Breaking the Tablets

And the LORD said unto Moses, I have seen this people, and, behold, it is a stiffnecked people.  (Exodus 32:9, KJV) 

I 

TRANSITION is the never-ending story of America.  Alexander Hamilton compared and contrasted a despotism and a republic on the first page of The Federalist Papers.  The one depends on “accident and force”; the other relies on “reflection and choice.”  In later pages, James Madison defined a republic in words polished and made as clear as glass.  But Thomas Jefferson had captured the essence in the Declaration of Independence, stating that rights were to be protected by governments “deriving their just powers from the consent of the governed.”  The meaning of that phrase was not a mystery, as Thomas Paine noted its significance:  “The right of voting for representatives is the primary right by which other rights are protected.  To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”  Thus, the original intention is not obscure.  And, as long as the struggle to make ideals and reality one continues, the plot will be the same.  Every chapter may not be a cliffhanger but still involve an element of suspense. 

II 

     The Constitution’s voting rights provisions begin with Article I, Section 4, Clause 1. 

      “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations….”  (Emphasis added) 

     James Madison explains the importance of Article I, Section 4, Clause 1. 

     “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.  It was incumbent on the Convention, therefore, to define and establish this right in the     Constitution.  To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned.  To have submitted it to the legislative discretion of the States would have been improper for the same reason….”  (The Federalist Papers, No. 52) 

     Alexander Hamilton notes the importance of Article I, Section 4, Clause 1 in regards to national security. 

     “Its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation….                                                                                       “Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy.  They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs….                                                                                                                 “If the State legislatures were to be invested with an exclusive power of regulating these elections,   every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election….”  (Emphasis Hamilton’s) 

     The threat, as Hamilton makes clear, is not imaginary. 

      “The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper.  This diversity of sentiment between a majority of the people and the individuals who have the greatest credit in their councils is exemplified in some of the States at the present moment, on the present question.”  (The Federalist Papers, No. 59) 

     Hear the echo of Madison’s words. 

     “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.  It was incumbent on the Convention, therefore, to define and establish this right in the     Constitution.”  (The Federalist Papers, No. 52) 

     Now listen as Hamilton tells us how Madison’s words are twisted. 

     “But it is alleged that it might be employed in such a manner as to promote the election of some    favorite class of men in exclusion of others by confining the places of election to particular districts and rendering it impracticable to the citizens at large to partake in the choice.”  (The Federalist Papers, No. 60) 

     The States accused the United States of the very things for which they themselves could be convicted. 

     The influence of the Articles of Confederation was present at the Convention.  Thus, it was not possible to establish “one uniform rule” for voting.  (James Madison, The Federalist Papers, No. 52)  Instead, those who were eligible to vote for the lower House of the State Legislature could do so in Federal elections.  (Article I, Section 2)  Now, because of the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments, there is a national standard with consequences for those States that deny or abridge the right to vote.  Yet, with so many Republican States opposed to what Madison called “the elective mode of determining rulers,” the response to King George III on July 4, 1776 applies to them.  (The Federalist Papers, No. 52)  “But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.”  And there is a way to do so. 

III 

     “The United States shall guarantee to every State in this Union a republican form of government....”  Article IV, Section 4 is clarified through brief remarks by James Madison.  “A republic, by which I mean a government in which the scheme of representation takes place....”  (The Federalist Papers, No. 10)  And then he goes into more detail.

       ...(W)e may define a republic to be, or at least may bestow that name on, a government
       which derives all its powers directly or indirectly from the great body of the people, and
       is administered by persons holding their offices during pleasure, for a limited period, or
       during good behavior.  It is ESSENTIAL to such a government that it be derived from the
       great body of the society, not from an inconsiderable proportion, or a favored class of it;
       otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of
       their powers, might aspire to the rank of republicans, and claim for their government the
       honorable title of republic.  It is SUFFICIENT for such a government that the persons
       administering it be appointed, either directly or indirectly, by the people; and that they
       hold their appointments by either of the tenures just specified; otherwise every government
       in the United States, as well as every other popular government that has been or can be 
       well organized or well executed, would be degraded from the republican character.  
       (The Federalist Papers, No. 39; CAPITAL emphasis Madison's; italics added)

     Relying on the Constitution itself is a powerful response beyond the remains of the Voting Rights Act—and the hopes for its renewal.  Rather than waiting and listening to the Senate’s words about reform of the filibuster, this is a time for deeds. 

     “Energy in the Executive is a leading character in the definition of good government.  It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”  (Alexander Hamilton, The Federalist Papers, No. 70)

     In taking the oath to “preserve, protect and defend the Constitution of the United States,” the President must then “take care that the laws be faithfully executed”; and the Constitution is “the supreme law of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.”  (Article II, Section 1, Clause 8; Article II, Section 3 & Article VI, Clause 2)  Therefore the Executive can go to a District Court to get cease and desist orders against States in violation and couple Article IV, Section 4 and Section 2 of the Fourteenth Amendment.  Fusion that is the true nuclear option.  Threaten recalcitrant States with loss of representation in the House, which simply adheres to the old adage—Where there is a right, there is a remedy.  By doing so, the President would “take care that the laws be faithfully executed”—the first law, the Constitution.  Otherwise, as Hamilton reminds us, “a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (The Federalist Papers, No. 70)  And, finally, cries of “States’ rights” can be greeted with the words of Madison.

