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Monday, November 23, 2009
Remember Where and When
YOU FIRST READ THIS. I want credit if I’m the first, and I’d like to know if there was anybody before me to come up with this idea, with specific cites as to date, time, and venute.
On Friday, a caller to the Glenn Beck show asked Pat Gray, the guest host, why had not some of the palpably unconstitutional acts of Congress been challenged on behalf of We the Little People by some sharp conlaw hotshot out to make a name for himself. In particular, the so-called “health care reform” bill presently before Congress being an egregious example of the breed, was there a possibility it could be killed aborning, so to speak?
Gray allowed as how it might happen, but didn’t sound to hopeful—knowing, as he no doubt does, that most courts in the land would deny standing. Which ignores the fact that any citizen ought to have standing to “petition the government for redress of grievances” in constitutional matters, as any violation of that document does injury to us all. The tendency to deny standing in most cases also turns the whole notion of a constitutionally-limited government on its head. After all, how can it be proper for the government to rule as to what is or is not reasonable in terms of limitations on its own power? Built-in conflict of interest, right there. BUT… that appears to be how roll the statists in black silk robes.
We are faced with the odious possibility that the dog’s breakfast now before the Senate may actually pass. And, while there are many hurdles to be overcome, the Democrats appear to be ready to lower the bars, brace the hurdles, hobble the other runners, and even stop the clock if necessary to get the win.
What?! Alger! Democrats cheat? How can you say such a thing!
Careful, Dolly. You could put somebody’s eye out with that sarcasm.
::titter::
So here’s the thing I want you-all to remember. And, if there’s a hot-shot constitutional lawyer within eyeshot of my dancing fingertips, please take this ball and run with it.
The Preamble to the Constitution reads in full:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
For decades, the so-called Progressive Left has been perverting the general welfare clause to read “provide the general welfare,” in aid of such abominations as the Great Society and even FDR’s New Deal. (Not to mention Bill Clinton’s Raw Deal—a little Rush humor fer ya, there.)
And they’ve been getting away with it because corrupt judges in the court system have backed them up.
Alger! Corrupt? That’s harsh!
Look at what they’ve done to the country and tell me they’re not.
Point taken.
So it’s petard-hoisting-on time. There’s another clause in there: “...secure the Blessings of Liberty to ourselves and our Posterity...” Sounds an awful lot like a civil right to me.
But what are you going to do? File suit against the government? Well, yeah. Envirowackos do it all the time on more specious grounds. But… No. Not exactly.
I am proposing to file complaints against Members of Congress specifically for their votes. There’s a civil-rights law, 18 USC 241:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;…
They 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, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Now, folks might say that Congress is immune from prosecution—constitutionally. Except… 18 USC 242 modifies that somewhat (without, I think, actually stepping on the meaning of the immunity provision):
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, ... 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 kidnaping 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.
Seems to me that the opening clause seems to militate against the whole concept of “sovereign immunity.” (And how has that concept gotten twisted around in a country where the People are supposed to be sovereign, not the state?)
Now, I submit to you that the mandate to buy health insurance at all, let alone a policy approved by vague diktat from the secretary of HHS (whose office is in and of itself unconstitutional, I should point out), is a serious infringement on individual liberty—and on specious grounds at best. And I should also point out that it is nearly inevitable that death will result from the proposed law, which makes this not only a Federal case, but a CAPITAL Federal case.
And, between the Preamble and the Ninth and Tenth Amendments, it would seem to me that Liberty is a constitutionally-protected right. Right?
Would it be possible to get a sympathetic (and possibly near-retirement) judge to sign arrest warrants on these grounds, and to have them served by U.S. Marshalls ON THE CAPITOL GROUNDS WHILE CONGRESS IS IN SESSION? Failing that, can we get a cease-and-desist? A TRO? After all, liberty—like property—is unique and requires special protections. As American liberty is about to be irrevocably destroyed, can the People not force a stay of Congress’ hand?
Somehow?
(Cross-posted at BabyTrollBlog.)
Comments
Brilliant!
But what a point things have descended to, where it would be necessary to look for a sympathetic or near-retirement judge in order to uphold the Constitution....Posted by kg on 11/23/2009 at 05:43 AMYes it’s brilliant...so why not send this to Heritage, they must have lawyers on staff. There is also the Constitution Party founder and attorney Mike Peroutka.
