A Constitution Beyond Interpretation

In a flight of fancy we are discussing an America that has taken a slightly different path. What if the Founders included a basic list of definitions as an appendix to the Constitution; definitions that eliminated any possibility that the true meaning of the Constitution would ever be subject to interpretation? That would give us a Constitution that would remain intact unless altered by the rigorous and prescribed method of amendment that the founders intended. This would have insured that the Constitution would forever remain the rigid armature of the Republic while retaining the ability to remain dynamic in response to an ever changing world.

Those definitions would have made a world of difference. If we research through the Federalist Papers, the founders had enunciated their ideas quite clearly and their intentions are well known even today. Unfortunately, legalists have chosen to ignore that treasure trove of information simply because those intentions were never actually written into the Constitution. The Constitutional scholars have spent nearly as much time navigating between each word of the Constitution to justify alternative law as they have learning the law itself. Just as a worm would weave in and out of the garden soil, these lawyers have laced the Constitution with holes of nothing but semantics; skirting the truth to inflict their own mark upon society.

Roscoe Pound devised his theory of sociological jurisprudence and legal realism at the turn of the 20th Century. Sociological jurisprudence is the school of thought that allows the interpretation of legal language and therefore laws, in contemporary terms. Through sociological jurisprudence, one could alter the law without actually having to go through the legal wrangling of convincing lawmakers to rewrite it. A perfect example of the modern use of sociological jurisprudence is the Constitutional authority to “Regulate” commerce. To regulate, at the time the Constitution was drafted, simply meant to make regular or to make uniform. It was meant to enhance commerce between the states through a uniform standard of currency and through trade laws that would make commerce between any of the states fair and equitable. As time passed, the word “regulate” slowly had additional meanings applied to it including “to license, oversee or control through regulation”. Since the word “regulate” had assumed multiple meanings and there was no clear definition in the actual Constitution, the entire commerce clause was left open to interpretation using any one of those definitions.

Of course we know that today the United States Congress has made a mockery of free trade through their liberal interpretation of the “Commerce clause”. The regulation that Congress prefers is of course, the use of governmental regulations to control, tax and license interstate commerce. FDR used this clause liberally to affect government control of nearly everything during the Depression, including the growth of farm products for personal consumption. Not because that produce was marketed across state lines but because produce grown for personal consumption “may” have an affect on the interstate value of produce if too many people began growing their own food. It was a clear stretch of the imagination and something that would not have been possible without the legal tinkering of one Roscoe Pound.

Pound’s other assault of “Legal Realism” postulated that since man was flawed, that any law written by man was potentially flawed as well. For the first time, the Constitution was under scrutiny; not because of the word of the law and not by using the volumes of information contained in the Federalist papers that spoke not only about the Founders intent but of their character as well. Now the Constitution could be examined based on the sheer speculation that the law possibility contained motives of greed and avarice; that the founders had laced their own interests into the original law and that made modern interpretation a guild-edged priority. For his legal genius, Roscoe Pound was decorated; not by the United States, but by Nazi Germany for giving them the tools they needed to get around some very sticky laws of their own. The real danger in these theories is that the interpretation is left to those in power. Since power is corrupting, these little gems could be used by those in power to justify nearly any action; especially if a crisis warranted the declaration of a state of emergency.

FDR had ascended to the Presidency during the Great Depression in 1933. There is no doubt that this was a time of crisis, even national emergency. Jonathan Alter is a columnist and Senior Editor for Newsweek Magazine. In “The Defining Moment”, his recent song of tribute to his hero, Franklin Roosevelt, Jonathan Alter claims to have made an historical find. He states that in 1932, members of FDR's inner circle had urged the new president to deputize the American Legion. The only purpose Alter could arrive at was for the creation of some form of private army. In prepared remarks to be delivered to a meeting of the American Legion which was also broadcast as his first radio address after his inauguration, FDR was to tell the assembled veterans, "As new commander-in-chief under the oath to which you are still bound, I reserve to myself the right to command you in any phase of the situation which now confronts us." In fact, during his inaugural speech, FDR said quite clearly that he was ready to “assume extraordinary powers if Congress failed to act against the emergency”. This shocking revelation was met with thunderous applaud by the assembled crowd.

