Golden Nuggets from U. S. History
The Blue Quill Series
Senators: Individual rights from a tree house.
The Constitution was not written per se -- it evolved. During the 1787 convention, a committee was assigned to write a draft but after three months of additions and deletions the final document bore no resemblance to the original.
The founders who gathered in Philadelphia were chosen by their respective states because of the many years of experience and research they had put into the study of governments, laws, constitutions, confederations, and alliances. For example, signers for Virginia were Washington, Madison, and John Blair but Jefferson, Patrick Henry, and many others including Richard Henry Lee, Francis Lightfoot Lee, and George Wythe made significant contributions. From Massachusetts, Nathaniel Gorham and Rufus King were the only signers, but John Adams, Samuel Adams, John Hancock, and others provided input into the concepts embedded in the final document. Each delegate knew that the document would be worthless unless the states ratified it and they also knew that ratification would not happen unless the final document strongly preserved states rights. In other words, the states were considering relinquishing some powers to a central government for purposes of national security, standards for commerce between states and between nations, and foreign affairs. Some of the delegates (Alexander Hamilton of New York, John Adams of Massachusetts, and a few others) wanted to go beyond those provisions and form a more powerful central government, but they were unable to gain support.
Another way to view original intent: The founders perceived that there would a union of sovereign states which would collectively delegate certain powers to a central bureaucracy which would then act on behalf of the several states. The people would elect a member to represent them in the House of Representatives (at the time, about 1 member for each 30,000. Now, about 1 member per 650,000). The people would also elect their state representatives and state senators, and whichever state house had the most members would appoint two well qualified, highly experienced people from their state to serve in the U.S. Senate and provide dual services... Represent the state's interest within the federal government and keep a watchful eye on the acts of the federal government, including the House of Representatives.
To perfect the concept, the Constitution specifies that ALL laws to raise revenue for the general federal treasury MUST originate in the House of Representatives whose members have to stand for re-election every two years. This provision was made because, to a person, the founders despised ALL taxes and taxation. It was expected that the Senate OR House could originate any other bills including bills for the federal government to take on task which could not be achieved by states on their own, i.e., an interstate highway system. However, when the federal government took on one of these task it would provide for a funding mechanism specifying how the project would be funded, including possible payments from the states (not direct tax from individuals) to the federal government.
A good example of the concept at work prior to 1913 is the federal meat processing and inspection system. This federal law went into effect when Teddy Roosevelt was President (1901-1909) and under Teddy's initiative. He had to convince the states, through their senators, that the idea was worth while and the law was passed with the provisos that all meat SHIPPED ACROSS STATE LINES required a federal inspection stamp. The U.S. Senators, appointed by the state legislatures, made sure that the "original intent" of state sovereignty was part of the law. The inspections were funded by a license fee and tax placed on the meat processors. It was up to the states to decide if they wanted to regulate meat slaughtered and sold within their respective states. Therefore, if a citizen wanted to slaughter chickens and sell the product from a tree-house, that was a private decision and if there was to be any regulation, it was left to his community and his state.
With the ratification of Amendments XVI and XVII in 1913 that whole concept has been turned on its ear. Under FEDERAL laws enacted over the past few years ALL meat sold to the public MUST have a federal inspection stamp. Most people will applaud this, notwithstanding the fact that laws requiring state inspections could have been passed and states rights preserved. The passive public is happy that ALL meat must be inspected, never mind who passed the law. But there is a price which must be paid for this slow but steady transfer of power from states. If you want to slaughter chickens and sell them to your neighbors -- from a tree-house -- you cannot, unless you are very rich before you start the business. First, you need to provide for the federal inspections. But that is a small hurdle. Next, you must provide for access to your tree-house for ALL people with disabilities. It does not matter whether people with disabilities eat chicken or not... You must provide access to your tree-house. That's the federal law... No exceptions. Its called the Americans with Disabilities Act -- ADA -- and it is ubiquitous. To sell those chickens from the tree-house, you need to install an elevator or other mechanism to bring ANYONE, regardless of how severely handicapped, up to the tree-house AND you must provide them with a handicap toilet. If your only product is eye glasses, you must provide access to the blind. If you want to sell shoes, you must provide access to those without legs.
When congress held hearings prior to passing ADA, these stalwarts of democracy did their solemn duty... They collected testimony from two groups on the provisions of such a law... They invited the handicapped and those who are advocates for the handicapped (lawyers). This is good. But one group not heard from was the small business owner. Maybe its a good law... It stopped our neighbors from selling chickens from tree-houses, but it has severely limited the ability of an individual to start ANY retail business.