       In a confederacy founded on republican principles, and composed of republicans members,
       the superintending government ought clearly to possess authority to defend the system
       against aristocratic or monarchial innovations.  The more intimate the nature of such a 
       union may be, the greater interest have the members in the political institutions of each        

       other; and the greater right to insist that the forms of government under which the compact
       was entered into should be substantially maintained.  But a right implies a remedy; and
       where else could the remedy be deposited, than where it is deposited by the Constitution? 
       Governments of dissimilar principles and forms have been found less adapted to a federal
       coalition of any sort, than those of a kindred nature.  (The Federalist Papers, No. 43;
       emphasis Madison's)

     The District Court may make an exception, as in Baker v. Carr, or, more likely, say that the matter is a political question, which would be consistent with the Supreme Court’s ruling in Luther v. Borden regarding Article IV, Section 4; and that is fine because an appeal can be made to the court of public opinion.  In fact, that would be an opportunity to attack the Supreme Court's reasoning in Shelby v. Holder.

       Section 5 of the Act required States to obtain federal permission before enacting any law
       related to voting—a drastic departure from basic principles of federalism.  And Section 4
       of the Act applied that requirement only to some States—an equally dramatic departure
       from the principle that all States enjoy equal sovereignty....  As we explained in upholding
       the law, “exceptional conditions can justify legislative measures not otherwise appropriate.”

But Madison's words make Swiss cheese of the Court's.  The opinion notes “that all States enjoy equal sovereignty,” as if the Articles of Confederation applied.  But apparently the Civil War, Jim Crow, purging voter rolls, and requiring Photo ID as another version of the poll tax are a figment of the imagination instead of “exceptional conditions.” 

     “Governments of dissimilar principles and forms,” Madison observes, “have been found less adapted to a federal coalition of any sort, than those of a kindred nature.”  And a pervasive pattern of contrary conduct raises questions:  How committed are certain States to a republican form of government?  Is it just coincidence that a majority of the former Confederacy—Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—are Section 5 covered jurisdictions?  Had officials in Shelby County read these words by the Father of the Constitution—The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other—would those self-styled “strict constructionists” still have objected to Section 5?  Or would they have seen that legislative provision as consistent with the supreme of the land? 

     If words matter, a high-sounding sentiment must have meaning—“No one is above the law.”  So, even if cease and desist orders are granted, the Executive must bring charges against Governors and legislators who have violated the Constitution’s voting rights provisions—the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments—and the statutes enacted to enforce them.  For they are engaged in a conspiracy to deny or abridge the right to vote under color of law.  (Title 18, Sections 241 & 242 of the United States Code) 

     This is what a study of elections, from the Presidency to dogcatcher, between 2000 to 2014 by Justin Levitt, a former professor of law at Loyola and a former Deputy Assistant Attorney General in the Civil Rights Division, revealed—thirty-one POSSIBLE cases of voter fraud out of one billion votes, which comes down to 0.00000003 of 1%.  Ivory Soap is not that pure. 

     Despite the facts, Republican claims of voter fraud continue.  Steps supposedly taken to prevent the same create some rather odd situations—with or without a time machine. 

     This is in the report, foreshadowed by Alexander Hamilton in No. 29 of The Federalist Papers, that President Washington had Secretary of War Henry Knox send to Congress in support of Universal National Service: “Therefore, it ought to be a permanent rule, that those who in youth decline or refuse to subject themselves to the course of military education, established by the laws, should be considered as unworthy of public trust or public honors, and be excluded therefrom accordingly.”  But, if those who did so much to make the United States of America a reality were alive today, their Armed Forces ID would not be enough to allow them to vote in certain States, and they would be excluded therefrom accordingly. 

     While on active duty, some of us travelled across borders without a passport because of a Status of Forces Agreement.  All that was needed was our Armed Forces ID and a paper signed by the Commander stating that we were going to such-and-such a place.  Thus, a foreign government showed us more respect than some States that do not accept the Veterans ID of the United States Government. 

     In 2016, the Republicans used Operation Crosscheck.  Kris Kobach, the Secretary of State of Kansas, was the commander.  His faulty list of approximately 7 million voters was used by GOP counterparts in 27 States to remove Democratic or Democratic-leaning voters from the rolls by claiming they were voting in multiple States.  A first and last name was enough for a match.  Jr. and Sr. did not matter, nor middle names, nor different Social Security numbers. 

     “The program's method of identifying and purging voters especially threatens the registrations of minority voters who are...67% more likely than white voters to share America's most common names:  Jackson, Washington, Lee, Rodriguez and so on,” according to Greg Palast.

