Gun Control

The founding fathers clearly secured the right of “We the People” to bear arms in defense of himself or the State, as an absolute right and that no law can “be passed to infringe upon or impair it because it is above the law, and independent of lawmaking.” The globalists who seek a tyrannous world government under their elite control have slowly eroded this platform and are trying to repeal the 2nd amendment using false flags, lies, and propaganda to brainwash the masses that it is a necessity to reduce gun violence. Dr. John Lott of the Crime Prevention Center has the stats to prove that (1) more guns equals less crime and less guns equals more crime; (2) expanding background checks doesn’t cut down on gun violence; (3) how gun free zones leave innocent Americans vulnerable, thus making them prime targets for mass shooters; (4) how the federal government and the institutional left are funding bogus health studies to undercut our Second Amendment rights; (5) why women concealed carry holders are surging; and (6) how the media is a total disaster when it comes to gun laws and the lexicon within the firearms industry that could prevent egregious mistakes in reporting gun crimes.

The 2nd Amendment (from FreedomOutpost)

Dan Zimmerman wrote an article on September 5, 2014, titled, The Second Amendment, the Founders and Original Intent. His article begins as shown below.

“Madison clearly states what a militia is and what its purpose is; to counter the federal government. The anti-gun folks pretend this and other documents don’t exist. They wish.

No free man shall ever be debarred the use of arms. -Thomas Jefferson, proposal to the Virginia Constitution.

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of troops, that can be, on any pretense, raised in the United States” -Noah Webster, 1787

Liberal propaganda aside, it’s very clear what the authors of the Second Amendment meant by “well regulated” They meant all those who could carry arms, organized when needed, to fight a corrupt federal government. So…who needs a select fire M-4 carbine? Every citizen who’s able to bear arms. That was the intent.”

Pay close attention to the last paragraph which shows that the intent was to ensure that the PEOPLE have a right to arm themselves with any weapon they had a right to buy. This includes the semi-automatic arms. It should be noted that before the government ruled that machine guns had to have a special license to obtain, machine guns were legal. It is the government that has made the decision that the Second Amendment does not mean what the Founding Fathers meant it to be. Why does the government want to remove guns from the citizens? We only have to go back in time to see just what happens when government removes all the weapons from the people.

“The right of a citizen to keep and bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the state government. It is one of the “High Powers” delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it because it is above the law, and independent of lawmaking.” Cockrum v State, 24Tex394 (1859)

We see a case that makes the statement about rights that are showing without a doubt that, “The right of a citizen to keep and bear arms, in a lawful defense of himself or the state, is absolute. He does not derive it from the state government.”

This clearly shows that the right to bear arms is above the Second Amendment and cannot be violated. Yet, our government has slowly destroyed this platform and one has to wonder just what the government is doing. One also has to wonder just what is the end platform the government is looking for by attempting to destroy all the Second Amendment rights “WE THE PEOPLE” have?

We have seen the government in some instances go after our First Amendment rights so now they are viciously attacking our Second Amendment rights. “WE THE PEOPLE” have to pay attention to what is going on because if the Second Amendment is removed, “WE THE PEOPLE” have no way to keep the government removing other freedoms and beginning to control every facet of our lives. At that point, the term “WE THE PEOPLE” will lose all meaning due to the fact that the government will have control over nearly everything we do, think, or say. Let that sink in.

Let us look at some more of the ideas of the Second Amendment.

In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was “in the process of adoption by the State legislatures.”

The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to “life, liberty, and property,” to “keep and bear arms,” to the “writ of habeas corpus” to “trial by jury,” and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.

Farrar, Timothy (1872). Manual of the Constitution of the United States of America. Little, Brown. Retrieved July 6,2013. § 34. The people of the United States, in making their Constitution, do not create or confer on themselves any new rights, but they expressly reserve all the rights they then held, except what were delegated for their own benefit; and they particularly and expressly recognize and perpetuate many natural and civil common-law rights, which, of course, are placed beyond the reach of any subordinate government, and even of their own. Among these are the following : 1. The right to be, what they call themselves, ‘the people of the United States,’ citizens, and component members of the body politic, – the nation; and to participate in all the privileges, immunities, and benefits the Constitution was designed to obtain or secure for all the American people, especially the right to be protected and governed according to the provisions of the Constitution. 2. A right to the privileges and immunities of citizens in any of the several States. Among these is the fundamental and elementary right of suffrage. The Representatives to the national and State legislatures must be chosen by the people, the citizens (Section 2). Consequently, the citizens must choose them, and have a right to choose them. Am. 14, § 2. 3. A right to the common-law writ of habeas corpus, to protect the other common-law right, as well as natural and constitutional right, of personal liberty. 4. A right to trial by jury in any criminal case. 5. A right to keep and bear arms. 6. A right to life, liberty, and property, unless deprived by due process of law. 7. A right to just compensation for private property legally taken for public use. 8. A right to participate in all rights retained by, or reserved to, the people. Most of these rights, with many others, belong by the Constitution not only to the citizens, – the people of the United States, strictly so called, by reason of the franchise of natural birth or otherwise, – but also to all persons who may be allowed to be and remain under the jurisdiction and protection of our government. These are a part only of the rights held by every member of the nation, under and by virtue of the Constitution of the United States, independent of any other earthly power, and which, of course, ‘cannot be destroyed or abridged by the laws of any particular State.’ Who, then, in the United States is destitute of rights?…The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to ‘life, liberty, and property,’ to ‘keep and bear arms,’ to the ‘writ of habeas corpus’ to ‘trial by jury,’ and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.

Given all the words from those who designed and wrote our Second Amendment, it would indicate that the idea to ensure the “People” have a right to own any arm that they wish was their intention.

Tom Clancy may well have stated it best about gun ownership.

“Switzerland is a land where crime is virtually unknown, yet most Swiss males are required by law to keep in their homes what amounts to a portable, personal machine gun.” –Tom Clancy

We need to look at what a patriot of the United States said to realize that the men who wrote the Constitution knew some bad people would try to take the guns.

“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of people are armed, and constitute a force superior to any body of regular troops that can be, on any pretense, raised in the United States.” – Noah Webster

So, given the idea of the Democrats (or globalists) who wish to disarm “WE THE PEOPLE,” are the Democrats about to create a standing army?  We have to ask this because to disarm the citizens is to make the government the one to enslave us all because we have no way to defend ourselves from any criminal which would have guns no matter how illegal it would be.

False Flags, Lies and Propaganda

A study of the numerous mass shootings that have taken place at schools and elsewhere will show that the official stories of these mass shootings don’t add up. Many point to involvement by the FBI or other agencies full of rogue agents and corrupt directors. The globalists are trying to manufacture reasons to regulate and confiscate guns, and along with the propaganda news networks like CNN, Americans are falsely being convinced that gun control is the answer.

Gun control propaganda worked in the UK after a mind-controlled individual killed 16 small children and their teacher in Dunblane, Scotland on March 13, 1996. About 10 months later, parliamentary laws were passed that said that possessing a gun in the UK meant 10 years in prison. Legislation was passed even faster in Australia when a gunman armed with an assault rifle killed 35 and wounded 19 in a massacre in Tasmania, Australia on March 28, 1996-just two weeks after the Dunblane shootings. (Coincidence that these two massacres occurred in quick succession of each other? Hardly.)

Dr. John Lott is the go-to expert when it comes to crime data and Second Amendment rights. His studies from the Crime Prevention Center have been cited in numerous pieces, including ones published on Townhall, about the Left’s incessant, and often ridiculous, efforts to strip Americans of their Second Amendment rights. His studies have proven that contrary to what the anti-gun Left says about concealed carry holders, they’re actually more law-abiding than law enforcement. It proved to be useful data when the Violence Policy Center, an anti-gun outfit, decided to push the narrative that concealed carry holders were killers by fudging the data between convictions and trials pending. The VPC combined the two to cook the books. As any lawyer would know, there’s an explicit difference between a conviction and a pending trial. He’s also taken a stab at the whole myth about background checks, which isn’t the magic bullet to creating safer communities.

“I would ask gun control advocates one question:  name a single place in the entire world where murder rates fell after gun control laws were passed.”

