FIRST AND FOURTH AMENDMENTS FACE SUPREME COURT RULINGS

supremecourt-

Written by  Joe Wolverton, II, J.D. | The New American

As The New American reported Saturday, the Supreme Court has announced plans to publish rulings in several key constitutional cases. Every Monday in June, the schedule reports, will see the release of one or more decisions.

One of the cases of concern to civil libertarians and constitutionalists involves the Obama administration claiming the authority to search and seize cellphone records without a warrant, despite the protections against such government intrusion provided by the Fourth Amendment.

The Washington Post published the following summary of the case of U.S. v. Wurie:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

The Appeals Court ruling doesn’t sit well with a president who considers the Constitution irrelevant and who is accustomed to the court’s collusion in the federal government’s continuing effort to revoke all civil liberties.

Of specific interest in the Wurie case is the government’s claim that a cellphone is no different from any other items a suspect might be carrying that are subject to search by law enforcement, “including notebooks, calendars, and pagers,” the Post points out.

One of these things is not like the others, however. Today, a cellphone is as much a personal computer as a telephone and most people carry things inside their smartphones that have not been placed within the scope of acceptable searches: “our e-mails, text messages, photographs, browser histories and more,” the Post explains.

Should the Obama administration receive a favorable ruling from the Supreme Court, one that holds that police do not need a specific — constitutionally qualifying — warrant to search a suspect’s cellphone, the threat to the Fourth Amendment and individual liberty is incalculable.

For example, a person arrested on a bench warrant for failing to appear for a hearing would have his entire life subject to search and seizure if he was carrying his smartphone at the time he was taken into police custody. Then, the photos, texts, social media posts, and photos stored on that phone would come under the scrutiny of government and the data could be collected and saved in order to blackmail the citizen turned suspect.

In light of the broad discretion granted to government and law enforcement by the Supreme Court in the 1979 case of Smith v. Maryland, police (and those to whom the information gleaned from the cellphone was shared) could do whatever they deem “reasonable” with regard to the information obtained from the warrantless search of the cellphone.

In the case of Smith v. Maryland, the court held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

The court in that case ruled that if someone is talking to another person by way of a medium provided by a third-party (in the Smith case it was a telephone company), both parties must expect that the “intermediary” will have access to the content of the communication.

Regarding the telephone company, the court explained that when a person uses a telephone, he “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.”

Not surprisingly, the Obama administration in its brief filed in the Wurie case references the Smith case. The government says Smith supports its position that there is a reduced expectation of privacy regarding the contents of a cellphone.

The upshot of Wurie is that it is just another piece of evidence of the president’s pursuit of a country where citizens are nothing but future suspects and where privacy and civil liberties are defined not by the Constitution, but by the federal government.

From the NSA and Homeland Security, to the U.S. Postal Service and the IRS, the wall of protection provided by the Fourth Amendment is being demolished and the government given life by the Constitution is now on the verge of patricide.

Notably, the Cato Institute predicts that the Supreme Court will find in favor of the federal government, although insisting “the justices are extremely wary of pronouncing legal rules that could be rendered obsolete or unworkable as newer technology develops.”

The last of the cases we will outline concerns one the most fundamental rights protected by the First Amendment — the right to the free exercise of religion.

Two cases challenging the contraception mandate of the Department of Health and Human Services (HHS) avers that the plaintiffs’ religious freedoms are being violated by forcing them to offer free (or heavily subsidized) access to contraceptives, including those that induce abortion.

One of the individual plaintiffs challenging the Obama administration’s coercive contraceptive statute reveals the real danger to liberty posed by the provision.

“With this mandate contained in the Affordable Care Act, the government is not only violating our religious beliefs; they are also taking it upon themselves to tell us what the boundaries of those religious beliefs are,” states Father Pavone, national director of Priests for Life. “It is not up to the government to tell us when our conscience hurts; on the contrary, it’s up to us as believers to tell the government.”

The two cases whose decisions will be handed down are Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores. The legal history of those two cases was provided by The New American late last year:

The United States Court of Appeals for the Third Circuit has ruled that the Conestoga Wood Specialties Corporation, a Mennonite-owned company, must comply with the Health and Human Services mandate that compels companies to pay for drugs that may cause abortions. The ruling was handed down in a 2-1 decision asserting that the Mennonite faith of the company’s owners may not prohibit the company from complying with the mandate.

And:

In [September 2012], Hobby Lobby Stores, Inc., a privately held retail chain, filed a lawsuit in the U.S. District Court for the Western District of Oklahoma, opposing the HHS “preventive services” mandate, which forces the Christian-owned-and-operated business to provide, without co-pay, the “morning after pill” and “week after pill” in their health insurance plan.

People of faith now wait to see which side the Supreme Court will support: the side that believes the federal government can impose immoral mandates on the mass of citizens regardless of their religious principles, or the side that believes that the government has no authority to encroach upon one of society’s most sacrosanct rights — the right to exercise one’s religious faith free from federal dictates.

Strangely, some still argue that when the Supreme Court rules on the constitutionality of a federal act, there remains no recourse and the issue is settled once and for all.

