Redux: Our Jury Rights are Being Trampled Upon

I'm re-posting this piece because it's extremely important to the concept of Freedom... especially now, given the plethora of unconstitutional "Laws" currently in force in this great Land.  [The previous title was "The Last Bastion".]

The last sane bastion against an errant government (not counting armed revolt, which nowadays is insane) is jury nullification. Very early in our country's history, the role of jury nullification as a defense against oppression by the State was unquestioned. It remained so until the 1850s, a time during which many juries began not convicting in prosecutions under the Fugitive Slave Act. Judges, seeing a mighty demonstration of the power of juries, began to change the rules of the Court. The primary and most devastating change was that juries would no longer be permitted (by judges) to judge the law; they would be confined to judging only the facts of the case.

The new rules were (and still are) a blatant infringement on the rights of juries. That's not just my view...

"The jury has a right to judge both the law and the facts in controversy."
~ John Jay, First Chief Justice, U.S. Supreme Court, 1789

"The jury has the right to determine both the law and the facts."
~ Samuel Chase, U.S. Supreme Court Justice, 1796
"The law itself is on trial quite as much as the cause which is to be decided."
~ Harlan F. Stone, 12th Chief Justice, U.S. Supreme Court, 1941

Juries routinely are told by judges that jury members cannot judge the law, only the facts of the case. Not true. Numerous case decisions have upheld the right of any juror to nullify a "bad" law and vote to acquit. Example: "The jury has an unreviewable and unreversible power...to acquit in disregard of the instructions on the law given by the trial judge." U.S. v.Dougherty, 473 F 2nd 1113, 1139 (1972). Example: "...it is presumed that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine law as well as the fact in controversy." [Emphasis added.] State of Georgia v. Brailsford, et.al. 3 U.S. 1 Dall. (1794).

So, why do jurors not know these things? The reason is simple: in

Sparf v. United States (1895), the Court decided that courts need not inform jurors of their de facto right of jury nullification even though the jurors' inherent right to judge the law remains unchallenged. All judges are aware of this. Rather than inform juries of all their rights, judges tend to intimidate jurors by telling them that they cannot judge the law.

All of this is crucial to individual sovereignty and freedom because governments practice Legislative Absolutism (a term coined by Justice Harlan in 1901), passing laws without any regard for constitutions (Federal and State). Other than bringing suit in a court of law, the aggrieved citizen has no legal and peaceful recourse except to rely on jury nullification. Bringing suit usually is very expensive and time-consuming. Unfortunately, relying on jury nullification depends upon having a fully informed citizenry, and jurors with courage and integrity...therefore, spread the word! We need fully informed juries.

Not just my opinion.  Be Well

Here's How They Do It -OR- The Biggest Flaw in the Constitution

"They" are the Neoliberals who over decades and by sheer, disorganized, dumb luck have brought about a coup in our Government.  For years I wondered how so many unconstitutional laws could come into being in this Land with barely a peep of protest from anyone.  I think perhaps finally I've figured it out.  Over the years, now and again, I heard this-or-that politician mention the "necessary and proper" clause of the Constitution; but I never paid much attention to it until recently.

"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
~ Article I, Section 8, Clause 18, United States Constitution

The Powers mentioned in that clause, "...the foregoing Powers, and all other Powers...", are those delegated by We the People to our Federal Government.  They are the Enumerated Powers that we have given to the Congress, the Executive Branch, and the Judicial Branch.  The Government has only those Powers.  Unfortunately, going all the way back to our Founding Fathers, some have claimed that Article I Section 8 Clause 18 gives other, implied Powers to the Government.  Hamilton and Jefferson debated that very point.

Alexander Hamilton was the Founder who proposed that our Gov't should be that of a Monarchy; he wanted a King as our leader.  Luckily, that idea quickly was scrapped.  Nonetheless, Hamilton kept fighting for a central government bordering on dictatorial.  He wanted a central bank, and he claimed that Article I Section 8 Clause 18 gave the Gov't implied Powers.  Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends, regardless of specific Enumerated Powers.  Jefferson opposed him at every turn until Hamilton was killed by Aaron Burr in a duel, July, 1804.  Nevertheless, the seed had been planted.  Supreme Court Chief Justice John Marshall and others promoted the idea that the Government had implied powers.  At times, the "necessary and proper" clause was referred to as the "elastic clause".

