HOME_____BLOG _____BOOKS_____RADIO_____CLASSES_____VIDEO_____PUBLIC SPEAKER

Thursday, February 28, 2019

Is Kamala Harris eligible to run for President of the United States

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Ah, here we are again, with the Natural Born Citizen question once more slapping us in the face.

Those who questioned Obama's eligibility were labeled birthers, and kept arguing he was not eligible because they believed he was not born in the United States.  A birth certificate was produced from Hawaii, so Obama's supporters claimed that should end it, and then the birthers claimed the birth certificate was a fake.

Meanwhile, I was telling everyone that the birth certificate did not matter.

Natural Born Citizen and Citizen (which includes naturalized citizen and native born citizen) are two different distinctions of citizenship ... or at least they were to the Framers of the United States Constitution.

As per the immigration and naturalization act of 1790, Vattel's Law of Nations, Minor v. Happersett in 1875, and various communications between the Founders, colonists before them, and British Common Law, a person is not a natural born citizen unless both parents were citizens at the time of their birth.

And, there was a reason for that being the definition.

During the Revolutionary Period there was a group of colonists who were loyal to the British Crown.  They were called "Tories."  The Tories worked to infiltrate American government in the hopes of sabotaging the fledgling country's endeavors and ultimately forcing the United States back under the umbrella of the British Empire.

Tories usually were the children of a mixed household, with at least one parent being of British birth, and in most cases that parent was a British citizen at the time of the child's birth.

In short, the Natural Born Citizen clause is in place to keep people with foreign ideas and foreign loyalties from holding the Office of the President of the United States.

That said, it was also preparation for future generations.  After all, once the Constitution was ratified, there were no Natural Born Citizens, yet.  The country was not old enough.  It would take 35 years minimum before the first Natural Born Citizen would be old enough to run for President.

Divided loyalties and an invasion of foreign ideas are definitely concerns in today's political atmosphere.

Barack Obama, was not eligible by his own admission.  The birth certificate did not matter.  He told us himself that his biological father was Kenyan, and not an American.

In the case of California Senator Kamala Harris, her father arrived from Jamaica in 1961—mother from India arrived in 1960. Neither parent was a legal resident for 5 years prior to Harris’s birth, a requirement for naturalization. Kamala was raised in Canada.  If her parents were not eligible, yet, to be American citizens by the time of Kamala's birth, then that means neither of Kamala's parents were U.S. Citizens at the time of her birth.  Therefore, if that is true, Harris is not eligible to run for President of the United States.

In 2016 I refused to support Ted Cruz for exactly the same reason.  Regardless of where Mr. Cruz was born, or if his mother was a U.S. Citizen, at the time of his birth his father, a man I respect dearly, was still a Cuban citizen.  Hence, Ted Cruz was not eligible to run for President of the United States.  Same went for Rubio and Jindal, as well.

The liberal left says, "false, Harris is a clear-cut case of being eligible because she was born in the United States."

Kamala Harris was born in Oakland, California.  She's a citizen.  A native born citizen.  But, because of her parents’ naturalization status at the time of her birth, she's not a natural born citizen.

The U.S. Constitution says that "no person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President."

The key language is whether Harris is a "natural born citizen."

The liberal left will drag out the Fourteenth Amendment to the Constitution, where the citizenship clause is, claiming that is their proof.  It says, "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

Then we have the 1952 statute (8 U.S. Code § 1401) that doesn't properly follow the Citizenship clause (since it leaves out "and subject to the jurisdiction thereof") but it echoes the language the Democrats believe to be pertinent in the case of Natural Born Citizen, saying that people born in the United States are "nationals and citizens."

And then the liberal left Democrats drag out the 1898 Supreme Court decision, known as the Wong Kim Ark case, where in a 6-2 majority decision, the Supreme Court justices ruled that Wong -- and others born on United States soil, with a few clear exceptions -- did indeed qualify for citizenship under the 14th Amendment.

"If you are born in the U.S, you are automatically a natural-born U.S. citizen under the constitution," says the liberal left Democrats.

No.

Where one was born has nothing to do with natural born citizen.

Her birth in the United States does not automatically make Kamala Harris a natural born citizen.  The term "natural born citizen" represents something above mere citizenship.

Unless her parents became citizens of the United States prior to her birth in Oakland, Kamala Harris is not constitutionally eligible to run for President of the United States.

-- Political Pistachio Conservative News and Commentary

Wednesday, February 27, 2019

Progressive Era, Temecula Constitution Class

Temecula Constitution Class, Wednesdays 6:00 pm
27120 Jefferson Avenue, Temecula, CA
Riverside County Republican Party Headquarters


Constitution Class Handout
Instructor: Douglas V. Gibbs

 
 
 
Lesson 19
 
Progressive Era Amendments
            16th Amendment: Income Tax
 
Income Tax is a direct tax. The Founding Fathers prohibited direct taxes in Article I, Section 9, Clause 4 of the United States Constitution.
The concept of an income tax emerged during the American Civil War as a means of assisting in paying for the Union war effort. In 1861, Congress drew up a bill to tax personal and corporate incomes. This first income tax measure in the United States called for a 3% tax on incomes over $800. The bill quickly passed in both the House and the Senate, but it was never put into operation.
In 1862, Abraham Lincoln signed a bill that imposed a 3% tax on incomes between $600 and $10,000 and a 5% tax on higher incomes. The bill was amended in 1864 to levy heavier taxation on higher incomes. The 1862 income tax law was repealed in 1872 and was declared to be unconstitutional, in violation of Article I, Section 9, Clause 4 of the United States Constitution.
Progressivism was on the rise in the United States around the turn of the 20th Century. Americans were concerned about the large national debt that remained with the United States as a result of the Spanish-American War, and the growing social inequality between the rich and the poor. The idea that there should be a tax that "soaks the rich" began to take root among progressives of both major parties. The Democrats took to progressivism more than the Republican Party, and the progressives of the Democrat Party were looking for a way to embarrass the conservative arm of the GOP so that they could gain some traction in the next election.
With social unrest rising among the population, a Democrat proposed the Bailey Bill with the express hope the Republicans would reject it. The theory was that after the Republicans rejected the bill, the Democrats could then point a finger at the Republicans, claiming for political purposes that the Republicans were in cahoots with the corrupt wealthy corporate types. A Republican rejection of the Bailey Bill, which would have imposed an income tax on the rich, would serve as proof of such an alignment between the Republicans and the wealthy. The slogan used by proponents of the Bailey Bill was "soak the rich," a direct call to tax people they considered to be profiteers, a class of plutocrats they claimed were in collusion with the Republicans.
The conservative Republicans knew what the progressives of the Democrat Party were up to, and launched a counter move. They proposed a constitutional amendment that would impose an income tax on the rich, and when the States refused to ratify the amendment, the Republicans would use that failure to ratify the amendment as proof that the people, through their State legislatures, were against the idea of a new income tax. In turn, that would defeat the Bailey Bill, for how could Congress approve an income tax against the rich through the Bailey Bill after the people and States rejected a constitutional amendment that would have done the very same thing?
The proponents of the 16th Amendment promised that if it were to be ratified (remember, it was fully expected not to be ratified) the income tax would only be imposed on the top 5% wage earners, it would be voluntary, and it would be temporary.
The progressives of the Republican Party, however, rallied behind the proposed amendment, and the Secretary of State announced the amendment was ratified on February 12, 1913.
Progressives, satisfied the 16th Amendment was ratified, hoped to use it to tax the rich. In the beginning, only 5% of the people were required to submit tax returns. Many of the rich, however, avoided the tax with charitable deductions, and other creative strategies.
During World War II Franklin Delano Roosevelt saw the income tax as a way to vastly increase revenue, and initiated a policy of withholding from "all" wages and salaries, not just the highest incomes enjoyed by the rich.   Rather than the rich paying the tax at the end of the year, the tax was collected at the payroll window before it was even due to be paid by the taxpayer. This style of collection shifted the tax from its original design as a tax on the wealthy to a tax on the masses, mostly on the middle class.
In addition to violating the original intent of Article I, Section 9 prohibiting direct taxation, the income tax also opposes the 4th Amendment which requires that a citizen's privacy be protected. An income tax enforced by the Internal Revenue Service violates the privacy of the home, business, personal papers and personal affairs of the private citizen. Since the tax is based on income, the IRS has the task of making sure everyone pays his fair share. This task is physically impossible without prying into the private papers, private business and personal affairs of the individual citizens.
Since the ratification of the 16th Amendment, there have been questions about whether the proper number of State ratification votes were ever achieved. Despite the argument by some researchers that the 16th Amendment was never properly ratified by the requisite three-fourths of the states, and that politicians of the day were aware of the discrepancy, Secretary of State Philander Knox fraudulently declared ratification. Some may suggest that he did so under the urgings of wealthy bankers like J.P. Morgan.
 