In light of recent decisions by “conservatives” on the Supreme Court in the ObamaCare case, it is no wonder that many Americans doubt that states have a right to nullify a congressional act in the wake of a Supreme Court decision.

Thomas Jefferson had something to say in the matter. In 1804, he wrote that giving the Supreme Court power to declare unconstitutional acts of the legislature or executive “would make the judiciary a despotic branch.” He noted that “nothing in the Constitution” gives the Supreme Court that right.

In this Mexican standoff of fundamental liberty, Supreme Court, and federal government, the last man standing is the people acting in their collective political capacity as states.

Even Abraham Lincoln recognized the lack of constitutional authority for the Supreme Court’s assumption of the role of ultimate arbiter of an act’s conformity with the Constitution.

Lincoln said that if the Supreme Court were afforded the power to declare whether an act of the federal government was constitutional, “the people will have ceased to be their own masters, having to that extent resigned their government into the hands of that eminent tribunal.”

Renowned constitutional scholar Von Holtz explained the error in accepting the Supreme Court as the ultimate arbiter of constitutional fidelity. “Moreover, violations of the Constitution may happen and the injured cannot, whether states or individuals, obtain justice through the court. Where the wrongs suffered are political in origin the remedies must be sought in a political way,” he wrote.

He continued, regarding this “aristocracy of the robe,” “That our national government, in any branch of it, is beyond the reach of the people; or has any sort of ‘supremacy’ except a limited measure of power granted by the supreme people is an error.”

How can anyone read these statements and honestly conclude that any branch of the federal government is intended to be the surveyor of the boundaries of its own power?

Every department of the federal government was created by the Constitution — therefore, by the states — and has no natural sovereignty. No branch can define its own authority. Such a thought is ridiculous and contrary to any theory of popular sovereignty ever proposed. If courts, Congress, or presidents had such power, it would make them judge, jury, and executioner in every case in which their own act exceeding constitutional authority is at bar.

Monday, June 2, constitutionalists will witness how far the Supreme Court is willing to go in joining the unholy alliance formed to obliterate constitutional protections of fundamental liberty.

FOURTH AMENDMENT AND FOREIGNERS: DOES IT APPLY?

Written by  Joe Wolverton, II, J.D. | The New American

The National Security Agency’s (NSA) surveillance of foreign leaders has been well publicized. The phones of politicians from Germany to Brazil, from France to Spain, were tapped and the conversations were monitored and recorded by agents of the government of the United States.

Although President Obama has committed to “curbing” the spooks’ unwarranted and out of control surveillance of ostensibly friendly leaders, no such order has to date been issued.

None of the president’s promised “reforms,” however, addresses the problem of the “vacuuming up” of international data from a Fourth Amendment perspective. When it comes to the surveillance of non-Americans and the protections provided by law against such action, relevant provisions of the Foreign Intelligence Surveillance Act (FISA) are most often cited, not the Fourth Amendment or any other part of the Constitution.

One can assume, therefore, that neither the president nor the heads of the U.S. intelligence agencies believe that the Bill of Rights covers targets residing outside the borders of the United States.

In an opinion piece published in the Washington Post, David Ignatius puts a finer point on the official denial of fundamental rights — in this case, the Fourth Amendment — to foreigners. He writes:

Just considering this question unsettles U.S. intelligence officials, who for years have responded to queries about privacy issues with a bland dismissal. “The Fourth Amendment doesn’t apply to foreigners,” officials will say. The dirty little secret (not so secret anymore) is that the job of spy agencies is to violate other countries’ borders and laws to collect information.

Later, Ignatius draws on the research of a legal scholar regarding the real repercussion of dividing people into various classes: those with rights and those without.

“Are there to be two classes of people in society — those who ‘deserve’ rights, and have them, and those who do not?” asks my friend Garrett Epps, a professor of constitutional law at the University of Baltimore, in discussing the Fourth Amendment in his new book, “American Epic,” which examines line by line what the Constitution actually says.

Ignoring this strictly constitutional approach, other writers who have raised the issue of the Fourth Amendment in the context of the NSA’s foreign surveillance typically arrive at a prohibition on such from a decidedly unconstitutional source.

For example, in a blog post he calls “We are all Foreigners: NSA Spying and the Rights of Others,” Georgetown Law School professor David Cole argues for an end to the overseas monitoring based on the following rationales:

First, “The right to privacy, protected in human rights treaties that the US has signed, such as the International Covenant on Civil and Political Rights, is not limited to the people’s leaders, but is said to be a right of all human beings.”

The agreement Cole cites is a multinational United Nations treaty ratified by the U.S. Senate in 1992, albeit with five reservations. Although the United States is a signatory to the covenant, the UN has expressed concern with the United States’ failure to comply with the terms of the treaty.

Regardless of the explicit unconstitutionality of the International Covenant on Civil and Political Rights, Cole’s reliance on UN treaties is unnecessary.

Unlike the United Nations Declaration of Human Rights referenced in that article, the U.S. Constitution was not written to set out the scope of the rights of citizens. In fact, rights are neither granted nor protected, strictly speaking, by the Constitution. The sole purpose of the Constitution is to limit the powers of government, marking the metes and bounds of the authority of the federal government.

