Saturday, January 31, 2009

What will history say?

An old axiom states that history is written by the winners. With the epidemic of laws against felons and sex offenders sweeping across our nation, the marginalization and ostracism against those offenders continues to grow.

We are a nation founded in the precepts of freedom, in liberty, and in justice. As a constitutional republic, we are also founded in the ideal that no majority can override the rights of the minority. To modify the Constitution, that document itself mandates a supermajority (three quarters) of all states to ratify an amendment to that constitution.

Yet our legislators, in their zeal to 'protect', listen to those whom they do not represent. They listen to the industries, the special interest groups, and those who would profit from the power that is granted by the people, and write laws in the interest of that protection that voids our liberties, weakens our freedom, and continues to erode our rights.

It is a truth that no law can operate in a vacuum. Each law interacts with all other laws. Each freedom, each right, is affected by each law. A law is a line in the sand, a barrier, a wall. It states 'cross this at your peril, for civilized society has determined this barrier to be needful for its health'. It is for that reason that the sanctions are sanctions writ by society at large, not sanctions written with the victim in mind. The law is, and must be blind to the victim, in spite of all the arguments for opening its eyes to that consideration. When retribution enters into the rule of law, law itself fails.

Like lines in the sand, eventually there comes a place where there is no more room for lines. The edges of those lines becomes harder to discern. Lines are drawn outside of the original boundaries. How long does it take before those lines gain space, and encircle the will of the society which created them?

Certainly, one cannot argue for a world without law. Such a world would be chaos. Law was made to be limited, made to be bound to the will of the society itself, and that law no longer is. Retribution has become the watchword of the day, and the chaos is coming.

The hands of the people are tied. Those that write law have determined (outside of constitutional authority) that the rights enjoyed in the constitution do not necessarily apply to those convicted of a felony. That assumption has expanded since the 1930s, to where it may not apply to those convicted of a misdomeanor, nor to those who are accused.

I listen, carefully to the news, and hear people argue about the nature of crime. I hear people, filled with hatred, say that no person, once committing a crime, should be freed. Their victim will never recover, they argue, so why should the perpetrator?

Let us explore, for just a moment, this argument. By this argument, there are several postulates. The first is that the victim will never recover. The second is that the perpetrator's punishment should be linked to the victim's suffering. Here is where this fails the rule of law. Law states that any punishment should be (must be) discrete (with a well-defined ending), proportionate, as well as consider the conditions of that perpetrator, as part of the balance of justice. If we tie punishment to the recovery of a victim, who determines what recovery is? How is it defined? What are its parameters, and can they even be defined? What happens if, by coercion or choice, the victim decides no punishment is warranted? What happens if, by coercion or choice, the victim manipulates the system?

The writ of law has been clear upon this subject for well over eight centuries. It is the society that determines the punishment, the society that implements it, and the perpetrator that pays in full the judgment of society, and then it is ended.

No rights may be removed, save for the duration of the punishment, and the probation or parole period, should they be released from the imprisonment part of the punishment early. No additional punishment can be levied upon them by society, as well.

What is punishment? Punishment, by definition, is any sanction, any limitation, any restriction placed upon a person outside of his or her free will, by the acts of another in response to an action. It is an imposition by another for the judgment of being guilty of any crime or status.

How then, is removing rights not a punishment? How is it not a sanction, a limitation, a restriction? How is it legal, and a civil regulation?

Lest we forget, civil law under the common law deals only in issues of express or implied contract, and remediation of that wrong under civil law is limited to monetary fines, or restitution of the express contractual terms, or obligations. Civil agreements cannot be imposed upon another, but only met with full, knowing, and consentual agreement. Thus these laws, these regulations, are not civil law. They are, by definition, punishment imposed via criminal law. They attach full criminal penalties, full criminal sanctions outside of the protection of a criminal court, and often without trial.

The Federal government, meanwhile, speaks glowingly of the need to protect... without being granted police powers. The states have soverign immunity for failure to protect, as well as their prosecutors, judges, and defense attorneys for failure to function as their job requires. At this point, the only protection existent lies in the hands of the people, by whatever means necessary within those rules of society.