Alter's interpretation is entirely plausible for any number of reasons, including FDR's determination to use the World War I-era Trading with the Enemy Act as the legal justification for assuming emergency powers. A memo written at the Democratic Convention by Hugh Johnson, the future head of the NRA (National Recovery Administration) suggested that the entire Congress and Supreme Court be sent into temporary exile while a dictator set the country straight. Liberal Journalist and FDR advisor Walter Lippmann cautioned FDR about the state of the nation and urged him to assume "dictatorial powers." Fortunately for us, Roosevelt recognized that once those steps were taken, the American Constitutional government could never again, emerge intact.

Alter would have praised FDR regardless of what he had found but this time he was on the right side of the issue. Alter’s praise was for the man that resisted the call to assume such awesome powers. Not that it wasn’t tempting for Roosevelt, it was. Having seen the amount of power Roosevelt harvested using the legalist tactic of sociological jurisprudence, he came close enough as it was. Incidentally, I find it ironic that FDR was the descendent of another noted person in history. I don’t mean Theodore Roosevelt; that would be too easy. I mean another relative of great ambition, Benedict Arnold.

Seeing the fragility of the Constitution when it is allowed to be subject to such broad and yes, subjective interpretation, perhaps it is time that the definitions that are so obviously absent in this document are finally added so that we can read it in the context that the founders intended. The Federal government would be responsible for the defense of the United States against foreign aggression. We would not be engaged in “nation building” nor would we enter into wars that were not in direct defense of American territory, resources or vital interests. It would insure that trade between the States was free of corruption and that business between the States is conducted with a uniform currency and a uniform code of laws to insure ethical business practices. It would arbitrate disputes between the States and enforce the Constitutional laws that all States agreed to when they entered the Union. The Federal government, as now, would enter into treaties with foreign powers provided the treaties are ratified as prescribed in the Constitution.

Since the States retained all rights of self governance excluding the enumerated powers granted to the Federal government; there would be no Federal agencies for education, health and human services, labor, environmental protection, social security, agriculture, international development, on and on and on. The complete list can be found here and I strongly suggest you take a look at it since you probably have no idea half of these even existed: http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml

Fear not, the elderly would not perish in the streets, the lakes and streams would not become acidic and disease would not race through the streets. With Progressives, Socialists and extreme Liberals handcuffed by a strong Constitution, the States, being free of oppressive Federal mandates would begin to flourish. The agencies that wastefully consume so much of this nation’s wealth would be gone, freeing that money for economic expansion. Local economies would finally possess the means to provide the services that their residents feel strongly enough to approve through their electoral might. Good ideas never remain hidden or stagnant and as the States test those ideas, the best ones would rise and be sought by the residents of other States. Instead of a one size fits all Federal mandate, States would adopt programs at their own discretion that are tailored to their special needs. Best of all, the people of each State would retain direct control over their destinies instead of being saddled with national burdens imposed by the overwhelming number of number of Congressional representatives from California, Illinois, New York and Florida.

Paul

A Constitutional Government? What a Concept!

Let’s play a game! I’d like to pretend for a moment that the Progressive movement doesn’t exist; that the subsequent Liberals never discovered Karl Marx or Friedrich Nietzsche. Let’s imagine an America where we had the foresight and courage to block Soviet Russia’s attempts to demoralize America by infiltrating the American press, film industries and educational systems. Let’s ponder the future as if our past had followed a course that more closely resembled the government our founding fathers had meant for us to have. Before we can actually play that game, we must start at the beginning with a review of what that government was supposed to look like. Only then can we remap the last two hundred years and perhaps, speculate on the next two hundred.

The people that founded the American colonies were for the most part, British émigrés, people that sought to escape religious persecution or leave the crowded streets of England’s urban centers and seek new fortunes by settling a vast, new and relatively uninhabited land. There were spacious tracts of land and seemingly limitless resources to be exploited by adventurous men that were fit and industrious. Living in a pre-industrial, agrarian world, uses for many of the “new world’s” resources were still largely unknown but they would certainly come into play later. By the time the British colonies were firmly established in America, the Spanish myths about cities of gold had been disproven and fur trade, fertile lands and natural ports were considered to be America’s greatest assets.