Two decades have passed since More Guns, Less Crime was released in 1998, immediately remaking the gun rights debate landscape.  Not a single antagonist has refuted his empirical conclusion that more firearms result in reduced crime. Lott, who brought an economist’s empiricism to a debate saturated in passion but short on probative data, proposed “a critical review of the existing evidence on gun control and crime.”  Accordingly, he asked:  “Does allowing people to own or carry guns deter violent crime, or does it simply cause more citizens to harm each other?” Lott’s objective conclusion was controversial in 1998, less so today.

Based upon broad data sources and examination of FBI annual crime figures for all 3,054 American counties spanning sixteen years, he found that waiting periods, gun buybacks and background checks “yield virtually no benefits in crime reduction.”  In contrast, Lott observed that “of all the methods studied so far by economists, the carrying of concealed handguns appears to be the most cost-effective method for reducing crime.”

Addressed by the third edition was the federal “assault weapons” legislation, which took effect in 1994 but terminated in 2004.  Gun control advocates predicted an explosion in murder and violent crime when the ban expired, but rates actually declined substantively.  As Lott noted, “rarely do we get a chance to look at the impact of gun laws when they are first passed and then when they are eliminated.

As noted above, Dr. Lott has not encountered a single jurisdiction in the entire world where imposing gun control laws triggered a decline in murder rates. The bottom line today, just as was true in 1998, is that “the very rules that seek to save lives can result in more deaths.”  Dr. Lott has thus provided an invaluable service to America and the world audience generally. Years of experience and mountains of data confirm the empirical truth – more guns in the hands of law-abiding citizens mean less crime.

In Oregon, Christopher Harper-Mercer was able to kill nine people at Umpqua Community College in Roseburg. Oregon has a universal background check law for all gun purchases. Yet, Lott took this talking point to task in 2013, when Congress was mulling a universal background check bill by Sens. Pat Toomey (R-PA) and Joe Manchin (D-WV) post-Newtown. For starters, the media was blitzing the scene, rehashing the 40 percent myth—the false claim that 40 percent of all gun sales are performed without a background check—and delved into the realm of private purchases. Lott noted that the 40 percent myth is based on very old data, with a sample size that isn’t worth considering for any serious academic review. Also, the sales in the 251-person survey from which the 40 percent myth is derived were based on sales before the Brady bill mandated background checks on gun sales. Second, most private sales where background checks aren’t performed are mostly relegated to family purchases and fall within the low single digits overall. Other than that, there’s really no hard data on private sales.

When it comes to the gun control debate, there are two kinds of data: data that’s accurate, and data that left-wing billionaires, politicians, and media want you to believe is accurate. In The War on Guns, economist and gun rights advocate John Lott turns a skeptical eye to well-funded anti-gun studies and stories that perpetuate false statistics to frighten Americans into giving up their guns.

Yet, for everything that Dr. Lott has done in various publications and studies over the years, he’s now compiled in one simple book: The War on Guns: Arming Yourself Against Gun Control Lies. It’s one massive triggering event for any pro-gun control liberal. It details how expanding background checks doesn’t cut down on gun violence; how gun free zones leave innocent Americans vulnerable, thus making them prime targets for mass shooters; how the federal government and the institutional left are funding bogus health studies to undercut our Second Amendment rights; why women concealed carry holders are surging; and how the media is a total disaster when it comes to gun laws and the lexicon within the firearms industry that could prevent egregious mistakes in reporting gun crimes. For example, how many times have you heard a news organization demonize semiautomatic weapons, which are really quite readily available for civilian use? In fact, the vast majority of gun owners in America probably own a semiautomatic firearm.

Here are some excerpts from his book relating to the media spin and the failure of gun registries, which is one of the main courses served by anti-gun liberals as some way to help make communities safer. In actuality, it sends the message that gun owners are criminals in waiting, and that to exercise one’s right to own a gun requires them to submit their personal information to the government. It’s atrocious:

The Media Spin

The media not only ignores positive examples of defensive gun use; news reports about the scientific side of the gun control debate are just as unbalanced. Coverage generally focuses on interviewing pro-gun control academics and questioning a gun shop owner or an NRA spokesperson for the other side of the argument. Of course, the New York Times will never run a news article on studies that find that guns save lives. Even when they write about studies supporting gun control, newspapers choose only to present comments by academics who support gun control. These articles give the impression that objective, qualified scientists are concerned about using gun control to save lives, while those with a profit or some other ulterior motive are willing to say anything to keep selling these lethal weapons. One of my books, The Bias Against Guns (2003), went through example after example of these one-sided reports in the media.

Unfortunately, little has changed. In January 2016, CNN ran a lengthy news story on studies that found gun control to be effective in preventing suicides. It wasn’t just my academic research that reporters ignored on this topic; there was also no mention of the National Research Council’s research showing that suicidal individuals had merely “substituted other methods of suicide.” Nor did the studies mentioned by CNN give any consideration to research which found that firearm suicides are not so much the product of higher gun ownership as factors related to rural areas (e.g., older men in rural areas are more likely to commit suicide because of the large male-to-female imbalance). (Also see this article)

Consider a December 2015 Deseret News article on how to curb mass shootings. The only academics interviewed were gun control advocates, namely Garen Wintemute of the UC-Davis Violence Prevention Research Program and Mark Rosenberg of the Task for Global Health. The only opposing perspective came from National Rifle Association spokeswoman Catherine Mortensen. Likewise, a January 2016 story in the New York Times on Obama’s new proposed gun control regulations balanced discussions with a pro-gun control professor and Bloomberg’s Everytown with some federally licensed gun dealers and gun owners.

[…]

Registration Failures

Whether in Canada, Hawaii, Chicago, or Washington, D.C., police are unable to point to a single instance of gun registration aiding the investigation of a violent crime. In a 2013 deposition, D.C. Police Chief Cathy Lanier said that the department could not “recall any specific instance where registration records were used to determine who committed a crime.”

The idea behind a registry is that guns left at a crime scene can be used to trace back to the criminals. Unfortunately, guns are very rarely left at the scene of the crime. Those that are left behind are virtually never registered—criminals are not stupid enough to leave behind guns registered to them. In the few cases where registered guns were left at the scene, the criminal had usually been killed or seriously injured.

Canada keeps some of the most thorough data on gun registration. From 2003 to 2009, a weapon was identified in fewer than a third of the country’s 1,314 firearm homicides. Of these identified weapons, only about a quarter were registered. Roughly half of these registered guns were registered to someone other than the person accused of the homicide. In just sixty-two cases—4.7 percent of all firearm homicides—was the gun identified as being registered to the accused. Since most Canadian homicides are not committed with a gun, these sixty-two cases correspond to only about 1 percent of all homicides. [End excerpt]

We must always be vigilant. Hawaii became the first state to require its gun-owning residents to be entered into a federal database. California keeps adding more anti-gun measures on its books as well. Lott’s book serves as a how-to guide in fighting these pernicious narratives that seek to undercut one of our most vital civil liberties. At the same time, liberal Democrats, especially Obama, have been the best sales team for guns over the past eight years, with over 100 million sold since 2009. We’ve seen gun sales break records consistently for months, as talk of new gun control measures from the Hill send law-abiding Americans flocking to their local FFL. Now, everyone has the ultimate guide to knowing facts about guns, the laws, the studies, and the politics to fight these left wing narratives about firearms wherever they may appear. Support for gun rights is at its highest point in 25 years, but you can never let your guard down against those who keep pushing these lies about the Second Amendment—looking at you Hillary Clinton.

From: https://townhall.com/tipsheet/mattvespa/2016/09/23/the-war-on-guns-your-guide-in-fighting-false-media-narratives-and-antisecond-amendment-rhetoric-n2222885

See also: 5 Facts Proving “They’re Coming for your Guns” is not a Conspiracy Theory

Chronological History of Gun Control

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Due Process

In short, it means that people must be treated fairly in the legal system. The Fifth and Fourteenth Amendments to the Constitution each have a Due Process Clause. The Fifth Amendment Due Process Clause prohibited the federal government from depriving any person of “life, liberty, or property without due process of law.” The Fourteenth Amendment extended that prohibition to the states. The Due Process Clause applies to any legally identifiable entity such as a person, an organization, a state or a corporation, meaning that all of these entities can expect to be protected from arbitrary government actions against them. It also applies to all phases of a criminal proceeding starting with any pre-trial activities such as arrests, interrogations or depositions and goes through to the actual process of the trial and available appeals.