Denying any part of that society the right to self-protection, at that point, simply creates a new victim class that lacks any protection whatsoever. The current push to restrict felons, misdomeanors, and other criminal activities in their rights, including freedom of speech, freedom of association, and freedom of religion ought to ignite a greater fear in the minds of Americans....

It should ignite a fear for their own liberties, their own freedoms, their own lives. As lines are drawn more and more into the sand, surrounding the people, soon they, too, will be unable to move without breaking a law.

And they, too, will find themselves without protection, including that protection that was instituted against their own government.

The militia is, and was, every able-bodied citizen subject to call to duty to protect their country. It matters nothing what the past has held. You can be called to serve, as a felon, as a politician, as a barber, as a police officer, to protect our country on the field of open battle. You can be mustered by the governor of your state and placed into service even if you are ninety years of age if you have a unique skill that is required for the protection of your community and state.

Lest we forget, ladies and gentlemen... that protection also extends against the Federal Government, and those governments of the states themselves. Should they cease to serve the interests of the Constitution, and of the people it represents, then they have engaged in tyranny against justice and against law, the greatest treason any man is capable of. Should the law be ground under the heel of government, and placed subservient to it, then that is the definition of a tyrant.

I, for one, would rather our nation be remembered for free people, willing and able to take upon themselves any burden, any task, including that most bitter task of correcting the mistakes of our own government, by remonstrance, by petition, or by rebellion.

That is our duty. Read the federalist papers. As I have said before... all I have stated lives therein, and a well-armed public is required for liberty and prosperity.

The founding fathers specifically stated that all of the protections in the bill of rights were placed already in the constitution, and that anything not specifically stated was specificially denied. This prohibition could only be in one place, article 1, section 9 of the Constitution, and denied equally to the states under article 1, section 10. No bill of attainder or ex post facto law shall be passed.

I do solemnly swear to uphold and sustain the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

This takes precedence over any orders by the President. The president's orders are limited to orders that are constitutional, and authorized under the Uniform Code of Military Justice, and regulations. This is an adjunct, it is not 'any of the above' it is 'all of the above.' The constitution itself takes precedence over all, being the foundation of the UCMJ, as well as those very regulations and the power of the office of the executive.

We are not bound to deal with illegal, illegitimate orders written outside of constitutional authority, and any act, writ, legislation, or action taken outside of that constitutional authority is void. No court is bound to try it, no officer is bound to enforce it, for the unconstitutionality dates not from the time when it was stated to be void, but from its inception.

Remember as well, that a power is strictly interpreted, and any doubt between a power and a right must fall to the people's rights, according to the jurisprudence of the founding of the Constitution. That constitution gives no power to restrict the rights, liberties, freedoms, opinions, speech, or association of any person, group of people, or the whole for any reason.

Should we continue down this road, should we continue to basely, and supinely lay upon our backs to accept the dictates of an ever more extreme congress, president, and supreme court, we would be as guilty as they of treason against the rule of law, and when they fell, as they inevitably will, we would be remembered as those who let them maintain their tyranny.

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Tuesday, January 27, 2009

With all the best intentions

Liberty is, by its nature, an ephemeral thing. Perfect liberty cannot exist, for mankind by its nature requires law, justice, and some guidelines to work and exist. The Code of Hammurabi, early on, was the earliest recorded and publicly displayed work of law.

Law itself is nothing more than a set of rules. It makes a set of societal boundaries, and backs them up with the 'force of law' which is the punishment system. Law, in the purest sense, is something that should neither respect any person, nor disrespect them. The person itself should have no reflection nor bearing in the law, and the mighty, as well as the poor, must be held to the same standard. This is called 'justice'.

There is another part of justice that is often ignored. This part of justice is mercy. While law is a blind, inflexible blade, mercy is the hand that stays it from the neck of the accused. It is the decision that perhaps the theft of a loaf of bread is not deserving ten years in prison, that the unlawful theft of a fire extinguisher is not worthy of a jail sentence when used immediately to fight a fire.

This part of justice is implemented in the jury. While the judge lays for the facts, and the law, and the jury judges both fact and law, the rule of law can be blunted if it goes too far.

All men are equal under the law, for were they not, how long would it be until those who made law chose to make laws in their own favor? Certainly no man could deny that it would be advantageous for a man to take a role making law for his own benefit.

Laws must affect all people, or none. If this case is not true, if even one person is above, or beneath the law, slavery and tyranny exist.