With this understanding, then, one comes to see that the Constitution applies only to actions of officers of the federal government and as such, not only does not “apply” to American citizens, but also does not apply to any individual anywhere not serving in a federal government capacity.

Cole’s second reason for denying to the NSA the power to monitor foreign telephone and Internet traffic is based on what one commentator called a “a global view of government, by which governments are accountable to all humans worldwide.” Cole argues:

The reality is that we are all foreigners from the standpoint of every other nation. And while at the moment the NSA may be at the forefront of technological surveillance capacity, other nations are not likely to be far behind. How would we feel if we had recently learned that France — or China — was collecting data on millions of Americans’ communications, or directly monitoring President Obama’s cell phone? If we extend no protection to other countries’ nationals, why should we expect them to respect our privacy rights? Thus, it’s in our own interest to identify some reciprocal principles to preserve privacy in the digital age.

This could be called Cole’s “Golden Rule” of surveillance (Americans shouldn’t accept their own government spying on foreigners unless they would likewise accept being spied on in the same way by the governments of those foreigners). In response to an opposing blog post written by George Washington University law professor Orin Kerr, Cole likens the possible effect of such unilateral spying to “blowback.” He writes:

If we engage in practices that incur the ire of large swaths of the public in foreign countries, we are much less likely to find the cooperation we need from their governments, or from the people themselves. The people themselves are often the best sources of intelligence. But if the people come to resent the US because it is spying on them without just cause, they are much less likely to provide intelligence. And they are much more likely to object to their governments sharing information with us as well.

While these “do unto others as you would have them do unto you” arguments are worthwhile, the point of this article is whether the specific types of searching and seizing forbidden by the Fourth Amendment are applicable to citizens of other countries.

In deciding whether to make room for all people — not just Americans — under the Constitution’s umbrella of civil liberties, one need look no further than the text of the Fourth Amendment itself for the identity of those whom the Founders intended to shield from the eye and ear of an all-powerful government. The Fourth Amendment declares:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The people are protected, not just the American people. For the sake of reference, one need recall the statement in the Declaration of Independence that “all men are created equal.” Furthermore, all men are endowed by their Creator with rights, rights they enjoy as offspring of the Almighty. Thus, as there is no man, woman, or child that is not the creation of God, there is none of them that is not a beneficiary of the rights He bestowed upon them.

Finally, in his dissenting opinion in the case of U.S. v. Verdugo-Urquidez 494 U.S. 259 (1990), Supreme Court Justice William Brennan wrote:

What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The “sufficient connection” is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed.

Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose “societal obligations,” such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.

By concluding that respondent is not one of “the people” protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers.

In nearly every instance of NSA surveillance that has come to light since the first leak of documents by former subcontractor Edward Snowden, it is apparent that the federal government has not obeyed the Constitution in its treatment of either American citizens or those of another country.

AMERICANS HAVE LOST VIRTUALLY ALL OF THEIR CONSTITUTIONAL RIGHTS

Washington’s Blog

How Many Constitutional Freedoms Have We Lost?

This post explains the liberties guaranteed in the Bill of Rights – the first 10 amendments to the United States Constitution – and provides a scorecard on the extent of the loss of each right.  (This is an updated version of an essay we wrote in February.  Unfortunately, a lot of information has come out since then.)

Image: Bill of Rights.

First Amendment

The 1st Amendment protects speech, religion, assembly and the press:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has also interpreted the First Amendment as protecting freedom of association.

However, the government is arresting those speaking out … and violently crushing peaceful assemblies which attempt to petition the government for redress.

A federal judge found that the law allowing indefinite detention of Americans without due process has a“chilling effect” on free speech. And see this and this.

There are also enacted laws allowing the secret service to arrest anyone protesting near the president or other designated folks (that might explain incidents like this).

Mass spying by the NSA violates our freedom of association.

The threat of being labeled a terrorist for exercising our First Amendment rights certainly violates the First Amendment. The government is using laws to crush dissent, and it’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.

For example, the following actions may get an American citizen living on U.S. soil labeled as a “suspected terrorist” today:

And holding the following beliefs may also be considered grounds for suspected terrorism:

Of course, Muslims are more or less subject to a separate system of justice in America.

And 1st Amendment rights are especially chilled when power has become so concentrated that the same agency which spies on all Americans also decides who should be assassinated.

Second Amendment

The 2nd Amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Gun control and gun rights advocates obviously have very different views about whether guns are a force for violence or for good.

But even a top liberal Constitutional law expert reluctantly admits that the right to own a gun is as important a Constitutional right as freedom of speech or religion:

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda.

***

It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

***

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.

The gun control debate – including which weapons and magazines are banned – is still in flux …

Third Amendment

The 3rd Amendment prohibits the government forcing people to house soldiers:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

While a recent lawsuit by a Nevada family – covered by (Mother JonesFox News and Courthouse News– alleges violation of the Third Amendment, this appears to be an isolated incident and an aberration.