Terms:
 
Bailey Bill - Income Tax introduced in April 1909 by Senator Joseph W. Bailey, a Democrat from Texas, designed to embarrass conservative Republicans when they voted against it. The introduction of the bill was one of the factors that led to the proposal of the 16th Amendment.
 
Direct Taxation - A government levy on the income, property, or wealth of people or companies. A direct tax is borne entirely by the entity that pays it, and cannot be passed on to another entity.
 
Plutocrat - A person whose power derives from their wealth.
 
Profiteer - A person who seeks exorbitant profits.
 
Progressivism - Philosophy that views progress as seeking change in approaches to solving economic, social, and other problems, often through government sponsored programs.
 
Questions for Discussion:
 
1. Why did the Founding Fathers not allow direct taxation by the Federal Government?
 
2. What lesson can be learned from the story of the Bailey Bill and the passing of the 16th Amendment?
 
3. Why didn't "soaking the rich" work as hoped?
 
4. Why did President Roosevelt extend the income tax to include all wages and earnings?
 
Resources:
 
Bill Benson, The Law That Never Was:
http://www.thelawthatneverwas.com/
Ethan Pope, America's Financial Demise: Approaching the Point of No
Return; Dallas, TX: Intersect Press (2010)
W. Cleon Skousen, History of the 16th Amendment, National Retail
Sales Tax Alliance: http://www.salestax.org/library/skousen_16history.html
 
            Federal Reserve
 
The same year the 16th Amendment created the income tax, the Federal Reserve was also created. The Federal Reserve is not a federal agency, and is actually a privately owned corporation owned by a secret group of international bankers. The Federal Reserve holds a monopoly on the creation of money in the United States. Whenever the U.S. Government needs money it borrows the money from the Federal Reserve. The Federal Reserve gladly loans that money because doing so results in a good profit for the bankers.
The Federal Reserve is not the first central bank, but it is the longest lasting. The First Bank of the United States in 1791, created by Alexander Hamilton, became a system of control over the American economy, and was, as described by Jefferson and Madison, "an engine for speculation, financial manipulation, and corruption."
In order to properly function, a central bank needs a collection of large sums of money from the people to pay off the interest on the money the government borrows. The creation of the income tax provided that opportunity.
The Federal Reserve Act surrendered control of the monetary system to the international banking cartel and guaranteed the eventual abandonment of the gold standard. The Federal Reserve's debt-based money guaranteed the enslavement of every American under a crushing debt burden. The Federal Reserve guaranteed the ability of the international banking cartel to confiscate wealth through artificially created boom/bust cycles.
The result is that the U.S. Government, and the bankers in charge of the Federal Reserve, can manipulate the economy simply by the amount of money they decide to pump into the system. The more currency is pumped into the system, the greater the rise of inflation rates. A reduction of the printing of money then results in a recovering economy. Government spending, in relation to the national debt, has a direct impact on the economic cycles we experience. The more the government borrows, the more fiat money is pumped into the system. The result is increased inflation, and a stalled economy. Cutting spending results in less money being borrowed, which then returns value to the dollar, and in turn reduces the level of inflation while encouraging capitalism to thrive.
The welfare system was created to compensate for the damage caused by the Federal Reserve and the income tax.
The 16th Amendment allows for the taxation on income from whatever source derived, which gives Congress, for the most part, carte blanche to tax at will, while giving the IRS the power to do all of the things the founders specifically disallowed the federal government from doing. This invasion of privacy, without due process, will continue as long as the 16th Amendment remains in force.
The income tax is in line with the Marxist philosophy of destroying a capitalist society by steeply graduating taxes on income and applying heavy levies upon the estates of people when they die.
 
 
Terms:
Capitalism - An economic system characterized by private or corporate ownership of capital goods, by investments that are determined by private decision, and by prices, production, and the distribution of goods that are determined mainly by competition in a free market.
 
Carte Blanche - Unrestricted power to act at one's own discretion; unconditional authority; derived from "blank cheque."
 
Federal Reserve - A privately owned corporation owned by a secret group of international bankers. The federal reserve holds a monopoly on the creation of money in the United States. Whenever the U.S. Government needs money it borrows the money from the Federal Reserve, thus creating a national debt.
 
Fiat Money - Money that derives its value from government regulation or law, but is not backed by any tangible collateral; money that lacks any intrinsic value.
 
Inflation - A sustained, rapid increase in prices, over months or years, and mirrored in the correspondingly decreasing purchasing power of the currency.
 
Questions for Discussion:
 
1. What are the similarities between Alexander Hamilton's National Bank, and the Federal Reserve?
 
2. How does the existence of Federal Reserve adversely influence our economic system?
 
Resources:
Abolish the Federal Reserve dot org: http://abolishthefederalreserve.org/
G. Edward Griffin, The Creature from Jekyll Island : A Second Look at
the Federal Reserve; Appleton, WI: American Opinion Publishing (1994)
 
17th Amendment: State Representation in the Senate
To comprehend the 17th Amendment, we need to go back in history to understand how our political system was originally established. The Founding Fathers included a number of checks and balances during the creation of the federal government in the hopes of providing enough safeguards to protect the people from an ever expansive, tyrannical, consolidated central government. The separation of powers between the three branches of government, and between the federal government and the States, were an integral part of these protections against tyranny. However, not all of the checks and balances put in place were obvious, nor are all of the checks and balances taught to us during our school years.
The dynamics of the federal government were set up to prevent any part of government from having access to too much power. Too much power in any one part of the system could be dangerous, and this includes too much power in the hands of the people.
The general population, just like the government, cannot be fully trusted with absolute power. To prevent the danger of too much power residing in any part of government, power needed to be divided as much as possible so as to keep it under control. Too much power in the hands of anybody has the potential of being a dangerous proposition, including in the hands of the voting public.
The United States is not a democracy. All of the voting power was not given directly to the people. The voting power was divided to ensure the Republic was protected from the mob-rule mentality of democracy.
The vote of the people, or the people's full and unquestioned voice in government, was, and still is, manifested in the U.S. House of Representatives. Then, as now, the representatives were voted into office directly by the people. Each Representative represents a district. The members of the United States Senate were not voted in directly by the people during the time period immediately following the ratification of the United States Constitution. U.S. Senators were voted in by an indirect vote of the people.
The Senators were appointed by their State legislatures. The State legislators are voted into office by the people of the State. Therefore, during the early years of this nation, the Senators attained office by an indirect vote of the people through their State legislatures.
The people are represented indirectly by the States in the U.S. Senate, and by the States appointing the Senators, the method of appointment allowed State's interests to be represented in the U.S. Congress.
Since they were appointed by the State legislatures, the Senators looked at the political atmosphere in a different manner than the members of the House of Representatives. Members of the House of Representatives are directly voted into office by the people, so their concerns are more in line with the immediate concerns of the people, no matter how whimsical those concerns may be.
The Senate functioned in a very different manner because when the Senators were appointed they were expected to abide by the wishes of the State legislatures. The Senators were expected to be representative of what was best for their States; State's Rights, State Sovereignty, protecting the States not only from a foreign enemy, but from a domestic enemy, should the federal government become the potential tyranny that the Founding Fathers, and especially the Anti-federalists, feared a central government could become.
The federal government exists because the States allow it to. The powers derived by the federal government were granted to it by the States, so in a way the States birthed the federal government, making the States the parents of the government in Washington, D.C. The federal government is not supposed to be able to do much of anything without the permission of the several States. The Senate was the representation of the States so that the States could ensure the federal government remained within its authorities.
The States having representation in the federal government through the U.S. Senate was also another way that checks and balances were applied to the system. The House of Representatives represented the people, and the Senate represented the States. Through this arrangement, it gave the people the ability to check the States, and the States the ability to check the people, and together they checked the Executive. The dynamics of our government through this arrangement were a built in check and balance.
The States could not get too far without the people approving of a senatorial proposal. The people could not get much done without The States agreeing with a proposal that originated in the House of Representatives. The executive branch could get little done without both the people and the States approving of it. However, if the President did not like what the people and the States were trying to accomplish, he could veto the bill. If the people and the States felt the legislation was important enough, they could override that veto with two-thirds of a vote in both Houses.
Looking at it in another way, a bill would be approved by both the people and the States before it went to the President to become law. This gave the Executive and both parts of the legislative branch the opportunity to approve or disapprove potential laws.
In 1913, the Seventeenth Amendment changed the originally intended dynamics of the American form of government. The amendment removed the States' representation from U.S. Government proceedings. The Seventeenth Amendment changed the appointment of the Senators from that of the State legislatures to that of the direct vote of the people. As a result, the protection of State Sovereignty was removed, and in its place was inserted ideology, and the willingness of Senators to buy the votes of individual voters through gifts from the treasury in a manner that was already emerging from the House of Representatives.
 