While many still traveled back and forth to England, the American born descendants of the original settlers had mostly taken their father’s places by the turn of the 18th Century. They were beginning to create an identity separate from their British heritage mainly because the British Crown treated them as second class citizens. England had fought several skirmishes with Spain since the inception of the colonies and was actively sparring with France on the borders of the American colonies by the time the mid 1700’s had arrived. England had stationed a number of troops to guard the colonies against French incursion but the British Treasury was under pressure and the cost to maintain a protective force in numbers was becoming prohibitive. The English population was already overtaxed and on the verge of revolt so England turned to her second class citizens in America to carry the financial burden of her own protection.

For many, it may seem proper that the beneficiaries of that protection should pay for it but this story could not be written if Britain had not taken that principal too far. Strict limits were placed on the manufacture of American goods so that British made goods would still be in demand. While one new tax after another was levied on colonial trade, the colonies were continually denied the representation in Parliament that British citizens had enjoyed for centuries. The troops sent by England to guard the colonies were slowly assuming the duties of suppressing the anger that was slowly brewing against the unfair restrictions and tariffs. The troops themselves became the center of the controversy as colonists were forced to house and feed the soldiers at their own expense.

All of this would boil over into open insurrection and finally result in a bloody revolt against British rule. The Declaration of Independence would have had no more historical significance than an advertising poster for fertilizing manure had the colonies not defied all odds and emerged victorious. With their independence from England, the colonies would use their proclamation of natural rights and the list of grievances in that declaration to create an entirely new form of government.

The new government would be founded on the principal that man’s fundamental rights descended directly from God and were irrevocable; that these rights had always existed and were not an act of kindness granted by a beneficent government. The basic structure of the government they created borrowed the most historically successful parts from a variety of cultures. It would contain a body of civilian representatives as found in the British Parliament; a Senate as found in the Roman Empire and a democratically elected leader as part of the experiment. All of these would be restrained by law and for the first time in the history of the planet, the word of law shackled the reach government and the citizens retained supreme rule over all of it.

Central to the formation of the new government was the principal that the States remained sovereign and self governing. The Constitution created a governing body that would unify the States while each retained autonomy and that would not be an easy trick. They achieved this through a “bottom up” strategy. The people retained direct control over State government through the electoral process and the State would govern its citizens by laws enacted with the consent of the governed. The individual States would freely enter into a Union of States whose governing body would be comprised of elected representatives from each State and a President elected by the citizens of all of the States in the Union. It would be a Republic, with the electorate selecting representatives based on their principals and those representatives would vote for or against legislation on their behalf.

Each State would have to agree to abide by the United States Constitution in order to enter the Union. The Constitution is a document that not only reaffirms the State’s sovereign rule but clearly defines the powers that the States would delegate to the Federal government; strictly limiting the Federal government to those powers alone. As part of the Union, the States would agree to obey the laws passed by the Federal government so long as those laws pertained to the responsibilities delegated to the Federal government by the Constitution. A Supreme Court was established that would rule on any Federal law that was challenged by a State or citizen that could prove harm.

Curiously, the Bill of Rights were added as the first ten amendments to the Constitution and not written into the original document. It is not that the Founding Fathers considered those rights as an afterthought; indeed they considered those rights supreme. They did not add them because they did not feel they embodied the Federal government with any power sufficient to threaten those rights. We now know the confidence they had in the Constitutional limits placed on the Federal government was overstated and the Supreme Court spends much of its time hearing cases surrounding those sacred rights. While visionaries, the Founding Fathers saw that power is corruptible and did the best they could to see that the Federal government was correctly restrained. What they did not envision were the future generation of Constitutional scholars dedicated to finding pathways around those restraints and that would inevitably bring us to a point where the Federal government it threatening to become the master and not the servant of the people.