So we’ll count this as an Amendment which is still being honored! Score one for We the People!

Fourth Amendment

The 4th Amendment prevents unlawful search and seizure:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the government is spying on everything we do … without any real benefit or justification.

Indeed, experts say that the type of spying being carried out by the NSA and other agencies is exactlythe kind of thing which King George imposed on the American colonists … which led to the Revolutionary War.

And many Constitutional experts – such as Jonathan Turley – think that the police went too far in Boston with lockdowns and involuntary door-to-door searches.

Fifth Amendment

The 5th Amendment addresses due process of law, eminent domain, double jeopardy and grand jury:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But the American government has shredded the 5th Amendment by subjecting us to indefinite detentionand taking away our due process rights.

The government claims the right to assassinate or indefinitely detain any American citizen on U.S. citizen without any due process. And see this.

As such, the government is certainly depriving people of life, liberty, or property, without due process of law.

There are additional corruptions of 5th Amendment rights – such as property being taken for privatepurposes.

The percentage of prosecutions in which a defendant is denied a grand jury is difficult to gauge, as there isso much secrecy surrounding many terrorism trials.

Protection against being tried twice for the same crime after being found innocent (“double jeopardy”) seems to be intact.  Hey … that’s two Constitutional rights which are still intact!

Sixth Amendment

The 6th Amendment guarantees the right to hear the criminal charges levied against us and to be able to confront the witnesses who have testified against us, as well as speedy criminal trials, and a public defender for those who cannot hire an attorney:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Subjecting people to indefinite detention or assassination obviously violates the 6th Amendment right to a jury trial. In both cases, the defendants is “disposed of” without ever receiving a trial … and often without ever hearing the charges against them.

More and more commonly, the government prosecutes cases based upon “secret evidence” that they don’t show to the defendant … or sometimes even the judge hearing the case.

The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even assassinate people. And see this and this.

Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs.

Indeed, even the laws themselves are now starting to be kept secret. And it’s about to get a lot worse.

True – when defendants are afforded a jury trial – they are provided with assistance of counsel. However, the austerity caused by redistribution of wealth to the super-elite is causing severe budget cuts to the courts and the public defenders’ offices nationwide.

Moreover, there are two systems of justice in America … one for the big banks and other fatcats, and one for everyone else. The government made it official policy not to prosecute fraud, even though fraud is themain business model adopted by Wall Street. Indeed, the biggest financial crime in world history, thelargest insider trading scandal of all time, illegal raiding of customer accounts and blatant financing of drug cartels and terrorists have all been committed recently without any real criminal prosecution or jail time.

On the other hand, government prosecutors are using the legal system to crush dissent and to silence whistleblowers.

And some of the nation’s most powerful judges have lost their independence … and are in bed with the powers-that-be.

Seventh Amendment

The 7th Amendment guarantees trial by jury in federal court for civil cases:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

As far as we know, this right is still being respected (that’s three rights still being followed).

However – as noted above – the austerity caused by redistribution of wealth to the super-elite is causing severe budget cuts to the courts, resulting in the wheels of justice slowing down considerably.

Eighth Amendment

The 8th Amendment prohibits cruel and unusual punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Indefinite detention and assassination are obviously cruel and unusual punishment.

The widespread system of torture carried out in the last 10 years – with the help of other countries –violates the 8th Amendment. Many want to bring it back … or at least justify its past use.

While Justice Scalia disingenuously argues that torture does not constitute cruel and unusual punishment because it is meant to produce information – not punish – he’s wrong. It’s not only cruel and unusual … it is technically a form of terrorism.

And government whistleblowers are being cruelly and unusually punished with unduly harsh sentences meant to intimidate anyone else from speaking out.

Ninth Amendment

The 9th Amendment provides that people have other rights, even if they aren’t specifically listed in the Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

We can debate what our inherent rights as human beings are. I believe they include the right to a level playing field, and access to non-toxic food and water. You may disagree.

But everyone agrees that the government should not actively encourage fraud and manipulation. However, the government – through its malignant, symbiotic relation with big corporations – is interfering with our aspirations for economic freedomsafe food and water (instead of arsenic-laden, genetically engineered junk), freedom from undue health hazards such as irradiation due to government support of archaic nuclear power designs, and a level playing field (as opposed to our crony capitalist system in which the little guy has no shot due to redistribution of wealth from the middle class to the super-elite, and government support of white collar criminals).

By working hand-in-glove with giant corporations to defraud us into paying for a lower quality of life, the government is trampling our basic rights as human beings.

Tenth Amendment

The 10th Amendment provides that powers not specifically given to the Federal government are reserved to the states or individual:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Two of the central principles of America’s Founding Fathers are:

(1) The government is created and empowered with the consent of the people

and

(2) Separation of powers

Today, most Americans believe that the government is threatening – rather than protecting – freedom.  We’ve become more afraid of our government than of terrorists, and believe that the government is no longer acting with the “consent of the governed“.