            Vacancies in the Senate
 
The Seventeenth Amendment also provides for appointments should a seat in the U.S. Senate be left vacant for any reason. The governors of the States, should the legislatures allow such, may make temporary appointments until a special election takes place. The State legislatures may change these rules as they deem necessary, such as requiring an immediate special election instead of allowing the governor to temporarily appoint a replacement. This leaves most of the power regarding filling vacancies in the hands of the State legislatures.
Massachusetts, during the reign of Democrat governors, used the rule that if there was a vacancy in the U.S. Senate, the governor could appoint the new Senator to complete that term of office. When Mitt Romney, who was a Republican, was governor, the Democrat dominated legislature feared a Republican appointment should one of the Massachusetts Senators die, so they changed the rule to require an immediate special election, fully confident the people would put another Democrat into office should one of the seats be vacated. The Massachusetts legislature even overrode a veto by Governor Mitt Romney to accomplish their rule change.
Romney did not run for reelection in 2006, and his gubernatorial term in Massachusetts ended January 4, 2007.
The new governor of Massachusetts in 2007 was Deval Patrick, a Democrat. When Senator Edward "Ted" Kennedy passed away August 25, 2009, since the State of Massachusetts had a Democrat governor, the Democrat-led legislature hurriedly changed the rule to enable the governor to appoint the new Senator as had been allowed before Mitt Romney was governor, just in case the people could not be trusted.
The appointed Democrat Party senator held the seat until a special election in January of 2010 that pitted Republican Scott Brown against Democrat Martha Coakley. To the surprise of the entire nation, Scott Brown won the election, sending tremors through the political establishment, which included the Democrats losing a filibuster-proof majority in the U.S. Senate. Brown was defeated in 2012 by Democrat Elizabeth Warren, returning the Senate Seat back to the Democrats when she took office on January 3, 2013.
 
            More like a Democracy
 
In the end, the real damage caused by the ratification of the 17th Amendment was that State representation in the Congress was removed. Senators, after the ratification of the 17th Amendment, would be voted into office by the vote of the people, making the U.S. Senate more like the House of Representatives, eliminating a very important check and balance, and making the United States more like a democracy and less like the Republic the Founders originally intended.
The people, fooled by a relenting rallying cry of "The will of the people," and a common belief that the leaders of the States could not be trusted, demanded that the federal government be changed into something more like a democracy. As the progressives desired, and planned, the American form of government moved closer to a democracy with the 17th Amendment.
Karl Marx once stated that "Democracy is the road to socialism."
Progressivism was on the rise in the United States during those early years of the 20th Century, and the statists knew that one of their main obstacles to consolidating government power into the grasp of the central authority in Washington was the independent and sovereign voice of the States. The 17th Amendment was one of the vehicles the statists used to begin the process of silencing the States, with the ultimate goal of making them irrelevant in regards to the running of the federal government.
The statists did not reveal their true intentions. If they had proclaimed that they desired the ratification of the 17th Amendment so that they could proceed in their quest to change the United States into a socialist system, the people would have rejected it. Instead, they used a populist argument. "It is for the will of the people. You deserve a Senate voted into office by the democratic will of the people. If you directly vote for the Senators, they will be more apt to act in line with the will of the people. After all, the States are corrupt, and they can't be trusted. You, the voting public, in the interest of democracy, deserve to be able to directly vote for the Senators yourselves."
As a result, the whole American political system has been turned on its head. The entire dynamic of our government system as it was originally intended to function has changed.
The damage to the American form of government reached deeper into the dynamics of our Constitutional Republic than immediately meets the eye.
The Founding Fathers made the House of Representatives and the U.S. Senate different from each other for a reason.  
If a President of the United States signs a treaty, before that treaty goes into force, it must be ratified by the U.S. Senate, which back then was the voice of the States. It was the Framer's way of making sure the States could act as a protective mechanism against a President who might make treaties that were dangerous to State Sovereignty. However, now the Senate no longer represents the States, so that important safeguard is no longer in place. Senators more apt to defend an ideology, rather than the best interest of their State, are in office now. The ratification of treaties has totally changed in a way that could place State Sovereignty in jeopardy. The States no longer have a voice in that part of the governing process anymore, and as a result it has become easier for the federal government to enter into treaties that compromise State interests, or local issues over which the federal government would normally not have any authority.
Another point to examine in regards to the Senate ratification of treaties, is since the people, through their States, are the final arbiters of the Constitution, the Founders felt no worry about unconstitutional treaties being ratified. After all, the final arbiters of the Constitution, the States, were the ones in charge of the ratification of all treaties. Now, since ideology now takes precedence over States' Rights in the Senate, we are faced by a number of draconian treaties . . . and there is nothing the States can do about it.
The appointment of judges, such as Supreme Court Justices, has also been altered by the passage of the 17th Amendment. Imagine how different the hearings regarding the appointment of Supreme Court Justices would be if the Senators were appointed by the State legislatures?
Do you think it would be as easy for an activist judge to be appointed?
Do you think the nominees would be asked questions geared towards the Constitution, and protecting State Sovereignty?
The people were told that the States could no longer be trusted in their appointment of the Senators, and the States got lazy and didn't wish to participate in that manner anymore. As a result, the 17th Amendment was ratified, and look at the mess it has caused.
Let's return to the concept of "dividing power" for a moment. The Founding Fathers divided the voting power. By the States appointing the Senators, it divided the people's voting power.
During the early years of this nation the State legislatures also appointed the Electors for president.
The people only directly voted into office the Representatives of the U.S. House of Representatives.
This division of voting power was put into place because the Founding Fathers knew that should the people be fooled while they completely controlled the vote, a tyranny could ensure that it was voted into the three primary parts of government: the Executive, the House of Representatives, and the U.S. Senate. Once tyranny had control of those three parts of government, the judicial branch would be sure to follow, if not already in collusion with the other two branches.
The Founders knew that should the uninformed electorate vote in a tyranny, while caught up in some kind of cult of personality, it would spell the beginning of the end of the United States as we know it.
The Founding Fathers knew that democracy of that kind would destroy the system, so they divided the power of the vote. The voting power was divided so as to protect us from the excesses of democracy.
Looking back on 2006, 2008, and 2012 we see an example of exactly what the Founding Fathers warned us about. A single ideology, one that is hostile towards the U.S. Constitution, and hostile to the American System, fooled the people, and took control of some of the most vital parts of government. The destructive reasoning by the statists of the Progressive Era for the passage of the 17th Amendment was fulfilled.
The 17th Amendment, combined with the creation of the Federal Reserve, and the implementation of an income tax, was all a part of a scheme to change the American System into a model of socialism through the guise of democracy.
We are not a democracy, and we were never meant to be a democracy. The 17th Amendment moved us in that direction. The Founding Fathers continuously spoke out against the dangers of democracy. They knew that democracies lead to mob-rule. As much as the government couldn't be trusted with too much power, neither could the voting public.
The Constitution is filled with checks and balances. Yet, the people of that time period were fooled so easily by the statists. James Madison five times in his Federalist Papers writings wrote, "We are a Republic, by which I mean. . ." and then he would explain what a republic is. He felt the need to do so because those who opposed the Constitution because they believed the political system should be one of nationalism argued that democracy and republicanism were the same.
Thomas Jefferson said, "Democracy will cease to exist when you take away from those that are willing to work and give to those who would not."
John Adams said, "While it lasts, Democracy becomes more bloody than either an aristocracy or a monarchy. Democracy never lasts long; it soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide."
Thomas Jefferson said, "A democracy is nothing more than mob-rule, where 51% of the people may take away the rights of the other 49%."
James Bovard said, "Democracy is two wolves and a sheep voting on what to have for dinner."
A friend of mine, the late Tim "Loki" Kerlin, added that a republic is "two wolves, and a well-armed sheep contesting the vote."
Benjamin Franklin, after asked what the Founders created in the Constitutional Convention, replied, "A republic, if you can keep it."
With freedom comes responsibility. It is up to us to repeal the 17th Amendment.
 