The Founding Fathers were geniuses but alas, they were still mere mortals. If they possessed the powers of clairvoyance perhaps they could have avoided the mess we are in today with a simple table of definitions added as an appendix to the Constitution. That would certainly have taken the wind out of the sails of those prominent Constitutional lawyers and closed the loopholes that they are now driving trucks through. Those definitions already exist in the Federalist Papers, a series of letters and correspondence penned by the founders that clearly detail their intent and place the language contained in the Constitution in context. Unfortunately, since those letters are not part of the actual Constitution they bear no weight in the actual review of the law as it is written. Armies of legalist attorneys now argue each and every word written in the Constitution and assign modern interpretations that shatter what were once considered iron chains on the power of the Federal government.

Tomorrow we begin our experiment in earnest. We will imagine that the Founders did include that table of definitions in the actual Constitution and that there is no longer any question as to the role of the Federal government. Make sure you wear a helmet and elbow pads because it’s going to be one hell of a ride!

Paul

The Tenth Amendment

The Tenth Amendment
Powers of the States and People.
Ratified 12/15/1791.

“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.”

We are addressing the Tenth Amendment on The Vigilance Project with the same alacrity that we did the First and Second Amendments. Not because of what it is, but rather, because of how badly it has been ignored. This amendment, more than any other, has been diluted and intentionally misinterpreted by many administrations and those administrations have to date found willing coconspirators in the nation’s courts.

Since President Obama has taken the oath of office it appears to anyone outside of his inner circle that they have embarked on a course of massively increasing the scope and power of the Federal Government. The new powers they seek are being highly contested and the speed at which they are attempting to force legislation through Congress suggests that those that are opposed to this “fattening of the Federal hog” do not have the luxury of waiting until the mid-term Congressional elections to seek reasonable restraints. They are seeking to move the agenda forward before the Constitutionality of this power grab can even be determined.

The Tenth Amendment has been looked at by many as the only hope we currently have to restore balance to the union. We created this lumbering giant through our own ignorance and complacency and we are fast approaching a point of no return. If several new and extremely large bills such as the Climate Bill and the Healthcare Bill actually pass, the Federal government will be so big and their powers so all encompassing that the chains of the U.S. Constitution may no longer be strong enough to restrain this super agency.

Why did that just sound like I blamed the average American for this? It sounds like I did because I did. Thomas Jefferson warned that Democracy can only work with an informed and educated electorate. Most of the electorate in this nation are poorly informed and improperly educated. We watched the evening news transform from the daily reporting of important events into a scripted endorsement of the political views of the editor at large and we did nothing. We watched as our schools systems began the teaching of revisionist history and promoted the ignorance of the civil legislative process and we did nothing. We watched as Congress passed one questionable law after another and still did nothing. We did nothing and for our efforts, we got what we paid for.

The Federal Government has been engaged in the practice of siphoning powers from the states through random acts of legislation that were ‘tweaked” into existence through a loose interpretation of the enumerated powers that the Federal Government was originally entrusted with. FDR had sweeping powers granted to the Federal government during the Great Depression to empower his attempts to stabilize the economy during a time of crisis. To gain those powers, FDR and the Supreme Court had to stretch reason and the Constitution to the breaking point.

According to the Tenth Amendment, the government of the United States has the power to regulate only those matters delegated to it by the Constitution. Other powers are reserved to the states or to the people (and even the states cannot alienate some of these). The Commerce Clause in Article 1 Section 8 is one of the powers specifically delegated to Congress and how it is interpreted is very important in determining the scope of federal legislative power.

In the twentieth century the complex economic challenges of the Great Depression triggered a reevaluation in both Congress and the Supreme Court. This reinterpretation of the Commerce Clause gave the Federal government the ability to act outside of the enumerated powers in an attempt to correct a faltering national economy. It was after all, a crisis of international proportion. Of course, once you allow a breach of the Constitution for one thing, it sets the stage for further transgressions in the name of precedence.

During the Second World War (1942), the Court ruled that in the case of Wickard v. Filburn, federal regulations of wheat production could constitutionally be applied to wheat grown for "home consumption" on a farm; that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The government’s argument was that a farmer growing "his own wheat" can have a substantial cumulative effect on interstate commerce, because if all farmers exceeded their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat which justified government regulation under the commerce clause.