And the federal government is trampling the separation of powers by stepping on the toes of the states and the people. For example, former head S&L prosecutor Bill Black – now a professor of law and economics – notes:

The Federal Reserve Bank of New York and the resident examiners and regional staff of the Office of the Comptroller of the Currency [both] competed to weaken federal regulation and aggressively used the preemption doctrine to try to prevent state investigations of and actions against fraudulent mortgage lenders.

Indeed, the federal government is doing everything it can to stick its nose into every aspect of our lives … and act like Big Brother.

Conclusion: While a few of the liberties enshrined in the Bill of Rights still exist, the vast majority are under heavy assault.

Other Constitutional Provisions … and The Declaration of Independence

In addition to the trampling of the Bill of Rights, the government has also trashed the separation of powers enshrined in the main body of the Constitution.

The government is also engaging in activities which the Founding Fathers fought against, such as taxation without representation (here and here), cronyismdeference to central banks, etc.

As thethe preamble to the Declaration of Independence shows, the American government is still carrying out many of the acts the Founding Fathers found most offensive:

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. [Background]

He has affected to render the Military independent of and superior to the Civil power. [Background herehere and here]

***

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: [Background]

***

For transporting us beyond Seas to be tried for pretended offences [Background]

***

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. [Background]

***

He has abdicated Government here, by declaring us out of his Protection and waging War against us. [Background herehere and here]

NDAA NULLIFICATION BILL HEADED TO FLOOR OF CALIFORNIA STATE SENATE

RELATED POST: EXCLUSIVE: OBAMA SIGNS NATIONAL DEFENSE AUTHORIZATION ACT 2013 INTO LAW ON JANUARY 2, 2013: MARTIAL LAW COMES TO AMERICA

Written by  Joe Wolverton, II, J.D. | The New American

On August 12 the California Senate Appropriations Committee sent to the floor a bill making it more difficult for residents of the Golden State to be indefinitely detained under provisions of the National Defense Authorization Act (NDAA).

Known as the California Liberty Preservation Act, AB 351 is backed by a politically diverse coalition, including Taxpayers for Improving Public Safety, the Bill of Rights Defense Committee, the Tenth Amendment Center, the California American Civil Liberties Union, San Francisco Board of Supervisors president David Chiu, the Libertarian Party of California, and the Siskiyou County Board of Supervisors.

The bill’s primary sponsor is current gubernatorial candidate Assemblyman Tim Donnelly (R-33rd District). Donnelly’s bill specifically guarantees the right of citizens of California to be free from any federal law, including the NDAA, that would authorize their indefinite detention in violation of habeas corpus.

Specifically, if enacted, the bill would shield from federal assault several fundamental constitutionally guaranteed civil liberties, “including the right of habeas corpus, the right to due process, the right to a speedy and public trial, and the right to be informed of criminal charges brought against him or her.”

Relying on the 10th Amendment’s reservation to the states and the people all powers not specifically delegated to the federal government in the Constitution, the bill is a constitutionally sound expression of state sovereignty.

In a press release issued by his office after the committee approved his bill, Assemblyman Donnelly recognizes his duty to resist attempts by Washington, D.C., to deny Americans of their most basic freedoms.

“The NDAA gives the executive branch — under not only President Obama, but also every future president — unprecedented power to detain US citizens without due process. This runs counter to the very principles that make America great, and violates our nation’s commitment to the rule of law,” said Assemblyman Donnelly.

He continued, “We have a moral duty to protect Californians from the disastrous consequences made possible by NDAA. When Constitutional protections are ignored, racist hysteria allows vulnerable groups to be targeted. It was not long ago we memorialized the tragedy of Japanese American internment camps on the floor of the California State Assembly. I am grateful for today’s committee vote, which shows Californians that their representatives are serious about ensuring similar violations of freedom and human rights abuses never happen again within our State.”

While the text of the bill lays out specific ways in which the NDAA denies citizens many of the most basic constitutionally protected civil liberties, the surprising scope of the NDAA is still unfamiliar to most Americans.

President Barack Obama signed the latest National Defense Authorization Act (NDAA) into law on January 2, renewing the power to apprehend and detain Americans indefinitely granted in the previous year’s version.

The Fiscal Year 2014 version of the bill is currently working its way through Congress. At this time, many amendments that would have stricken some of the most pernicious provisions from the act have been defeated.

As for the most unconstitutional parts of the NDAA 2012 that remain in effect, a bit of history is in order. On December 31, 2011, with the president’s signing of that law, the writ of habeas corpus — a civil right so fundamental to Anglo-American common law history that it predates the Magna Carta — is voidable upon the command of the president of the United States. The Sixth Amendment right to counsel is also revocable at his will.

One of the most noxious elements of the NDAA is that it places the American military at the disposal of the president for the apprehension, arrest, and detention of those suspected of posing a danger to the homeland (whether inside or outside the borders of the United States and whether the suspect be a citizen or foreigner). The endowment of such a power to the president by the Congress is nothing less than a de facto legislative repeal of the Posse Comitatus Act of 1878, the law forbidding the use of the military in domestic law enforcement.