Terms:
 
Activist Judge - A public officer charged with applying the law in order to administer justice, but also interprets the law, and modifies the law according to his opinion; a judge who legislates from the bench.
 
Checks and Balances - An internal system in government where each part of government can counter the actions or decisions of the other parts. This arrangement ensures transparency, and prevents domination of the government by any part.
 
Collusion - Conspire together.
 
Constitutional Republic - Government that adheres to the rule or authority of the principles of a constitution. A representative government that operates under the rule of law.
 
Democracy - A form of government in which all citizens have an equal say in the decisions that affect their lives. Such a system includes equal participation in the proposal, development and passage of legislation into law.
 
Direct Vote - Citizens vote themselves; popular vote.
 
Ideology - A set of political or economic ideas that forms the basis of economic or political theory and policy.
 
Indirect Vote - Representatives of Electors vote instead of the citizens. The indirect vote may be based on criteria that includes the will, or portions of the will, of the citizens; before the 17th Amendment, United States Senators were chosen by an indirect vote of the people, in which State representatives who attained their office by a direct vote of the people appointed U.S. Senators to represent their State in Congress; the President is elected by an indirect vote of the people through electors who traditionally follow the popular vote of their State, but have the choice to change that vote if believed to be necessary, and a President may be elected based on an Electoral majority that does not reflect the national popular vote.
 
Mob-Rule - A government ruled by a mob or a mass of people; the intimidation of legitimate authorities; the tyranny of the majority; pure democracy without due process.
 
Nationalism - Political ideology which involves a strong identification of a group of individuals with a political entity defined in national terms. There are various strands of nationalism. The ideology may dictate that citizenship in a state should be limited to one ethnic, cultural or identity group. Nationalism may also include the belief that the state is of primary importance, which becomes the unhealthy love of one's government, accompanied by the aggressive desire to build that governmental system to a point that it is above all else, and becomes the ultimate provider for the public good.
 
Republic - Form of government that uses the rule of law through a government system led by representatives and officials voted in by a democratic process. The United States enjoys a Constitutional Republic.
 
Republicanism - Rule by law through a government system led by representatives and officials voted in by a democratic process. The United States enjoys a Constitutional Republic.
 
Separation of Powers - A division of governmental authority into three branches: legislative, executive, and judicial; division of powers between the States and federal government.
 
Statists - Individuals that hold that government should control the economic and social policies of the system it serves.
 
Questions for Discussion:
 
1. Why are the originally intended checks and balances so important to safeguarding freedom?
 
2. What was the concept of the separation of powers designed to protect against?
 
3. How does the Seventeenth Amendment add to the withering away of State Sovereignty?
 
4. How is socialism and democracy related?
 
5. Why would dividing powers include dividing the voting power of the people?
 
Resources:
 
Allison, Maxfield, Cook, Skousen, The Real Thomas Jefferson; New
York: National Center for Constitutional Studies (1983).
David McCullough, John Adams; New York: Simon and Schuster
(2001)
Devvy, 36 States Did Not Ratify The 17th Amendment: What Will States
Do?; rense.com, http://www.rense.com/general95/36_dev.htm
Earl Taylor, Jr., The Seventeenth Amendment and the Destruction of
Federalism; National Center for Constitutional Studies,
http://www.nccs.net/2013-03-seventeenth-amendment-and-the-destruction-of-federalism.php
James Madison, Federalist Paper No. 45,
http://avalon.law.yale.edu/18th_century/fed45.asp
Jon Wolverton, II, J.D., 17th Amendment Mudslinging; The New
American (November, 2010) http://www.thenewamerican.com/usnews/constitution/item/7826-17th-amendment-mudslinging
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010)
Larry Schweikart and Michael Allen, A Patriot's History of the United
States; New York: Sentinel (2004).
Richard Aynes, On Misreading John Bingham and the Fourteenth
Amendment; Yale Law Journal (October, 1993) http://www.constitution.org/lrev/aynes_14th.htm
 
Copyright 2014 Douglas V. Gibbs

Killing Babies

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The Democrat Party, when it comes to the abortion issue, from "legal but rare" to pushing for third trimester abortions (New York's new law) and infanticide.

Evil is the only word I can muster.

The progressives are being very progressive, as in becoming progressively worse.

When it comes to any evil endeavor of the liberal left commie Democrats, in the end all one has to do is follow the money.

Last year, according to Planned Parenthood's own reporting, the number of abortions the group did this past year increased by over 11,000 from 321,384 in 2016 to 332,757.  During that same time period the harbingers of death also report that their federal funding increased.  They received $543.7 million in taxpayer funding in 2016 and that number increased by $20 million to $563.8 million in 2017-2018.

The defenders of Planned Parenthood argue that the organization is not primarily about abortion, but about female reproductive health.  They argue that the Planned Parenthood offices provide contraception (The amount of contraception that the group provided continued to plummet from 2,701,866 in 2016 to 2,620,867 in this report).  They argue Planned Parenthood provides cancer screenings and prevention services, which also went down, from 660,777 in 2016 to 614,361 (as the number of abortions increased).

The category of “Other Women’s Health Services” which includes pregnancy tests, prenatal services, and miscarriage care, decreased from 1,315,941 in 2016 to 1,302,460 in 2017-2018.

The number of patients neither went up, or down.

So, the organization we are told is all about Women's Health Services has drastically reduced those services but abortion has gone up?

Abortion brings in the money.

The organization’s excess of revenue over expenses continued its dramatic increase and more than doubled from $77.5 million in 2015 and $98.5 million in 2016 to a whopping $244.8 million in 2017.

They keep arguing that they are about women's health care, but they keep showing us that they are all about killing babies.

The liberal left's support of late-term abortion has slammed the news reels, of late.  New York's latest law makes it perfectly fine to kill the baby during the third trimester, a time period during which the baby can survive outside the mother's womb.

Hillary Clinton, as the horror of late-term abortion became a mainstream issue supported by the Democrats under heavy criticism, tweeted in defense of the barbaric practice, highlighting the fact that “only about 1% of abortions happen later in pregnancy—almost always because a woman’s health or life is at risk, or the pregnancy is no longer viable.”

One is too many, and the "woman's health or life is at risk, or the pregnancy is no longer viable" is a false argument.  If the woman's health is at risk, why must the child be killed in an abortion?  Why can't the baby simply be birthed?  Babies are viable outside the womb in the third trimester, so rather than pull a dead baby out of mommy, why not a live baby?

Late-term abortions after 21 weeks do indeed make up only 1.3 percent of abortions annually, according to the most recently available 2014 data from the pro-abortion Guttmacher Institute, however, that still comes to just over 12,000 abortions a year.