After Wickard v. Filburn, many such cases were decided solely on the precedent established in this case. In 2009, the Federal government is confidently using this precedent to declare the constitutionality of its pursuit of regulatory control of the healthcare industry. To say that a man in Peoria visiting a doctor in Peoria to arrange for a medical treatment that will be administered in Peoria somehow falls under the auspices of interstate commerce requires the same stretch of the imagination that was used to regulate wheat grown for personal consumption; wheat that not only did not leave the state, but didn’t even leave the farm it was grown on.

The school of thought that justifies these actions is to say the least, a gross misinterpretation of the commerce clause and to say the most, a criminal attempt on the part of the Federal government to harvest powers that were clearly denied to them in the Constitution. Now that many States are considering or have already passed legislation to reaffirm their status as sovereign States, the first logical step is to revisit the decisions that give precedence to the Federal government’s drive to obfuscate even more powers belonging to the States and the people under the guise of interstate commerce. That is now under way and cases like Wickard v. Filburn are being tested again to determine if the decisions in those cases were in fact, correct and appropriate.

Another method used extensively by the Federal government to garner State participation in Federal mandates is through the use of funding. This tactic is widely used to obtain compliance for federal mandates where there is no Constitutional authority to enact the legislation in question.

The Federal government had issued directives that would change the maximum allowable blood alcohol level to .08 in an effort to create a uniform legal statute for intoxicated driving nationwide. States that would not adhere to this statutory change would lose eligibility for part or all of the Federal highway funds for road maintenance and expansion as the adoption of this standard became a requirement of the application for funds.

The same tactic was used to enforce the national 55 mph speed limit in an effort to conserve fuel after the fuel crisis of the early 70’s. The National Maximum Speed Law was a provision of the 1974 Emergency Highway Energy Conservation Act signed into law by Richard Nixon. It was revised in 1987 to allow certain highway speeds to rise to 65 mph and was eventually repealed in 1995. During the period of time that it was in force, the maximum allowable speed limit set by the Federal government was written into the requirements for eligibility for any State seeking Federal highway funds.

Now that the Federal government has had such wide ranging success in forcing even unconstitutional legislation upon the States through these tactics they have become bolder through the years. The States are being increasingly burdened by partially funded and even totally unfunded mandates. The legislation may have funding allocated for only the first few years leaving the states to figure out how to pay for the projects after the allocated funds have been exhausted. Some mandates do not even pay the total cost to enact the legislation let alone the operating budget to maintain them. The States, like the people living in them have reached a turning point and are now seeking relief from these unfair and unconstitutional practices.

As of August 2009, 37 states have introduced resolutions in support of "state sovereignty" under the 10th Amendment. In seven states the resolutions passed (Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee). Further, two states (Montana and Tennessee) have passed specific legislation exempting residents from certain federal firearms regulations, while Arizona has a proposed constitutional amendment (to be voted on in 2010) which would nullify a national health care system from operating in the state.

While the Federal ATF has issued a letter to State officials in Tennessee reminding them that Federal law supersedes State law and that has the net effect of rendering the Firearms Freedom act invalid, no court challenges have yet to occur. I am sure that once the Federal government carries through with their threat of enacting restrictive legislation of the retail sale of ammunition, Tennessee and the Federal government will be seeking their day in the Supreme Court to settle the matter.

I pray that Tennessee wins that case because that will be the first swing of the axe that will begin to whittle the Federal government back to an acceptable size. In the end, if we cannot deflate the Federal government until it fits back into the box it came in, the budgets will continue to climb, the deficits will continue to defy logic, and the national debt will eventually attain a weight that will crush this nation.

Paul

The Sixth, Seventh and Eighth Amendments

We have been exploring the Bill of Rights since Thursday of last week. We have made some important statements about these protections, particularly the First and Second Amendments in conjunction with the apparent efforts of the current administration and its supporters to at the very least, weaken those rights. While I do not want to ignore any of these Amendments, I do want to accelerate the process slightly so that we can get to a timely discussion on the Ninth and Tenth Amendments. The importance of which will be readily recognizable to anyone once the dicussion begins.

