I've been doing a great deal of studing on the registry, and what, in the United States, constitutes civil and criminal law, as well as common law. This document discusses this, in detail.
Our law system is Common Law. It is a system of debates, of finding precedent and law, in all of its imperfections. The cases and precedents date back nearly to the 11th century that we know of, and possibly before. The system evolved, several times going to various swings of conservatism and liberalism, sometimes even going so far as to become oppresive, then brought back to heel by the populace.
During the reign of King John, a number of the lords of the land banded together, and forced him to sign the Magna Carta, a great charter that was designed to limit the powers of the King over people nominally his vassals. it established rules and laws, the ability of freemen to keep arms, and bear them in defense of the king and their land, and lords. It further created a nullification of the 'kings right', the right to enter any property and seize any person and property that they wished.
The trial by jury was tested in 1544, by the trial of Throckmorton for treason and Sedition. The jury was severely punished for freeing him against the legal counsel of the Judge. In 1649, the Lilburne trial was held, under the Cromwell Regeime, for a similar issue, and was the first to argue for juristic nullification of the law.
Later, in Bushnell's Case, the right to jury nullification was upheld again, creating a legal precedent in 1670, that lasted until 1990 in the US.
Currently, the statement of a juror regarding nullification is grounds for removal from the jury, as it is in voir dire, and instruction by the defense, or judge, is considered to be grounds for a mistrial.
Our nation is one of common law. It is, and has thus been, since its inception. Cases were judged, not by the law, but by precedent. Those who were on the prosecution, and those on the defense searched the books of precedent, in order to find the most applicable defenses and crimes, respectively. Common law was based in the rights of the people, the right of the accused to be innocent until proven guilty, and the right of the person to the best possible defense, as well as to appeal.
The reason I raise these points of history is to contrast several things. Civil law has two current definitions which are inextricably linked within the U.S. system. Civil law is the codified laws, the regulations, and structures that provide recourse for parties in a contract, including marriage, incorporation, lawsuits, and other 'private' proceedings. It is a system of agreements between persons, or entities declared as persons for the purpose of the law.
Specifically, civil law is considered 'adversarial' law. It is considered to be law that is inquisitorial, mostly because the rights of the people were ignored, one could testify against oneself, and be compelled to do so, as well as being forced into testimony that could be harmful to one's own case. Further, once the initial claim was passed with merit, the defending party had to prove their own innocence.
There were a few limitations, however. According to tradition and law, civil trials, and civil laws, could not provide punishment in the form of jail time. Civil laws could not even provide for a minute in restraint.
This is where civil and criminal laws differ. Criminal laws deal in punishment. They deal in terms of restraint and imprisonment, and this is the very definition of a criminal law. Criminal laws further are dealt with, at least in theory, from the standpoint of innocence until proven guilty. The burden of proof is on the state or local enforcement agencies, rather than on the person, save in cases of defense by insanity.
In short, any law with a criminal punishment, a punishment for detention, attached, cannot be a civil law or a civil regulation.
The problem before the courts in Smith Vs Doe, 538 US 84 (2003) was a question, not on the legality of the law itself, but on the legality of the release of information. The release of information, by itself, was not a criminal code, as the release itself provided no punishment per se. However, if the law had been applied to the registry, rather than the release of information, I believe it could not have been found as a civil matter. The focus of the case, however, was on the release of information, rather than the registry itself.
In the Connecticut Dept of Public Safety vs Doe, 538 US 1 2003, the procedural due process grounds were nullified. This leaves the substantiative due process grounds, and a test of the Ex Post Facto, rather than on the release, on the inclusion onto the registry. This, I believe, is due to faulty wording on the nature of the substance of the Ex Post Facto claim.
Further, given the following information, historically, I would argue the point that the founding fathers did not intend Ex Post Facto to be attributed to civil laws.
At the time of the founding of the Constitution, civil laws were not in place in the United States. It was not until 1804 that any civil codes were passed. Civil law was designed under common law as a way to mediate the agreements between two private parties. Hence, the judges drew upon their common law knowledge (and common sense) to adjudicate a case where the agreement was in question, or the nature of the penalty of the agreement was. (financial penalties or torts, divorce cases, etc).
The reason the founding fathers did not discuss ex post facto in civil matters during the constitutional arguments was that it could not occur. Who would agree to the creation of a contract where they could be fined for things that occurred before the contract was created? And if they did, was it not their own fault for not reading it more closely?