Additionally, it is not clear where Clinton is getting her claim that the reason is “almost always” the woman’s “health or life” as the Guttmacher Institute cited a study from 2013 that found “most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

She also implied President Trump misrepresented the issue in his State of the Union address, adding that “lying about this is dangerous, and a slap in the face to families who face heartbreaking situations.”

“There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our Nation saw in recent days,” President Trump said last week. “Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments from birth. These are living, feeling, beautiful babies who will never get the chance to share their love and their dreams with the world.”
According to LifeNews: He was referencing the measure that passed last month in New York which permits abortion at “any time” to protect “a patient’s life or health” and removes criminal penalties for abortion. 
The “life or health” stipulation is a broad and notoriously vague legal term that can be interpreted to even include mental health. 
“To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb,” he said later in the address. 
Clinton linked to a New York Times article, claiming that Trump’s remarks had “inaccuracies and gray areas.” 
In reference to his claim about pain capable unborn babies, the article highlighted that “an analysis of research in this area published in JAMA in 2005 found that pain sensation requires neural connections into the cortex, and the cortex is not functionally developed until the 26th week or later.” 
It also pointed to a Royal College of Obstetricians and Gynaecologists review which found that “’the fetus cannot experience pain in any sense prior’ to 24 weeks.” 
However the article excludes any reference to a contradictory growing body of more recent scientific evidence showing that unborn babies can feel pain at 20 weeks, including a recent NIH-funded study which found that infants delivered at 22-24 weeks who received treatment had increasing rates of survival without any neurological impairment. 
Another study found that “60 percent of infants born at 22 weeks who receive active hospital treatment will survive.” 
The article also argued that “contrary to Mr. Trump’s claim, late-term abortions do not allow ‘a baby to be ripped from the mother’s womb moments before birth.’”
But aside from pointing out that “late-term abortion” is not technically a medical term and illustrating that abortion after 21 weeks is rare, it points to nothing to contest Trump’s claim. 
“When they occur, it is usually because the fetus has been found to have a fatal condition that could not be detected earlier, such as a severe malformation of the brain, or because the mother’s life or health is at serious risk,” the author claims without providing any evidence. 
While the article helpfully points out that the New York law is “similar to stipulations made by the Supreme Court” in allowing abortion past 24 weeks “if the fetus is not considered viable or if the procedure is considered necessary to protect the woman’s life or health,” that does not change the fact that the law does indeed allow an unborn baby to “be ripped from the mother’s womb moments from birth,” in these cases as Trump said.
Clinton’s tweet and Trump’s remarks are reminiscent of the exchange the two had on the issue during a 2016 debate when Trump argued that “with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby…now you can say that that’s okay, and Hillary can say that that’s okay, but it’s not okay with me.”
Planned Parenthood, and the Democrats, however, are going way beyond just late-term abortion.  They are now embracing infanticide.

While I agree that the federal government has no authority over the issue, a recent U.S. Senate vote on a piece of legislation, recently, said a lot.  (Congress should propose an amendment to the Constitution regarding abortion, not use legislation)

The Senate vote was on a piece of legislation that would stop infanticide and require appropriate medical care and treatment for babies who are born alive after a failed abortion.  All but three Democrats voted to block the bill, refusing it to be given cloture (which would allow it to come out of debate).

The Democrats, one might say, have gone full evil.  Like Planned Parenthood, the Democrats believe that infanticide, like abortion, is reproductive health care for women. National Review obtained a copy of the letter indicating the Planned Parenthood abortion company opposes stopping infanticide. 
Here is an excerpt from the letter:

The letter calls the born-alive legislation “another restriction on women’s access to reproductive health care” and says it would limit women’s access to “compassionate and appropriate medical care.”

In its most eerie passages, the letter comes dangerously close to echoing Northam’s own rhetoric. Sasse’s bill, these groups say, “injects politicians into the patient-provider relationship, disregarding providers’ training and clinical judgment and undermining their ability to determine the best course of action with their patients.” And later: “Every woman needs to be able to make the decision that is best for her and her family.”
Including allowing a gasping baby laying on a table that could be saved to die a horrible death lying there, cold, alone, in a pool of blood and fluids?
As LifeNews reported, pro-abortion Senator Patty Murray blocked a vote on a bill from pro-life Republican Senator Ben Sasse of Nebraska that would stop infanticide nationwide. And in the House, Democrats have blocked a request by Republicans to vote on a bill that would stop infanticide a total of five times. 
Earlier this month. Nebraska Senator Ben Sasse had wanted to vote on a bill to protect babies born alive after failed abortions.
All of this because New York Governor Andrew Cuomo signed into law new legislation that allows abortions up to birth and after Virginia Governor Ralph Northam backed infanticide during a radio interview — saying that he’s perfectly content if doctors and parents discuss letting disabled babies die after birth.

This wreaks of Nazi Germany, and Molech (Moloch is the biblical name of a Canaanite god associated with child sacrifice. The name of this deity is also sometimes spelled Molech, Milcom, or Malcam. The name Moloch results from a dysphemic vocalisation in the Second Temple period of a theonym based on the root mlk, "king".  Moloch - Wikipedia)
How far are we from throwing live babies upon a flaming altar?

After she blocked the initial vote, EWTN reporter Jason Calvi caught up with Senator Patty Murray and asked her why she blocked the Senate bill to provide medical care for babies who are born alive. She said that is between a woman and her doctor.

Murray continued her false claims that the bill somehow has to do with abortion. All the bill does is ensure that babies who are purposely induced or survive abortions are provided appropriate medical care and treatment. She was unpersuaded by that information.

As I was stewing over this incredibly evil stuff, I then came across the following headline:

Abortion Worker Tells Woman Baby Will Drown In A Jar Of 'Solution' If Born Alive
Again, the only word I can muster for this is "evil".

The horrible account was revealed in a recently released undercover video by Live Action.

According to LifeNews, Live Action filmed the video as part of an undercover investigation in 2013 and circulated it while Congress recently debated the bill to protect newborn babies from infanticide.

"Our investigators exposed this New York abortion facility, which says they will put a born-alive baby in a jar of ‘solution’ to drown her," Live Action founder Lila Rose tweeted. "They also say to ‘flush’ the baby down the toilet, or ‘put it in a bag’ if she’s born alive."

The 2013 investigation had an undercover activist seek an abortion at 23 weeks of pregnancy at Emily’s Women’s Center in the Bronx.

The abortion worker tells the undercover woman in the video that abortion on a six-month-old fetus would be a two-day procedure; if the baby were born alive at any point, it could be drowned, suffocated, or poisoned.

"Like, what if it was, like, twitching, or something like that," the woman said in the video regarding the live baby.

"The solution will make it stop," replied the clinic worker. "It's not gonna be moving around in the jar. That's the whole purpose of the solution."

When the woman asked if the baby "looked like it was breathing," the clinic worker said the solution would prevent that from happening any further. The clinic worker later clarifies that the "solution" is a toxic substance designed to poison the baby.

Later the woman asks what were to happen if she gave birth to a live baby while at home; the clinic worker tells her to either "flush it" or "put it in a bag."

"If it comes out, then it comes out," the worker said. "Flush it … or put it in a bag."

The worker later advises her to not call the hospital since it would force her to give birth to a live baby.

How is this even a discussion?  How is it that there are people who actually support such barbarism?

There should be no controversy regarding this subject.  Murder is murder.  Killing babies is wrong.

Period.

It’s hard to believe anyone would oppose stopping abortion, and at the very least, stopping late-term abortion or infanticide.  Yet, here we are.

Remember what I wrote early on in this article about following the money?

James O'Keefe, a conservative undercover journalist, exposed the abortion industry for what it is really about . . . selling body parts of the dead babies . . . and his team was jailed over it.

The problem is, underdeveloped body parts have not been good enough.  The butchers that call themselves scientists are demanding more fully developed body parts, and the abortion industry is working to give them what they want.  After all, chopped up babies is huge business, and very lucrative for abortion mill organizations like Planned Parenthood.


The ACLJ delivered Freedom of Information Law (FOIL) requests to the New York Governor’s office as part of our multifaceted legal strategy to defend life and expose the political and financial agenda of the abortion industry.