The law should be introspective as well. If a law exists that contradicts the founding core of the law, then that law must fall. No branch can contradict the trunk. No trunk can contradict the root. The root is the statement of principles, and the agreement upon which the law stands.

If a branch of the law grows more heavy than the roots can bear, the tree will fall. If the branch grows stronger than the trunk can bear, it will be torn asunder.

Any abuse is abuse. Any tyranny is tyranny. It matters not one whit if the person assaulted is one person, or a million. It is of equal weight. When the excuse is made for the abuse of any one person, it is easy to expand it to two... then to four. Next comes eight, sixteen, thirty-two. When does it become abuse? Can we not use the same insidious logic to expand it to all men?

Law and speech are intricately intertwined in this country. The freedom of speech, and of the press was not simply limited to the news media, or 'press' as they prefer to style themselves, it was for all men, all women, all persons capable of having and setting out a viewpoint. It was so you or I could stand out and say whatever we felt, so long as it was not directly, willfully, and maliciously damaging another human being. We could be wrong, if we chose, and still exercise this right.

But what happens if we decide a single idea is too 'subversive' or 'divisive' to put forth? What happens if the law prohibits even one person a single type of speech or communication?

Certainly the banning of advocating for hate crimes could not be a bad thing... but could it? Should we hold the writer responsible for crimes which he has not committed, or those that others may or may not commit? Simply because a writing, or a word is irresponsible should never make it illegal, for who defines irresponsibility, or danger?

It is easy to excuse new acts, new speech, new thought when the precedent is set. An example would be: The banning of controversial or adversarial speech, or speech with religious overtones, speech that 'offends someone' or is 'objectionable'.

This is the banning of opinion by writ. Certainly, though we cannot abide without law, we cannot equally abide without speech. Who are these people when something is 'offensive' to say we cannot say it? Who are they to 'object' to what we say, rather than making their own opinion heard, to simply say that we cannot say it?

A crime act requires the mens rea, the criminal mind, as well as the actus rea, the criminal act. Is there a criminal mind in speech? There may be, but is the act criminal in and of itself?

Keeping from offending others is a noble intention, but what is offense? Where do you draw the line? Certainly if speech can be a crime for one thing, it can be a crime for others. A step here, a scratch farther there, a leap in another law... and Orwell's worst nightmare begins.

Take torture. Certainly we could advocate for torture to save lives. There is no way, however, it could be right to do so. It is easy to excuse from the comfort of your homes, but could you excuse it if you were required to undergo the same things as the tortured?

If your child were tortured?

Certainly we could attempt to protect others from themselves, protect society from classes of individuals. Is such targeted legislation wise or legal? If an act is made into a law, and that law was outside the constitution, according to our own founding fathers, it is neither a law, nor anything binding, for the unconstitutionality of such a law was from the beginning of the law, not from the date it was found unconstitutional. The trunk rejects the branch, which finds itself without support.

Does it matter if one person is a tyrant, or ten, or a hundred, or a thousand? Does the weight of tyranny still not burden you no matter how many tyrants there are? If six million people decided that one person deserved not to live, would it be any more right than if six million chose to remove six hundred thousand? Or if that one person decided to kill six million?

Democracy is ever a tool for tyrants. The nature of a republic was designed to restrain the influence of the great masses, to restrain the impulses of a society easily enflamed into action. It was to ensure that the minorities were as protected as the majorities, and that there would be no greater privileges in any case, rich, poor, majority, minority, young or old, healthy or ill, legislator or ditch digger alike.

Democracy, by its nature, has one fatal, fundamental flaw. A majority could vote a minority out of its rights. If the majority voted one or two people out of being able to vote, then certainly, more 'unfit' people should be excluded from voting.

As time goes on, less and less vote, and the people remaining ultimately devolve into those with the only power. The measure of tyranny is the vote.

But there are other measures. The writ of habeas corpus, for example, the right to challenge the law to discover why you are being held, and challenge that imprisonment. The writ of quo warrantio, demanding where it is in the law that such power was granted. The writ of Ultra Vires, declaring the power to be outside of the law's grant. The right of jury trial.