This means that the government must strictly obey written laws regarding each of these procedures. Officials cannot just create the rules as they go or handle situations with criminal suspects however they choose. If they violate the written laws, they could be punished by law and any evidence found or judgment made against the suspect could be thrown out as an illegitimate violation of his rights.

The Supreme Court has held that the Due Process Clauses ban government procedures the justices deem unfair. Thus the Court has said that the Due Process Clause of the Fourteenth Amendment requires states to allow an accused person to have a defense attorney, to allow an accused person to respond to accusations, and so forth. Legal scholars say that such cases are examples of “procedural due process.”

The basic idea  as represented in the Due Process Clause finds its roots in the English document Magna Carta of 1215. This document first codified that the monarch must obey written laws or be punished by his subjects. Article 39 of Magna Carta says:

“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

Magna Carta was revised several times over the years. In a 1354 edition, the phrase “due process of law” was used for the first time. The 1354 edition put it this way:

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

The idea presented in both of these clauses, and repeated by the Founding Fathers in the Bill of Rights’ Fifth Amendment, is that the government can only punish a person based on written laws. If the government officials were allowed to act according to their own will and make up any decisions they wanted, they could put people in prison who disagreed with them, or punish them in other ways.

This is how monarchies existed throughout all of history, until the concept of written constitutions came along. Monarchs could make up rules at will and no one would even know he was violating the monarch’s will until he was pulled into court or thrown in prison. The monarch’s will was absolute. With the development of written constitutions, this arbitrary and capricious punishing of people was greatly reduced and people were treated more fairly.

Due Process Clause in the United States

In the thirteen colonies, the terms “law of the land” and “due process” were pretty much used interchangeably. They referred to the fact that officials could only take away people’s rights, goods, lands, life or freedom according to written and established laws. In short, the accused must be granted what is “due” him, meaning his right to have a fair legal process and not an arbitrary one created on the spot by the whims of the officials involved.

The principles embodied in the Due Process Clause were widely held by the time the 5th Amendment was added to the Constitution in the Bill of Rights. By this time, eight states already had due process clauses in their constitutions. As the states debated whether or not to ratify the Constitution, many people spoke out against it saying it did not protect individual rights strongly enough.

Members of the Anti-Federalist Party were persuaded to accept the Constitution on the condition that a Bill of Rights would be added to it in the First Congress. A Bill of Rights is a list of specifically defined rights that are guaranteed to the people. Consequently, many states sent Congress a list of suggested amendments to add into the Bill of Rights. You can read more about the Bill of Rights’ purpose here.

The state of New York sent a proposed amendment dealing with the addition of a due process clause. New York’s proposed amendment was worded like this:

“No Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.”

James Madison studied the various proposed amendments by the states and boiled them down to about twenty specific amendments that were the most widely accepted. On June 8, 1789, during the first session of the First Congress, he made a speech proposing the amendments to the Constitution. You can read Madison’s complete June 8, 1789 speech here.

Madison reworded New York’s proposal slightly in his proposed Due Process Clause. Remarkably, the Congress accepted this clause verbatim in Madison’s own words. Nearly every other part of his proposals were debated and altered, some more than others. The fact that they didn’t alter this one is probably an indication of how widely its principles were held. The Bill of Rights, including the 5th Amendment’s Due Process Clause, was adopted by the States and formally became law on December 15, 1791.

Due Process Clause in everyday life

The Due Process Clause of the Fifth Amendment applies only to the Federal government. The entire Bill of Rights was a restriction upon actions of the federal government, not on state governments. So, originally, states could make laws regarding the various rights listed in the Bill of Rights, such as freedom of religionfreedom of speech and due process.

After the Civil War, the 14th Amendment was added to the Constitution, which included a Due Process Clause that was aimed specifically at the States. The intention of Congress was to prevent Southern States from discriminating against former slaves. In other words, former slaves were entitled to their due process of the law by virtue of their citizenship. You can read the 14th Amendment to the US Constitution here.

Eventually, through various Supreme Court decisions, almost all of the provisions in the Bill of Rights were incorporated against the states by using the 14th Amendment’s Due Process Clause. This has led to a huge power shift from elected bodies to the judiciary. It is much more common today for unelected judges to make substantial decisions that affect millions of Americans than it was in the first 150 years of American history. You can read more about this issue of power being shifted from the elected legislatures to the Courts by reading our 9th Amendment article here.

Due Process Clause – Two types of due process

The Supreme Court has basically drawn out two distinctive types of due process from the Due Process Clause. They are procedural due process and substantive due process.

Procedural due process

Procedural due process refers to the actual process of legal proceedings. This means that parts of the process of enforcing the law such as arrests, interrogating suspects, informing defendants of the charges against them, jury selection, etc. all must be done according to certain written laws that are fair and clear.

Procedural due process dictates that if you are to be a part of any legal proceeding, you must be informed of the time, date and place that meetings are to take place. You must also be informed of any relevant information, such as charges against you, or paperwork that must be completed, so you can adequately prepare yourself. It wouldn’t be fair for you to be tried in court and not find out what the charges were until the day of the trial! Procedural due process applies not just to legal actions of the government, but to administrative functions as well. Anytime you interact with the government, the officials must follow written and fair procedures.

Procedural due process also requires that each side is able to fully present his side of things, whether that is a complaint or a defense, or any other relevant information. The sides must also be able to present their information in front of an impartial judge or jury who will listen fairly to each side. Accused people also have a procedural due process right to confront their accuser.

Substantive due process

Substantive due process is a considerably different idea than procedural due processProcedural due process refers to fair legal proceedings. Substantive due process refers to the actual content of the laws themselves. If the “substance” of the law itself is judged to be unconstitutional, then substantive due process has been violated.

Substantive due process has been used by the Court to allow abortion, for example. The Court decided, rightly or wrongly, that there is protection for a woman’s right to have an abortion if she wants to in the Constitution, even though it is not specifically mentioned there.

There are some rights specifically spelled out in the Constitution. Everyone agrees that there is an innumerable list of other rights which are to be protected, even though they are not listed. This is the clear meaning of the Ninth Amendment, which reserves all rights not specifically given to the Federal government in the Constitution, to the States.

Generally everyone agrees that unlisted rights are to be protected, but not everyone agrees who is to determine what those rights are. Many people believe this choice was given to the state legislatures to define whether or not something is an unlisted right. Some believe that this is the Supreme Court’s job. The Supreme Court does this through use of substantive due process. If the Court believes that a law passed by the government is not fair or somehow violates someone’s rights, then they throw the law out.

Due Process Clause – It cuts both ways

So which is right? Should state legislatures or the Supreme Court decide which unlisted rights are protected and which aren’t? Probably for every individual, some decisions would be made that they are in favor of and some against, no matter which made the decision.

In other words, if the States make these decisions, some of their decisions will go your way, but some won’t. If the Court makes the decision, some of them will go your way, and others won’t.

Some people with morally conservative views for example, believe the Supreme Court should not have allowed abortions. They think this was properly left to the states to decide. So this decision goes against their opinion. On the other hand, the same legislatures passed laws in many states requiring children to go to public schools. Many morally conservative people want to send their children to religious schools, or to home school them. The same Supreme Court that declared state laws banning abortions illegal, also declared the state laws requiring that children go to public school illegal. This means that parents can send their children to religious schools or home school them if they want to.

So some things will go for you and some against you, no matter who is making the final decision, but which would you prefer to make these decisions? You be the judge, is it right for 9 unelected people to make decisions for millions of people about what they can or can’t do, or is it better to have a group of several dozen or a hundred or more citizens from your own state make these decisions? Which body will more closely represent your values, your state legislature, or the Supreme Court? What if the majority wants a particular law, but the Supreme Court says NO. These are some questions to think about.

Due Process Clause – What are “life, liberty and property?”