This is not to imply that the following three amendments are not as equally critical to the existence of a free nation, but these amendments, which are for the most part, self explanatory and with the exception of the Eighth Amendment protection against cruel and unusual punishment, are rarely challenged.

I will say that the discussions we are to have on the Ninth and Tenth Amendments will overshadow these three only in their immediate connection to current flow of politics and to the efforts many States are now pursuing to reinforce these rights in the face of increasing pressure and interference by the Federal Government.

The Sixth Amendment

Right to Speedy Trial, Confrontation of Witnesses.
Ratified 12/15/1791.

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

It is a safe assumption that all Americans agree that the innocent should be free and the guilty should be punished. To insure justice to that end, the Sixth Amendment requires that all persons facing criminal prosecution do so in a fair and impartial way and that the trial that will determine a person’s guilt or innocence be held within a reasonable period of time.

In 1966 Sheppard v. Maxwell, 384 U.S. 333, determined that a public trial was not absolute and could be denied if the publicity associated with the trial would impact or prevent a fair and impartial verdict. While important, this case was related only to the right to a public trial and not a speedy one.

In many other justice systems innocence was not presumed and those facing charges also faced the reality that they were considered guilty until such time as their innocence could be established. The incarceration was harsh and the trials to establish guilt or innocence happened expressly at the convenience of the government, which could be years.

A measure to establish what is considered “speedy” had to be defined if this amendment were to have any meaning at all. Incredibly, it wasn’t until 1972 that a reasonable challenge had been made to the Supreme Court requiring that they rule on what measure should be used to determine if a person’s right to speedy trial had been violated. That case, Barker v. Wingo, 407 U.S. 514 alleged that the defendants right to a speedy trial had been violated and required a judgment from the court as to the exact definition of what would constitute a violation of law.

The court rendered a decision that the speed at which a trial should proceed must be determined by the facts in each individual case and did write four criteria with which the courts could base that determination on. Those four points are:

Delay:

1- Length of Delay: A delay of a year or more from the date on which the speedy trial right "attaches" (the date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial" (but the Court has never explicitly ruled that any absolute time limit applies.)

Reason for delay:

2- The prosecution may not excessively delay the trial for its own advantage, but a trial may be delayed to secure the presence of an absent witness or other practical considerations.

3- Time and manner in which the defendant has asserted his right: If a defendant acquiesces to the delay when it works to his own benefit, he cannot later claim that he has been unduly delayed.

4- Degree of prejudice to the defendant which the delay has caused.

The Supreme Court ruled against the petitioner, Willie Barker, in that he had previously waived his right to a speedy trial by agreeing to the continuances, and that the verdict was not prejudiced by the delays. However, the importance of this case is evident in the crafting of the four points that would determine the viability of future challenges to this Amendment.

The following year (1973), the Supreme Court heard the case of Strunk v. United States, 412 U.S. 434 in which these criteria were put to the test. The Supreme Court found in favor on the petitioner based on the four points established in Barker v. Wingo, and overturned a conviction obtained in his trial after it was determined that Strunk’s rights to a speedy trial had in fact been violated.

The Seventh Amendment

Trial by Jury in Civil Cases.
Ratified 12/15/1791.

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law”

Even where a legal, rather than an monetary , issue is in question, the judge has a role in the determination of the verdict. The Supreme Court has held that judges may render an opinion on the facts in dispute provided that the jury actually determines the dispute after deliberation. A judge may also direct the jury to pay special attention to certain evidence and require the jury to answer certain questions relating to the case in addition to giving a verdict. If the judge deems the plaintiff's evidence insufficient, he may direct the jury to find in the defendant's favor. The jury may, however, return a verdict contrary to the judge's direction.

As common law provided, the judge has the power to set aside (or nullify) a jury verdict that he deemed was reached contrary to the evidence or the law but common law precluded the judge from himself entering a verdict. Where a judge has nullified a verdict on these grounds, only a new trial with a new jury would be the only permissible course.

