Issues/Constitution

See other issues.

The federal and state governments now routinely violate the Constitution, and such violation is frequently upheld by the Supreme Court. Often this is a case of well-meaning individuals trying to do the right thing in the wrong way, but often it is more sinister. It is always dangerous, and the commonplace nature of these violations is a strong indication of how far we have already drifted into the territory of a tyranny.

We have long been interested in documenting the many ways in which we ignore the Constitution, and this stub is the beginning of such documentation. We are currently building up the list. We will then work to go into detail about each item.

Some Notes on Interpreting the Constitution

In the Bill of Rights, reference is frequently made to "the people". The Constitution, as a kind of government contract with the people was initially framed as a social contract defining and limiting organization, powers, and responsibilities, for the federal government in relation to the states. The states, or countries, in the Americas, had existence and sovereignty before they agreed to a plan of unity and cooperation through federation. The Constitution laid out the terms of this federation, and defined a federal government. Hence, the Constitution was a contract between states, and defined the authority of the federal government in relation to these states. The states are seen to be comprised of people, and are not always treated distinctly. Hence, "The right of the people to be secure in their persons, houses, papers, and effects ..." is a fairly obvious reference to individuals, but also indicates that our organizations are likewise secure. Similarly, in the ninth amendment we read: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This does indicate that we, as individuals retain certain rights, but we remain free to exercise those rights via state organizations with which we may have a separate social contract (eg. constitution) established. Hence, the ninth amendment is a part of the foundation for what is referred to as "states' rights". State's rights, therefore referred to the right of states to enact regulation that the federal government could not, or, in other words, the right of the people of a state to define their own social contract, without fear of federal meddling. Since then, the Constitution has been amended on multiple occasions, in ways that limit what states may do, or delegate authority to the federal government that enters into this domain that had formerly been left to the states. However, despite this alteration of what rights were left to the people, the basic rule still stands that rights exist, and are retained by the people, even though they may not be mentioned in the constitution, and, per the 10th amendment, we have more explicitly that "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."

Disregarding the Constitution

• War on the Jury
  • See: http://freedomoutpost.com/are-sobriety-checkpoints-really-unconstitutional/
• Gun Control and Gun Theft
• Income Tax Code which taxes on non-income basis.
• IRS discrimination against conservative groups
• Eminent Domain
• NSA Spying
  • Warrantless wiretapping
  • Josh Gerstein, "Court troubled by surveillance excesses at FBI, NSA", Politico, 04/19/16 04:30 PM EDT
• Intimidation of the Press
• Hate crime legislation.
• Abusive fining
• Contempt of Court
  • See: https://www.quora.com/Why-are-contempt-of-court-jailings-not-considered-violations-of-the-Constitutional-right-to-due-process
    • It is interesting to note that none of the answers provided actually makes the case that this power has a constitutional basis. the idea that "the defendant owns the keys to their own cell" is simply a flowery way of saying that all you have to do is give up the right that the judge doesn't want you to exercise to get out. The examples, such as a reporter refusing to divulge sources, make this even more apparent. Why should a judge be allowed to ignore your due process rights in order to force you to give up your first amendment rights? This abuse was also apparent in the case of Kim Davis.
  • See: http://constitution.findlaw.com/article3/annotation04.html
• Rendition, and human rights abuses at military detention centers.
• Abuse of Material Witness Statute
• Obamacare

Abortion

This is a violation of the 5th amendment, the 9th amendment, and the 10th amendment.

The 5th amendment mandates that "no person shall ... be deprived of life, liberty, or property, without due process of law." This, of course, hinges on what one defines as a "person". Throughout history, there have been categories of people disenfranchised because they have been regarded as less than human, and we would hold that foetuses are people thus disenfranchised. They are alive, they are human, and they are regularly slaughtered without being provided any legal process at all for protection. The federal government has no legitimate authority to enforce this breach of the Constitution.