     In the three crucial States that were supposed to be the Democratic firewall, the gentleman from New York "won" by 44,000 in Pennsylvania, 11,000 in Michigan, and 23,000 in Wisconsin.  Crosscheck removed up to 344,000 in the first and 449,000 in the second.  In the third, Photo ID, which is used to stop non-existent “voter fraud,” made the difference by depressing turnout in Milwaukee.  Thus, the 20 electoral votes in Pennsylvania, 16 in Michigan, and 10 in Wisconsin went to the Republican instead of Mrs. Clinton.  And so, the legitimacy of the gentleman from New York goes beyond the question of foreign influence.

     The domestic covert operation against certain American citizens was successful because the self-styled “mainstream” press failed—and still fails—to cover this story.  But the falsehood about 3 million “illegal aliens” voting—circulated by the Kobach crowd—was covered.  Yet 7 million citizens on a list to deny them the right to vote are ignored. 

     In 2017, lo and behold, Kris Kobach was appointed Vice Chairman of the White House Advisory Commission on Election Integrity—after a Republican presidential campaign surrounded by Russians.  But, in 2018, after finding no voter fraud, the Commission was disbanded.  Nevertheless, the Republicans did not let the facts get in the way, and their lies led to an insurrection at the Capitol.

IV 

     “And the LORD said unto Moses, Go, get thee down; for thy people which thou broughtest out of the land of Egypt, have corrupted themselves.”  (Exodus 32:7, KJV)

     The people had grown impatient awaiting the return of the prophet.  They wanted a god they could see—the golden calf, and the celebration of its creation caused quite a commotion. 

     “There is a noise of war in the camp,” said Joshua.  (Exodus 32:17, KJV) 

     When Moses saw the molten image and the dancing, with singing piercing his ears, he threw down “the two tables of the testimony of the law” in anger and broke them.  (Exodus 32: 15 & 19, KJV)  And he demanded an answer. 

     “Who is on the LORD’s side?”  (Exodus 32:26, KJV) 

     Today we are again at the foot of the mountain.  The Chief Traitor has broken the tablets kept in the Archives but carried in the hearts of the American people.  Thus, the line has been drawn.  And, for those who worship and dance before the golden image of the gentleman from New York, a question remains:  Who stands with the God of truth?  (Deuteronomy 32:4, Psalm 31:5 & Isaiah 65:16)  For knowledge is the foundation of the American Republic.  And, as James Madison reminds us, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power knowledge gives.” 

     An oath was taken.  And for those who said “So help me God,” Alexander Hamilton leaves no doubt as to what is required.

       The republican principle demands that the deliberate sense of the community should govern
       the conduct of those to whom they intrust the management of their affairs; but it does not
       require an unqualified complaisance to every sudden breeze of passion, or to every transient 
       impulse which the people may receive from the arts of men, who flatter their prejudices to
       betray their interests.  It is a just observation, that the people commonly INTEND the
       PUBLIC GOOD.  This often applies to their very errors.  But their good sense would despise
       the adulator who should pretend that they always REASON RIGHT about the MEANS of
       promoting it.  They know from experience that they sometimes err; and the wonder is that
       they so seldom err as they do, beset, as they continually are, by the wiles of parasites and
       sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of
       men who possess their confidence more than they deserve it, and of those who seek to
       possess rather than to deserve it.  When occasions present themselves, in which the interests 
       of  the people are at variance with their inclinations, it is the duty of the persons whom they
       have appointed to be the guardians of those interests, to withstand the temporary delusion, in
       order to give them time and opportunity for more cool and sedate reflection.  Instances might
       be cited in which a conduct of this kind has saved the people from very fatal consequences of
       their own mistakes, and has procured lasting monuments of their gratitude to the men who had
       courage and magnanimity enough to serve them at the peril of their displeasure.  (The
       Federalist Papers, No. 71)

     Intangibles will decide whether the American Republic survives.  And those who embody our ideals will make them a reality.

(c)2021 Marvin D. Jones.  All rights reserved.

An Effective Executive

“A feeble executive implies a feeble execution of the government.  A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”  (Alexander Hamilton, The Federalist Papers, No. 70) 

     Like Mr. Lincoln before him, Mr. Biden is to take office in the midst of turmoil; and the sixteenth President set the precedent.  For he took decisive action once the rebellion began. 

     The Confederates fired upon Fort Sumter while Congress was out of session.  But President Lincoln was on duty.  And when the Legislature returned, he made a report and sought—and received—their subsequent approval. 

     Like Lincoln, after “So help me God,” President Biden must take decisive action, such as, issue a proclamation to “insure domestic tranquility” and enforce the “guarantee to every State in this Union a republican form of government.”  (Preamble & Article IV, Section 4)  For not only has the Capitol been attacked, now the perpetrators are threatening to disrupt the inauguration.  They plan to surround the White House, the Capitol, and the Supreme Court—and do the same in the several States.  They will lay siege because they at “war.”  