Mark, I will support your effort to secure the blessings of liberty to our posterity with volunteered time and $$ if you can get this off the ground.
What about the ACLU...I’m serious.
Posted by on 11/23/2009 at 10:52 AMIf Congress is immune, you can sue the bureaucrats, agents, civil service secretaries, President, VP, cabnet officials and State employees who effectuate that law. The Constitution is the supreme law so if they act under a subordinate law in contravention of the Constitution, they are not acting under color of law.
Posted by on 11/23/2009 at 11:02 AMIts a thought, but you should also recognize that its only the dumber of the Congress critters who rely on the general welfare clause of the Preamble. The smnarter kleptocrats rely on the first clause of Article I, Section 8 :
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Which Madison was very clear about in the Federalist Papers. As far as he was concerned, it didn’t mean what Congress would like to think it means, but Hamilton’s view was a tad bit more expansive.
Posted by Blackiswhite, Imperial Consigliere on 11/23/2009 at 12:17 PMI took the liberty of copying the link & sending to my Representative, Kevin Brady {yeah, the one who told Timmy the Perverted Leprechaun, O/W known as Treasury Secretary it was time for him to resign
} & my Senators, Cornyn & Hutchinson - below is my note {essentially the same for all 3} to Senator Hutchinson:
Senator, may I recommend:
http://www.eternityroad.info/index.php/weblog/single/remember_where_and_when/While I appreciate the efforts of yourself & Senator Hutchinson on behalf of legal residents of Texas, you MIGHT want to circulate this among your less-willing-to-listen-to-their-constituents peers; those of us outside the Beltway are fast losing patience with the usurpation of the Constitution.
Thank you and
Semper Fi’
Mary ********~~~~~~
Thank you, Mr. Alger, for this!
Semper Fi’
DMPosted by Diamond Mair on 11/23/2009 at 12:37 PMI wish.
In reality, something drastic and unprecedented has to be done; if we can avoid the Final Box, all the better.
But it is not a question of fine-tuning/adjusting the existing system to “work better” or “be more responsive to the citizenry”, etc. We have the entire extra-Constitutional apparatus of the Federal Government that has been put into place since the Lincoln Administration to remove, along with at least a couple of Constitutional amendments (popular election of Senators and income tax; I don’t recall the amendment numbers and I’m too laz… er, busy to look them up) that have proven more damaging than useful.
Posted by on 11/23/2009 at 01:20 PMNice try, Mark, but it’ll never fly. There’s a specific immunity for members of Congress for their conduct of their official duties, including their votes. And it’s long-established constitutional doctrine that the Preamble does not grant any enforceable rights.
Posted by on 11/23/2009 at 01:31 PMKirk;
I hear you. But I should make these two points in rebuttal
-- first, this whole “health care” farrago is predicated on the general welfare cause, so saying that, although the Preamble grants government power but does not protect rights of the People… hey! Sauce for the goose!
-- second, (and this might be harder), the immunity of Congress is granted so that they can’t be harrassed by petty concerns from performing their solemn duties. It seems to me that this cannot apply where individual Members FAIL in their duty, in direct breach of their oaths of office, and in violation of provisions of the Constitution. At the VERY least, they are in violation of 18USC 241/242. I would also posit for a kicker that they’ve made war on the People and Constitution of the United States and tread dangerously close to Treason.
Talk about high crimes and misdemeanors!
Also, if I recall correctly, the immunity is granted for travel to and from a session. Says nothing about what happens actually IN a session. Yes, it’s nitpicky, but a lot of assaults on liberty are founded on less. Seems fair the People should get their innings.
M
Posted by Mark Alger on 11/23/2009 at 02:36 PMMark:
The sections that you cited are criminal laws, not civil laws. So only a U.S. Attorney would have standing to do what you propose.
BTW: The “law” is not just statutes (written laws) but court decisions (case law) which interpret statutes. Creative people often come up with novel interpretations, such as yours, of writen laws which are wildly inconsistent with statutes and case law. Your proposal that Congress would violate a statute by passing a statute is such an example.
