Wednesday, July 23, 2008

An open letter to the ACLU.

I am not normally one to write thus. I would not normally suggest that my writing is important enough to be spread far and wide. This, however, has gone too far, and in proportion to the magnitude of the problem, ought to be the power to spread the truth.

Gentlemen, I come before you, a man powerless under the law, seeking the redress of grievances done by the legislators of the country, and by the executive power, that impermissibly infringes upon both human rights, and civil rights.

I write this, knowing that what I am to say is true, but it is a view that few will look at, however, I know that you will understand.

There are two varieties of court in the country, civil or escrow court (as it was termed in the days of the founding of the Constitution) and criminal court. One tries actions between individuals, for the remediation of grievances under contract law. The other, provides punishments due prisoners for wrongs done against society.

The Adam Walsh act claims to be a civil matter.. but it provides punishment more consistent with a criminal code. Further, it impermissibly co-mingles the civil and the criminal justice system, without the protections granted under the Criminal Justice system for criminal offenses.

Under the Federalist Papers 83, this separation was discussed as a necessary guarantee of freedom. However, this act also has other, perhaps unintended consequences.

The Adam Walsh act creates a unique situation. On one hand, it attempts to protect society, on the other, it places a vulnerable population, which, in general has had both its capability of self-protection removed, and in many cases the right to vote, in a position where they are vulnerable to vigilantes. Further, it places limits on where such people can live, advertises their location, making them more vulnerable to attacks, financial fraud, and property damage, and further creates situations where friends, neighbors, and family members (including children) are endangered without recourse to law.

Our constitution guarantees certain rights, and recognizes that other rights exist, from the state of humanity itself. Among these rights were the right to life, to liberty, to property, and to security.

Removing these rights by writ is prohibited, under Article 1, Section 9 of the US consittution, as well as Article 1, Section 10. There is no power granted to the legislature to remove rights, for any group of people, or for all persons, by writ. Such a power was specifically prohibited, and discussed in detail in the Federalist papers. The federalist 48 was specific in the reasons behind the limitations to the congressional powers on this subject, as was the Federalist 83.

The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.

The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting "Notes on the State of Virginia," p. 195. "All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, IN MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. (Federalist 48)

I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it.

If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.

Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them?

Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined. (Federalist 57)

The supreme court has said that the constitution and the history thereof are silent on the matter of civil law and ex post facto, therefore it is allowed.. I'd argue the following (written regarding the right to jury in civil trials) as evidence against this.

With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only NOT PROVIDED FOR, is entirely ABOLISHED. Every man of discernment must at once perceive the wide difference between SILENCE and ABOLITION. But as the inventors of this fallacy have attempted to support it by certain LEGAL MAXIMS of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter. (Federalist 83)

Further, I would argue that such a law would be utterly nonsensical under the common law tradition of civil suits. Civil law at the time was contract, tort, property, or escrow law, regarding private individuals, and private matters, in direct contrast to the common law criminal law which dealt with wrongs against the society.

Under civil law no punishment could be meted, not even a moment in prison could be assessed. All judgments were remedial, and such judgments could only occur in explicit or implied contract.

No civil law, further, could be imposed upon any person. Civil code, as well, was an alien issue, the first civil code (a predecessor of the Code Napoleon) coming in with the Louisiana Purchase. (currently still the basis of Louisiana code).

Criminal law, however, is quite the opposite. Criminal law is imposed by its very nature, and punitive, by providing for unique imprisonment and loss of freedom, liberties, and rights.

How then is mandatory registration on pain of incarceration civil? How is it thus legal to restrict the rights of men, not for what they do, but for what they may, someday, perhaps do?

There are three aspects to any criminal law, first that the law must be clear. The second test is one of fairness. The third test is one of assumption of innocence. In primus, is the law clear? It establishes a large number of punishments, increases minimum sentences.. but also leaves the interpretation and application of the law, rather than being codified, in the hands of the Attorney General of the United States. This is a strike against clarity, and the separation of powers.