The idea eventually lost favor in the late 1800s up until the 1930s.  With the Roosevelt Administration, the "elastic clause" was back in favor... and as the Fed Gov't expanded, the idea became more and more the flavor of the day.  As that happened, "Legislative Absolutism" took hold more and more.  In 1901, Supreme Court Justice Harlan coined that term, warning of a time when unconstitutional laws would be passed as a matter of course.

Any examination of the "necessary and proper" clause with a view toward common sense tells us that no additional Powers are implied by it.  Furthermore, it makes ZERO sense that so-called "implied" powers would be able to result in a law which would essentially nullify any specific written clause in the Supreme Law of the Land.  Finally, the use of "implied" powers apparently is virtually without limits.  It's whatever an indoctrinated, propagandized public will tolerate.

EXAMPLE---  The so-called PATRIOT Act essentially nullifies the Fourth Amendment.  Gathering of bulk data is permitted... without the people being intruded upon having to be suspects of any kind.  In addition, FBI Agents can write their own Search Warrants... the Fourth Amendment makes it clear that judges must issue those.  Finally, other portions of the Act violate the Due Process Clause of the Constitution.  [So do portions of the National Defense Authorization Act, the NDAA.]

All the "necessary and proper" clause is saying is this:  Congress can pass Laws in order to implement the specific Enumerated Powers that were delegated to them by We the People.  Nowhere does it say or imply that Laws contravening the Constitution may also be passed.  Only an attorney with no common sense would infer such a thing from that clause.  Both Hamilton and Marshall were attorneys.  [My admittedly limited experience with attorneys tells me that very few of them have any common sense whatsoever.  They appear to live in a very esoteric world; as with everything, I'm sure there are exceptions.]

My conclusion is that certain people in our political history wanted a way around the constraints of the Constitution.  It appears they desired a central government so strong that it bordered on dictatorial.  To achieve that objective, they inferred from primarily the "necessary and proper" clause, but also from the "commerce" and "general welfare" clauses, so-called implied powers.  I see that as pure BS.  I sincerely doubt that it was the intention of almost all our Founders to give the Government unknown, virtually unlimited Powers that could, in fact, contravene the listed or Enumerated Powers delegated by We the People.  That makes no sense... and more importantly, it makes the Constitution worthless.  The primary purpose of the Constitution is to restrain/constrain government; that's not possible if we accept the concept of "implied powers"... which can be almost anything.

Not just my opinion.  Be Well
p.s.  Special thanks to my good friend in Sacramento, Bob, for triggering the theme of this piece.

Lack of Knowledge in America about the Constitution

Over the years, I've been astounded at how little (apparently) many Americans know about the Supreme Law in this land.  Example--- In one online discussion/comment venue, a person wrote back to me and said (paraphrased), "But, the Constitution doesn't say the President can't do that; therefore, he's allowed to."... Needless to say, I was flabbergasted.  Another example--- "The President is Commander-in-Chief of the military; that means he can go to war whenever he sees fit.".  Another example--- "Congress passed a resolution giving the President permission to go to war at some point in the future (the time to be determined by the President)."... Good grief.  [That last scenario has taken place for the last few wars we've been in, and it's completely unconstitutional.]

Because of the above, I offer a few truths about our system of government and the U.S. Constitution.  As a preface, let me begin by pointing out that the primary purpose of the Supreme Law of the Land is to limit/constrain/restrain the Fed Gov't.  That's the reason it was created in the first place.

1.  Ours is a government of Enumerated Powers (Google it.)  We the People delegated certain powers to the Fed Gov't...and only those powers.  If the power isn't listed, then the Feds don't have it.  That's how they are restrained, not by listing everything they can't do...that list would be endless.  The Gov't can gain new powers only by Constitutional Amendment or by a Constitutional Convention.  There are no other legal ways unless martial law is declared.