The Supreme Court has gained an enormous amount of power in the daily lives of Americans. It has done this by expanding the list of “rights” it finds in the Constitution. One way the Court has created more and more unlisted rights that it thinks should be protected is by defining “life, liberty, or property” in broader and broader terms. For the first 150 years of this nation, these ideas were defined by fairly narrow, understandable and straightforward definitions.

But in the last 50-60 years, especially with the period of government expansion that began with the New Deal reform programs, the ideas “life, liberty, or property” have come to be defined as “any interest whose loss would be grievous” as one commentator put it!

Basically the gigantic expansion of government since the New Deal began has given rise to the idea that certain government services are “rights” that people deserve. Such things as welfare checks, unemployment checks and drivers licenses fall into this category. Before, these things were looked at as privileges, not as rights.

The Court has found a right to privacy, a right to abortion and a right to same sex relations through its ever expanding “life, liberty, or property” definition. It should also be noted that even though the Court has used the Due Process Clause to greatly increase its power in the last several decades, all of the Court’s justices have not agreed with the principle of substantive due process. Current Justices Scalia and Thomas have been outspoken against this principle.

Likewise, Justice Byron White said in his Bowers vs. Hardwick opinion:

“Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.”

In United States v. Windsor, for example, the Court relied (apparently — the decision isn’t entirely clear) on the Fifth Amendment Due Process Clause to invalidate a federal law that provided that for federal (not state) purposes, “marriage” was limited to one man and one woman. In Obergefell v. Hodges, it held that the Fourteenth Amendment Due Process Clause invalidated similar state laws.

Is this what the Founders had in mind when they included “due process” in the Fifth Amendment in 1791?

In sum, the Fifth Amendment Due Process Clause was designed only to protect against prejudicial manipulation of legal rules against citizens prosecuted by the federal government. It was an important component of the Bill of Rights, but it was only a component. It was not a balloon that judges could blow to any size they wished.

What of the Fourteenth Amendment’s Due Process Clause — the one that constricts state rather than federal power? The issue here is more difficult. Some researchers who concede that the Fifth Amendment Due Process Clause was narrow nevertheless maintain that by 1868 Americans had a broader understanding of “due process” than did the Founders. They would give the term different meanings according to where it appears in the Constitution. This is not as strange as it may seem: In a few other instances a term appearing in different parts of the document can have different meanings.

My initial review of the cases cited to show an expansion of due process between 1791 and 1868 found that all or nearly all fit within the earlier definition — they were mostly responses to unfair retroactivity. However, I have not studied the question thoroughly, and therefore cannot offer an authoritative opinion on whether Fourteenth Amendment Due Process really is broader than Fifth Amendment Due Process.

* Some translations render the “or” as “and.” That is a mistranslation of the Latin conjunction vel.

Source: AmericanThinker; Revolutionary-War-and-Beyond

Chronological History of Events Related to Due Process

Ross Ulbricht was Railroaded for Non-Violent Crimes he Likely did not Commit and Sentenced to Double Life in Prison + 40yrs

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Case Overview Ross Ulbricht was arrested on October 1, 2013 in San Francisco, based on the accusation that he created and operated the anonymous online marketplace Silk Road under the pseudonym Dread Pirate Roberts (DPR). The Silk Road website was an open market with few restrictions and permitted vendors to sell drugs and other illegal goods as well as legal ones, including art, books, raw milk and clothing.  ...
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Operation Choke Point: Obama Administration Uses FDIC Intimidation on Unfavorable Businesses

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Operation Choke Point: Eric Holder’s Department of Justice conducted Operation Choke Point by using informal guidance language to manipulate the FDIC into intimidating banks and third-party payment processors to drop services to whole categories of businesses the Obama administration disfavors, such as online arms and ammunition sellers, gold and silver dealers, tobacconists, and payday lenders.  Nonprofits like the Center for Responsible Lending and Americans for Financial ...
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Obama ordered the CIA to murder Anwar al-Awlaki with Drone Strike

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Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico, with a drone strike. When the CIA’s drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with ...
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The Military Commissions Act, HR-6166, Terminates the Fundamental Protections of Individual Liberty Under the Guise of Security from Terrorism

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The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush. The Act, in effect, terminated the fundamental protections of individual liberty, which are found in the US Constitution and Bill of Rights. For all intents and purposes, the Patriot Act and Military Commissions Act eviscerated the 4th and 5th Amendments, and do serious injury to several ...
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The Palmer Raids Biggest Raid

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Americans woke up to discover just how little their own government regarded the cherished Bill of Rights. During the night, some 4,000 of their fellow citizens were rounded up and jailed for what amounted, in most cases, to no good reason at all and no due process, either. Welcome to the story of the Palmer Raids, named for their instigator, Attorney General A. Mitchell Palmer. Though largely ...
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Natural Law

On July 4, 1776, the United States of America, in declaring their independence, invoked “the Laws of Nature and of Nature’s God,” proclaimed that men are “endowed by their Creator” with unalienable rights, appealed to “the Supreme Judge of the world,” and concluded by expressing their reliance on “Divine Providence.”1  There can be no doubt that those delegates in Philadelphia who adopted that Declaration believed in, and, based the nation’s independence on, the Natural Law; that is, that God, in creating the universe, implanted in the nature of man a body of Law to which all human beings are subject, which is superior to all manmade law, and which is knowable by human reason.2 The classical-traditional thinkers (Sophocles, Aristotle, Cicero, St. Thomas Aquinas, and Francisco de Vitoria) knew and declared that God is the author and source of the Natural Law, and that human reason is the faculty by which the Law established by God is made accessible to man.

Eleven years later, another group of delegates, representatives of the States, assembled in the same hall in Philadelphia, this time with the eminently practical task of creating a new structure of government for the United States, one that would establish “a more perfect union.”[3] That document, written in 1787, was ratified by the several States; [4] and entered into effect in 1789 as the Constitution of the United States of America.

Since the Constitution was designed to be a practical-juridical document for the operation of a more effective government, one should not expect to find there the ringing statements of principle that characterize the Declaration of Independence,[5] and, indeed, no such philosophical statements are present. But several important characteristics of the Constitution—indeed its most important characteristics—are clear and admirable applications of the Natural Law.

Before examining those characteristics of the Constitution, it is important to emphasize that the Natural Law as understood by the Founding Fathers of the Constitution was the Natural Law that for two millennia had been a traditional and essential element of Western Civilization; that is, Natural law as understood and explained by, for example, Sophocles, Aristotle, Cicero, St. Thomas Aquinas, and Francisco de Vitoria.[6] It was the Founders’ traditional understanding of Natural Law, rather than the various “Enlightenment” versions, that was most influential in the thinking that characterizes the United States Constitution.

The fundamental difference between the classical-traditional understanding of the Natural Law and that of the Enlightenment is that the classical-traditional thinkers knew and declared that God is the author and source of the Natural Law, and that human reason is the faculty by which the Law established by God is made accessible to man, while the philosophers of the Enlightenment (who inspired the French Revolution) rejected God as the author of the Natural Law, or diminished His significance, and elevated human reason, or its variants, such as the general will or a legislative majority, to the position of supremacy. In the words of one historian, the Enlightenment philosophers “deified nature and denatured God.”[7] These differences can produce, and in fact have produced dramatic differences in the activities of the governments of the nations of the world.[8]

The most influential Founders of the United States Constitution saw God as the source of the supreme rules of law and government, and applied the Natural Law in their work in the 1787 Constitutional Convention. Let us examine the thinking of the four most influential delegates at the Convention.

James Madison, of Virginia, considered the “Father of the Constitution,” wrote, two years before the Philadelphia Convention, of the duty that man owes to God:

This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor the Universe.[9]

Alexander Hamilton, of New York, wrote in 1775 that God:

has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature…. Upon this law depend the natural rights of mankind. The sacred lights of mankind … are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be erased or obscured by mortal power…. No tribunal, no codes, no systems, can repeal or impair this law of God, for by his eternal law, it is inherent in the nature of things.[10]

James Wilson, of Pennsylvania, considered by everyone to have been the second or third most influential delegate at the Constitutional Convention, not only affirmed the traditional, Divinely based understanding of the Natural Law, but indeed, refuted and rejected the Enlightenment ideas that utilized that same name. He wrote:

That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles….  There is only one source of superiority and obligation. God is our creator: in him we live, and move, and have our being; from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority…. The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having the foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.