Furthermore, a key component of the NDAA mandates a frightening grant of immense and unconstitutional power to the executive branch. Under the provisions of Section 1021, the president is afforded the absolute power to arrest and detain citizens of the United States without their being informed of any criminal charges, without a trial on the merits of those charges, and without a scintilla of the due process safeguards protected by the Constitution of the United States.

Further, in order to execute the provisions of Section 1021 described in the previous paragraph, subsequent clauses (Section 1022, for example) unlawfully give the president the absolute and unquestionable authority to deploy the armed forces of the United States to apprehend and to indefinitely detain those suspected of threatening the security of the “homeland.” In the language of this legislation, these people are called “covered persons.”

The universe of potential “covered persons” includes every citizen of the United States of America. Any American could one day find himself or herself branded a “belligerent” and thus subject to the complete confiscation of his or her constitutional civil liberties and nearly never-ending incarceration in a military prison.

On the face of the bill, it would seem that Assemblyman Donnelly and the members of the Public Safety Committee are determined to protect their citizens from being seized and imprisoned under the provisions of the NDAA.

While AB 351, as well as Section 1029 of the current version of the NDAA purport to buttress the right to a trial for citizens and permanent residents, it does nothing to prevent their apprehension. Denial of habeas corpus (or a trial) comes later; it is the delirium, not the fever, in a manner of speaking.

Put simply, Californians would not need to worry about being held without charge if the president was not authorized in the same act to deploy the armed forces to round up the “suspects” and detain them indefinitely. Being apprised of the laws one is accused of having violated is important, but it’s the detention and the manner of it that must be of more immediate concern to those who are alarmed about the new world order being defined by the NDAA.

Dan Johnson, the founder of People Against the NDAA (PANDA), also recognizes the holes in the California bill that could prove large enough to allow all sorts of tyranny to pass through.

“The NDAA is much bigger than the suspension of habeas corpus,” Johnson wrote in a statement to The New American.

In that statement, Johnson discussed additional deficiencies in the California bill:

While AB351 is much stronger than other state laws passed in opposition to the NDAA, since it includes both the AUMF and any other federal law, it does not include the laws of war. In order to fix the root issue of the NDAA, and not just chop at the limbs, the Law of War must be countered in any true piece of anti-NDAA legislation.

Note: Executive Order 9066, which was used to detain 110k Japanese-Americans w/o trial, never said a thing about detention. It only allowed the law of war to be applied to a certain area, and gave the military jurisdiction over the same.

Finally, Johnson wrote:

Overall, we appreciate the effort. The very fact that California is introducing a law like this shows the willingness of the people and Assembly of California to stand up for the Constitutional rights of the people of their state.

However, this law will do nothing to protect those rights. It abdicates the responsibility of the state to stand in, not stand down, and leaves far too many loopholes.

Assemblyman Donnelly seems to understand this. In a press release he wrote, “This is not an issue of partisanship, but of freedom, which we must be vigilant to protect. Our Constitution affirms that no government is responsible for bestowing our rights; they are only entrusted with securing them.”

As Congress continues to surrender to the president all legislative, executive, and judicial power, the need for state nullification of every unconstitutional act of the federal government is urgent. Liberty-minded citizens must demand that state legislators exercise their right to restrain the federal government through application of the very powerful and very constitutional principle of nullification.

Citizens of California committed to the restoration of the Constitution and the fundamental principles of individual liberty upon which it is built should contact their state senators and encourage them to approve AB 351.

-

NULLIFICATION: THE RIGHTFUL REMEDY

WE NOW LIVE IN A POST CONSTITUTIONAL AMERICA

Anthony Gucciardi
Infowars.com

Has the very notion that we still have the Constitution and Bill of Rights as a legal basis now laughable? Media reports have begun addressing our society as ‘post-constitutional America’, and perhaps they’re tragically correct.

-

-

In the entire history of the nation, and in what should include today, the Constitution has stood as the indisputable law of the land. And in the eyes of those who understand how true liberty and true tyranny work, it certainly still should be. But in the eyes of those who wish to dismantle it in order to further the takeover and control of the United States public, the Constitution is now nothing more than a piece of paper standing in the way of their incessant absorption of power.

HOT WAR ON THE CONSTITUTION

I’m talking about the sociopaths that head up the Department of Homeland Security, which goes way beyond simply ignoring the Constitution. The worthless, expensive, and damaging agency behind the TSA now openly challenges the Constitution’s authority and the very founding principals of the United States with its own regulations. No longer are these government agencies in a ‘cold war’ of sorts against the Constitution and civil liberties, in fact, but an openly hot one that is increasing like never before.

Specifically, I’m talking about the DHS creation of literal ‘Constitution free zones’, in which the agency stands above the Constitution in authority and declares that the Bill of Rights does not exist for over 197 million within this nation. We’re talking about searches with no suspicion or warrants that essentially burn the Fourth Amendment.

‘POST-CONSTITUTIONAL AMERICA’ 

And that’s not even getting into the highly invasive TSA ‘security’ measures that include groping young boys and detaining 3-year-old little girls in wheelchairs with medical conditions on their way to Disney World. That alone is enough to add credence to the notion of a ‘post-constitutional America’, which is the phrase used in an Alternet article I discovered entitled ‘We’re in a Post-Constitutional America: Our Country Is Going Sideways in Plain Sight, and Nobody’s Saying Much About It’.