One by one each of these has fallen. More people reach out in the darkness for something to hold onto. We seek protection from the institution we created, in part, for that purpose, forgetting that it has no powers which we do not grant it. The power to protect is equally the power to subdue and destroy.

It does not matter who you are, you have the right to not be treated in an arbitrary, or an inhumane manner. You have the right to express your opinions. It does not matter what those opinions are, or how objectionable I find them, it is your right to have them and express them. It is equally your right to stand up and say, 'these conditions are intolerable' as it is to stand up and agree with them.

The criminal justice system has no need for those powers. They are already granted, and stored within private law, the civil law system, for dealing with those who engage in libel or slander.

The simple act of offending another does not give the other person the power to stop the offense. No person has the right, nor the power, to shut someone up because they do not agree with them.

There was a name for this activity... the inquisition. The dark ages. Torture, and the rule of law never mix. Stifling speech destroys the rule of law as well. Stifling the freedom of movement also destroys the rule of law. Inflicting deliberate physical, emotional, or mental pain is never justified.

The moment you accept that it is justified, you are saying that it is equally all right to torture yourself, or your loved ones. Anything you authorize to be done to others... you have authorized ti to be done to yourself, and those you love.

The law is, and remains blind... and the hands that guide that law should be yours, not the hands of politicians turning the law into a tool for their own benefit.

Too often, with all the best intentions, they pave the road to hell.
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Sunday, January 11, 2009

Security versus liberty: The eternal question.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, 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.

Our Constitution speaks glowingly of the principles for which it was founded, the need for a more capable government, the establishment of a system of justice, and the provisions for domestic tranquility, and the common defense. Few would question the nature or meanings of these provisions within the establishment of the constitution, but is there more or less to them? Long and arduous research into the nature of these things has left the waters as muddied as any other, for without limitations, any of these things can be taken to ridiculous, and tyrannical extremes. The limiting clause is the 'blessings of liberty for ourselves and our prosperity.' Liberty is not government action, it is the lack of government action.

I look at the system of laws like a building. There is a fundamental need for a foundation to keep any and all buildings stable. The larger the building could be, the more stout and strong the foundation must be. These rights, the rights to life, liberty, and property, are and must be the foundation of any representative government, or democratic republic. The rights of the people to own land by necessity must be protected, else the people have little impetus to maintain the land in their fiefdom. The rights of life must as well be protected, as that right is fundamental to any society. The right to liberty maintains the smooth flow of society, preventing unrest by not restricting the evolution of that society, and leaving its guidance in the hands of the people.

Societies, governments, and peoples need defense, so we set up walls. Internal walls to keep us from attacking each other are laws and regulations, designed to preserve that fundamental right to society. We choose to communicate, and to travel. These are doors in the grand establishment of society. Our external walls protect us from other societies. As the building is modified for new needs, often more walls and doors are put into place. These laws and regulations, while seemingly good, sometimes have unintended effects. Any building or corridor can be turned into a prison with enough bars and locks.

The commerce clause in the constitution is one of these walls. It was written as a means to prevent any state from creating a tariff or tax on goods from outside another state, and to prevent any state from denying any other state's citizen from traveling into or through the state. It was further designed to promote the flow of goods and services without interruption or restriction, and to allow the free travel of citizens to wherever they chose.

Originally, the corridors of commerce and travel in the building were wide and free. Occasional bumps in the road occurred, but it was the job of the citizen to make sure those bumps were as small as possible. It was also their duty to insist that the government stay out of the way.

Over time, government learned to make new restrictions that would maintain their money flow. As the government expanded they also increased their power to regulate. Eventually they started building doorways in these corridors. These doorways came in, slowly, one board at a time from the outer wall. Nobody really noticed them at first, thinking that each board was necessary and proper, and for a common good. Eventually some corridors were nearly closed, and only those who had government passes could pass through. (Peanut farms for instance). Some corridors were regulated, little by little, making sure that the people had to stay on one side, (a necessary precaution for safety) then making sure that they had insurance, then due to the insurance that they had to have seat belts, specialized braking systems, speed limits, tire standards...

Each and every limitation slowly closed down the corridors of society. Now and again government would allow weak challenges to a wooden board, so they could replace the board with an iron bar. This is the doctrine of "stare decisis". But was that the intent? Was it the purpose to lay down iron bars in the concrete of the walls (jurisprudence) that could never be removed? How long does it take before the corridors become controlled like those of a prison?