The Eighth Amendment

Cruel and Unusual Punishment.
Ratified 12/15/1791.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The Eighth Amendment is almost identical to a provision in the English Bill of Rights of 1689, in which Parliament declared, "as their ancestors in like case have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In 1947 the Supreme Court ruled that the Eighth Amendment protection against cruel and unusual punishment did, in fact apply to the individual States as well as to the Federal government.

While the 1878 Supreme Court did issue general prohibitions against a number of punishments including drawing and quartering, public dissecting, burning alive, or disemboweling, it would not be until 1972 (apparently a very busy year for the Supreme Court) that the court finally rendered a decision that spelled out, yet another four points that could be used to determine whether a punishment could be construed as cruel or unusual.

Those points are:

1- The "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially torture.
2-"A severe punishment that is obviously inflicted in wholly arbitrary fashion."
3- "A severe punishment that is clearly and totally rejected throughout society."
4- "A severe punishment that is patently unnecessary."

As far as the death penalty is concerned, the Supreme Court has had a mixed bag of decisions over the years. Some cases centered on the method used for execution and others in the actual imposition of a death penalty where the victim of the crime had not been killed such as in cases of rape.

The argument on the death penalty is a morally charged subject that is deeply contested where ever it is used. Instead of outlawing the practice entirely, The Supreme Court has instead, prohibited the use of language that would require a mandatory death sentence for certain crimes and has also required that special legal procedures be used to guarantee that capital crimes are pursued with great care and are scrupulously prosecuted. To meet this requirement, some States have opted to remove the duty of imposing the death sentence from the judge altogether and have instead, opted to hold two separate jury trials; one to determine guilt or innocence and upon conviction a second trial to determine the severity of the punishment ranging from imprisonment to execution.

I myself do not oppose the death penalty for certain crimes but we have all seen overzealous prosecutors that are more interested in a conviction than the truth. Case in point was the rape case involving the 2006 Duke University Lacrosse team. North Carolina District Attorney Mike Nifong ignored exculpatory evidence that would have cleared the Duke students of any wrongdoing and had continued to shape the actions of police and other persons involved in the case. Mr. Difong then aggressively pursued a false trial for what some have said was his goal to gain the notoriety that comes with winning a conviction in a highly publicized trial.

I would submit that some dangerous men just like Mike Nifong, still exist within the criminal justice system. With that in mind, only irrefutable physical evidence should allow us, a reasonable and civilized society, the certainty required to escort convicted criminals towards the death penalty regardless of the alleged crime. If we are to deprive one of thier life as the supreme form of punishment, we must be deadly sure that there is no mistake in how that conviction was obtained. We must be sure that we are right by a factor of 200% or more or answer for our lack of diligence in a far higher court.

Tomorrow we continue with the Bill of Right.

Paul

The United States Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The preamble to The United States Constitution posted above, spells out the goals that were set for a new nation; established by free men and born through the violent labor of revolution. Before the critics clamor, the spelling and capitalization of certain words were not changed and appear as they did in the original document. The most powerful phrase in that document is the first three words of the first sentence: We the People.

This was not to be a government created through the concessions of a monarch as was the case with the British Parliament. This was not to be a totalitarian regime, as was created after the fall of the German Kaiser or the Russian Tsar. Even the French revolution spawned the rise of a militaristic emperor, Napoleon Bonaparte before they discovered democracy. This was a government formed by free people seeking to create a framework of just and sensible laws to preserve a union of states while at the same time providing a guarantee of the people’s ideals, beliefs and liberties.

Since the inception of this country, the rights of the people were clearly proclaimed to have existed without the consent of government. As such, The Constitution is not a document that grants our rights, it is a document that acknowledges and defends them. It not only defines the structure and role of our government but is a powerful shield meant to deny that same Federal Government any power that would impinge upon the sovereignty of the states or our personal rights.

In May of 1787 twelve of the thirteen states met by invitation, to begin the work of amending the Articles of Confederation that the colonies had established as their governmental structure. Only Rhode Island declined that invitation. By June of that year it was proposed that they abandon the amendment process and endeavor to write a new Constitution and to draft a new government structure. On September 17, 1787 the Constitution was complete and presented to the Congress of the Confederation who approved the draft for ratification.