This law, or right reason, as Cicero calls it, … is, indeed, … a true law, conformable to nature, diffused among all men, unchangeable, eternal.[11]

George Washington, delegate from Virginia, President of the Constitutional Convention, and the most respected man in the country, said very little during the debates in Philadelphia, but did express himself on other occasions. In his first year as President of the United States, he issued a Thanksgiving Proclamation that began this way:

… it is the duty of all Nations to acknowledge the providence of Almighty God, to be grateful for his benefits, and humbly to implore his protection and favor …. [12]

John Adams, another Founding Father of great importance, did not attend the Constitutional Convention, as he was at that time the United States Minister to the Court of St. James. However, as a coauthor of the Declaration of Independence, the drafter of the Massachusetts Constitution of 1780, and the leading American political thinker of the day, his prompt and unwavering support for the proposed new national Constitution was a significant factor in its ratification.[13] Adams, who regarded Cicero as the greatest of philosophers,[14] demonstrated an understanding of God, human nature, and government that is unmistakably that of a Natural Law thinker:

The moral government of God, and his vice regent, Conscience, ought to be sufficient to restrain men to obedience, to justice, and benevolence at all times and in all places; we must therefore descend from the dignity of our nature when we think of civil government at all. But the nature of mankind is one thing, and the reason of mankind another; and the first has the same relation to the last as the whole to a part. The passions and appetites are parts of human nature as well as [are] reason and the moral sense. In the institution of government it must be remembered that, although reason ought always to govern individuals, it certainly never did since the Fall, and never will till the Millennium; and human nature must be taken as it is, as it has been, and will be.[15]

Many lesser-known delegates at the Philadelphia Convention, such as John Dickinson[16] of Delaware, George Mason of Virginia, and Daniel Carroll[17] of Maryland, also expressed their adherence to the traditional concept of Natural Law.

It should be remembered that a large number of the delegates to the Constitutional Convention were educated in the law, and that most of those were in fact practicing lawyers.[18] At that time the most widely used lawbook, for students and practitioners in the United States as in England, was Blackstone’s Commentaries. In that most influential work, Blackstone says the following:

This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life….[19]

Indeed, the relationship between traditional Natural Law and the English Common Law was so close and profound that the latter was understood to be but the practical application of the former. This relationship is evident in the opinion of one of England’s most renowned jurists, Lord Edward Coke, in the famous Dr. Bonham’s Case in 1610:

And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void …. Because … [such statutes] would be against common right and reason, the common law adjudges the said Act of Parliament as to that point void …. [20]

Similarly, another of England’s most respected judges, Lord William Mansfield, asserted in 1744 that a statute “can seldom take in all cases, therefore the common law that works itself pure by rules drawn from the fountain of justice is for that reason superior to an Act of Parliament.”[21]

This understanding of the Common Law as applied Natural Law was shared by lawyers in the United States before and after independence. The Twentieth Century Harvard historian Henry Steele Commager begins his chapter on “The Evolution of American Law” by stating (disapprovingly) that:

Americans inherited their law as they inherited their language and their political institutions…. Resourceful and ingenious in politics, Americans were content in the legal field to abide by familiar formulas…. In the realm of private law Americans took over the common law, and in the realm of public law the natural law…. This strength and persistence of natural law is one of the most arresting phenomena in American intellectual history.[22]

A more friendly Harvard scholar, United States Supreme Court Justice Joseph Story, whose Commentaries on the Constitution of the United States, first published in 1833, has long been a classic, says:

The common law is our birthright, and inheritance, and … our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.[23]

In the words of the historian Gordon Wood:

what is truly extraordinary about the [American] Revolution is that few Americans ever felt the need to repudiate their English heritage for the sake of nature or of what ought to be. In their minds natural law and English history were allied. Whatever the universality with which they clothed their rights, those rights remained the common-law rights embedded in the English past, justified not simply by their having existed from time immemorial but by their being as well, “the acknowledged rights of human nature.”[24]

Most of the Founding Fathers were, of course, familiar with the natural law writings of Enlightenment-era thinkers, especially John Locke; however, this familiarity does not undermine the fact that the dominant philosophical influence upon the Founders was that of classical-traditional Natural Law. In this regard, two facts are important: First of all, Locke’s writings (unlike those of many others of his time) are sufficiently supportive of classical-traditional Natural Law theory, that there is no necessary conflict between the two. Consider, for example, the following:

the law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must…be comformable to the law of Nature—i.e., to the will of God, of which that is a declaration, and the fundamental law of Nature being the preservation of mankind, no human sanction can be good or valid against it.[25]

Second, even if one concludes that the totality of Locke’s writings on “natural law” bring him closer to his Enlightenment contemporaries than to his classical-traditional predecessors, it is the consensus of historians that in the United States, Enlightenment thought, including that of Locke, was so tempered by its immersion in the older and larger classical tradition, that it did not operate in opposition to traditional Natural Law. In the words of the historian Sidney Ahlstrom, in the United States “the wines of the Enlightenment were sipped with cautious moderation.”[26]

How, then, are the Natural Law understandings of the Founders reflected in the Constitution? Most importantly, in three interrelated ways:

First, in the establishment of limited government;

Second, in the establishment and recognition of subsidiarity; and

Third, in the guaranteeing of traditional rights, and only as against government.

I

Limited Government. The Natural Law tradition, as enunciated by its leading exponents and affirmed by Hamilton, Wilson, Madison, and other American founders, holds that the state, and human law, are by nature limited; that is to say, there are things that government may not do. St. Thomas Aquinas’s distinction between just and unjust laws is a clear theoretical exposition of this principle,[27] and Francisco de Vitoria’s discussion of the limits of Spanish imperial authority in the New World is a forceful, practical application of the same principle.[28]

The Enlightenment thinkers, either by rejecting God, or by excluding Him from any continuing role in the governance of creation, eliminated any principled limitation on the state and government. Human reason ceased to be the faculty by which the law of nature was made known to humans; reason became instead—almost always in some collectivized form, such as “the General Will” or “the Nation”—the ultimate source of law itself. The difference between the Enlightenment view, which prevailed in much of Continental Europe, and the American understanding is well described by James Bryce, jurist, historian, and British ambassador to Washington:

the Americans had no theory of the state, and felt no need for one, being content, like the English, to base their constitutional ideas upon law and history. . . . To those nations [of the European continent] the state is a great moral power, the totality of the wisdom and conscience and force of the people, yet greater far than the sum of the individuals who compose the people…. [For the Americans] … [t]he state is nothing but a name for the legislative and administrative machinery whereby certain business of the inhabitants is dispatched. It has no more conscience, or moral mission, or title to awe and respect, than a commercial company….

There are laws of nature governing mankind as well as the material world; and man will thrive better under these laws than under those which he makes for himself through the organization we call government.[29]

With equal perception, Professor Randolph Adams says:

the natural rights school, to which our Revolutionary thinkers belong, could not think in terms of absolute, unlimited power anywhere outside of the deity, because the natural rights, themselves, were things which limited the powers of governments and states.[30]

The Constitution drafted in Philadelphia reflects this principle by establishing a national government of enumerated powers. The powers of each branch of the national government are specified, with the necessary implication that all powers not thereby granted, are denied. Article I begins by stating:

All legislative powers herein granted shall be vested in a Congress of the United States…. [31]

It does not say that “all legislative powers shall be vested” in the Congress, but only those legislative powers granted by the Constitution shall be so vested.

Article II begins with the words, “The executive Power shall be vested in a President of the United States of America,” but Article II then proceeds to specify the President’s powers, thereby limiting executive authority.[32]

Article III, establishing the national judiciary, states that “The Judicial Power [of the United States] shall extend to” certain specified categories of “cases and controversies,”[33] thereby limiting that branch of government as well.