The government may propose that we place iron bars upon the windows to prevent entry. They can also propose iron doors to make it more difficult to break in. This does, however, prevent you from getting out in the case of emergency. It also does not prevent them from chaining the door shut or changing the locks. What good is it to have a door if you do not maintain control over the key?

Eventually Stare Decisis as it is currently constituted creates a system no less rigid, no less binding, and no less imposing upon your liberties than a prison cell. It does not matter that the walls of the cell are invisible, nor that the keys to the locks are unseen. The barriers of law are no less restrictive than the iron bars and concrete walls of a prison. Their invisibility is just a more subtle set of bars. They have those real prisons as well to back up the writs, after all.

The principles of liberty were designed specifically to be able to redress those barriers when they were found.

This is why the juries were established. Their role was to maintain the role of the people in deciding the law of the case as well as the facts. John Jay (the first Supreme Court Justice) went so far as to declare:

“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. … Both objects are lawfully within your power of decision.”

  • Georgia v. Brailsford, 1794
This is also why the writ of habeas corpus was enshrined in Article 1, Section 9. In spite of presidential writ, and in spite of the laws passed by the legislature, there is no power whatsoever to deny habeas corpus. To put this act in scope, the removal of habeas corpus was considered an absolute measure of tyranny.

This is also why bills of attainder were prohibited. The legislature could not declare someone guilty for an act, or lack of an act, status, or any other issue. They did not have that power and authority. They could not prepare punishments in the legislature for that assumed act,nor could they make an action unlawful after the fact, and charge a man with it. They could also not emplace further laws, codes, or 'regulations' upon any man after the jury had heard and decided the case. This was not within their power, nor should it ever be.

Stare decisis
has been changed substantially since the beginning. It was neither binding, nor a writ of law by itself, nor was it unchangeable. It was founded in fundamental principles of constitutional law. Anything outside of those principles could be revisited, including the doctrine of stare decisis itself.

As in Bouvier's Law Dictionary of 1866

Stare decisis. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. Mr. Greenleaf has made a collection of such cases, to which the reader is referred. Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.

For a very good illustration of this issue:

How many bars has our government put in place over the past two centuries in the corridors of our society? How many precedents and laws limit our travels? How many limit our freedom? How can we reverse them? How can the citizens who established the government tear down those walls?

We could attempt civil actions, but the doctrine of stare decisis as it stands today blocks many attempts at reversal.

“Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.”

-- Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2D 450 (1962).

The difference in the definition is striking. The question becomes what the underlying principles were that were not to be deviated from... and why the deviations have occurred. The latter is beyond the scope of this document. The former, however, is not. Those principles were constitutional law. Those principles were individual liberty, and the philosophies in the following two quotes from the time of the founding fathers.

Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non praesumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Perhaps the best definitions of this issue form from the following, the words of those very people who founded the government.

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed. “

  • Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)

“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
  • George Washington, Farewell Address, 1796

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
  • James Madison
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press."
  • Thomas Jefferson

Our safety, our liberty, depends upon preserving the Constitution of the United States as our fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.
  • Abraham Lincoln

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment, and not merely from the date of the decision so branding it... No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.

16 Am Jur 2d, Sec 177 late 2d, Sec 256

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

— Thomas Jefferson, in a letter to William Smith, Nov. 13, 1787

We are the brushfires in the minds of men. We sear their conscience, burn their souls with hot fire, trouble their minds with questions that they dare not answer, for in answering, they must breach the armour around their hearts and look upon them, judging themselves by their own measure.

We petition, we remonstrate, we ask for what is ours... and must forever guard jealously our rights, our immunities, and our freedoms. Our liberties depend upon it.

To those that say that certainly the past cannot bind the present, that the intent of the Constitution could never be to bind those today... that was its entire intention, to bind the government from action against the people forevermore. The doctrine of stare decisis has strayed from the purpose for which it is founded, and it too must be corrected. Our job, our purpose, is to tear down those bars which choke the society, destroy the flow of goods, of ideas, of life itself. Our purpose as citizens and as human beings in this great society is not to meekly accept the works and words of our government, but to challenge them, refine them, purify them, and to guard forever those rights which pre-existed the government.
After all.... our patriots were not those who meekly adhered to a government and defended it, but those who tore it down, rooted it out, and built a new government based on the lessons they had learned. They were traitors, in the truest sense of the word, and had they been caught, (and some were), they'd have been killed in gruesome fashion and their heads placed at the Traitor's gate in London.
How do we guard our liberties? How do we prevent this creeping, insidious destruction of our freedoms in the name of the public good?
They had answers for that as well.
"[I]f 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."
-- Manegold

"[I]t 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 emperors? 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 Salsisbury, Policratus
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press."