Posted by on 11/23/2009 at 06:12 PMOK. I’m all about observing the proper forms.
Don’t a US Attorney’s actions have to arise from a complaint? Specifically a citizen complaint? “Mr. USA, that congressman over there and that one over THERE are conspiring to deprive me of the free exercise of my constitutionally-protected rights?”
Wouldn’t the USA, in refusing to act on the complaint, be subject to prosecution himself under the same statute? As acting under color of law, with or without the conspiracy, to deny...?
Surely there must be one USA in the land who chafes under the yoke of these oppressors as much as we do?
(OK, that last was a bit of an exaggeration, but...)
IAC, neither statute nor case law can trump the Constitution, and IT says WE get to do thus-and-so, and IT says CONGRESS shall not.
Thanks for your comments.
Not yet grasping at straws,
MPosted by Mark Alger on 11/23/2009 at 08:19 PMForget the Constitution, as the courts obviously have. What I want to know is, whatever happened to the “my body, my choice” precedent? Can’t we trot out a truck load of legal precedent based on this specious argument alone? How many other bad legal precedents can we stand on to get our heads back above water?
It would be much sweeter, too, to use the leg that’s kicking us as a ladder back up to our own standing.Posted by Joan of Argghh! on 11/23/2009 at 08:51 PMI hesitate to weigh in on this issue for several reasons. Firstly my career in the criminal justice system was at the state level with only a limited exposure to the federal jurisdiction by having been a member of a joint federal-local task force engaged in a sting operation.
Generally speaking, cases brought in federal court are submitted by investigative agencies of the executive branch i.e. FBI, BATFE, Secret Service etc. A US Attorney will refer any citizen complaint to one of those agencies.
The reality of so called unconstitutional legislation enacted by Congress is more or less a dead issue since the early 19th century when chief executives vetoed acts of Congress that were obviously in violation of the constitution. Recently unconstitutional acts have knowingly been signed into law by presidents e.g. McCain Feingold. The result was predictable says Andrew Napolitano : “95% of entries in the Federal Register are in contravention of the Constitution”. Short of the pitchforks and torches scenario what do we plan to do about it?
For your consideration I post without comment the following email forwarded from a friend in Sweden (snopes has no info on this):
[11/20/09 2:07:07 AM] Kerry Cassidy: “I do not normally pass on rumors or here-say, but a very good personal friend’s uncle is a Deputy Economic Advisor to Obama as well as a Professior at a prestigious Eastern School. He was called into a private meeting last week with the President. They were told, I quote, the Following: “Between now and Jan 1st 70 more big banks will fail and 70% of Retail Companies will be Bankrupt. The President will allow them to make as much as they can for the Christmas Holidays then Jan 15 there will be a Bank Holiday and their new currency will be issued with a devaluation of 6 to 10 to 1. “I believe this is why they are trying to keep the market and dollar up now with their lies on all the News outlets. Set up the people to steal every last penny they can get. Martial Law cannot be too far behind. Get your money out of banks and into physical Gold and silver. I recommend 60% gold 40% silver, food, foundation seed, gun ammo generators… etc. If you cannot eat, drink it, wear it, live in it, raise food on it, do not invest in it. If you have stocks, bonds 401K Ira, take the penalty and put it in what I just said."
D.R.
end quoted textIs the sky falling?
ΜΟΛΩΝ ΛΑΒΕ
Posted by ΛΕΟΝΙΔΑΣ on 11/23/2009 at 09:16 PMLeo;
So long as the government wears the fig leaf of contstitutionality we can—and should—use it against them in the restoration of our liberty.
When they take it off is when it goes to armed rebellion. Pray God it never comes to that.
M
Posted by Mark Alger on 11/24/2009 at 12:32 AMMark:
Thanks for responding. The US Attorney is the most powerful position in law enforcement (far more powerful than an FBI office chief) not some clerk that has to take action when you write him a letter ("file a citizen’s complaint"). When he discovers allegations of misconduct, the US Attorney has wide discretion to do nothing, begin an investigation, enter a deferred prosecution agreement, or prosecute under a variety of laws leading to years or decades in prison, depending how it is charged. Absolutely nothing bad will happen to the US Attorney for refusing to investigate or prosecute, even for conventional misconduct, to say nothing of the novel legal theories that you propose. They can’t investigate everybody and have wide discretion in who to make a “target”.Posted by on 11/24/2009 at 01:35 AMU.S. Attorneys are appointed by the President, confirmed by the Senate, and serve at the pleasure of the President. If one of the 92 US Attorneys was convinced by your novel legal arguments and filed a case, he’d be summarilly dismissed by the President or his Attorney General.