     Like Lincoln, Biden must wed the “take care” clause and the war power.  Therefore, because Article IV, Section 4 requires the United States to “protect each of them against invasion and...domestic violence” and pursuant to Article I, Section 8, Clause 15 that gave Congress the power “To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions,” the Insurrection Act was passed—and must be invoked.  The objective: crush the rebellion.  The terms: unconditional surrender.  This lost cause must have no hope of resurrection.  

(c)2021 Marvin D. Jones.  All rights reserved.

https://youtu.be/1Q9hISlzgak

Peyronie's Pardons

THE DECLARATION OF INDEPENDENCE opens with a vision, a panorama of the impossible—“all men are created equal”; “life, liberty, and the pursuit of happiness”; “the consent of the governed.”  The Constitution replaced the Articles of Confederation “in order to form a more perfect Union” and bring those ideals closer to reality.  But the Founders knew that would not be easy. 

     When Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia.

     “Well, Doctor, what have we got—a republic or a monarchy?” 

     “A republic,” Franklin replied, “if you can keep it.” 

     Alexander Hamilton notes the difference in how power is allocated in a monarchy and a republic. 

     “It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants.  Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, “WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”  (The Federalist Papers, No. 84; emphasis his) 

     Means and ends are paramount.  “This Constitution…shall be the supreme law of the land…, any thing to contrary notwithstanding.”  All acts are to be taken “in pursuance thereof.”  (Article IV, Clause 2) 

     The oath requires the President of the United States to “faithfully execute the office” and “preserve, protect and defend the Constitution.”  (Emphasis added)  Furthermore, the Chief Magistrate must “take care that the laws be faithfully executed.”  (Emphasis added)  In respect to the supreme law of the land, those duties are performed “faithfully” when they are “in pursuance thereof.”  Thus, all the powers of the Presidency are to be used for the benefit of the Republic. 

     The courts—“whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”— were created to “establish justice.”  (Alexander Hamilton, The Federalist Papers, No. 78 & Preamble)  Thus, Judges are the “faithful guardians of the Constitution.”  (Alexander Hamilton, The Federalist Papers, No. 78)  In showing how, Hamilton confirms that a monarchy is one thing, a republic another. 

     “There is no position which depends on clearer principles then that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void….  To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”  (The Federalist Papers, No. 78) 

     Meanwhile, confusion reigns and clouds the judgment of others.  For the press, politicians, and pundits spoke of the power as “plenary” and “absolute” from the moment the gentleman from New York claimed he had “the complete power to pardon”—including Himself.  Remarks that should have been met with laughter and greeted with contempt had legitimacy bestowed upon them.  But assertion and repetition do not equal truth. 

     The pardon power may be used, Hamilton tells us, “to attend to the force of those motives which might plead for a mitigation of the rigor of law”; and “in seasons of insurrection and rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth, and, which if suffered to pass unimproved, it may never be possible afterwards to recall.”  (The Federalist Papers, No. 74)  The first would be a check on the judiciary and “establish justice.”  The second would “insure domestic tranquility.”  (Preamble)  Thus, in respect to the supreme law of the land, they are in “in pursuance thereof.”  (Article VI, Clause 2) 

     At the Virginia Ratifying Convention, George Mason expressed concern. 

     “Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.  It may happen, at some future day, that he will establish a monarchy, and destroy the republic.” 

     Citizens, beware! 

     Such an attempt is linked to “a long train of abuses and usurpations, pursuing invariably the same object” because the Constitution prohibits the granting of titles of nobility; and, therefore, becoming a king, who “evinces a design” as did George III, “to reduce them under absolute despotism,” is out of the question.  Such has been the patient sufferance of these States; and such is now the necessity which constrains them to alter their former attempts at correction.  The history of the shallow man who would be king is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States.  To prove this, let facts be submitted to a candid world. 

     He never intended to win, for according to his personal attorney, the campaign was an infomercial. 

     He called upon a foreign power—the very power with whom he had business dealings—to help him in the election, and the assistance was immediately provided. 

     He has, by word and deed, consistently favored that power.

     He was offered assistance for divestiture of his holdings and placing them in Treasury securities to avoid foreign influence, and he refused. 

     He has used pardons as part of a conspiracy to obstruct justice. 

     He has excited domestic insurrections amongst us. 

     And all of his efforts are directed toward maintaining power. 

     In every stage of these oppressions we have petitioned for redress in the most humble terms:  Our repeated petitions have been answered only by repeated injury.  A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.  

     In a republic, power obtained through illicit means cannot be valid.  For the assailant eats the fruits of the poisonous tree.  And a court of justice need only state the obvious—that the ends are void.

(c)2020 Marvin D. Jones.  All rights reserved.  

https://www.marvindjones.blogspot.com/2017/09/the-schlesinger-moment.html

 

'In Order to Form a More Perfect Union'

https://youtu.be/WO4tIrjBDkk

Scene from Any Given Sunday ("Inches")

https://youtu.be/0ao6Mlc0Pbs

Midnight Blue

Evinces A Design...

