We the People are allowing the marauding peacocks and power courtesans that run our country and corporations to define the United States of America. We allow the corporately consolidated, lapdog journalists to define the American Dream and we let the bureaucratic glad-handers define what our laws mean in our lives. When I speak of our politicians, I’m including the judicial system with its left and right leaning judges. When you have a left leaning Justice like Elena Kagan unable or unwilling to acknowledge the validity of our founding document at her confirmation hearings, the Declaration of Independence, and a right leaning Justice like Antonin Scalia openly admitting that he only goes back as far as the Federalist Papers to support his decisions in our supreme Court (Constitutional spelling) you have politicians in the judicial branch of our government, albeit appointed, but politicians none the less.
Yes, the Legislature and the President are responsible for creating the laws of the United States government, but since most laws are so vague and voluminous as to be beyond the comprehension of any reasonable person, you need a specialist to interpret what a given law means. For that we have the Priesthood of the Law in the form of Bar approved lawyers, many of which aspire to be judges themselves.
Remember James Madison in Federalist #62 said:
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule which is little known, and less fixed?
For a decade or so I read the Wall Street Journal everyday it showed up; it was 2011 when I first saw any real indication that any journalistic media might have an issue with this set up. (The New York Times and the Washington Post certainly never objected.) Headlines like “Probe Finds Misconduct in Case Against Senator” and “Are Prosecutors Above the Law?” are indicative of this problem. Of course the rise and fall of the overzealous Elliot Spitzer of New York was well documented in the Wall Street Journal as well.
The current issue of the NSA wiretapping of the citizens of the United States and her allies, brought to light by Edward Snowden in recent weeks, is one of the very situations I’m talking about here. Both the media and the politicians, when they’re not busy calling Mr. Snowden a traitor and accusing him of treason, present the issue as a Fourth Amendment matter. Headlines like “NSA’s Verizon Spying Order: Fourth Amendment And Big Data On A Collision Course” from Forbes and “NSA Undermines Fourth Amendment” from the Las Vegas Review-Journal should demonstrate this point.
While this may well have Fourth Amendment concerns on the face of it, it is more of a Third Amendment violation. The NSA wiretapping of all of the citizens of this country is more akin to placing a soldier in every household than the simple collection of evidence, for which our government officials need a warrant under the Fourth. The advancement of technology does not give the Legislators license to avoid the intent and spirit of the Constitution. For example, why on earth would we allow anyone to peruse our emails, chats and other text, voice and video communications on computers without a warrant from a judge when we require a warrant to listen in on our telephone conversations? The telephone was just another technological advancement beyond our mail carried by the United States Postal Service. The fact that no one has really taken umbrage with the Computer Fraud and Abuse act of 1986 (prior to the recent Aaron Schwartz fiasco and certainly never been challenged in court) and its allowance of such access to email stored on servers has been seen as implicit permission as far as our lawmakers are concerned, to do just that.
And so they have, mostly by avoidance and willful ignorance of what the permanently entrenched employees in the acronymed departments of our government are doing. This can be no more clearly demonstrated than the fact that only 47 of our 100 Senators could be bothered to attend an NSA security briefing they were invited to attend, in the middle of the national outcry of these violations, at the oh-so-late hour of 2:30pm on Thursday, June 13th in order to catch a flight to extend their Fathers Day weekend, as reported by The Hill. Of course we cannot rule out the possibility that our representatives are complicit in these Constitutional violations. That implies, of course, that some of our representatives are in violation of their oaths of office.
Lest you think that this particular interpretation of the laws in relation to the Constitution is an anomaly, I’ll demonstrate the fallacy of that argument with another recent example. In the recent Maryland v. King, the Justices narrowly decided, on Fourth Amendment grounds, that the police have the right to do a DNA cheek swab upon the arrest of an individual as a part of the booking procedure of those arrested on suspicion of a serious crime. Aside from the fact that this a clear violation of the Fourth Amendment in both spirit and intent, it is an even more egregious violation of the Fifth Amendment.
The assumption that everything that happens in booking an individual suspected of a crime is a matter of the Fourth Amendment is dead wrong. Everybody is also protected by the Fifth Amendment during such processes as well. The Fifth Amendment reads as follows:
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.
The clause we are particularly concerned with is the following:
“nor shall be compelled in any criminal case to be a witness against himself,”
As you can clearly see, there is nothing in the Fifth or this clause that limits being a witness against oneself to the spoken word or that which resides in the mind. Setting aside the ambiguity of fingerprinting as a definitive identifier of an individual in any given situation, the process of compelling an individual to give a fingerprint as part and parcel of the booking process clearly violates that particular clause of the Fifth Amendment. The idea that swabbing the interior of one’s cheek, which comes out of the individuals mouth as surely as words do, is an equal or even more compelling argument against the use of this procedure as a part of the booking process. Obviously suspects are being compelled into being witness’ against themselves.
The issues here are larger than the Fourth Amendment. The Fourth Amendment is a singular part of the Bill of Rights. Essentially an addendum required by the people of the various States to ratify the document, the Federal Constitution as our Founding Fathers refer to it. These amendments were passed pursuant to Article V of that Federal Constitution and became a part of that very same document, making it a part of “the supreme Law of the Land,” and as such, as inviolate and absolute as the rest of the Constitution.
Since then the supreme Court has, erroneously, made judgments that whittle away at our Constitutionally protected rights. The first two judgments on the matter of the Fourth Amendment, Boyd v United States (1886) and Weeks v United States (1914) were proper and right under the Constitution, in that they clearly upheld the sanctity of the Fourth. By the third judgment in Carroll v. United States (1925) they began the whittling process by expressing a difference between ones home and their mode of transportation, a distinction not spelled out in the Fourth Amendment. Since then there have over forty cases on the matter, including the aforementioned Maryland v. King (2013)
The judicial Branch has never granted the power or authority to judge the Constitution. The Constitution under Article III grants the judicial branch of our Constitutional government the following powers and responsibilities:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;
between a State and Citizens of another State;
–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States,
and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Amendment XI negates the lines I’ve indicated.
You will note the judicial branch’s only powers or authorities in relation to the Constitution are:
all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
and not the Constitution itself. As the arguments of the Federalist Papers so succinctly point out, our government is one of specifically delineated powers and authorities. The Bill of Rights are specific limitations upon our government, not subject to interpretation by the Courts. While there may be some that point to the clause:
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Article I grants no authority to the legislators to usurp the Constitution itself. In fact, the “necessary and proper” clause often used to extend the powers of the government reads, in its entirety:
The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
therby limiting the power of law and legislation to the specifically enumerated powers, authorities and responsibilities spelled out in the Constitution.
As to the accusations of treason by former Vice-President Dick Cheney to Edward Snowden, Article III of the Constitution addresses that as well:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Edward Snowden’s actions are no different than Daniel Ellsburg’s actions. A man who is hailed as American hero. There is no treason to be found, only a government desperate to maintain the excessive powers it has acquired under the “necessary and proper” clause.
Remember, We the People of the United States, We are the sovereign power and not the Federal Government of the United States. Read my white paper on the sovereignty of the people, (the home page for UnfetteredSpeech.com) or take this simple quote from James Madison as a reminder:
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty.
That would be why Justice Antonin Scalia so smuggly says that if the people don’t like it, they can change it.
*I no longer read the WSJ on a daily basis.