Posted by on 11/24/2009 at 01:43 AMOK. Dump the statutes. How can a citizen defend against outrages to his liberty and rights?
(Realizing it seems to have been done thus far only AFTER the damage has been done and the outrages suffered for years or decades and in some cases entire lifetimes.)
M
Posted by Mark Alger on 11/24/2009 at 08:34 AMObviously one of the problems of the Constitution is it has no “or else” clause. There are limits on the government but no remedies. A right without a remedy is no right at all. People who talk about amending the Constitution with clearer language (we really mean it) should probably focus on remedies for violations “any officer of employee of the US government who violatees one of the provisions of this constitution shall be subject to a fine, not less than $10,000 in inflation adjusted dollars, plus one year in jail (to be served in the DC prision system) for each infraction. Any taxpayer shall have standing, all federal courts shall have jurisdiction.
Posted by on 11/24/2009 at 10:13 AMUnfortunately we are probably past the point of no return. Government has become a sector, an industry of itself. The servant has become the master. The only remedy is revolution, hopefully peaceful but more than likely exceptionally violent. Our founders knew that well enough, and were they alive today I have no doubt what the outcome would be.
I don’t advocate starting one but I have no doubt that if the government continues to push for more control, they’ll start one. You don’t see an “or else” clause in the Constitution because the Founders had an “or else” clause already built in. They had just demonstrated it to Britain. You’ll find that solution under the second amendment.
Posted by Xealot on 11/24/2009 at 12:29 PMOK. Dump the statutes. How can a citizen defend against outrages to his liberty and rights?
*pulls out dog-eared and battered copy of The Federalist Papers, turns to The Federalist # 33*
“But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. “ [Emphasis Mine]
and
- From http://threesurethingsoflife.wordpress.com/2009/09/20/a-conservatives-lecture-to-a-liberal-on-constitutional-interpretation-and-h-r-3200-with-bonus-perspective-on-obamas-declaration-that-the-constitution-contains-negative-liberties/The rationale that “The Government has been usurping power for years, why stop them now?” simply won’t cut it. When we know that Government has been doing something wrong for decades, we have a duty to correct that error, not to allow it to compound with our acquiescence. If this wasn’t true, then slavery would still be the law of the land. On the matter of H.R. 3200, the Congress simply does not possess the authority to do what it proposes. It didn’t have the authority with Social Security, or with Medicare, either. But that is no excuse to let them brew up another pot of failure, and pour a cup for the entire nation without being asked, no, demanded to tell us where they get the authority. And when the answer is not satisfactory, then they should be told “NO.” until they finally understand that “NO” means “NO”.
Posted by Blackiswhite, Imperial Consigliere on 11/24/2009 at 12:40 PMWhich is why I’ve always resisted the notion that precedent ought to hold sway, and scorned the concept of stare decisis. Bad precedent is bad, and that it happened awhile ago is immaterial.
M
Posted by Mark Alger on 11/24/2009 at 08:20 PMWhich is why I’ve always resisted the notion that precedent ought to hold sway, and scorned the concept of stare decisis. Bad precedent is bad, and that it happened awhile ago is immaterial.
Stare decisis is still subjective. If it weren’t, Plessy v. Ferguson and Dred Scott would still be good law.
You are right to identify these things as civil rights issues, but the fact that what is right conflicts with the left’s insaiatble appetite for tyrannies large and small is what makes them stone blind to that fact.
Posted by Blackiswhite, Imperial Consigliere on 11/24/2009 at 08:29 PMGovernment has become non-responsive to the needs of the people. They are out of control. Well, there is ONE form of control, but we have been loath to use it. UNTIL NOW.
When in the course of human events....
Posted by sofa on 11/24/2009 at 11:30 PM
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