 IN PORTLAND, OREGON, citizens were snatched by the un-ID’d, stuffed into unmarked vehicles, and whisked away.  It was an act of impunity. 

     “Swarms of officers” embody the objection made in the Declaration, as if in the employ of King George III.  But modern day royal agents also mock the oath to uphold the Constitution—and they ignore the Bill of Rights. 

I

     James Madison reminds us that “a right implies a remedy.”  (The Federalist Papers, No. 43)  Title 18, Section 242 of the United States Code provides a way to make it so.  

     Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

      “The complete independence of the courts of justice is peculiarly essential in a limited Constitution.  By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.”  (Alexander Hamilton, The Federalist Papers, No. 78, emphasis his) 

     In Harlow v. Fitzgerald, the Supreme Court set the standard for qualified immunity.  “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”  That sounds innocuous.  But it protects unqualified “peace officers” by allowing them to do wrong—and trample on someone’s rights—without consequences, about things they ‘know.’” 

     The Fourth Amendment is “clearly established.”  It stands in contrast to the writs of assistance—general search warrants—which allowed the agents of King George III to do as they pleased.  But the Fourth Amendment defines the role of a police officer in a republic, not a monarchy.  “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.”  Yet police make false arrests and conduct illegal searches, a flagrant violation of its provisions.  Breonna Taylor was a recent victim and, unfortunately, she will not be the last. 

     The Fifth Amendment is “clearly established.”  It states, among other things, that “No person shall be…deprived of life, liberty, or property, without due process of law….”  But police officers act as judge, jury, and executioner when there is no threat whatsoever—another flagrant violation.  Breonna Taylor was a recent victim and, unfortunately, she will not be the last. 

     In some respects, the Fourth and Fifth Amendments have been made mere parchment barriers.  Thus, the reservations of particular rights or privileges amount to nothing. 

     In Terry v. Ohio, Chief Justice Earl Warren delivered the opinion of the Court. 

     “Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere.” 

     Justice William O. Douglas dissented and appealed to the high court of history. 

     “…(P)olice officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause.  The term ‘probable cause’ rings a bell of certainty that is not sounded by such phrases as ‘reasonable suspicion.’…  To give the police greater power than a magistrate is to take a long step down the totalitarian path….  Yet if the individual is no longer sovereign, if the police can pick him up whenever they do not like the cut of his ‘jib,’ if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.  The decision to enter it should be made only after a full debate by the people of this country.” 

     Meanwhile, police unions aid and abet members who trample on someone’s rights. 

     “Stephen Rushin, the Loyola Chicago law professor, has gone to great lengths to correlate stronger police union contracts with upticks in officer misconduct.  Through an examination of 834 contracts across two studies, Rushin highlighted how unions have orchestrated a system of non-accountability spanning the nation.  He determined that contracts stymie oversight with policies that ‘limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations,’ one paper says.” 

     To limit a review or an investigation of a police officer’s deeds is to make meaningless the words of the oath.  For, as James Madison said in a speech on the floor of the first House of Representatives, “I believe no principle is more clearly laid down in the Constitution than that of responsibility.”  Yet qualified immunity and police union contracts render rights an illusion without hope of a remedy and they negate responsibility.  Thus, such violations of the social contract raise a question:  How does one square the circle?  According to Article VI, Clause 2, “This Constitution…shall be the supreme law of the land…, any thing in the Constitution or laws of any State to the contrary notwithstanding.”  And in Alexander Hamilton’s words, those intolerable side-effects are the result of a failure “to declare all acts contrary to the manifest tenor of the Constitution void.”  (The Federalist Papers, No. 78) 

     William Blackstone, who is referenced in The Federalist Papers, cited the old adage—“Where there is a right, there is a remedy”—in his Commentaries on the Laws of England and, therefore, qualified immunity is at best a questionable notion, if not a preposterous precedent under Anglo-American jurisprudence.  Thus, a reexamination and a return to basic principles is in order. 

II 

     “…(T)he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.  …(T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter….”  (Alexander Hamilton, The Federalist Papers, No. 78) 

     Why are Harlow v. Fitzgerald and Terry v. Ohio in opposition to those observations?  Hamilton noted an important difference between a monarchy and a republic—and the danger posed to the latter when the distinction is disregarded. 

     “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince….  Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, ‘WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’” 

     Now, in retrospect, his prescience can be appreciated. 

     “I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.  They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?  …(I)t would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”  (The Federalist Papers, No. 84; emphasis his) 

     The ratification debates illuminated one inadequacy of the Articles as if carved in sharp relief.  But it was not a trick of light and shadow that provided contrast to the Convention’s work. 

     “A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power.  Laws are a dead letter without courts to expound and define their true meaning and operation….”  (Alexander Hamilton, The Federalist Papers, No. 22; emphasis added) 

     Creation of a judiciary is more than cosmetic, for the removal of a defect is not enough.  The risks are real.  Nerve damage is possible. 