  • Thomas Jefferson
[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

And when the government's legal protection force has no legal requirement to protect (see other posts on this very blog) there is no protection or security offered, or granted by government (state or federal).

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Tuesday, January 6, 2009

Slavery: For the children.

What is extortion? Extortion is, simply, a form of abuse that causes a person to act involuntarily by coercion. Coercion is the use of physical, emotional, or economic force to fulfill a goal.

One must admit, that government, by nature, and laws are coercive. Any and all acts, written by the government, must have a stick. The carrot is optional, and only for those enacting the law anyway.

If one is to define extortion as enforcement of a status against the will of the person upon which the status is being enforced, without the due process of law and judgment under the Common Law system of the Judiciary, including that necessary wall against the abuse that is called the 'Jury', can one claim that any act that seeks to 'regulate' but enforces such regulation with prison sentences is anything but extortion?

If there is a registry, that forces the payment of a fee to be on the registry, that removes the rights and privileges of the offenders, removes the ability of those registrants to travel, to seek gainful employment, to seek and establish residency and removes the rights associated with citizenry in the United States, or any part thereof, then further enforces, by writ, the establishment of that registry as being a registrant of monsters, and to be a civil registry, without the protections of that criminal code... can it be anything but extortion?

So it is with the Sex Offender Registry. They claim the act is non punitive, that it is regulatory and only serves to protect the public, but how does it do so? Are we any safer, or any more aware of the problems? Is it not true that those who are most dangerous will find a way, registry or not, to do as they please? If a man chooses to break the law... how can the same law be said to have prevented crime?

No, our system is something quite different than that. Our agreement, by the Constitution, was that all men were innocent until proven guilty in a court of law. A man could not be tried for a crime which he might commit, but for one that he was in the act of committing, or in conspiracy to commit. It was not good enough to have a suspicion of a crime, one had to have reasonable suspicion, upon probable cause to issue the warrant to search for evidence of that crime.

But when the government chooses not to follow its own law, what then? If they can come and search any building, any vehicle, any property at any time, upon reasonable suspicion rather than upon probable cause, have we not lost a great deal? Are we not all guilty until proven innocent, when the burden of proof goes to the person, rather than to the state?

If this is not extortion, please elucidate! Is it not extortion to use the regulation to control the movements of others? Is it not extortion to threaten fines, imprisonment, and humiliation for not cooperating with the registry? Is it not extortion to create a situation in which one cannot leave their home without asking the government for permission?

Is it not extortion to, under the threat of fines, fees, or prison time, disallow them use of the public parks for which they pay their tax money? Is it not extortion to deny them the right to leave their homes, the right to leave the country and sell those homes to find gainful employ elsewhere?

No.. it is not extortion at this point. Extortion goes simply to the requirement of the commission of an act. This goes far beyond that, into asserting control over a person under color of law, and reducing him to a vassal of the organization that created the registry. Is, however, vassalage enough? The vassal had the right to supplicate his lord for relief of the conditions.... no, this goes beyond vassalage, as well, into flat-out slavery.

The Adam Walsh act goes into a realm of attainder that creates not just restrictions, but outright ownership of the citizens under it under the rule of law. The persons are not free to go out of the state, to go out of the country, on pain of prison time, without complying with that registration. If they have ever traveled in interstate trade (upon an interstate highway or by any other means) they fall under the regulation. They no longer have any right, under the Act, to choose their own homes, to purchase property of their choice, to work at the places of their choice, and are punished, not as a single person for his own acts, but by further restrictions when other registrants or non registrants cause problems. They also no longer would appear to have the right in some states to disaster relief, to education, and in some states to vote. In the most restrictive states, even the right to family is denied.