The records are expected to show what is really happening behind the scenes.

The specific requests are regarding all records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by Governor Andrew Cuomo or his staff, Lt. Governor Kathy Hochul or her staff, or any other Executive Chamber appointee, staff, employee or agent, that are or concern in any way communications with any person or organization advocating for the Reproductive Health Act signed into law by Governor Cuomo on January 22, 2019, its passage, or the language of any provision contained in the Act at any stage of its development in the state legislature.
All records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by any Department of Health appointee, staff, employee or agent, that are or concern in any way communications with any person or organization advocating for the Reproductive Health Act signed into law by Governor Cuomo on January 22, 2019, its passage, or the language of any provision contained in the Act at any stage of its development in the state legislature.
All records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by Governor Andrew Cuomo or his staff, Lt. Governor Kathy Hochul or her staff, or any other Executive Chamber appointee, staff, employee or agent, that are from or regard any person at or on behalf of any Planned Parenthood entity; the National Institute for Reproductive Freedom (NIRF); NARAL Pro-Choice America; National Organization for Women New York (NOW); or, the New York Civil Liberties Union (NYCLU) – and which relate to the Reproductive Health Act or its passage in any way.

All records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by Governor Andrew Cuomo or his staff, Lt. Governor Kathy Hochul or her staff, or any other Executive Chamber appointee, staff, employee or agent, that concern or regard in any way the impact that the Reproductive Health Act signed into law by Governor Cuomo on January 22, 2019, could, would, or should have on the health, safety or wellbeing of any woman.
All records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by any Department of Health appointee, staff, employee or agent, that concern or regard in any way the impact that the Reproductive Health Act signed into law by Governor Cuomo on January 22, 2019, could, would, or should have on the health, safety or wellbeing of any woman.
All records prepared, generated, forwarded, transmitted, sent, shared, saved, received, or reviewed by any New York agency that concern or in any way discuss the Reproductive Health Act signed into law by Governor Cuomo on January 22, 2019, which are not otherwise described in the requests set forth herein.

The ACLJ says that "The light of day must shine on the dark shadows of the abortion industry. The American people must see how extreme abortion advocates really are. Our records demands will help expose the political corruption of the culture of death."

"We expect New York bureaucrats to try to do what all bureaucrats try to do with freedom of information requests – especially when there is something to hide: stall, redact and deny. If and when they do, we will take them to court."

I believe, if enough stones are overturned, and the crooks and crannies of this are searched thoroughly, the money flow associated with baby body parts will be but a small part of the larger horrifying story.

It's just a matter of flipping the right stone.

-- Political Pistachio Conservative News and Commentary

Tuesday, February 26, 2019

Corona Constitution Class: Legal Amendments, concluded

Tuesday Night 6:00 pm at AllStar/CARSTAR Collision
522 Railroad St., Corona, CA

Constitution Class Handout
Instructor: Douglas V. Gibbs
 
 
 
Lesson 15
 
The Legal Amendments
 
Amendment IV
Warrants, Searches, and Seizures
The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791. It was written with the purpose of protecting people from the government searching their homes and private property without properly executed search warrants.
 
"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."
 
What this means is that the federal government, in order to search a person's home, business, papers, bank accounts, computer or other personal items, in most cases, must obtain a search warrant signed by the proper authority, which usually means by a judge.
 
The issuance of a warrant must accompany reasonable belief that a crime has been committed and that by searching the premises of a particular location, evidence will be found that will verify the crime. The government officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone's private property will yield evidence of the crime. The task of determining whether or not the officer's assumptions are a reasonable belief falls on the judge who is considering issuing the search warrant.
 
The concept that citizens must be protected from unreasonable searches and seizures goes back into English history. The British Crown was known for performing searches and seizures that were unlawfully conducted. Often, these searches were conducted by the king's representatives.
 
The British government saw the American Colonies as a source of revenue. As a result, taxation against the American colonies was a continuous practice, in the hopes of generating as much money from the colonists as possible. The colonists resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government.
 
The King responded to the Colonist's smuggling activities by using writs of assistance, which were search warrants that were very broad and general in their scope. British agents, once obtaining these writs, could search any property they believed might contain contraband goods. They could enter someone's property with no notice and without any reason given. Tax collectors could interrogate anyone about their use of goods and require the cooperation of any citizen. Searches and seizures of private property based on very general warrants became an epidemic in colonial America.
 
In 1756, the Massachusetts legislature passed search and seizure laws outlawing the use of general warrants. The friction created between the Royal Governor and the people of Massachusetts grew with each passing moment.
 
In 1760 James Otis, a Boston lawyer, strongly objected to these arbitrary searches and seizures of private property and consequently resigned his position with the government, and then became the lawyer for a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust.
 
James Otis represented these merchants for free. His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.
 
Twenty-five year old John Adams, who would become the second president of the United States some time later, was sitting in the courtroom and heard Otis' famous speech that served as a spark that led to igniting the American Revolution.
 
The 4th Amendment, a part of The Bill of Rights, became law on December 15, 1791.
 
The 4th Amendment applies only to the federal government. State constitutions are written similarly, and States also have laws that are consistent with the intention of the 4th Amendment. The 4th Amendment provides protection from illegal search and seizure by federal government officials, but not by private citizens. So, if an employer unreasonably searched your possessions at work, the 4th Amendment would not have been violated, but local laws may have been.
 
In recent history The PATRIOT Act was seen as a breach of the 4th Amendment because it allowed the federal government to pursue a number of strategies in their search for terrorists that includes warrantless phone taps, access to phone logs, and monitoring of online communications such as email. The debate still goes on regarding the constitutionality of The PATRIOT Act, with both sides presenting reasonable arguments, ranging from the constitutional necessity of the law for the purpose of "providing for the common defense," to the argument that the authorities offered by the law allows the federal government to unconstitutionally intrude on the right to privacy of all Americans.
 
The National Defense Authorization Act (NDAA) of 2014 builds on the powers seized by the federal government through the PATRIOT Act, allowing unrestricted analysis and research of captured records pertaining to any organization or individual "now or once hostile to the United States." The definition of "hostile to the United States" is broad, and can include political opposition. Under NDAA 2014 Sec. 1061(g)(1), an overly vague definition of captured records enhances government power and guarantees indefinite surveillance.
 
The Internal Revenue Service is another arm of the federal government that routinely violates the 4th Amendment, doing so under the auspice of ensuring all taxes are paid.
 
Terms:
Search Warrant - The Search Warrant specifically requires that the government demonstrate to a judge the existence of probable cause of criminal activity on the part of the person whose property the government wishes to search. The Fourth Amendment commands that only a judge can authorize a search warrant.
 
Writs of Assistance - British search warrants that were very broad and general in their scope. British agents, once obtaining these writs, could search any property they believed might contain contraband goods.
 
Questions for Discussion:
1. What actions by the British prior to the American Revolutionary War inspired the Founding Fathers to include this amendment in the Bill of Rights?
 
2. How would our legal system act if Search Warrants were not considered necessary?
 
3. How does the Fourth Amendment influence today's thinking regarding government actions, such as with The PATRIOT Act?
 
Resources:
 
How Congress Has Assaulted Our Freedoms in the Patriot Act by
Andrew P. Napolitano, Lew Rockwell.com: http://www.lewrockwell.com/orig6/napolitano2.html
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Paul A. Ibbetson, Living Under the PATRIOT Act: Educating a Society;
Bloomington, IN: Author House (2007)
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
 
 
Amendment V
Due Process and Eminent Domain
            Due Process
 
The majority of the Fifth Amendment provides additional reinforcement to the concept of due process. The language of this Amendment was designed to assure those who feared the potential tyranny of a new centralized government created by the United States Constitution that the federal government would be restrained in such a way as to ensure that the government did not perpetrate bloodshed against its citizens.
 
The first part of the 5th Amendment reads: "No person shall be held to answer for a capital crime, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . ."
 