Another manifestation of the principle of limited government is found in the separation of powers and system of checks and balances within the national government. Either Hamilton or Madison—it is not known for certain which of them—advocating the ratification of the Constitution, said:

the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition … the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.[34]

Thus, for example, the national government is divided into three branches: legislative, executive, and judicial;[35] the legislative branch is, in turn, divided into two chambers;[36] the President has a qualified veto of bills passed by Congress;[37] and the President and the Senate both participate in the appointment of federal judges, cabinet members, and other principal officers of the federal government, and in the making of treaties.[38]

II

Subsidiarity. The second Natural Law principle embedded in the Constitution is the principle of subsidiarity; that is, the principle that government should perform only those tasks not better performed by the family or by private associations;[39] and that, when it is appropriate for government to intervene, governmental authority should be exercised by the smallest, most local unit of government capable of effectively performing the task in question.[40] The Natural Law basis of this principle is explained by Professor John Finnis in his treatise on the moral, political, and legal theory of St. Thomas Aquinas:

Prior to or independently of any politically organized community, there can exist individuals and families and indeed groups of neighboring families. . . . The family, essentially husband, wife, and children, is antecedent to, and more necessary than, political society…. What is it that solitary individuals, families, and groups of families, inevitably cannot do well? … [I]ndividuals and families cannot well secure and maintain the elements which make up the public good of justice and peace … And so their instantiation of basic goods is less secure and full than it can be if public justice and peace are maintained by law and other specifically political institutions and activities, in a way that no individual or private group can appropriately undertake or match.[41]

The American understanding of subsidiarity in political affairs is succinctly stated by that perceptive British observer, Lord Bryce:

Where any function can be equally well discharged by a central or by a local body, it ought by preference to be entrusted to the local body, for a central administration is more likely to be tyrannical, inefficient, and impure than one which, being on a small scale, is more fully within the knowledge of the citizens and more sensitive to their opinions.[42]

The early constitutional history of the United States was indeed a series of exercises in applied subsidiarity. The colonial period was characterized by the proliferation of local government units throughout the colonies, and by their increasing importance and autonomy.

The Cornell historian and political scientist Clinton Rossiter, in his masterful study of America before 1776, concludes:

In general, the central governments of the colonies exercised even less control over local institutions than did the mother country over the colonies. Self-government was doubly the rule in colonial America….

Although colonial assemblies passed many laws dealing with the organization and powers of the towns, these units were in fact quite independent of central control. More important, they were self- governing in the most obvious sense—through the famous town meeting, the selectmen, and a host of unpaid minor officials: constables, tithing men, surveyors, fence-viewers, field-drivers, haywards, notice-givers, assessors, pound-keepers, corders of wood, leather-sealers, overseers of the poor, “hog constables,” cutters of fish, and “comities” for almost every conceivable purpose, all chosen from and by the citizenry.[43]

When the United States declared independence in 1776, their sole organ of national government, the Continental Congress, promptly began work on a constitutional document for the nation. That document, the Articles of Confederation, was approved by the Congress in 1777, and entered into effect four years later, when Maryland became the last state to ratify them. The Articles established subsidiarity in the following terms:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.[44]

It soon became apparent that the limitations imposed by the Articles on the national government were too severe, particularly in that it lacked power to regulate interstate commerce or to impose direct taxes. At the behest of several States and prominent individuals, the Congress called on the States to send delegates to a convention to be held in Philadelphia, the purpose of which would be to recommend amendments to the Articles of Confederation, amendments that would, it was hoped, enable the national government to deal effectively with the interstate commercial rivalries and economic discrimination that then plagued the nation. As is well known, the delegates in Philadelphia did not propose (or even discuss) amendment of the Articles, but rather drafted an entirely new document, the Constitution.

While the Constitution did create a national government more powerful than that under the Articles of Confederation, the new arrangement continued to be based on the principle of subsidiarity. The debates in Philadelphia demonstrate that the overriding concern of the delegates was the proper allocation of governmental authority between the national government and the States, and the debates that followed in the States over ratification almost always centered on whether the proposed new government would have too much power (leaving the States and the people too little). Almost no one argued that the national government should be given more power than the proposed Constitution allowed.[45]

The Constitution, by enumerating the powers of the various branches of the national government (see discussion hereinabove), established by clear implication the principle that all governmental powers not given to the national (or federal) government by the Constitution, belonged to the respective States.

In arguing for the ratification of the Constitution, James Madison emphasized this principle:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.[46]

To remove any doubt, the principle of subsidiarity, as implied in the original constitutional text, was made explicit in the Tenth Amendment, adopted in 1791:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.[47]

The Tenth Amendment thus acknowledges both political subsidiarity—by recognizing that powers are reserved to the States—and subsidiarity in its larger sense—by recognizing that there are powers that do not belong to government at all, but rather are reserved to the people, individually or in voluntary association.[48]

III

Guarantees of Rights. The original text of the Constitution contains few explicit declarations of rights.[49] At the Philadelphia Convention, several delegates had proposed that the document include a charter of rights, but the proposal was unanimously rejected.[50] The principal reason for the rejection was the belief, explained by Hamilton in The Federalist, that the new national government under the Constitution, although it would be more powerful than the government under the Articles, would nevertheless still lack authority to engage in activities that could threaten traditional rights and that, indeed, an enumeration of rights would be counterproductive in that it would support an inference that the national government had more authority than was actually given to it by the Constitution.[51] During the ratification debates in the States, however, it became evident that much of the opposition to the Constitution was based on fear that the new national government would indeed possess the wherewithal to become oppressive, and that a bill of rights was therefore necessary. As a result, a tacit compromise was reached whereby, if the Constitution were to be ratified, it would be amended to include guarantees of traditional rights.[52]

The Constitution was ratified by the States, and entered into effect in 1789. The Congress, in its first session, proposed a series of twelve amendments, ten of which were promptly ratified, and have long been known collectively as the Bill of Rights.[53]

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[54]

It is significant that the First Amendment does not pretend to create the freedoms and rights referred to; quite the contrary. The language of the Amendment clearly implies that these freedoms and rights have existed prior to and independent of their mention in the Constitution, and that the reason—the only reason—for including them in the Constitution is to make certain that the new national government will not violate them. Contrast the phrasing of the First Amendment—and the other Bill of Rights guarantees which read like it—with declarations of rights framed in the Enlightenment style and proclaimed in the wake of the French Revolution.

The French Declaration of the Rights of Man and of the Citizen, adopted in 1789, includes the following provisions:

The principle of sovereignty resides essentially in the Nation. No body and no individual may exercise authority which does not derive expressly therefrom….[55]

The law is an expression of the general will….[56]

. . . Those who solicit, promote, execute or cause to be executed arbitrary orders must be punished; but every citizen summoned or apprehended by virtue of the law must obey instantly; he renders himself culpable by resistance.[57]

The first Latin American constitution, the Venezuelan Constitution of 1811, was strongly influenced by Enlightenment and French Revolutionary ideas. Its chapter on the “Rights of Man …” begins:

Men, after being constituted in society, have renounced that unlimited liberty and license, appropriate only to a state of savagery, to which their passions had so easily led them. The establishment of society presupposes the renunciation of those doleful rights, the acquisition of others more sweet and pacific, and subjection to certain mutual duties ….[58]

The social contract assures to each individual the enjoyment and possession of his goods, without injury of the right of others with respect to theirs….[59]

A society of men meeting under the same laws, customs, and Governments forms a sovereignty…. [60]

The sovereignty of a country, or the supreme power to regulate or direct equitably the interests of the community, resides, thus, essentially and originally in the general mass of its inhabitants and is exercised through their agents or representatives ….[61]

Law is the free expression of the general will of the majority of the citizens, made by the organ of their legally constituted representatives….[62]

The Venezuelan Constitution specifies that the basic rights of man are liberty, equality, property and security, and proceeds to define each.[63]

This same state-centered approach to rights is reflected in the supraconstitutional European Convention on Human Rights, which was concluded in 1950 and remains in effect today:

Everyone has the right to freedom of thought, conscience and religion; this right includes….[64]

Everyone has the right to freedom of expression. This right shall include….[65]

All of these declarations of rights—and there are many others like them throughout the world—despite their sweeping (not to say grandiose) language, contain a telling, indeed ominous, qualification: expressly or by implication, they cast the State as the dispenser, regulator, and indeed, the source of the rights proclaimed. In the U. S. Bill of Rights, on the other hand, the freedoms are treated as having their immediate source in the Common Law tradition, and their ultimate origin in the nature of man, that is, in the Natural Law. The role of government is but to respect and protect those freedoms.