     “…(L)iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation….”  (Alexander Hamilton, The Federalist Papers, No. 78; emphasis added) 

     Imagination is an unnecessary ingredient to a scenario when history provides illumination.  For there is no mystery as to how a nominal and apparent separation comes to pass and creates a political discontinuity, a misalignment of means and ends where a minority rules the majority. 

     “…(T)here is one basic check on a runaway Court: presidential elections,” as Professor Bruce Ackerman pointed out in noting the significance of Bush v. Gore.  “The Supreme Court cannot be permitted to arrange for its own succession.  To allow (Bush the Younger) to serve as the Court’s agent is a fundamental violation of the separation of powers….  The right-wing bloc on the Court should not be permitted to extend its control for a decade or more simply because it has put George W. Bush into the White House.”  (Emphasis added)  But despite a fundamental violation of the separation of powers, Bush the Younger appointed John Roberts and Samuel Alito; and thus, the Court packed itself. 

     The union with the other branches has been disguised by a nominal and apparent separation made possible by the misrepresentation and misuse of a misunderstood institution in 2000—and, again, in 2016—that exacerbated the situation.  As a result, two more Justices were put on the bench, with a third on deck, undermining the “one basic check on a runaway Court: presidential elections.”  Yet even if the Electoral College is used to perform its proper functions—popular choice and national security—more must be done to not just restore the legitimacy of the Court but to raise its stature. 

     Hamilton addressed three basic requirements of the least dangerous branch. 

     First, the importance of reason. 

     “The judiciary…may truly be said to have neither FORCE nor WILL, but merely judgment….” 

     Second, awareness of its role. 

     “But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution….” 

     Third, the exercise of restraint. 

     “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them….”  (The Federalist Papers, No. 78) 

     The defect which crowned the Articles has been corrected: there is a judiciary power.  However, the courts will be unable to expound and define the true meaning and operation of the laws as long as they are unaware or ignore why they came to be under Article III.  To “establish justice,” as stated in the Preamble, it is necessary to move beyond the contemporary focus on a court of law.  Otherwise there is no way to protect the political rights and the general liberty of the people. 

     In the commentaries on the Constitution, Hamilton consistently refers to “the courts of justice” whose power extends “to all cases in law and equity, arising under the Constitution and the laws of the United States.  (The Federalist Papers, No. 80 regarding Article III, Section 2, Clause 1; emphasis his) 

     “There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction….  It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate.”  (The Federalist Papers, No. 80; emphasis his) 

     Writs of assistance were one of the grievances listed in the country’s birth certificate.  And despite independence, the Revolution cannot be considered successful if the same continues unabated.  To paraphrase, Juliet, “What’s in a name?  That which we call a skunk/By any other name would smell as foul.”  Indeed, it completes the tyrant’s trifecta.  The Fourth Amendment, the Fifth Amendment, and the Preamble amount to nothing when “probable cause” and “due process of law” and “the blessings of liberty” are made neutered phrases.

     History has provided enough experience to inform our contemporary conduct.  These are the essential elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection. 

     A nomination must pay respect to Hamilton’s basic requirements of the least dangerous branch—the importance of reason, awareness of its role, and the exercise of restraint.  “To produce uniformity in those determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL.”  (Alexander Hamilton, The Federalist Papers, No. 22)  Thus, the current composition of the institution needs to be carefully considered:  Is the Court meeting those requirements?  And if not, what is necessary to do so?  After all, the Court is a collegial body that exists to “establish justice.”  It is not a lifetime Cabinet with a Prime Minister in a robe, and, therefore, an individual who seeks truth—and is not a predictable vote—is invaluable.  For ideology is a leading cause of blindness.  But as an artist looks at a subject or object from various angles, so must the Court look at cases from different points of view. 

     Interaction will affect the image of the institution and its ingredients.  An individual has to avoid a conflict of interest or even the appearance of impropriety while the institution, to be respected, must remember that Hamilton consistently referred to “courts of justice”—not a court of law that can be technically right and totally wrong.  The impact on American jurisprudence and American lives will be significant.  Therefore a favorable rating from the American Bar Association alone will no longer do.  The American Historical Association must be involved as well.  Furthermore, majority, concurring, and dissenting opinions are insufficient.  The Court must also submit a societal impact statement. 

     The intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend.  Instead, it perpetuates a political discontinuity, a misalignment of means and ends where a minority rules the majority.  And that will continue to be the case until the Electoral College is used to perform its proper functions—popular choice and national security.  The National Popular Vote will make it so. 

III 

     THE DECLARATION begins with ideals—“all men are created equal”; “life, liberty, and the pursuit of happiness”; “the consent of the governed”—and ends with reality:  “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.  But when a long a train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”  And then there was a list of grievances, one of which was the despised writs of assistance:  “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.” 