2.  The Bill of Rights (the first ten Amendments) does contain a few prohibitions that apply to the Gov't..."Shall not infringe upon...".  Perhaps that's why some people got the idea that everything the Feds can't do is listed in the Constitution.  Nope.  Also, some people have the idea that the Constitution GRANTS us certain Rights.  That's absolutely false.  Instead, the document is enumerating (listing) a few of the Natural Rights that all people possess.  It's saying that in this country, those rights will be protected ---not granted.  The difference is important.

3.  Yes, the President is Commander-in-Chief; however, that doesn't mean he gets to decide when to put us at war.  There are enumerated Constitutional restraints regarding uses of the military.  Only three such uses are permitted by the Constitution.  I listed them in this blog more than once; they are very straightforward...no other "interpretation" is reasonably possible.  One doesn't have to be a judge or attorney to figure out what the Founders meant.  It's crystal clear.  None of the permitted uses includes being the world's police force.  Such a use is blatantly unconstitutional.  Those who believe our military should be the world's police force need to lobby for an Amendment to that effect.  Either that, or propose it at a Constitutional Convention.  The way it is now, it's illegal.

4.  I've stated this next item over and over in past posts:  no Law supercedes the U.S. Constitution.  That's what "Supreme Law of the Land" means.  The Oligarchs in the Fed Gov't know that full well.  That's why they ignore the Constitution and instead point to the War Powers Act (or some other law) to justify having the President decide when and with whom we're going to war.  They know that if they try to get that authority from the Constitution, they'll be out of luck.  That's also why they rely upon the PATRIOT Act to allow FBI Agents to write their own search warrants, or allow the NSA to spy on people with no probable cause or proper warrant.  Those are not activities delegated by We the People to our Fed Gov't.  That means our Gov't, at the highest levels, consists of outlaws...they are violating the Supreme Law of the Land.  They also are violating this portion of their oath of office: ...to preserve, protect, and defend the Constitution of the United States.

5.  For this country to be (constitutionally) at war, Congress must declare war, not pass a resolution saying, hey, Mr. President, we approve of you putting us at war at some point in the future.  That's why, in the beginning, both the Korean and Vietnam "wars" were called "conflicts".  The Oligarchs in Gov't knew that the Constitution required a Declaration of War by the Congress, so they figured they'd make things more palatable to the public by calling both of those wars "conflicts".  As the years passed, Gov't became bolder and simply dropped all pretenses regarding the Constitution.  They ignored the document.  And, lo and behold, very few people seemed to give a damn.  That's why, more than once, I've suggested that we throw out the Constitution...because ignoring it has the same effect.

People have said to me, this just can't be...you must be misinterpreting the Constitution somewhere, some parts of it.  My answer usually goes like this:  I spent a fairly significant portion of my full-time working life interpreting the most complex, convoluted U.S. laws and regulations in existence, the Hazardous Waste and Hazardous Materials laws and regs...and the Occupational Safety and Health laws and regs.  [To prove my claim regarding their complexity, Google:  40 CFR 261.3 - Definition of Hazardous Waste.]  Compared to those laws and regs, the U.S. Constitution is a second-grader's textbook...it's longwinded in parts, but it's very plainly written.  If you can read and have any common sense at all, you can "interpret" it.

As I said in my previous post, I think most people know that the Game is rigged, and so, they figure the whole situation is probably hopeless.  That's true only if we continue to rely on "voting" to save us, and that's because about 99% of all national political candidates (Republicans and Democrats) are chosen, groomed, and financed by the Oligarchy. There are other peaceful ways to bring about significant change.  First, though, we have to stop drinking the Propaganda Kool Aid...part of that Kool Aid is the lie that Republican and Democrat policy-makers are significantly different.

