and having them directly elected by the people. There is currently a movement to remove the last check and balance of the states with the elimination of the Electoral College.

There are currently a number of issues against which the states and people seem to be rendered powerless.

1) Immigration: By not enforcing the laws that Congress has passed on securing the border and immigration, the Executive Branch is marginalizing the Legislative Branch.

2) Obamacare: By unilaterally changing the text of the Affordable Care Act without seeking the changes legislatively, the Executive Branch is manipulating written law by decree, marginalizing the Legislative Branch.

3) Gitmo: Mr. Obama is “transferring” enemy combatant prisoners from Guantanamo Bay in an effort to empty the prison, in effect forcing a “closing” of the facility, something that Congress has passed legislation to prevent.

4) EPA: Using Executive Branch decreed regulations instead of seeking legislation from Congress, Mr. Obama is effectively legislating by regulating, and affecting many pieces of legislation Congress has passed to affect pro-economic growth.

Now that the new Congress has been seated, the President Obama has promised to veto any legislation that doesn’t further his agenda. It would seem that more than ever, the states and the people must reassert the powers which were never given to the federal government in order to prevent the tyrannical practices taking place at the federal level.

James Madison, in Federalist 51, writes,

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

It seems that the failsafe measures which were put in place to oblige the government to control itself have been breached. It is up to the states and the people to restore the natural order once again.

Nancy Salvato is the Director of Education and the Constitutional Literacy Program for Basics Project, a non-profit, non-partisan research and educational project whose mission is to re-introduce the American public to the basic elements of our constitutional heritage while providing non-partisan, fact-based information on relevant socio-political issues important to our country. She is a graduate of the National Endowment for the Humanities’ National Academy for Civics and Government. She is the author of “Keeping a Republic: An Argument for Sovereignty.” She also serves as a Senior Editor for NewMediaJourna.usl and a contributing writer to BigGovernment.com and FamilySecurityMatters.org.

01/11/15

Philadelphia Freedoms

By: Nancy Salvato

The founding documents, which include the Declaration of Independence, the US Constitution, and the Bill of Rights, capture the philosophy and political thinking that drove the Founders and Framers of our country. Afraid of losing the freedom we gained from a tyrannical government, the Federalists wanted a stronger (albeit “limited”) federal government to ensure our country’s sovereignty and ability to “keep our republic.” Afraid that a strengthened federal government would abuse its power, as those with governing authority are prone to do, the Antifederalists wanted not only to limit the authority we ceded to a federal government, but to add a Bill of Rights, to guarantee our rights against encroachment by a government which didn’t understand or respect the sovereignty of the people.

Alexander Hamilton argued vehemently against the need for a Bill of Rights. Because the federal government’s powers were enumerated, there was no concern of over-reach. We were only yielding a specified amount of authority and what we didn’t hand over was ours to keep. The Antifederalists, looking to history, were fervent in their arguments that our rights needed to be specified on paper, so that there would be no question about what belonged to us. John Adams, though a Federalist, captures this sentiment so well when he says, “We are a nation of laws, not men.” By writing down our laws, we can prevent men from impulsively reacting to public demagoguery or from despotic tendencies. It is no surprise then that the Framers capitulated on these demands and made good the promise of a Bill of Rights.

There is a difference between the power to require of people certain behaviors and rights to behave without fear of reprisal. This is the balance the Framers sought and the balance which must be maintained in order to provide a climate of freedom and security. Though we are mostly familiar with the 1^st amendment freedoms of speech, press, religion, assembly, and petition, the 2^nd amendment right to bear arms, and the 5^th amendment right to a jury and to remain silent, the people, who are the ruled and the rulers alike, should understand what compelled the Framers to include the 9^th and 10^th amendments.

Amendment IX states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Amendment X states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Surely, the Framers hoped to assuage the fears of a populace intimately familiar with tyrannical practices such as illegal searches and seizures, unreasonable punishments, and other abuses (many listed in the Declaration of Independence). However, two concerns were not evident in any of the first source materials left behind from our founding, perhaps they weren’t even considered, but they should be. The first being preciseness of language. If we go back to Hamilton’s belief that the powers not specifically enumerated in the Constitution belong to the people, we wouldn’t be having any discussion over what specifically is meant or not meant by the rights listed in the first ten amendments. The second is that there is no right “not to be offended.” When we bow to political correctness and prevent certain forms of free speech in certain venues, we hobble the very freedoms for which we fought to maintain. It’s that simple.

The Framers were concerned that we respect minority rights and this includes minority views or views that may offend some. It is in this way that we honor our first amendment freedoms. It is power that is limited, specifically that which is granted to our intentionally limited government.