     THE CONSTITUTION replaced the Articles of Confederation.  The new charter was supposed to nudge the high ideals of the Revolution closer to reality—“in order to form a more perfect Union.”  It set up a framework for debate about how to proceed.  And when Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia. 

     “Well, Doctor, what have we got—a republic or a monarchy?” 

     “A republic,” Franklin replied, “if you can keep it.” 

     THE BILL OF RIGHTS was adopted after the Constitution was ratified, and what once was inherent became specified.  The Fourth Amendment is a rebuke to writs of assistance and defines the job of police officers.  The Fifth Amendment outlines boundaries to be respected—no denial of “life, liberty, and property, without due process of law.”  The Ninth Amendment—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—addressed Hamilton’s concerns about providing “a colorable pretext…to men disposed to usurp, a plausible pretense for claiming that power.”  (The Federalist Papers, No. 84) 

     Modern day royal agents act in defiance of the Declaration.  And if new guards are not provided for our future security, then the Republic is at risk. 

     Modern day royal agents disrespect the Constitution.  Every failure to report misconduct bears witness to the same.  If the thin blue line matters more than the oath, police officers cannot support and defend the supreme law of the land “against all enemies, foreign and domestic” when they become the latter. 

     Modern day royal agents disregard the Bill of Rights.  The Fourth Amendment and the Fifth Amendment have been waived for their benefit.  With no roll of the dice, they possess a get out of jail free card while disrespecting someone’s rights.  It is as if they have sworn to protect and serve themselves. 

     William Blackstone cited the old adage—“Where there is a right, there is a remedy”—in his Commentaries on the Laws of England and, therefore, qualified immunity is at best a questionable notion, if not a preposterous precedent under Anglo-American jurisprudence.  Thus, a return to basic principles serves as a guide that will “insure domestic tranquility.” 

IV 

     The patchwork approach has failed.  Recurring problems do not happen in just one State or region.  They are national, and that is where they need to be addressed.  After all, the Fourth Amendment, which defines a police officer’s job, applies across the country. 

     Recruitment must change.  Direct admittance to a police academy is too easy.  But if candidates are required to go to boot camp with Rangers and/or Special Forces drill sergeants, they will undergo background checks.  Furthermore, current officers who move to another jurisdiction would be subject to the same.  Thus, the weeding can begin. 

     Too many police officers act as if they are royal agents and that they are always right.  The idea that such people have weapons designed for the Armed Forces is frightening.  So, it is time to put them in touch with reality, to learn—not through a lecture—but through training, that they are not soldiers.  They would not touch a weapon but be armed with knowledge.  They would be required to know the Fourth Amendment by heart—and why we have one.  They need to be in a situation where the drill sergeants may be so-called “minorities”; and they must follow their orders.  And while they cannot be DOR—DROPPED ON REQUEST, they can be kicked out.  The intention is to dispose of those who have unsuitable dispositions.  A little humility is in order, and, therefore, they will be called—constantly—“possible trainees.” 

     Before arrival at the academy, those who survived boot camp, with a favorable recommendation, will have learned that police officers often precipitate the event by their inability to speak pleasantly to people and listen to them.  Instead, they will do the following:  First, ask questions; do not assume.  Second, keep smart aleck remarks to one’s self.  Third, check when asked to do so.  Finally, stop making stuff up.  

     Boot camp is a memorable experience, and the time has come to make it an unforgettable one for those who think they are the King's royal agents.  “Peace officers” must learn that they can be questioned.

(c)2020 Marvin D. Jones.  All rights reserved.

https://migrate.readersupportednews.org/opinion2/277-75/64087-the-authoritarian-operation-in-portland-is-only-a-dress-rehearsal    

https://thehill.com/homenews/house/508225-trump-threatens-to-double-down-on-portland-in-other-major-cities  

https://youtu.be/B4xlDlRuVeA 

 

https://www.justice.gov/crt/deprivation-rights-under-color-law

18 USC 242

https://www.law.cornell.edu/supremecourt/text/457/800   

Harlow v. Fitzgerald

https://www.dailykos.com/stories/2020/8/4/1966558/-Federal-judge-basically-begs-the-Supreme-Court-to-overturn-qualified-immunity   

Qualified immunity

https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform#:~:text=Qualified%20immunity%20is%20a%20judicially,violate%20%E2%80%9Cclearly%20established%E2%80%9D%20law.