Is this not the very definition of ownership? If one is forced to be unable to live anywhere but where the registry says, cannot have a family but in the proscribed manner of the registry, subject to revocation on the whim of the registry, cannot have a home that cannot be taken under the registry, cannot own any property that cannot be searched at any time, cannot speak out in public forums, cannot work in public places, that they seek to restrict their travels upon public transportation, that they restrict from parks, homes, neighborhoods, and cities... if they can choose if you go to prison for life, not for what you do, but for what you might do... is this not the very meaning of being a slave?

Are not the threat of imprisonment for noncompliance with a 'civil code' extortion, under that definition? However, slavery via extortion goes beyond this. It is the imposition of ownership by a person or entity, upon another individual human being. That ownership can be by threats or process of law, or by violence. But it restricts the very rights of the person, restricts living arrangements, family arrangements, the ability to exercise the duties of a free citizen, under penalty or duress. It exercises full and complete control over the lives, facilities, and often the family of the person under duress.

Slavery controls and limits all avenues of expression save that approved by the owner. It prevents, limits, and prohibits free exercise of religion save where it would help the control. It limits or prohibits travel without a writ from the owner. It removes the ability for free choice in conception, in the disposition of goods and services, and ultimately, removes, completely, the concept of property owned by the enslaved individual.

So.. we have the laws limiting where we can travel, writs from our masters, who 'know better than us' what is good for us and the society. We have laws limiting where we can live, where we can work, laws that can take away that work, and that living arrangement at any time, that are arbitrary, capricious, and under the control of the government that placed us under them... that can be morphed at any time and we are required to either follow along, or go to prison and follow along when we leave.

In some states the children can be taken from offenders, spouses driven away by legal requirements, the travel through the town, on public thoroughfares is prohibited. Travel on public transportation is proposed to be limited, disaster services segregated.

They propose to limit our online communication or negate it.

Ultimately are they not asserting their ownership over us? Ultimately are they not providing the very things listed in the civil rights cases on slavery? They require us to work, pay taxes, but we can't go to the park that our taxes pay for. They require us to live as they choose, under the guise of protecting the society. They propose mandatory castration, segregation, and removal of human rights.

At what point does it become slavery?

And by what right does our government enslave us?

Government rules, and must rule by the consent of the governed. When that consent is removed, the only power it has is that of an arm severed from the body. Segregation is not the answer. It never has been. The Bible may say 'if thine eye offends thee, pluck it out', but this as well is not conducive to the story of the good Samaritan, nor of the stories of the Prodigal Son.

Severing part of the society only serves to continue the hurt to society. That severance was designed to be for a time, judged, with the sole power of a jury, to be commensurate with the hurt originally done to that society.

At that point, no man could add to it, nor remove from it. No judge, no magistrate, no sheriff could try the man again for the same crime.

What we have devolved to, however, is a world where 'punishment' is the norm, and evolving punishment has been decided to be 'all right'. It is no different than the bully on the playground, being larger than the other kids, deciding to 'punish' someone, and the punished complying with the demands... then the bully deciding it's insufficient punishment and humiliation, and demanding more.

Any time that the legislature can decide that something needs further restrictions, and punishments, on any registry, and can change the rules of the registry, without notification, warning, or any choice in the matter or judicial review... they have devolved into something quite different than a government.

They have devolved into petty tyrants seeking power at any cost... and now the cost is that of our bodies, our hearts, our minds, our families, our very society and freedoms.

It is one thing for a jury, with full view of the facts presented, both for and against a case to judge for punishment, it is quite another to by writ do so, without review of crime, mitigating factors, and aggravating factors.

This is the nature of the prohibition against ex-post-facto legislation, and further, the wider prohibition against attainder. Attainder, or legislative taint, is not simply an archaic rule that nobody needs anymore. It is nothing less than the legislature deciding that the judicial punishment was insufficient, and thus further restrictions must be emplaced.

For it to continue, we must remain silent however.. we must not be able to leave, must not be able to travel, must not be able to speak out against it, and must remain cowed and subservient, groveling at the feet of the legislators who are using our bodies to pave the road to Hell with their 'Good Intentions'.

My apologies for the vitriol, but there is no room in any democratic republic for the rule of law to apply more strongly to any person than any other. There is no provision to legislate to a targeted class, of any kind, for such was absolutely prohibited in the original agreement.