The 5th Amendment attests to the Founding Father's understanding that this is a nation of property owners. As a republic of property owners, when in jeopardy of legal trouble, our rights and properties must be safeguarded. Therefore, an American Citizen in the American legal system has a right to a jury, as well as a right to the presentation of evidence. Conviction is not reached with a majority vote, either. Conviction requires a unanimous agreement among all of the members of the jury. These concepts reinforce the concept that one is innocent until proven guilty (A concept found in the Book of Deuteronomy, Chapter 19, Verse 15), and that the United States of America is a Republic. Mob rule is not allowed, for as the amendment provides, a person cannot be held until given the opportunity of due process.
 
Not all persons, however, are awarded this opportunity. The next part of the amendment reads: ". . . 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. . ."
 
The military does not fall under the U.S. Constitution. Personnel serving in the armed forces are governed by the Uniform Code of Military Justice (UCMJ). Instead of a civilian trial, a military service member is normally afforded a court martial. If a civilian trial is deemed appropriate by the U.S. Military, a service member can still stand trial in a civilian court, but the military has the authority to decide whether or not the member shall stand such a trial.
 
Having a sense of independence, individuals must be protected, then, from the tyrannical trappings of a governmental system that may try to use the judiciary against them (as the King of England had done often). The protective mechanism, or the rule of law, would be the U.S. Constitution and clauses like the 5th Amendment, which were designed to provide protection to the populace from unfair legal practices.
 
One such protection is provided in the next part of this amendment: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb. . ."
 
Protection against Double Jeopardy enables us not to be continuously tried for the same offense, which was a technique often used in some parts of Europe during the eighteenth century. The idea was that if a person was prosecuted enough, either they would weary of the process and break down, or the defendant would become unable to financially continue, hence unable to defend themselves.
 
The next part of the amendment serves as a large influence on today's Miranda Rights. The section reads: ". . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property."
 
Miranda Rights are named after the U.S. Supreme Court case, Miranda v. Arizona (1966). Miranda Rights are a warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. 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." Miranda Rights exist to secure the 5th Amendment's privilege against self-incrimination, and to make the individual in custody aware not only of the privilege, but also of the consequences of forgoing it. The judicial opinion from the Miranda v. Arizona case also indicated that in order to protect the person's life, liberty or property with the due process of law, the individual must have the right to an attorney. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.
 
The words of the Founders continues to resonate today as the majority of the American people seem to firmly agree with the Founding Father's insistence that no one should be deprived of life, liberty, or property without due process of law. We can take satisfaction that most of our fellow citizens in our republic still hold these truths to be self-evident.
 
            Eminent Domain
 
The provisions of the 5th Amendment are there to keep our courts honest, and the powers of the government constrained. The last phrase of the 5th Amendment, however, is considered too general by many, and it has been used in a manner by the federal government that is extremely troublesome, because it gives the government the right to take property if there is just compensation.
 
How is just compensation determined? Is it based on the market value of the property? How does the government officials involved in eminent domain calculate the non-intrinsic value? How do they compensate for the value on which nobody can put a price?
 
Just compensation was intended to be based on what the property owner deemed to be just. If the property owner did not deem the offer to be just compensation, then the government, from a constitutional viewpoint, is out of luck.
 
 
Terms:
Capital Crime - A crime for which the punishment is death. Punishment for a Capital Crime is called Capital Punishment.
 
Double Jeopardy - The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.
 
Due Process - The essential elements of due process of law are notice, an opportunity to be heard, the right to defend in an orderly proceed, and an impartial judge. It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgment is rendered. In short, due process means fundamental fairness and substantial justice.
 
Eminent Domain - The power to take private property for public use by a State, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.
 
Grand Jury - A group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony. At common law, a group of persons consisting of not less than twelve nor more than twenty-four who listen to evidence and determine whether or not they should charge the accused with the commission of a crime by returning an indictment. The number of members on a grand jury varies in different States.
 
Infamous Crime - A crime which works infamy in the person who commits it. Infamous crimes tend to be classified as treason, felonies, and any crime involving the element of deceit.
 
Just Compensation - The value of a property deemed to be just by the property owner.
 
Miranda Rights - A warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation.
 
Mob-Rule - A government ruled by a mob or a mass of people; the intimidation of legitimate authorities; the tyranny of the majority; pure democracy without due process.
 
Republic - Form of government that uses the rule of law through a government system led by representatives and officials voted in by a democratic process. The United States enjoys a Constitutional Republic.
 
Rule of Law - The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws; Laws of Nature and of Nature's God; self-evident standard of conduct and law.
 
Questions for Discussion:
1. How is property rights affected by Due Process?
 
2. Why do military members not fall under the protections of the U.S. Constitution?
 
3. Why is protection against Double Jeopardy important?
 
4. What was the inspiration for our Miranda Rights?
 
5. Who determines if compensation for one's property is just?
 
6. How is Eminent Domain being used for environmental reasons?
 
7. Is Eminent Domain constitutionally in force if a property is rezoned for environmental conservation, forcing the value of the property to be reduced due to the fact that it can no longer be developed?
 
8. Is it constitutional for government to use Eminent Domain for the use of the land by private development projects?
 
Resources:
Definition of Due Process, Family Rights Association:
http://www.familyrightsassociation.com/bin/definition_due_process_.htm
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
U.S. Supreme Court case, Miranda v. Arizona, 384 US 436 (1966)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436
 
Amendment VI
Personal Legal Liberties
The 6th Amendment affords criminal defendants seven discrete personal liberties. "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."
 
Rights afforded in all criminal prosecutions are set forth in this amendment. The word "all" at the beginning of this amendment establishes a special characteristic regarding this article of the Constitution. The Constitution applies only to the federal government, unless it states otherwise. The 6th Amendment, by providing the word "all" in the regard to cases, establishes that this amendment is not only to be applied to the federal courts, but to the State, and lower, courts as well.
 
As for the rights afforded to the accused:
 
            Speedy Trial
 
The concept of a speedy trial was an English concept of justice. A speedy trial allows for conditions that disallow the powerful from abusing the court system, forcing defendants to languish in jail for an indefinite period while awaiting their trial. Ensuring a speedy trial minimizes the time in which a defendant's life is disrupted and burdened by a criminal proceeding, and reduces the likelihood of a prolonged delay impairing the ability of the accused to prepare a defense.
 
Historically, when trials are postponed or drag out for long periods of time, witnesses disappear, and evidence is often lost or destroyed. Memories of the incident in question are also not as reliable as time passes.
 
A person's right to a speedy trial arises after the arrest, indictment, or otherwise formal accusation of a crime.
 
            Public Trial
 
The right to a public trial was inherited by the Americans from Anglo-Saxon jurisprudence. Public criminal proceedings would operate as a natural check against malevolent prosecutions, corrupt judges, and perjurious witnesses. A trial that is out in the open also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information.
 
The right to a public trial is not absolute. Persons who may disrupt proceedings may be banned from attending the trial because they present a substantial risk of hindering a trial. A disallowance of the media attending falls under the concept of "potential disruptions," but otherwise, under normal circumstances, both the public and media have a qualified First Amendment right to attend criminal proceedings. The right to a public trial does not require the presence of media, and because courtrooms have limited seating, judges may attempt to maintain decorum. For media, with today's technology, the media does not have to be in the courtroom to see or hear the proceedings of the case.
 
 
 
            Right to Trial by an Impartial Jury
 
A part of the effort in achieving an impartial jury is the process of determining who will serve on the jury through a series of questions and observations, in an effort to eliminate biased jurors. The concept of protecting the defendant from a biased jury can be traced back to the Magna Carta in 1215. In the United States, the requirement for a trial by an impartial jury does not apply to juvenile delinquency proceedings, or to petty criminal offenses, which consist of crimes punishable by imprisonment of six months or less. In Great Britain, and Canada, a jury is not required for cases with potential penalties of two years or less, and the concept of an impartial jury is not entertained in the same way as in the United States. Canada and Britain choose jurors randomly, and then in an open court the jurors for a specific case are selected from the jury panel by ballot. A juror may be challenged once in the box for bias, but an extensive process to eliminate possible biased jurors before selection through a series of questions and observations is not normal practice.
 