The second test, fairness, is a subjective test. But according to this test, is it 'fair' or 'reasonable' to expose a population to danger, simply because one believes they may reoffend? Is this just or reasonable? When divested of their ability to protect themselves, labeled and demonized, how is it reasonable to expose them to those to whom they have been labeled as demons? When it has been judged by the Supreme Court that there is no protected property interest in police protection, and that they are in truth there to simply catch criminals and incarcerate, the police in many cases will not protect those thus labeled.. and further in most cases cannot.

"Law enforcement agencies and personnel have no duty to protect
individuals from the criminal acts of others; instead their duty
is to preserve the peace and arrest law breakers for the protection
of the general public." (Lynch v. NC Dept. Justice)

". . . a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen."--Warren v. District of Columbia, 444 A.2d 1 (D.C. App.181)

Cases known supporting this:
South v. Maryland, 59 U.S. (HOW) 396,15 L.Ed., 433 (1856)
Bowers v. DeVito, U.S. Court of Appeals, 7th Circuit, 686F.2d 616 (1882)
Riss v. City of New York, 293 N.Y. 2d 897 (1968)
Keane v. City of Chicago, 98 Ill App 2d 460 (1968)
Hartzler v. City of San Jose, App., 120 Cal. Rptr 5 (1975)
Reiff v. City of Philadelphia, 477F. Supp. 1262 (E.D.Pa. 1979)
Chapman v. City of Philadelphia, 434 A.2d 753 (Sup. Ct. Penn. 1981)
Warren v. District of Columbia, D.C. App., 444 A.2d 1 (1981)
Davidson v. City of Westminster, 32 C.3d 197,185 Cal. Rptr. 252,649
P.2d 894 (S.Ct. Cal. 1982)
Morgan v. District of Columbia, 468 A2d 1306 (D.C. App. 1983)
Morris v. Musser, 478 A.2d 937 (1984)
Calogrides v. City of Mobile, 475 So. 2d 560 (S.Ct. Ala. 1985)
Lynch v. N.C. Dept. of Justice, 376 S.E. 2nd 247 (N.C. App. 1989)
Marshall v. Winston, 389 S.E. 2nd 902 (Va. 1990)

After these things, it becomes plain that there is a protected interest, a substantiative due process interest, in abolishing this law. Further, it may well be that abolishment may come too late. Due to the decision to distribute the data over the Internet, to use the vernacular, the 'genie is out of the bottle'. There is no way to put the knowledge held there back away, nor to delete it from all archives, especially that of those who would willingly put it to malicious use.

After these things, we must ask, and remonstrate for injunctive relief. By the right to redress of grievances, as well, we must insist upon the restoration of our rights, the abolition of this law, and further, the restoration of our ability to protect ourselves, as the government cannot protect us.

We must seek injunctive relief not only for ourselves, but for our families, our children, our friends, and our loved ones. This law does not simply apply to the offender, it applies to those around the offender. The innocents who are bullied, targeted, and harmed, not because of their own actions, but because of a governmental backlash of hatred, control, and intolerance.
Should this state continue, we will be ended, and so will the lives of others who count on us. No right can be removed from any person without causing that right to become a privilege in the eyes of the government. Banishment, disarmament, concentration, and limitations on free speech and association are the tools of tyranny.

The current law stands as a legislative bill of pains and penalties, insofar as they have judged that offenders are guilty of the possibility of a new crime, therefor they must pay. They must register, they must obey restrictions on their livelihood, their location, their communication, their families, their friends, and be legislated further by whim and writ, to limit their rights without recourse to due process of law. Should they refuse, they should be imprisoned.

Wherein is this American? Wherein does the United States gain such power, that the congress can ignore the very foundation of their grant of power?

No, the congress has no such power granted in the Constitution, nor does the states. Article 1, section 9 specifically prohibits attainder and ex post facto legislation. Article 1, section 10 specifically prohibits the same to the states.

It is time to end this. The persons labeled 'sex offenders' according to the GOVERNMENT'S OWN STATISTICS have a lower reoffense rate for any crime, as well as a low reoffense rate for sexual crimes. The lies must end. If you do not believe me, do the research yourself. Go to the department of justice. Go to the departments of correction. The numbers are there, and available, if you look. Look at the studies, and metastudies. Learn and understand, and think!

The actions of few, should not destroy the rights of all.

Tried By Conscience.

Feel free to repost this. Spread it. Share it. The truth must know no ending.

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