"Congress can pass no law that does not equally bind itself and its friends, and the whole of society." Federalist papers. Read them. Understand them. Look back in time at what you've had stolen from you.

We have equal protection under the law, under the Fourteenth Amendment. Under the thirteenth, no man can have ownership or possession over another man, nor exert control over the other, by threats of force, fine, or imprisonment, save by the due process of the jury, commitant with the right and duty to try both the facts of the case, and the rule of law itself.

Thus has it been since Bushell and Throckmorton, reinforced by Zenger, which was in the minds, and on the tongues of the Founding Fathers. Likewise, the remembrance of Valley Forge, and the actions of the British in seizing lands by attainder, and execution by attainder, was remembered, and the role of the jury in enforcing the rights of the people via that juristic nullification was well-thought-out.

Is it any wonder that they seek to control the jury again? That by writ the judge can hold an innocent verdict to be inadequate, and try the jurists for contempt of court for finding a man innocent against such a judge's opinions? This was the very heart of the Zenger and Throckmorton trials, and that of Bushell.

Have we backslid so far as to be amongst Cromwell, or even King John, prior to the Magna Carta?

Have we forgotten our duties to that society, and that government, in the search for release from personal responsibility?

For that is what ultimately must be enforced.. personal responsibility for one's own actions, enforced from within. This is recovery. This is redemption. It is not enough to forsake an act. It is more imperative to change one's own self so the act is no longer possible. It is understanding, compassion, and respect for the rights, duties and privileges of others.

When these fail, then it is the role of the courts to enforce the rights of the society, versus the offender, and the separation is made. The separation is the punishment. It is not for punishment, for what society could not admit the hurt to society by severing part of itself?

And is not part of the curing of that hurt, on the end of the sentence, the reintegration of that severed part, the reestablishment of health and circulation within society?

There is argument made that because sexual offenses are against a child, and the child will 'never recover', that it is just and good to continue punishment and revilement against an offender forever. Cannot, however, this argument be made for anything? If we assume the topic of this argument, how much more culpable is a drunk driver who has struck another car? The lives cannot be restored. How much more culpable an engineer whose design failed, causing death or disfigurement? How much is eternal culpability worth?

In the same vein, how culpable are the very legislators for the legislation they propose? If it saves one child, they cry, is it not worth it? Meanwhile, economic policies poison our waters, darken our lands. They make food, medicine, and education itself out of reach for many of those same children they claim to save. It creates more and more a burden of debt upon each child before even they can have a legal choice about the decisions made in their behalf. The fuel prices rise, food becomes more and more adulterated with materials that may not be safe, their vehicles last less time, their homes made out of cheaper and weaker materials. The forests dwindle due to lack of stewardship, the borders become less and less secure... yet still they sit and linger upon what they can do to registered offenders.

What scapegoat is better after all? Who will speak for them? Who will reach out and risk their own security for those so reviled? And if they can attract the attention upon these scapegoats, cannot they continue their failed policies?

The federal reserve has failed. The loans that held up the economy since the 1930s have failed. The debt is more and more being called due, and our dollars buy less and less than they used to. How many persons will starve? How many will die in the coming depression? How many children will be lost, alone, or dying in a hovel then?

And even so, they call for restricting the rights of those very children, in order to 'protect' them. Meanwhile our police violate those in their care. The judges and magistrates show patterns of abuse and neglect. Our schools teach things only in passing and do not teach critical thought or investigative skills, or even the logic behind mathematics and chemistry.

And people are still caught up on 'offenders' as the government pounds down further debt upon them, fights wars overseas that cannot be 'won' and have no end point. Our votes count less and less as private interests take over their counting and collating, and renege upon their promises of security in the vote.

You want a crime against children that will affect them all their lives.. look at the lawmakers. Look at the lawyers. Look at all of those who would sign away their rights due to false statistics, and fearmongering. Look at those in power who seek to distract you. And look deep, look closely into what you ask for.

If you ask for protection and guidance... the Government is perfectly willing to give it to you. They'll bind and shackle upon you chains and rivet them to the wall. And they're perfectly willing to whip you into the direction they want you to go, for once you've given up the ability to make your own choices to that 'benevolent' government... how can you guarantee the hand with the whip will remain benevolent?
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