Partly just my opinion.
Happy Trails

Congratulations

Someone in DC finally stated the obvious.  "Washington is not working for hardworking Middle Class families."  ~ Senator Elizabeth Warren.  It's significant that Warren, a Democrat, did not say, "Republicans are not working for...".  Her statement was totally nonpartisan.  She also went on to say, "The system is rigged."...and, "The large banks are now 38% larger than they were before the Bailout."...and, "They have not been held to account."...and more.  Congratulations to us, the People...we finally have at least one honest, national politician.  I predict that she'll be smeared, or marginalized, or both.  I hope I'm wrong.

It should be glaringly apparent that "voting" (in the present corrupt system) is not going to save us.  Ever since I took a keen interest in American politics (in 1956, Mr. Benson's American Government Class, Highland Park High, Highland Park, Illinois), I've watched our Fed Gov't, our society, and our country proceed on a steady downhill slide.  During the time from then to now, there have been periods when the Republicans were in the majority in our Gov't, and times when the Democrats were in the majority, and even times when the power was more or less evenly split.  Throughout it all, the downhill slide remained fairly steady.  Corruption grew, the Fed Gov't threw off its Constitutional restraints, the rich became the super-rich, poverty grew, the Middle Class continued to shrink, the Fed Gov't expanded and became more intrusive, unconstitutional wars became the norm, and politics became more and more about money.  It didn't matter whether Republicans or Democrats held the majority power.

On average, only about 50% (sometimes as high as 60%) of eligible voters actually bother to vote in any USA national election.  Before I became a nonvoter, I thought such people were lazy, or didn't care, etc.  For some time now, I've believed that the paragraphs above describe the real reason for people not voting.  The Game is rigged.  James Madison once stated something to the effect that there will come a time when our Republic will be in grave danger because wealth will be concentrated in the pockets of the very few.  We're in that era now.  He went on to say that it will be up to the People to change our laws if we are to remain a free, prosperous country.  Glenn Greenwald (a former Constitutional attorney and now a dissident independent journalist), Noam Chomsky, and others have explained very clearly how The Law is used to rig the Game.  [See YouTube.]

Who writes our laws?  Many, if not most, Legislative Bills are written by lobbyists...and then hawked to Representatives and Senators.  [A cabal of Fat-Cat Bankers wrote the Bill that became the Fed Reserve Act.]  Who determines Fed Gov't policies?  Let's take Hank Paulson as an example...net worth in 2012, over $700 million.  He came from Goldman Sachs (the world's largest investment bank)...he was the Head Honcho, salary---$40 million per year.  Both Dubya Bush and Obama had him as Secretary of the Treasury.  [Apparently the concept of a conflict of interest no longer exists in DC.  Just because he liquidated his Goldman Sachs assets doesn't mean he had zero conflict of interest.  By the way, because of an obscure tax loophole for the rich, he was able to avoid $200 million in capital gains taxes on those assets by going to work for the Feds...in case you're wondering why he would go from a salary of $40 million to one of $183,000 & change.]  During the financial crisis of 2008, "Too Big to Fail", Paulson tells Congress that we have to give billions to the big banks, including of course, Goldman Sachs.  He said our entire economic system would collapse otherwise...a complete fairy tale.  Bernanke and Paulson also decided that about $13 TRILLION in loans must be made available to the Big Banks...at POINT 25 (.25) % interest.  That whole scenario was the greatest heist in American history.  The legislative "reforms" since then are nothing but window dressing.  "Voting" will not solve this problem...at least, not until the system is unrigged.

So, what's to be done?  There are many good, peaceful options...none of them include the present bought-and-paid-for Republicans and Democrats.  [There are very, very few exceptions to that statement.]  That means the very first step is to stop drinking the Propaganda Kool Aid.  Until that happens, there's no point at all in even discussing the options.

Partly just my opinion.
Happy Trails

Throw Out the Constitution...

because ignoring it has the same effect.
One thing is glaringly obvious regarding the discussion about Syria & the authority to attack: no politician in DC and no one in the Corporate Media has said much of anything (perhaps nothing) about the Constitution. Instead, we hear about "precedents", the War Powers Act, Humanitarian imperatives, etc. There's a very good reason for that. Nowhere in the SUPREME Law of the Land is power delegated to the Fed Gov't to attack a country that is no threat to the USA and has not attacked us. If I'm wrong about that, I'd like to see anyone in the Gov't or anyone in the Corporate Media point out exactly where that power is enumerated in the Constitution.