Qualified immunity   

https://youtu.be/n0QoHvmeduo   

Quality immunity

https://www.dailykos.com/stories/2020/8/23/1971757/-Police-shoot-black-man-while-holding-his-shirt-at-domestic-disturbance-call-Graphic-video-warning    

The Fifth Amendment—judge, jury, and executioner         

https://www.dailykos.com/stories/2020/10/9/1985099/-New-documents-show-the-internal-effort-to-justify-the-murder-of-Breonna-Taylor-was-just-astounding     

Breonna Taylor   

https://www.washingtonpost.com/nation/2020/10/10/texas-police-officer-antagonized-residents-small-town-prior-shooting-residents-say/   

https://www.law.cornell.edu/supremecourt/text/392/1

Terry v. Ohio   

https://readersupportednews.org/news-section2/318-66/63897-focus-police-unions-wield-massive-power-in-american-politics-for-now    

Police unions    

https://reason.com/2016/02/04/after-finally-returning-the-money-they-s/?itm_source=parsely-api    

Modern day American writs of assistance   

https://nypost.com/2017/07/20/stop-the-feds-from-taking-your-stuff/    

Modern day American writs of assistance   

https://reason.com/2019/11/21/with-this-forfeiture-trick-innocent-owners-lose-even-when-they-win/    

Modern day American writs of assistance   

https://www.nationalpopularvote.com/

 

https://youtu.be/JT1WBZxcRDE

A clear abuse of power

https://youtu.be/VNjLvLrQ0kQ   

A clear abuse of power

https://www.dailykos.com/stories/2020/8/12/1968658/-LAPD-officer-s-own-body-cam-caught-him-fondling-dead-woman-s-body-family-sues   

Finally, a clear abuse of power that a police union does not support

https://youtu.be/StGRMpmkONw    

The Fourth Amendment—the bikini arrest

https://youtu.be/6xOrWEbs_3k   

The Fourth Amendment—the Krispy Kreme donut arrest

https://youtu.be/0JAnpxFHtzI   

A flagrant violation of the First Amendment and blatant violation of the Fourth Amendment

 

https://youtu.be/LuWZBZSIooo    

Same Town, Same Week, Same Police Force, Different Reactions | Deadline | MSNBC

https://ifstudies.org/blog/theyre-out-to-get-you-police-misconduct-in-white-working-class-america   

Police Misconduct in White Working-Class America

https://youtu.be/Wf4cea5oObY   

Police by John Oliver

https://youtu.be/jGsshP1WqY0   

Glenn Kirschner's police reform

https://youtu.be/h5vkO7JJ940    

An appropriate response?

 

https://www.dailykos.com/stories/2020/8/31/1973761/-Police-support-for-armed-far-right-groups-and-Trump-s-creeping-fascism-are-a-terrifying-mix    

Why fundamental change is needed

https://www.washingtonpost.com/politics/as-clashes-between-armed-groups-and-leftist-protesters-turn-deadly-police-face-complaints-of-tolerating-vigilantes/2020/08/30/d2c36c20-e952-11ea-a414-8422fa3e4116_story.html    

Why fundamental change is needed

https://youtu.be/UdWB-w3hfMQ    

Why fundamental change is needed—blatant violation of the Fourth Amendment

https://www.dailykos.com/stories/2020/9/25/1980004/-Leaked-email-shows-normalized-and-racist-mentality-of-Louisville-police-department  

Why fundamental change is needed—the Breonna Taylor case    

https://theintercept.com/2020/09/29/police-white-supremacist-infiltration-fbi/   

Why fundamental change is needed

https://www.rollingstone.com/politics/politics-features/why-policing-is-broken-taibbi-1014652/    

Why fundamental change is needed—how the oath is made meaningless 

 

Addendum:  

'Why Do We Keep Seeing Videos Like This?' | Morning Joe | MSNBC, 04-12-2021

https://youtu.be/u21YnFeQAJY

Why do we keep seeing videos like this?  The culture of impunity has not been broken.  And nibbling

around the edges will not do.  Fundamental change is needed. 

Washington—AND Lee(?)—University

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.  (Article III, Section 3)

THE WAR OF SOUTHERN AGGRESSION began at Fort Sumter.  Appomattox was not the end.  And 750,000 deaths were not enough.

     So many self-styled “conservatives,” who consider themselves “strict constructionists,” love to celebrate the Confederacy.  Yet the South’s so-called “heroes” committed the only crime defined in the supreme law of the land, because it is a threat to the life of the Republic.  But, supposedly, they fought for “States’ rights.”  

     The Articles of Confederation were replaced “in order to form a more perfect Union”—by continuous effort.  Therefore, whatever the difference of opinion on a particular issue, those of us who take the oath to uphold the Constitution must condemn anyone or anything that glorifies division.

     The War of Southern Aggression is not a noble cause.  One cannot cling to those who attempted constitutional murder.  The statues, schools, roads, and holidays must go.  Patriots do not celebrate traitors.

     George Washington’s endowment rescued Liberty Hall Academy, and it was renamed in his honor.  But after the War of Southern Aggression and Robert E. Lee’s tenure as president of Washington College, the name was changed to Washington and Lee University.  A fitting tribute to the Father of the Country would be to join his name to that of Billy Lee, the man who rode up to New England with him to review the troops of the North and South for the first time.  He was by the General’s side throughout the war, and the Commander in Chief of the Continental Forces remembered him in his will.  His skin was dark.  Thus, Washington and Lee University would indeed form a more perfect Union.

(c)2020 Marvin D. Jones.  All rights reserved.