Even though only nine states were needed to ratify the proposed constitution for it to pass into law, Benjamin Franklin recognized the importance of unity in what they were doing and urged that ratification be unanimous among the thirteen states. On June 21, 1788 the ninth state, New Hampshire, ratified the Constitution upon which the Congress set a timetable for the start of operations under the new Constitution. On March 4, 1789 the Articles of Confederation were officially replaced by the United States Constitution. It would be more than a year before Franklin would get the unanimity he had hoped for when the thirteenth and final state, Rhode Island, ratified the Constitution on May 29, 1790 with a majority of only two votes. It was done!

After the Preamble, The United States Constitution contains seven sections or “Articles”.

Article 1 - The Legislative Branch
Article 2 - The Executive Branch
Article 3 - The Judicial Branch
Article 4 - The States
Article 5 - Amendments
Article 6 - Debts, Supremacy, Oaths
Article 7 - Ratification

A link to an on-line complete copy of the Constitution can be found at: http://www.usconstitution.net/const.html for those that would like to refer to it.

Articles 1, 2 and 3 consist of the rules regulating the requirements for office, election, compensation, duties and disqualifications for the Legislative, Executive and Judicial branches of government.

Article 4 directs the interaction between states where vital records and the extradition of criminals are concerned. It also enumerates the requirements for the admittance of new states into the union and guarantees each state the right to a republican form of government for the business of state, separate and apart from the Federal government.

Article 5 contains the specific requirements for the introduction and adoption of amendments altering the Constitution.

Article 6 affirms that all government debts accrued prior to the adoption of the Constitution will remain valid against the United States. That laws made pursuant to the Constitution and the treaties entered into by the authority of the Constitution will be the law of the land and recognized by all states and judges. This article also requires that Legislators, Judges and the Executives of the Federal government and the State governments will be bound by oath to support the Constitution.

Article 7 names the requirements to ratify the Constitution.

After the Constitution was adopted and the first session of the United States Legislature convened, the first ten amendments to the Constitution were introduced by James Madison in 1789 as a series of articles. The articles were eventually adopted into the Constitution on December 15, 1791. Those articles or amendments are know to all as the Bill of Right and combined; they are the fortress that protects our freedoms and rights from unlawful government interference.

In subsequent years, there have been an additional seventeen amendments made to the Constitution to bring it to the form we know today. Some clarify aspects of the government structure such as term limits and succession, some to institute new requirements such as the income tax, immigration and naturalization laws and some addressed social issues like the abolition of slavery and women’s suffrage (right to vote).

The amendment process breathes life into the Constitution by allowing it to change and adapt in response to the needs of the times. That process is exceedingly difficult and requires that a proposed amendment pass by a two-thirds majority in both houses of Congress before a Constitutional Convention be called to consider the matter. It further requires a three-fourths majority in the Constitutional Convention before a proposed amendment can be adopted. This is to insure that only matters of critical importance are ever adopted as an amendment to alter the Constitution thus protecting the integrity of the document.

Our biggest failure has been in accepting the politicization of Constitutional law. Rather than reading the Constitution for the direct meaning of the text, legislators and judges have taken to interpreting meaning of the Constitution to gain political advantage or to enact legislation that espouses a particular ideological bent outside the word of the law. They ignore the Federalist papers that would clearly define the intent of the crafters of the Constitution and insert their own ideas of what the law means to further their ends. This is a dangerous and potentially destructive school of thought.

The Founding Fathers knew that allowing the Constitution to become too dynamic would make it subject to the whim of the people; changing every time the proverbial winds shift. Allowing politicians and judges to reinterpret the Constitution for their own purposes negates the principal reasoning of requiring a super-majority to amend the document. It can allow unjust laws to be passed, it can assume Presidential or Federal authority where none exists or worse, that the rights established in the first ten amendments may become so diluted that they eventually become meaningless.

So long as the government is so interested in dissecting the bill of rights, we might as well join in and see if our idea of what it means differs from theirs and more importantly, how it differs from the founding fathers ideas as they laid their thoughts out in the Federalist papers.

Please join me tomorrow for our look at the first amendment to the United States Constitution.

Paul