The sad reality is that the article is really quite on point, as devastating of an admission as that is. We now have whistleblowers like Edward Snowden and Bradley Manning demonized by the discredited media for revealing the inner workings of our corrupt government, and it’s now up to foreign nations to rescue them from our own government. And unless we do something about the erosion of our liberties now, the Constitution is quickly on track to be completely erased by the very same high level politicians who seek to destroy it.

STUDENTS SUBMIT TO BAG SEARCHES BY ‘OBAMA SECURITY FORCE’

Activist Mark Dice illustrates absurdity of Americans eager to relinquish 4th amendment rights

Paul Joseph Watson
Infowars.com

Activist Mark Dice illustrated the absurd ease with which some Americans are willing to relinquish their 4th amendment rights by performing mock ‘Obama National Civilian Security Force’ bag searches on students at San Diego State University.

-

-

-

Despite the fact that Dice is not even wearing a uniform of any kind, several of the individuals shown in the clip willingly consent to have their bag searched by a random stranger simply as a result of Dice mentioning the words “Boston bombings”.

The clip shows Dice rifling through people’s bags in order to make sure, “nobody is carrying any harmful or potentially hazardous materials,” while proclaiming himself to be part of the “Obama citizen security volunteer force.”

When one woman refuses to partake and asks Dice, “Are you serious?” he responds, “No we’re just showing what suckers people are and how they’ll obey and willingly let their 4th amendment be violated.”

“The 4th amendment is so last year,” remarks Dice as he subjects another student to a bag search.

Dice then tells another student he needs to perform a “real quick violation of your 4th amendment rights” before adding, “anybody carrying a black backpack, dark skin like yours is a potential terrorist these days.”

After one of the students makes a complaint, Dice and his cameraman are confronted by police who tell them to leave campus. However, a clip at the end of the video shows Dice being put in handcuffs after he tried to pull the same stunt on the streets of San Diego.

The video brings to mind the Milgram experiment, a series of social psychology tests conducted by Yale University psychologist Stanley Milgram based around the willingness of people to submit to authority figures even in direct conflict with their conscience.

The majority of participants agreed to deliver the experiment’s final 450-volt shock to victims when ordered to do so despite them being under the false belief that doing so could easily result in the person’s death, illustrating how obedience to authority no matter how illogical is ingrained within the human psyche.

Dice’s previous videos made headlines after he was successful in getting numerous people to sign a petition to repeal both the First and Second Amendments and throw gun owners in prison.

-

CALIFORNIANS SIGN PETITION TO REPEAL THE FIRST AMENDMENT

After supporting repeal of Second Amendment, Californians target the First Amendment

Paul Joseph Watson
Infowars.com
April 15, 2013

Following their support for repealing the Second Amendment, liberals in California evidently have a new target in their sights – the First Amendment. A video by social analyst Mark Dice shows Obama supporters signing a petition to ban free speech.

-

-

Playing the role of a big government liberal, Dice told respondents that people who disagree with Obama are racists and extremists and should have their constitutional right to speak out annulled.

“This will repeal the First Amendment so that those right-wingers can’t say hateful things about Obama. I’m tired of these people having the right to say what they want to say….you don’t have the right to disagree with Obama these days in these tough times,” Dice told one Obama supporter as he readily agreed and signed the petition.

Others were told that the petition was to “repeal the First Amendment of the Tea Party and anyone who criticizes Obama.”

“You just repealed the First Amendment,” Dice told another man who signed the petition, to which the man responded by nodding enthusiastically.

Another black man who signed the petition agreed with Dice when he said that Republicans shouldn’t be allowed free speech, responding “it’s getting pretty bad.”

When told that freedom of speech has its limits and that everyone should get behind Obama, another black lady responded, “mmmm hmmm, it only goes so far.”

Just as we witnessed in Dice’s previous video showing Californians signing a petition to repeal the right to own firearms, the most disturbing aspect of this is not that some people are in a total trance and will agree to sign anything, but that many of them actually vehemently agree with abolishing fundamental liberties.

Only two of the people in the clip – the ones who actually read the petition – refused to sign it.

-

CALIFORNIANS SIGN PETITION TO REPEAL THE SECOND AMENDMENT AND CONFISCATE GUNS

Infowars.com
April 12, 2013

The following video is stunning.  Media critic and social analyst Mark Dice shows how people are literally in a trance as he asks them to sign a petition to repeal the Second Amendment.  As they are signing the petition, Dice, begins to talk about how only the military and police should have guns, and how after the second amendment is repealed door-to-door gun confiscation will begin.  It is this absolute zombie-like state of the American public that Obama will use to get his gun ban through.

