Negative Liberties

“[T]here is no constitutional right to be protected by the state against being murdered by criminals or madmen.  It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution.  The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”  Bowers v. DeVito, 686 F.2d 616, 618 (1982).

The government of the United States is one of specific positive authority rather than implied power.  All else, every conceivable sovereignty not delegated to the United States by the Constitution, stays with the people:  every right retained, every power reserved.

Enlarging this broad liberty jurisdiction remains the whole point of America’s experimental system of self-government.

 

Flipped Out Law

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”  Mapp v. Ohio, 367 U.S. 643, 659 (1961)

The giving of lighter sentences in exchange for testimony against others exemplifies the corruption of our legal system.  The practice has established bribery as standard operating procedure in criminal prosecutions.  The federal bribery statute says that “Whoever directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness…shall be fined under this title or imprisoned for not more than two years, or both.” 18 U.S.C. § 201(c)(2).

Leniency is obviously a “thing of value” the trading of which for use against another person is wrong in principle whether a statute says so or not.  Prosecutors have been deemed exempt from this statute because “flipping” a suspect against another makes it easier to get a conviction.  As usual, what began for the sake of expediency has continued for the sake of power —— power to insulate the national state against interference from outside sources, including those elected by the people to run it.  It is another cog in a system of control over the people by the government, part of an ever-expanding mechanism unknown to the Constitution.

Sentimentally American: Inauguration Day 2017

Will the new President of the United States be sentimentally American?

What will it take for him to succeed?  Exactly what it took to be elected:  prefer the United States of America over other countries, other interests and other people.  But what once sounded easy is today problematic, as we see a new impediment about:  Americans who disfavor their own country and promote others against it.

“You see my kind of loyalty was loyalty to one’s country, not to its institutions or its office-holders.  The country is the real thing, the substantial thing, the eternal thing; it is the thing to watch over, and care for, and be loyal to; institutions are extraneous, they are its mere clothing, and clothing can wear out, become ragged, cease to be comfortable, cease to protect the body from winter, disease, and death.”  ∼ Mark Twain, A Connecticut Yankee in King Arthur’s Court 107 (Harper & Brothers Publishers 1917) (1889).

The formula for success is simple:  primary allegiance to the United States.  A sentimentally American President who governs as such would be deemed a success, because although that bar is pathetically low, it has not been cleared recently.

Our predicament gives a further call…

The state of the Union is deplorable, as the States and their people have come under the boot of the nation.  As we nationalize here at home, our common-law liberties are lost.  The national state (devoid of common-law rights) was never meant to predominate locally.  Its power resides abroad.

There is a solution:  constructive amendments to re-localize that predominance, to put domestic authority back where it belongs.

In the meantime ambiguous governance prevails, further socializing our “free economy” and simultaneously bringing all activity (whether economic or not) under the rule of money, defiling the history-bending advance of ordinary American law and the freedom associated with it.

Put Down the “Living Constitution”

…because it means law personified —— though we are a nation of laws, not of men.
…because it means a national society —— though the American people act through their States, never packaged as a whole.
…because it is ever-changing, unknowable —— a blank check and an invitation to tyranny.

Instead of a government with “no existence beyond the scope of its powers” and a system where the people have “set limits upon the extent and mode of law-making even by themselves,” we see the deformity of law incarnate and a “living constitution,” which returns us to the old age of an arbitrary sovereign.

“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general, and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded.”  South Carolina v. United States, 199 U.S. 437, 448-449 (1905).

The people of the United States, formerly a fellowship of Kings, have become, once more, mere subjects, in a place where sovereignty belongs to the United States but not to any of them, nor to their people, and the power of its rulers is limited only by their imagination.

Under the Boot

America’s federal democracy has had its say.  The test:  whether the people would come around, or tread on even more.

Pronounced dead, apparently the funeral got to be a little too much for the corpse —— condition upgraded to critical.

Nonetheless, witness how far and how fast the general decline, and wonder whether Americans are conscious and alert enough to grasp that the government has effectively created its own national society —— of the government, by the government, for the government, without a modicum of fidelity to the law of the land, smothered in money and fueled by a financial system that encourages national disloyalty, shopping the world for others more willing to serve it, choosing to import a new electorate rather than serve its own people —— a brooding national superstate founded by itself.

Diagnosis:  the country is alive and unwell.  Prognosis hopeful.

Election Result 2016: The Government Stands

“The Government Has Fallen” is not a phrase associated with election results in the United States.  In fact it’s never happened here.  It won’t happen this time, either, and that’s no accident, but another unusual aspect of the American system of government:  it is legally impossible to destroy the United States or any of them.

From time to time, governments elsewhere are “brought down” or “fall” because they are constituted electorally, and results may not provide the necessary ingredients to form a government.  For instance, an election may fail to produce a majority coalition, causing the technical destruction of the government, at least until new elections take place.

You’ve heard it reported before, from other parts:

“The government of Prime Minister fill-in-the-blank has fallen.
A referendum has been set to schedule new elections…”

That is the sound of a “national society” at work, lacking a permanent constitution, lurching from one vote to the next, no high law, no high rights, mere majority rule —— a nation of men, with everything up for grabs.