Regulation of abortion, being something not forbidden to the states, and, in fact, being effectively mandated by the 5th amendment, is not something that the federal government had any authority to forbid. Infringing on this authority reserved to the people constitutes a violation of the 9th and 10th amendments.

Asset Forfeiture

As currently implemented, this is a violation of the 4th and 5th amendments.

Asset forfeiture or asset seizure is a form of confiscation of assets by the state. It typically applies to the alleged proceeds or instruments of crime. (See: Wikipedia) The problem with the current implementation of asset forfeiture is that the government keeps the money and does not even have to charge individuals or organizations with a crime.

Under the 4th amendment, an authority to seize property is implicitly acknowledged. However, it is specifically indicates that seizures that are unreasonable are not allowed. In our government's execution of asset forfeiture law, reasonableness has not been in any way apparent. Even further, the 5th amendment goes further in stating that we cannot "be deprived of life, liberty, or property, without due process of law", and even further, that property taken for public use must be compensated.

In the case of asset forfeiture, in many cases, individuals and organizations have not been charged, and upon suing to regain funds, the government has resisted strongly and often paid back only a fraction of what was taken, if anything, after a costly legal battle. If the property was to serve of evidence of a crime, we should expect a criminal charge. Otherwise, indefinite holding (and absorption into government budgets) is clearly unconstitutional without any kind of equitable remittance.

See Also

• Mike Maharrey, "Ohio House Committee Passes Bill to Curb “Policing for Profit” Via Asset Forfeiture; Close Federal Loophole", 10th Amendment Center, 23 May 2016
• Marissa Bodnar, "I-Team: Law enforcement agencies use 'asset forfeiture' to combat Maine's drug epidemic", WGME, 23 May 2016
• Margaret Dooley-Sammul, "ACLU Report: Asset Forfeiture Takes Wealth from Communities of Color", ACLU, 19 May 2016
• Mark J. Perry, "Now that assets seized by federal law enforcement agencies exceed burglaries, bipartisan bill aims to stop the abuse", American Enterprise Institute, 19 May 2016
• Tom Orr, "‘For the Record’: How the Government Can Seize Your Money Without Charging A Crime", The Blaze, 16 May 2016

DUI Checkpoints

This is a clear violation of the 4th amendment.

Stopping a suspected drunk driver (eg. someone weaving dangerously through traffic) is one thing. Carpet bombing an entire street with police officers performing searches indiscriminately, without even a hint of cause, is unconstitutional.

Fining of Businesses for Exercising Moral Agency

This is a multi-part violation. The first amendment is violated on at least two accounts, the 5th, 8th amendments are also violated.

The first amendment protects the free exercise of religion, and also separately protects the freedom of speech. There is no right to make others cooperate with you in your speech, or exercise of religion. It is not an infringement of your liberty for a business to deny you service, no matter what the reason may be.

The forbidding of businesses from exercising their moral agency constitutes depriving them of their liberty without due process of law. (Due process of law is only invoked afterwards, to then justify taking property.) This is a violation of the 5th amendment. We will note that there are obviously times when restrictions on generic liberty are necessary in order to protect the life, liberty and property of others. Such is the case with laws requiring driving on a certain side of the road. However, religious and moral liberty is given special consideration, and laws punishing cake-makers for refusing to make a cake for a gay marriage do not serve to protect any such legitimate object, while effectively making all cake-makers into legal slaves. Indeed, since such laws apply to any business, then unless you are willing to resort to begging, stealing, or starvation, then you are effectively made a legal slave, who only gets to choose the vocation for his slavery (and then, usually, get the government's permission to pursue that vocation).

When a business is found to have violated a restriction on its moral agency, the fines that are imposed have frequently been found to be so large as to force the owner out of business. This seems cruel and unusual, and, indeed, excessive, violating the 8th amendment.

No-fly Lists

Section 8 of the Constitution grants to Congress the authority to regulate interstate commerce. However, that power is limited by the 5th amendment requirement that the federal government not deprive one of liberty without due process of law.