This acknowledgement of the nature, origin, and practical significance of constitutional rights, exemplified importantly by the First Amendment, is confirmed by the last two articles of the Bill of Rights, the Ninth and Tenth Amendments. The Ninth Amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to disparage others retained by the people.[66]

The Tenth Amendment, set forth hereinabove, merits repetition:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[67]

There continues to be debate over the substantive content of the Ninth Amendment,[68] and some would deny to the Tenth Amendment any juridically significant substance at all.[69] However, these Amendments acknowledge and mean, at least, that fundamental rights do not owe their existence or exercise to the state or to any government; rather, they are derived immediately from the Common Law tradition, and ultimately from the Natural Law.

The language of the Bill of Rights places its guarantees in an historical context, a Common Law-traditional Natural Law context that gives content and definition to the rights referred to. What has already been said herein about the First Amendment is true of the rest of the Bill of Rights as well.

The juridical relevance of the fact that our Bill of Rights is grounded in the Natural Law is explained by United States Court of Appeals Judge Diarmuid O’Scannlain in his brilliant article, “The Natural Law in the American Tradition.”[70] Judge O’Scannlain, after explaining his position (with which this writer agrees) that judges have no freestanding authority to enforce the Natural Law,[71] refers to the Second Amendment to the Constitution and to the United States Supreme Court’s 2008 decision in District of Columbia v. Heller,[72] interpreting that Amendment.

The Second Amendment says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.[73]

The Heller case involved a challenge by a resident of the District of Columbia to a District ordinance that prohibited the possession of usable handguns, even in the possessor’s own home. The District of Columbia argued that the Second Amendment did not protect the litigant Heller, or any other individual, but guaranteed only the right of governments to maintain “militias” (or their modern-day equivalents, the state National Guards), and perhaps the rights of militiamen when in such service. As O’Scannlain notes, the Supreme Court “launched into an extended discussion of the natural right to bear arms, as it was understood during the one hundred years leading up to the enactment of the Constitution.”[74] The Court, utilizing historical, natural rights analysis, concluded, inter alia, that the Second Amendment’s “right to keep and bear arms” referred to a natural right of the individual to bear arms for self-defense, and not just to a collective right connected to militia service. The analytical approach utilized in Heller and praised by O’Scannlain is, or should be, applicable to our many other constitutional rights that are rooted in traditional Natural Law.[75]

The Natural Law has long recognized explicitly that “the social nature of man is not completely fulfilled [by or] in the state, but is realized by various intermediary groups, beginning with the family and including economic, social, political, and cultural groups which stem from human nature itself and have their own autonomy.”[76] This principle, discussed hereinabove with respect to subsidiarity, deserves mention again with respect to the structure of rights guarantees in the United States Constitution. With a single exception, the rights protected by the Constitution are guarantees only as against government, federal or state.[77] In other words, the United States Constitution (unlike many other constitutions) does not purport to regulate purely private conduct. Recall, for example, that the First Amendment states that “Congress shall make no law … abridging” the rights referred to therein.[78] The remainder of the Bill of Rights prohibits conduct that is, by its nature, necessarily governmental. This commonsense (and Natural Law) approach to rights is continued in that other great repository of constitutional rights, the Fourteenth Amendment, which was adopted in the aftermath of the Civil War. Its protection of the “privileges and immunities” of citizens, and its guarantees of “due process of law” and “the equal protection of the laws,” are framed as limitations upon the States of the Union. The relevant language is:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[79]

These rights guarantees confirm that the Constitution is not meant to regulate all of society, neither does it attempt to guarantee everything that might be considered desirable. The classical and medieval exponents of the Natural Law understood that, given the limitations and imperfections of human nature, “the [human] law should not try to prescribe every virtue and forbid every vice,”[80] and the Founding Fathers and their nineteenth century successors understood that as well.[81] Thus, the Constitution, in protecting rights, does not seek to deprive the family and private intermediate institutions of their natural, legitimate freedom of action; rather, the Constitution recognizes that the state should not attempt to control all of society, or try to meet all societal needs, or subordinate all other groups to governmental domination. The family, churches, labor unions, political parties, business enterprises, and schools and universities have a right to exist and to operate independent of government.

In drafting and promoting a Constitution of limited government, of subsidiarity both in governmental and in larger societal matters, and of restraint in the imposition of obligations, the Founders did not explicitly declare that they were applying classical Natural Law principles.[82] Such a declaration would have been both inappropriate and unnecessary.[83] But anyone who doubts the overwhelming influence of the Natural Law should read the best known of the Federalist Papers No. 10, written in 1787 by James Madison, “The Father of the Constitution,” in urging the ratification of the Constitution by the State of New York.

Federalist No. 10 reveals a classical Natural Law understanding of the nature of man and of government. Man is neither depraved nor angelic, but fallen-capable of good but subject to temptation. The state and government are natural institutions, not artificial creations. Government exists neither to perfect man (which it cannot do) nor to repress him (which it should not do), but rather to pursue the limited goal of promoting the common good by acting or refraining from acting, as the situation may require, always in accordance with its own nature and the nature of man.[84]

In juridical circles, the Natural Law has been under attack for more than a century, not just in the United States, but throughout the Western World. Those attacks have made it easier for activist courts and weak or misguided legislators and administrators to reject or ignore the Natural Law foundations of Western Civilization and of the United States Constitution,[85] and to adopt programs that deny the inherent dignity and essential equality of every human being, that weaken the family,[86] that distort education,[87] that seek to make all groups and organizations in society subservient to the state,[88] and that even deny legal protection to the weakest and most innocent among us.[89] There is considerable irony in the fact that as government seeks to control more and more of society, it simultaneously abdicates its original and most important duty: to protect the most basic right—the right to life—of innocent people. On the other hand, it should not be surprising that when a human legal system loses sight of its proper place in the eternal order of things, disastrous disorder is the result.

With respect to many of these excesses, then-Justice Byron White of the United States Supreme Court, in an opinion written in 1986, observed:

The Court is most vulnerable and comes closest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.[90]

Justice White was correct. It should be added that a renewed awareness of the Natural Law and of its foundational role in the making of the United States Constitution would be of enormous benefit to the United States and to the world.


Footnotes 

Source: https://www.visionandvalues.org/barker/

See also:

WATCH: Passio 9 Hr. Presentation on Natural Law

Chronological History of Events Related to Natural Law

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Free Speech

It  is the right of a person to articulate opinions and ideas without interference, retaliation or punishment from the government. In this context, the term “speech” is not limited to spoken words; it also includes symbolic speech, such as what a person wears, reads, performs, protests and more. Freedom of speech is strongly protected by the First Amendment of the US Constitution, as well as many state and federal laws. The USA has some of the strongest free-speech protections in the world, and they help form the bedrock of our constitutional republic. The First Amendment protects even speech that many would see as offensive or hateful. Violent speech, threats of unlawful violence or death, obscenity, defamation, graffiti, and actions such as cross burning on private property are NOT protected as free speech. Free speech is not only a fundamental right, but, as James Madison said, the “effectual guardian of every other right.” Free speech enables citizens to advocate for all their other civil rights and is the single most powerful bulwark against government tyranny.