The United States are a different matter:

“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”  West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

The Constitution precludes a national electorate (the likes of which determines the privileges and obligations of its citizens, and may even alter or abolish the very government itself).  American elections are federal, not national.  As James Madison described in The Federalist No. 63, this means “the total exclusion of the people in their collective capacity” from any share in the system.  Ours is a permanent Constitution, laying out a government neither formed nor reorganized when we vote, a government that no election can derange.  Our government has never “fallen” because the people of the United States created “a nation of laws and not of men.”

“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”  Texas v. White, 74 U.S. 700, 725 (1868).

So who would build a “destructible” government?  Lots of people, apparently, unlikely as it may seem, as national societies exist the world over.  But they can be brought down, because national governments may fall…

…but not the United States.

Not Merely a Nation

There was a time when the American people really knew their United States. Now they hardly understand the meaning of the term, or the answer to the question…

How many United States are there?

The constitutional compromise between keeping totally independent States or consolidating them into one mere Nation had produced an American system of government having “no technical terms or phrases appropriate to it,” according to James Madison.  The Wizard of Oz called ours “the land of E Pluribus Unum,” which basically gets it right.  Poet Walt Whitman wrote about “not merely a nation but a teeming nation of nations.”  He had it figured out, too.

At last count there are fifty United States, though they act abroad as one nation vis–à–vis other nations­.

So are there fifty?  Or is there just one?

In a way there are two different United States, one federal and one national, a plural “union of States” here at home and a singular “nation of people” abroad.  But because “the Constitution of the United States as such does not extend beyond the limits of the States which are united by and under it,” the full force of its protection does not extend to the national state or its constituents.  C.C. Langdell, The Status of Our New Territories, 12 Harv. L. Rev. 365, 371 (1899).  As our States go, so goes our freedom.

“No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.”  McCulloch v. State, 17 U.S. 316, 403 (1819).

Unfortunately, even courts succumb to the vague notion that “things change,” so it makes sense to reinforce our States by constructive amendment rather than devolve into “one common mass” of rightless supplicants, dependent on grants of privilege and favor from­, and otherwise under the boot of­, a partisan national government.

Let’s face it, there are crackpots who imagine the United States were somehow coalesced into one comprehensive nation overall by the 14th amendment, by the power of money, or by the influence of technology and the march of time.

…but poetry and law agree:  the United States are “not merely a nation.”

Degrees of Perfection

In one sense perfection is an absolute, its definition uncompromising, by terms either with or without defect.  But it also means “finished” or “complete” and may be qualified, and this is how the word is used in the Constitution.

The phrase more perfect in the preamble expresses in a relative way our union’s place on a continuum, as James Madison noted during the constitutional convention:

“In a word; the two extremes before us are a perfect separation & a perfect incorporation, of the 13 States.  In the first case they would be independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law.”

Why form a more perfect union?  Why not an altogether perfect union?

That extreme would have meant consolidating all governmental power in one central authority, in a consummate national polity­ —— a “perfect incorporation” to include, of course, a national police state.  The founders rejected that setup in favor of an ideal division of powers between States and Nation resulting in a technically perfect system of American jurisprudence and the freest country in history.

Confessions of a Supreme Court

ABROAD FOR SOME TIME, THE SUPREME COURT RETURNS TO THE UNITED STATES

…but that was 1938, and unfortunately they didn’t stay long.

While home, they confessed that “the law to be applied in any case is the law of the State.”

They even admitted the obvious:  “There is no federal general common law.”

Maybe they’ll come home again some day, and write more like this.

“I am aware that what has been termed the general law of the country—which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject—has been often advanced in judicial opinions of this court to control a conflicting law of a State.  I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views.  And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine.  But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States…”  Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

The Shape of Things to Come

America’s founding generation confronted one of the problems we now face:  judicial misconstruction of the Constitution.  Soon after its passage, the Supreme court botched the case of Chisholm vs. Georgia, taking away from each State something that had not been surrendered, namely its sovereign immunity.

In short order the States got together and passed the 11th Amendment to correct the court’s misconstruction, or in other words to ensure that the controversial provision (Article III,  § 2) was henceforth construed correctly.  In this way, the Constitution was amended without really changing it in any way.

We face the same problem today.  The original text is not deficient, only its interpretation.  The principal culprits, the ones now botching it, also sit on the Supreme Court of the United States.  Their fundamental error is the same one made by the court in Chisholm vs. Georgia:  the failure to grasp that each State in the Union retains all powers not actually surrendered­ —— and moreover, that nothing “federal” takes place, that takes place solely within one State.

So presently we have a body of case law built up to give Congress power, under the interstate commerce clause, to legislate regarding matters that are neither interstate nor commercial.  The following amendment is designed to stop that:

The power of Congress to regulate commerce with foreign nations,
and among the several States,
shall not be construed to extend to commerce within the several States.

For good measure, and to buttress the foregoing, the following amendment suggests as well:

The power of Congress to lay and collect taxes on incomes
shall not extend to sources within the several States.

The problem is that Congress, power-hungry if not power-mad, continues to conflate its jurisdiction over certain matters into a compound authority over all.  As seen, this has been done by way of their power to regulate interstate commerce.  Now, outlandishly, it is even done under the taxing authority, with respect to matters that do not concern taxation.

To any who would assert, with a straight face, that the government of the United States indeed has plenary authority throughout the United States, one need only consider Article 1, § 8, clause 17 and Article IV, § 3, clause 2, to see that such authority exists expressly within the District of Columbia, Territories and Possessions:  in short, those areas of the United States where no State territory is involved.