The Sixth Amendment entitles defendants to a jury that represents "a jury of the defendant's peers," which means the jury should be a fair cross section of the community. From the jury pool, the presiding judge, the prosecution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality. The presence of even one biased juror is not permitted under the Sixth Amendment.
 
It is possible that the potential bias of a juror may be affected by sources outside the courtroom, so jurors are instructed to not consider newspaper, television, and radio coverage before or during trial, and are instructed not to discuss the trial with even family members, when evaluating the guilt or innocence of the defendant.
 
Jurors are not permitted to begin deliberations until all of the evidence has been offered. Deliberations do not begin until after the attorneys have made their closing arguments, and the judge has read the instructions. Premature deliberations have shown the potential, historically, to create early biases, or a juror may form a preconceived notion that they will then compare all evidence to, which they may have entertained as a result of premature deliberations.
 
            Notice of Pending Criminal Charges
 
The 6th Amendment guarantees defendants the right to be informed of the nature and cause of the accusation against them. Defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge. Defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge.
 
The requirement by the 6th Amendment to inform a defendant of the nature and cause of the accusation is an attempt by the Founding Fathers to create fundamental fairness that was not necessarily present in civil and criminal proceedings in England and the American colonies under English common law. Receiving notice of pending criminal charges in advance of trial permits defendants to prepare a defense in accordance with the specific nature of the accusation. In tyrannies, defendants are all too often incarcerated without being apprised of pending charges until the trial begins. Requiring notice of the nature and cause of the accusation against a defendant eliminates confusion regarding the basis of a particular verdict, which in turn decreases the chances that a defendant will be tried later for the same offense.
 
 
 
            Confrontation of Witnesses Against Him
 
The 6th Amendment requires that defendants have the right to be confronted by witnesses who offer testimony or evidence against them, as well as the opportunity to subject them to cross-examination.
 
Today's courts have established rules that are enforced at the discretion of the judge who forbids questioning that pursues areas that are irrelevant, collateral, confusing, repetitive, or prejudicial. Defendants are also forbidden to pursue a line of questioning solely for the purpose of harassment.
 
            Compulsory Process for Obtaining Witnesses In His Favor
 
The 6th Amendment recognizes a defendant's right to use the compulsory process of the judiciary to subpoena witnesses that may be favorable to the defense. Courts may not take actions to undermine the testimony of a witness who has been subpoenaed by the defense. Any law that attempts to establish particular persons as being incompetent to testify on behalf of a defendant is not allowed.
 
Defendants can also testify on their own behalf, a right not afforded in the American Colonies, or Great Britain, prior to the United States dissolving the political bands connecting them to the Crown. Common law presumed all defendants to be incompetent to give reliable or credible testimony on their own behalf. The vested interest in the outcome of the trial, it was believed, would taint the testimony of the defendant. The 6th Amendment does not require, a defendant to testify on his own behalf, but does not prohibit it, either.
 
            Right to Counsel
 
The 6th Amendment states that criminal defendants have a Right to Counsel. A defendant's right to counsel does not become an issue until the government files formal charges. However, in the 5th Amendment a person has the right not to be compelled to be a witness against himself, allowing him to remain silent until he has counsel present.
 
In many instances, defendants have the inability to obtain counsel be it because of financial or other reasons. The 6th Amendment, by listing that assistance of counsel for his defense is a right, has compelled the government to institute a program where counsel can be assigned to a defendant if the person is unable to afford counsel, or obtain counsel for any other reason. In the occurrence of a defendant unable to afford counsel, the trial judge appoints one on his behalf. If it turns out that the defendant has financial resources previously unknown to the court, he may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer.
 
Defendants are not required to have counsel. Defendants have a right to counsel. Defendants also have the right to decline the representation of counsel and proceed on their own behalf. Defendants who represent themselves must present a waiver of the 6th Amendment right to counsel before a court will allow them to do so. The waiver must reveal that the defendant is knowingly making the decision, and understands the potential consequences.
 
Questions for Discussion:
 
1. Why is having a speedy trial so important in a free society?
 
2. How does a public trial better enable the fact-finding mission of the trial?
 
3. How is the concept of an impartial jury different in the United States than it is in other countries?
 
4. Why is it important for a defendant to be able to confront the witnesses against him?
 
5. How is a defendant's right to counsel enabled in today's court system?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
Amendment VII
Right of Trial by Jury in Civil Suits
 
 
"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 reexamined in any court of the United States, than according to the rules of the common law."
 
The 7th Amendment guarantees the right to a jury trial in most civil suits heard in federal court. Remember, the Constitution, and the Bill of Rights, apply only to the federal government unless the document states otherwise. The 7th Amendment serves to preserve the historic line separating the province of the jury from that of the judge in civil cases by separating cases that should have a jury in federal court, from those that are smaller cases, and may not require a jury. During the time the amendment was ratified, a case requiring a jury was one where "the value in controversy" exceeded twenty dollars. The cutoff in the court system today is $75,000. Any disputes that involve amounts less than $75,000, in fact, will not even be handled in a federal court.
 
State courts don't have to honor this provision in the 7th Amendment, and often don't. People bringing a suit do not have to have a jury trial. Individuals can waive their right to a jury trial if they so choose.
 
The 7th Amendment also expressly forbids federal judges to re-examine any "fact tried by a jury" except as allowed by the common law. This means that no court, trial or appellate, may overturn a jury verdict that is reasonably supported by the evidence.
 
Prior to the Declaration of Rights in 1689, English judges served the King of England. These judges showed bias towards the King, resulting in unfair rulings. Judges in the American colonies were also biased towards the king, and when King George III got rid of trials by juries in the Colonies, the colonists viewed the decision as more kindling for the fire of independence that had been blazing in the pubs, churches and meeting halls of the Colonies. The Bill of Rights applied what the Framers learned under the rule of Britain to the American System. In the American courts the Framers believed it was important to have a fair court system, so the right to have a trial by jury is mentioned a number of times, and is a fundamental part of the United States legal system.
 
Together with the due process clause of the 5th Amendment and the right to an impartial jury enumerated in the 6th Amendment, the 7th Amendment guarantees civil litigants the right to not just a jury, but to a jury who is not biased for any reason.
Terms:
Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.
 
Declaration of Rights - Enacted in 1689, the English Bill of Rights is one of the fundamental documents of English constitutional law, marking a fundamental milestone in the progression of English society from a nation of subjects to a nation of free citizens with God-given rights. The evolution began with the Magna Carta in 1215.
 
Questions for Discussion:
1. What historic line does the 7th Amendment preserve?
2. Must the States abide by the 7th Amendment?
3. Can a person bringing suit waive the right to a jury trial?
 
Amendment VIII
Excessive Bail, Cruel and Unusual Punishment
 
 
The 8th Amendment reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
 
As a nation founded on honorable Judeo-Christian principles, the United States legal system is expected to be fair and just. This means that Americans should insist upon a due process that protects individuals from excesses and abuses by the judicial system. Such expectations include that no individual should be singled out, or treated differently, in the eyes of the courts. A fair and equitable judicial system includes no excessive bails or fines, or cruel and unusual punishment, for one person while others guilty of similar crimes do not receive similar treatment.
 
Today's definitions attempt to set a limit on where "excessive" or "unusual" lies. When a harsh penalty is applied for a crime, even when it is similar to the punishment received by others for the same crime, challenges are launched regarding if the penalty matches the crime. These challenges are fine, and an important part of the American judicial system seeking to adjust itself in regards to its fairness, but the debates during the Federal Convention and State ratification conventions did not focus so much on where the line between excessive and not excessive, or unusual as opposed to usual, exists as much as are the bails, fines and punishment consistent with the bails, fines and punishment consistent with others guilty of the same.
Questions for Discussion:
1. In the context of the time period during which the 8th Amendment was written, what was meant by "cruel and unusual punishment?"
2. How has the original definition of "cruel and unusual punishment" changed since the founding of the United States?
3. How does the 8th Amendment apply the concept of uniformity to cases?
4. Why would the Founding Fathers see the need to enumerate the right of an individual to be protected from cruel and unusual punishment?
Resources:
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
 
Copyright 2015 Douglas V. Gibbs