These new federal laws have spawned a whole new group of speciality lawyers because of the fines and penalties imposed for non-compliance. Lawyers filing these cases are paid a hefty percentage of the penalties. There are enforcement squads of advocates who roam the streets checking small businesses. Whenever a target is identified, a lawyer writes a letter to the business owner. This places the owner on notice and begins the run-up of penalties. There is no waiting or grace period. There is no room for dispute because many handicapped people have been recruited for these scams and they will testify that they could not access the establishment or amenities. The owner must pay up or the fines start and the penalties begin to compound.
The laws are so egregious and absolute that even the rich are now being hit by the scam artist. Congress, including senators DIRECTLY ELECTED who must pander to the general public, are afraid to modify the laws. The most notable person recently hit with the scam is Clint Eastwood, old Dirty Harry himself. Eastwood bought an old house in Monterey, CA, and began the process of renovation to open a restaurant. Soon after he opened, he was hit with a letter from a lawyer stating that the restaurant did not have a handicap toilet. Eastwood argued by letter that he was in compliance: He did have such a facility. This went on for several months. By the time he figured out what was going on, the lawyer had built a file against Eastwood that his business had been in violation of ADA for several months and that the daily fines with penalties now owed were close to $50,000. The lawyers entire case is based on the statement of one handicapped person who claims to have went into the restaurant and asked for directions to the handicap restroom. Supposedly, an employee -- who cannot be identified -- stated that they did not have handicap restrooms. Eastwood can prove that they did have such restrooms, but that is irrelevant... The handicapped claims that she was denied use of such facilities; that the restaurant was placed on notice; that Eastwood did not meet the legal requirements by timely responding to the notice with proof of compliance; and therefore, the restaurant is liable for daily fines and compounded penalties for the entire period.
The example above is only one of hundreds of federal laws passed over the past forty years which do not conform to original intent and spirit of the Constitution. The U.S. Congress began to pass such laws after it realized that liberal and active federal courts would not "read" the Constitution, but would instead, render decisions based on the courts' views of "public interest." [Franklin D. Roosevelt attempted to "stack" the Supreme Court by expanding the number of members because he fully intended to ask congress for laws which did not conform to the Constitution.] This mind-set evolved from the 1930's-40's as the country went through a great depression -- a period when public confidence in the effectiveness of the government was at an all-time low. During this period many laws were passed as emergency measures, which ordinarily would not have passed muster under the Constitution, but they stood the test because of the critical situation then in existence, AND because Senators no longer had an allegiance to state governments.
The Constitution contains several clauses which allow deviation from intent in national emergencies, such as Article I, Section 9, Clause 2, which reads: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Clearly, based on this clause, the government may declare that a rebellion exist and thereby suspend the right of habeas corpus. Following a declaration of rebellion, citizens could be detained (imprisoned) and held without bail, without a lawyer, and without a right to get a hearing before a court. This is the provision used by both Abraham Lincoln during the Civil War (holding Southern sympathizers in the North against their will) and Franklin D. Roosevelt during WW-II (Japanese-American internment camps) to detain thousands of Americans without due process, notwithstanding the fact that the situations did not come close to meeting the intent of the "suspension clause."
As for the principle of "due process," it was NOT embedded into the body of the Constitution. The principle existed in the English Bill of Rights which evolved from Magna Carta and the Petition of Right, and had been adopted by the Colonies (States) by the time the Constitution was written. Consequently, the idea of due process fell into that category covered by the implied construction of the Constitution that "The powers not delegated to the United States by the Constitution... are reserved to the states respectively, or to the people." However, contrary to the wishes of the delegates to the Constitutional Convention, some states would not ratify the new Constitution unless they were assured that certain rights would be enumerated. These assurances were made and, immediately after ratification, James Madison introduced twelve proposed amendments to congress. All twelve were approved by congress but only ten were ratified by the states and these ten became known as the Bill of Rights, or Amendments I through X. Part of the fifth amendment reads:
Money is property, as in the above "life, liberty, or property." Clint Eastwood's money is his property. Your money is your property. How then can the government TAKE money without due process? The last part above states that private property may not be taken "without just compensation," yet it is done every day. If you own a piece of property and the Environmental Protection Agency (EPA) declares it a "wet land" to be preserved for the public good, it has been "TAKEN," but you will not receive any compensation. If you own a piece of property and the EPA finds a mouse -- a bug, a flower, a weed -- on it that THEY have decided needs protection, you will be DEPRIVED of the use of your property BUT you will not be compensated. That is a TAKING.