Ironically, our nation since 1808 has suffered a major shift; we utilize civil law synonymously with Roman Law. Roman law was codified law, adversarial and inquisitorial, and did not include self-protection. Roman law also merged both the civil and the criminal codes.
Roman law is also known as Napoleonic law. Napoleonic law was an outgrowth of the Roman Law, as was a great deal of the law in Europe. The purpose of roman law was threefold; maintaining order, managing the people, and keeping the power in the hands of the Emperor and Senate.
Since 1808, we have had many laws placed on the books. Thousands upon thousands of them in fact, to the point where no man can know all of them, and even the computers have difficulty searching through them to find a meaningful result. Our laws grow more and more powerful, and become more and more punitive, even under the veil of 'civil' law.
But it cannot be 'civil' law, if it provides a punishment, can it?
Only if you mutate 'roman law' into 'Civil law'.
In our nation today, we become more and more interested in keeping control. How better to do this, though, than to legislate everything? We legislate eating, legislate drinking, legislate health and sickness, legislate how we can pay one another, legislate our taxes, legislate our lives.
And the more legislation there is, the more outlawry there is, not because people's behavior changes at first, but there is more to get into trouble for. The more laws we pass, the higher the crime, and eventually, people's behavior changes.
People are strange animals. We apply reason until we are hurt. We often, when hurt, cannot apply reason to prevent another hurt. We live in fear, in injustice, afraid to reach out and change it, but cannot get past the fear enough to realize that we can change it.
Emotions betray reason. They both bring us together, and break us apart. Wisdom falls before lust, falls before anger, falls before fear... but how can we control what we are? Because of reason...
There is no reason, however, to laws designed under the Roman statute. They are black and white, all or nothing, and the punishments as well are all or nothing. mandatory minima, no exceptions. They are systems of punishments designed to keep people in fear and under control, after all, if there is enough law, one can be tried for things that are ephimeral. With ex post facto, one can be tried for crimes that occurred before the law was passed.
Imagine an intersection. You cross it every day.. then someone places a stop sign there, and makes the stop sign retroactive for the past ten years. All the sudden you're guilty of fines for all the time the stop sign 'was there' legally. It is a civl law. it is ex post facto. is it right? No... no it is not. And this is why ex post facto is just as inapplicable under civil law as criminal.
One must agree to civil law, or it is not civil. Are we agreeing to the registry? Aye, we are.. but it is not civil law. It is enforced upon us by extortion, held against us by force, if we do not comply, we go to prison, often for longer than our original sentences. If we do not comply again... in some states we can go away for life.
is this reason? Is a man convicted fourty years ago still a danger? Perhaps... but only in the sense we are all a danger. We are all 'potential predators'. Every man, every woman, every child in the US is a 'potential predator'. Do you still insist on registering the potential problems?
That's the problem with potentials, with perceptions. The problem with definitions is that they change, and understanding them later can be difficult. This is why the constitution and common law worked the way it did. It applied concrete laws in ways that were flexible according to the case.
Mandatory minimum sentences subvert this process. They create a rule by writ of law, that cannot be considered beyond by the judge or jury on the prospective case. They have no oversight, they are a law unto themselves. In any situation where they say 'that is the law, I have no choice', you can bet that the Roman Law, the Napoleonic law, is behind it.
Is this really who we are? The Code Napoleon was used in Russia.. in fascist germany, in France, in Spain. It was embraced with joy by the Bolsheviks, carried by the Fascists in Italy.
It is a tool of subjugation, and war against the very people who give the power to the government.
Yes... People give the power to the government. The citizens cede those powers to the government. The government does not give rights, it can only take them. The people are, in truth, the ultimate arbiters of their rights and privileges. If a right has been given up, it is only by the acquiescence of the people.
We forget who we are, why we are here. It does not matter how few people there are in a group, or if it is even an individual. If it can be done to anyone, it can be done to all. The attack on a single person against their rights is an attack on all rights, converting them into privileges, which will be removed.
This is why we are not a democracy... we are a democratic republic. In a democracy, the only rights one has are those that others vote to give you. They can also, in a true democracy, vote someone out of a vote, and ultimately, only a few control the democracy, until one or more of them die and one takes full control.
Equal protection under the law is not just for those you like... when it fails in any case, and you allow it to fail.. you have slain your own rights on the altar of security. I keep repeating this point.. hoping it will sink in to those who read it.
Benjamin Franklin: Those who trade freedom for security deserve neither and will lose both.
Thomas Paine said it eloquently. in his 'Common Sense' of 1776.
"Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher."
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