-

CALIFORNIANS SIGN PETITION TO REPEAL THE SIXTH AND SEVENTH AMENDMENT TO THE CONSTITUTION (TO REPEAL THE RIGHT TO SPEEDY AND PUBLIC TRIAL BY JURY)

THE REAL STATE OF THE UNION

obamarip

-

by John Galt | johngaltfla.com

Instead of the traditional Republican versus Democrat debate which ensues for theatrics on cable news, I thought a more prudent analysis of the State of the Union after Obama’s first term is much more appropriate and realistic as to where our nation is going in the future. Thus I present the following commentary on the State of the Union for the United States of America by analyzing our Bill of Rights of the U.S. Constitution and their status.

1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Condition: Critical

With the repeal of the Zorinsky Amendment to the Smith-Mundt Act of 1948, odds are it is only a matter of time when a national emergency is created or declared leaving the government an alleged no choice but to force mainstream and internet broadcaster to either abide by the dictates of the Federal Government regarding content and carrying the broadcasting arm of the Feds or be shut down. The newspapers are already in line and willing to force content on users without regard to accuracy or bias and television, be it cable or broadcast, is no longer a vast wasteland but a willing servant to the political and corporate elites. The silencing of the masses must occur via the seizure of mainstream radio broadcasting and the internet and with the current regime in power, there is little doubt that it is a matter of when, not if.

2nd Amendment: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Condition: Critical

The assault on the right to keep and bear arms started in 2008 but has accelerated to a point where formerly mainstream pundits on conservative commentators have now openly stated that the threat of gun confiscation is now a real possibility. Law abiding citizens are now being called baby killers and mass murders for criminal events that have no relation to the reality of John Q. Public buying a pistol or rifle to protect their family. Wild ideas are being tossed up into the air randomly from tax credits for turning in firearms to mandatory liability insurance for purchasing firearms. There will be a conflict in the future which brings this issue to a full resolution, sadly it appears to be following the path of other authoritarian regimes throughout history.

3rd Amendment: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Condition: Stable

While there is no consideration or threat of quartering troops in the homes of citizens at this time, do not be surprised if this regime concocts a plan to accelerate foreclosures, be they legal or not, to provide compensation to soldiers as they return or retire with an adequate number of years of service. The administration will have to consider something after the upcoming cut in pay and benefits is implemented and conditions deteriorate for the servicemen and women worldwide.

4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Condition: Dead

There is very little chance that this portion of the Constitution will be saved in anyone’s lifetime who is over forty years of age.

5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Condition: Dead

Excerpt from the 5th Amendment:

… nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process     of  law; nor shall private property be taken for public use, without just compensation.

The reality? Without due process a citizen’s own private thoughts NOT broadcast via the internet, but possibly intercepted via PRIVATE telephone conversations can and are being used to prosecute Americans in violation of this Amendment and the 4th. Property is seized via roadblocks, checkpoints, and via Eminent Domain without due process nor compensation. Yet the masses remain silent as the “War on Terror” continues its horrific track record as a war on freedom killing few terrorists on American soil.

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Condition: Dead

The end of America is nigh when a President can order the interception of all personal data without a warrant and prosecuted without ever meeting his or hers accusers. The secret juries, unlawful arrests, use of emergency powers to detain citizens and deny them a speedy trial along with facing or using witnesses is only further proof that the current State of our Nation is critical heading towards dictatorship.

7th Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Condition: Dead

Truly a sad day when some small awards are won by the common man only to be defied by courts sold to the highest bidder. There are now cases reported on an almost daily basis where mega-corporations working with the political elites defeat legitimate civil court cases making a mockery of this Amendment. If anyone doubts this idea, review the General Motors and Chrysler cases where the Supreme Court refused to hear the cases under the 4th and 7th Amendment appeals nor allow for a jury trial for the plaintiffs when the U.S. Government illegally seized their property (corporate bonds and preferred stocks) without much more than a cursory hearing to advise them to shut up or else.

8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Condition: Dead

Crazy talk about this portion dying also? Hardly. Now the President or an “informed” minion can order an American citizen terminated or detained without due process.

Not so crazy now, is it?

9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Condition: Serious

The Constitution was originally created to protect all of the rights of the people, be they citizens or not within the borders of this nation. However the use of other laws, regulations, and orders created by the government over the last four years, if not the past decade also, have infringed on the rights of all people within this nation and this portion of the Constitution appears doomed to the memories of history books soon to banned or restricted from the masses and reserved for the privileged few.

10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Condition: Critical

God help us all when this Amendment falls, which apparently Obamacare and the new regulatory provisions dreamed up by the President’s cabinet departments are intending to accelerate. The American people think that power emanates from Washington, D.C. now and have no clue that this Amendment was designed to blunt the power of Federalism and worse, authoritarianism. The evolution of the military-industrial complex has now been replaced the greater threat, the paramilitary-financial complex, a dangerous threat to every citizen’s rights and the ability of the states to defend those freedoms intended by our Founders to be protected by the individual states.

In summation, and in this author’s opinion, the condition of a free, civil, and Constitutional United States of America can be summed up in one word:

Critical.

Once it dies, some of us will look fondly back on the memories of freedom and our Founders and not the new version created in a movie studio by propagandists working at the behest of our national government.

Follow

Get every new post delivered to your Inbox.

Join 81 other followers