In the old days, in the old countries, Kings had agents throughout their realms. These were sheriffs, tax collectors, magistrates, and other officials appointed by the King to implement his will. They were compensated by commissions allotted from the amounts they imposed and collected. The system led to wide spread abuse and tyranny, followed by a mass exodus to the new country -- America. When the Kings tried to extend this system to America, it led to a revolution. When the 17th Amendment was ratified, thereby eliminating the States' watchdogs (state appointed U.S. Senators) from the federal government, the only protection of state's and individual rights were also eliminated. Federal Courts have judges appointed for life and answerable to no one, thus allowing them total freedom to inject their private feelings into each decision.
Having learned from the experiences of the 1930's-40's, the congress realized that there is NO PENALTY if they pass an unconstitutional law. They know that the Federal Courts will simply accept it or reject it. This is called "pushing the envelope." If it sounds good politically, do it! There is no retribution. Furthermore, it takes YEARS for a questionable law to be overturned, so that by the time it is overturned, the politicians have enjoyed the political benefit, the public has moved on to other thoughts and the sponsors get off scott-free.
Congress also learned from the states, that responsibilities, i.e., appointment of Senators, can be dumped on others so that the elected officials will not have to answer to the voters. So they came up with the concept of writing "skeleton" laws which empower federal agencies to "publish" proposed Federal Regulations in the Federal Register. Congress has a prescribed number of days to reject the new "reg." If it is not rejected (which is very difficult) it becomes federal law. Some federal agencies which have these "Regulatory Powers" are EPA, Department of Agriculture (USDA), Department of Energy, Department of Education, Health and Human Services, Department of Justice, Treasury (which includes the IRS, Alcohol-Tobacco-Firearms, Drug Enforcement Agency, and others), Department of the Interior (which includes the Bureau of Indian Affair, Park Service, public lands, etc.), Department of Commerce, and-on and-on.
The system now in place is very similar to the "old system." There are FEDERAL AGENTS throughout the country, empowered by federal law never enacted by congress, yet with the power to shut down a business; close down a farm; confiscate property; assess fines and penalties without due process; break down doors without a warrant; search private cars, private houses, and other private buildings; etc.
Just fifty years ago it was unheard of for FEDERAL agents to become involved in PRIVATE, INDIVIDUAL cases of any nature. Fifty years ago it was very difficult to get the FBI involved in anything that was not specifically a FEDERAL CRIME or FEDERAL AFFAIR. Now, Jesse Jackson uses the U.S. Department of Justice (DOJ) as his own private investigative agency. A suicide in Alabama, provides Jackson with the opportunity to gain publicity because he DEMANDS that the DOJ investigate and they do. A high school disciplinary problem in Illinois provides Jackson with the opportunity to use the DOJ to gain national publicity because he can DEMAND that the FEDERAL government investigate. They do. Why? Because there are no barriers. The DOJ can re-act because it is politically important for them to do so, and there are no barriers left. Using "civil rights," the "commerce clause," (Art. I, Sec 8., Cl 3: [The Congress shall have power...] "To regulate commerce... among the several states...") and the liberal Federal Courts, congress has no watchdog except the voting public. The public clearly has no interest in the "finer points" of these matters, choosing instead to worry about whether the candidate is a Republican or a Democrat.
FEDERAL laws, under the guise of civil rights, have gone into effect which place different values on each human life. The laws are commonly called "hate crime" law and they make the killing of one human more serious than another, exactly the same belief as Adolph Hitler had that blond-haired, blue-eyed people were more valuable than others. The laws are bad because they leave the decision of "value of life" strictly up to the prosecutors. By a VERY NARROW margin the Supreme Court held that "hate" goes to motive, is therefore, an aggravating circumstance, and therefore, a matter for the jury to decide, not for the prosecutor or judge. Unfortunately, the court did not decide the more important question: What's the federal government doing involved in these non-federal matters anyway? Of course, the DOJ, using the powers granted through Federal Regulation, unceremoniously threw out the "double jeopardy" protection ("No person shall be... for the same offense to be twice put in jeopardy of life or limb...") several years ago. Without any action from congress, the DOJ decided that whenever enough public noise is heard, the DOJ will simply split a single act into small slices and keep bringing a citizen to trial under federal law until they get a conviction, i.e., the police officers in the Rodney King case who had to stand trial three times for the same offense:
State -- criminal; not guilty.
If either of the last two had failed, the DOJ still could have initiated action in a federal civil rights -- civil liability.
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