Broadly speaking, the First Amendment protects all types of speech, but exceptions do exist. Types of speech that are not protected by the First Amendment include the following:

  • Incitements of violence or lawless action: There is no right to incite people to break the law, including to commit acts of violence. For an action to constitute incitement, the Supreme Court of the United States has determined that there must be a substantial likelihood of imminent illegal activity, and the speech must be directed to causing imminent illegal activity. For example, a speaker on campus who exhorts the audience to engage in acts of vandalism and destruction of property is not protected by the First Amendment if there is a substantial likelihood of imminent illegal activity.
  • Fighting words: Speech that is personally or individually abusive and is likely to incite imminent physical retaliation.
  • True threats: Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker does not have to act on his or her words (e.g., commit a violent act) in order to communicate a true threat. For example, if a group of students yelled at a student in a menacing way that would cause the student to fear a physical assault, such speech would not be protected.
  • Obscenity: Speech or materials may be deemed obscene (and therefore unprotected) if the speech meets the following (extremely high) threshold: It (1) appeals to the “prurient” interest in sex, (2) is patently offensive by community standards and (3) lacks literary, scientific or artistic value.
  • Defamation: An intentional and false statement about an individual that is publicly communicated in written (called “libel”) or spoken (called “slander”) form, causing injury to the individual.
  • Harassment: Conduct based on a protected category that is so severe, pervasive and objectively offensive, and that so undermines and detracts from the victim’s educational experience, that the victim is effectively denied equal access to an institution’s resources and opportunities.
  • False advertising: A knowingly untruthful or misleading statement about a product or service.
  • Certain symbolic actions: But only if the actions are otherwise illegal, such as tagging, graffiti, littering or burning a cross on private property.
  • Child pornography
  • Interference with medical treatment: Speech that interferes with the treatment of patients.
  • Invasion of privacy: An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.
  • Material and substantial disruption: An action that materially and substantially disrupts the functioning of the university or that substantially interferes with the protected free expression rights of others.

Historically, the Supreme Court has defined these terms very narrowly, limiting the authority of the government and public officials to prohibit or prosecute speech, even if it appears to fall into one of these categories.

The term “hate speech” is often misunderstood. Hate speech is not a separate category of speech under the law. The term refers to speech that insults or demeans a person or group of people on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability or gender. Justice William Brennan wrote in the Supreme Court’s decision in Texas v. Johnson (1989):

“If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”

More recently, Chief Justice John Roberts wrote in Snyder v. Phelps (2011):

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Hate speech is only unprotected if it falls into one of the categories described above (e.g., “fighting words” or “true threats”). Although this may be difficult to understand or accept, even speech that is hateful or offensive is still likely protected by the First Amendment. However, just because there is a First Amendment right to say something, that doesn’t mean it should be said. In addition, the First Amendment does not protect actions just because they are motivated by an individual’s beliefs or opinions. Therefore, even though hate speech is protected by the First Amendment, “hate crimes” may be prosecuted to the full extent of the law.

The courts have held that burning the American flag is protected speech (Texas v. Johnson (1989)), and so is wearing armbands to protest a war (Tinker v. Des Moines Independent Community School District (1969)). However, the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property. Examples might include hanging a noose above a dorm room door or spray-painting swastikas on the library wall.

“Hate speech” and “political correctness” are essentially an attempt to muzzle free speech and introduce thought control (see  “Cultural Marxism and the Birth of Modern Thought Crime” by Claudio Grass for an in-depth discussion of the topic). It also has the uncanny power to transform normally intelligent people into gibbering idiots and pansies (“Reality is a Formidable Enemy” provides  a few striking examples).

Hate speech laws are going in all around the world, and progressive activists in the United States want to use these kinds of laws to destroy free speech in America. You see, the truth is that these hate speech laws that are being implemented all over the planet are not just about preventing speech that promotes violence or genocide against a particular group of people.  Instead, these laws are written in such a way that anyone that says something that “offends” or “insults” someone else is guilty of “hate speech”.  Even if you never intended to offend anyone and you had no idea that your words were insulting, in some countries you can be detained without bail and sentenced to years in prison for such speech.

Today, there are highly restrictive hate speech laws in Canada, in Mexico and in virtually every single European nation.  The United States is still an exception, but the truth is that our liberties and freedoms are being eroded every single day, and it is only a matter of time until “hate speech laws” are used to take away our freedom of speech too. If you don’t think that this could ever happen in America, you should consider what the American Bar Association has to say on the matter.  This is the national organization that represents all of our lawyers, judges, etc.  So when the ABA speaks on legal matters, it carries a significant amount of weight.  The following is how the American Bar Association defines “hate speech”

Hate speech is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.

Those that do not believe that this could ever possibly happen in “the land of the free” should consider what has already happened in our neighbor to the north

Anyone who is offended by something you have said or written can make a complaint to the Human Rights Commissions and Tribunals. In Canada, these organizations police speech, penalizing citizens for any expression deemed in opposition to particular sexual behaviors or protected groups identified under ‘sexual orientation.’ It takes only one complaint against a person to be brought before the tribunal, costing the defendant tens of thousands of dollars in legal fees. The commissions have the power to enter private residences and remove all items pertinent to their investigations, checking for hate speech.

Of course the same kind of thing is already happening over in Europe as well.  For instance, one Christian pastor in Northern Ireland is being prosecuted for calling Islam “a doctrine spawned in hell”

An evangelical pastor in Northern Ireland is under fire and will be prosecuted after calling Islam “satanic” and claiming that its doctrine was “spawned in hell” during a controversial 2014 sermon that streamed over the Internet.

Pastor James McConnell, 78, of Whitewell Metropolitan Tabernacle in Belfast, Northern Ireland, made his comments — which included calling Islam “heathen” — in a sermon delivered last May, the BBC reported.

“The Muslim religion was created many hundreds of years after Christ. Muhammad, the Islam Prophet, was born around the year A.D. 570, but Muslims believe that Islam is the true religion,” he preached. “Now, people say there are good Muslims in Britain. That may be so, but I don’t trust them.”

McConnell continued, “Islam’s ideas about God, about humanity, about salvation are vastly different from the teaching of the holy scriptures. Islam is heathen. Islam is satanic. Islam is a doctrine spawned in hell.”

Once such laws are in place in the United States, it won’t be difficult for the government to find you if you are committing “hate speech”.  As I have written about repeatedly, the U.S. government already monitors virtually everything that is said and done on the Internet.  The following is an excerpt from an article that was recently authored by Micah Lee, Glenn Greenwald, and Morgan Marquis-Boire

The sheer quantity of communications that XKEYSCORE processes, filters and queries is stunning. Around the world, when a person gets online to do anything — write an email, post to a social network, browse the web or play a video game — there’s a decent chance that the Internet traffic her device sends and receives is getting collected and processed by one of XKEYSCORE’s hundreds of servers scattered across the globe.

In order to make sense of such a massive and steady flow of information, analysts working for the National Security Agency, as well as partner spy agencies, have written thousands of snippets of code to detect different types of traffic and extract useful information from each type, according to documents dating up to 2013. For example, the system automatically detects if a given piece of traffic is an email. If it is, the system tags if it’s from Yahoo or Gmail, if it contains an airline itinerary, if it’s encrypted with PGP, or if the sender’s language is set to Arabic, along with myriad other details.

Also, western governments are already using paid trolls to identify and combat “extremists” on social media websites such as YouTube, Facebook and Twitter. We are rapidly becoming a “Big Brother” society, and if we don’t stand up for our freedoms and liberties now, it is inevitable that we will eventually lose just about all of them.

President Trump’s signing of an executive order on 3/22/2019 that required colleges and universities to support free speech or face the loss of federal funding called needed attention to the serious problem of campus censorship. Free speech zones, speech codes, safe spaces, repressive speech fees, aggressive administrations and outright violence had become the norm for college campuses.

“Under the guise of speech codes, safe spaces and trigger warnings, these universities have tried to restrict free thought, impose total conformity and shut down the voices of great young Americans like those here today,” President Trump said.

According to the Foundation for Individual Rights in Education, 129 schools in the U.S. at the time of the EO had “at least one policy that both clearly and substantially restricts freedom of speech” and 282 schools had policies that “restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression.”

https://en.wikipedia.org/wiki/Freedom_of_speech_by_country

Chronological History of Events Related to Free Speech

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Amendment 14

Under the guise of granting citizenship to all persons, this unconstitutional amendment was one of three amendments passed during the Reconstruction era to abolish slavery and establish civil and legal rights for black Americans, it would become the basis for many landmark Supreme Court decisions over the years. It was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution nor to the President for his approval as required by Article I, Section 7. It was rejected by more than one-fourth of all the States then in the Union, and it was never ratified by three-fourths of all the States in the Union as required by Article V. It is one reason government is so powerful and we the people weak. From its inception it has diminished personal freedom, is the vanguard for Federal domination of private property, and the overpowering destruction of our congressional right for self-government at state and local levels. Read More…