Saturday, November 7, 2009

The purpose of the constitution

If there's any definition of the United States that stands out in my mind, it is the long and painful struggle against oppression. Across the two centuries our nation has been in existence, we've had many oppressed groups, many rulings that have come down from the Supreme court.

Thousands of court cases have been reviewed, hundreds overturned within the first few decades for lack of adherence to the principles of limited government. Statements had been made in many such cases, statements of intent and principle, quoting from the Federalist papers, as well as letters of negotiation between representatives in the Continental Congress regarding the ratification of the Constitution itself.

Our nation grew from the Common Law, the old Scottish Right, the ideal that rights were not something to be given or taken by mere documents, but something inherent, something miraculous within ourselves, and by virtue of our very humanity they were not something that could legitimately be taken or given away by fear, fraud, or mistake.

Those rights, in the 1800s books of law, were inalienable, untouchable, and for every human being in the nation by virtue of international treaty and compact. It did not matter if you were a resident alien, it did not matter if you had committed criminal acts, it did not matter who you were, nobody could take those rights from you. The principles of a just, limited, and general representative republic were laid down at the beginning, within the Federalist papers, and in the Constitution itself.
The only legitimate powers of government were general. Nothing could be voted in that did not affect every person equally, nothing could be taken away that did not penalize all persons equally. That equality under the law was not an equality of things, but an equality of intangibles, an equality of properties that were inherent in the human being. The right to live, the right to liberty, the right to property, and the inherent right to defend all of the above.

Government was created, not for the purpose of creating these rights, but for the purpose of protecting them. The legitimate nature of the courts is not as the arm of the will of the legislature, but for the arm of justice, and the constitution. Before any federal justice can take his bench, he must swear an oath in the United States: "I, ________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ________ under the Constitution and laws of the United States.  So help me God."

If our government fails to execute the powers and obligations it has been placed under, or exercises the powers that it has been granted outside the scope of the contract of the Constitution, it has enacted fraud upon its people, and that fraud obviates any duty to follow such a law, edict, or act.

“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. “ Federalist 57

Furthermore, the act of owning another person is banned in every state, and ownership is defined as exercising any of the powers of ownership over a person; i.e. the powers of dominion and control, the powers of disposition and disposal, all of which comprise the power of subjugation by force, and lack of choice.

We've had many steps forward, from the decisions made in the Amistad and Yick Wo V. Hopkins, to the decisions made in Brown v. U.S, and Trop v. Dulles. We have also had many steps away from the ideal of freedom and justice for all, from the decision of Buck v. Bell, to the decisions involving Smith v. Doe.

Ultimately, however, it comes back to specific things written in argument in the Amistad decision.

As quoted by John Adams: "Constans et perpetua voluntas, jus suum cuique tribuendi." "The constant and perpetual will to secure to every one HIS OWN right." from the Justinian Institutes was the motivations of the court, and as noted by Justice Story within his own notes: “. . . it was the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice," As also noted by him: “a situation could arise in which the checks-and-balances principle ceased to work and the various branches of government concurred in a gross usurpation.” By the principles of the 'common good', governments may engage in excusing non-republican methods, targeting individuals or groups that are outside of the good graces of the rest of the society, and removing those rights by force. There would be no appeal to the courts, nor to the system of the ballot, no power to repeal the law nor to constitutional amendment due to the very minority of the party assaulted.

Our greatest security is that very rule of law, that the law itself is bound down from the mischief of good intentions, and limited to just, equal, and constitutional powers. Any arrest based on a false warrant, or no warrant at all may be resisted by any force necessary to repel the assault. “Citizens may resist unlawful arrest to the point of taking an arresting officer's life if necessary.” Plummer v. State, 136 Ind. 306.

“Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.” John Bad Elk v. U.S., 177 U.S. 529.

Acts of war are any act which attempts to use force outside of the rule of law, to remove the rights or property of the people by those acts of force. Acts of war against the people of the United States, attempting to use force to remove the rights which the government was founded to preserve, not to create, are no less acts of war. They are no less acts of fraud for their attempts to circumvent the constitution outside of the legitimate domain of governments of the states, as well as the federal government. They are no less attainder for attacking groups of individuals as attacking individuals, no less attainder for attacking the right to liberty and property as attacking the right to life.

The only power that was capable of attacking those rights was the corruption of blood. It was not primarily about inheritance, though that too was part of the power, it was about the very humanity of the individual. That 'taint' for which the corruption of blood was assumed established the foundation for the corruption, seizing those rights by force and arbitrary will, and establishing the government as the owner of the person, and all of his rights.

“For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. “ – Yick Wo v. Hopkins

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