I'm not asking commenters on various public forums to show me the constitutional authority... because my experience with comments there the last few days has shown me that (if those forums are representative samples of Americans' constitutional knowledge) most Americans nowadays know almost nothing about how this Republic is supposed to operate legally.

Someone needs to tell "Bomb-Bomb-Iran" McCain that the War Powers Act, along with every other LAW, does NOT supercede the Constitution. If Laws trumped the SUPREME Law of the Land, there would be no point at all in having a Constitution. For decades, the puppets in DC have ignored the Constitution at will. Not long ago, I saw a clip on YouTube in which a Congressman (can't remember his name) said to an interviewer, "Half of what we do is unconstitutional. What's the big deal?". That pretty much says it for politicians.

The Supreme Law of the Land is crystal clear on the permitted uses of the military, there are only three...1. To execute the laws of the land (as in the case of the Whiskey Rebellion in the mid-1790s). 2. To repel invasions. 3. To quell insurrections. [Numbers 1 & 3 appear to be so similar that in the last 50 years I've usually said there are only two permitted uses.] People sometimes retort that this is modern-day America; all that old stuff is completely out-of-date. Perhaps so; that's why there are two mechanisms for updating the Constitution---the Amendment process and the Constitutional Convention. Both were purposely designed to be cumbersome...changing the Supreme Law of the Land should not be easy.  For a time, the DC puppets did use the Amendment process to update the Supreme Law, but then they quit. It was easier to pass laws. They gambled that the American public would not know the difference; apparently, they won.  I guess it never occurred to the Founders that We the People would allow our servant government to ignore the Constitution.

The Commander-in-Chief is constrained by the permitted uses of the military enumerated in the Constitution. I've been appalled to read or sometimes hear people say something like: The Constitution doesn't prohibit the President (or anyone in Gov't) from doing thus-&-such; therefore he/she/they can do it. We are a Gov't of Enumerated Powers [Google it]; the enumeration of things that the Gov't can do IS the prohibition. Creating a comprehensive list of prohibitions would be impossible---the list would be endless. [Isn't American Government taught in schools anymore?]

President Obama claims to be a constitutional scholar; I see no evidence of that at all. Or, if he is one, then he's deceiving the public. Again, I challenge ANYONE in Gov't or the Media to show me legitimate, constitutional authority for attacking Syria...constitutional authority. Anyone in Gov't or the Corporate Media.  [I'm not naive enough to expect a response.]   I like Woody Allen's old joke:  I feel much better now that I've given up hope.  :)

Syria and Our Constitution

Here we go again. Read the Constitution---there are only two uses of the military permitted: 1. to repel invasions; 2. to quell insurrections. To get around that, Presidents have been relying on the War Powers Act to use our military pretty much whenever they see fit. The trouble is...laws do NOT supercede the Constitution. Using our military as the world's police force, no matter how justified, is unconstitutional. There is no legitimate authority for that use.  Yes, what's happening in Syria is an obscenity, but that has nothing whatsoever to do with constitutional use of the military.

An Amendment is required to change the situation, but politicians just pass laws instead. [It's easier to do that than to get 3/4ths of the States to ratify a new Amendment.] That's called "Legislative Absolutism", a term coined by Justice Harlan in 1901; it means passing laws with no regard for the limitations placed upon the Feds by the Constitution.

Let's not forget that Hitler, Mussolini, Stalin, Pinochet, & others all had "laws" in place to justify their actions, too. The Constitution is the Supreme Law of the Land. Change it if you must, but do not simply ignore it. Changing it must be done by amendment or a constitutional convention; no other ways are permitted in our system of government. None.

As always...just my opinion...after ~ 50 years of serious study of the U.S. Constitution, probably the most plainly written document ever put forth by a government.