In the case of no-fly lists, we have a liberty which is being taken on very broad terms, in a secretive way. It is not easy to know how to get onto a No-fly List, and the only indication that one has gotten on to such a list is to attempt to fly, and then be rejected. (Even then you may not be told why.) This can have very serious consequences, interfering with one's ability to fulfill obligations, keep appointments, or complete travel plans with family. Once one has gotten onto a No-fly List, getting off is also no simple matter. Even worse, once someone with a similar name has gotten onto the No-fly List, or the related Selectee List, then that name becomes a discriminator, so that anyone with a similar name can be find themselves treated very much like they were actually on the list themselves.

We see one such example in former Senator Ted Kennedy, who, back in 2004, had some significant trouble traveling because his name was similar to the known alias of someone on a watch list (whether it was the No-fly List, or the Selectee list seems to be in doubt). Even being a U.S. Senator with direct access to high ranking officials, it took weeks for the matter to be resolved.

The manner in which one gets onto a no-fly list is uncertain, the manner for contesting an inclusion on the no-fly list is uncertain, and one is never informed that one has gotten onto a No-fly List. This is a very shady kind of due process, if we are to imagine that it is any kind of due process at all. Things get even more precarious when we start proposing that this list be used to also restrict gun ownership.

TSA Airport Security Checkpoints

Here we have a clear violation of the 4th amendment.

We have gotten used to searches in similar contexts. When we go to a baseball game, we may have our bags searched. When we take the train, we may be arbitrarily stopped and required to present a ticket. There are many similar circumstances, and in each of these cases, there is rarely "probable cause" to believe that we have done anything criminal, or otherwise nefarious. (Though I take umbrage at see the government employed to do this policing for corporations, granting them, in some cases special privilege which violates equal protection, while they ignore the general policing which we citizens require of them. One particular incident when I was ignored when trying to report apparent human trafficking comes to mind.) In each of these circumstance, a doctrine (which I consider suspect) is employed by which we, by purchasing a ticket, have granted our consent to such searches. Effectively, we are purchasing a contract with the company wherein we pay money, consent to searches, and a host of other things (eg. refraining from taking photographs), and in return we are granted entry, access, or some other privilege. The searches are part of our contract with another person, or organization.

In the case of the TSA's airport security checkpoints, it is not the airlines or the airport which have required these searches from us. It is the government that has required these searches. The government has no incentive to avoid offending flyers, because we are not their customers. They impose this requirement uniformly, even if unconstitutionally, and have therefore established an effective monopoly, so that we have little choice but to let the government humiliate us however it pleases despite the fact that they have no probable cause to suspect us of criminal or nefarious activity. They can get no warrant to search me, but they search me all the same.

The War on Drugs

We personally don't like recreational drugs, and we don't think it wise or healthy to use them. We aren't against state efforts to control substances in general.

However, for the federal government, this is a different matter. The only authority that the Constitution grants to the federal government that has any bearing on the "War on Drugs" is the authority to regulate interstate commerce. However, possession, use, and sale laws (except, of course, as regards interstate sale) are not enacted or implemented based on any a legitimate authority of the federal government.

See Also

• http://www.deadiversion.usdoj.gov/21cfr/21usc/844.htm

External Resources

• Pierce Willians, "5 Ways Your Constitutional Rights Are Being Violated", News.Mic, 4 Jul 2013
• http://www.constitution.org/cs_abuse.htm
• http://www.alternet.org/story/148860/10_ways_to_outfox_cops_that_are_abusing_their_powers_to_trick_you
• http://bcsteaparty.com/2015/01/the-3-most-abused-clauses-in-the-constitution/
• https://www.aclu.org/top-ten-abuses-power-911
• Tom Jackman, "National sheriffs’ group, opposed to federal laws on guns and taxes, calls for defiance", The Washington Post, 28 April 2016