Issues/Constitution: Difference between revisions

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==== See Also ====
==== See Also ====
* Chris Gardner, [http://www.hollywoodreporter.com/rambling-reporter/silence-producers-joke-at-airport-security-leads-vagina-patdown-963324 "'Silence' Producer's Joke at Airport Security Leads to Vagina Patdown"], The Hollywood Reporter, 13 Jan 2017
* Matt Novak, [http://gizmodo.com/tsa-confiscates-huge-teddy-bear-gives-him-detailed-bac-1790131145 "TSA Agents Confiscate Huge Teddy Bear, Give Him Detailed Backstory About How He's Homeless and Hungry Now in Order to Remind Us That Everything Is Bad"], Gizmodo, 15 Dec 2016
* Matt Novak, [http://gizmodo.com/tsa-confiscates-huge-teddy-bear-gives-him-detailed-bac-1790131145 "TSA Agents Confiscate Huge Teddy Bear, Give Him Detailed Backstory About How He's Homeless and Hungry Now in Order to Remind Us That Everything Is Bad"], Gizmodo, 15 Dec 2016
* Talia Tirella, Dan Mannarino, [http://pix11.com/2016/12/06/the-moms-co-host-denise-albert-who-is-battling-cancer-says-she-felt-violated-during-tsa-search/ "‘The Moms’ co-host Denise Albert, who is battling cancer, says she felt ‘violated’ during TSA search"], Pix 11, 6 Dec 2016
* Talia Tirella, Dan Mannarino, [http://pix11.com/2016/12/06/the-moms-co-host-denise-albert-who-is-battling-cancer-says-she-felt-violated-during-tsa-search/ "‘The Moms’ co-host Denise Albert, who is battling cancer, says she felt ‘violated’ during TSA search"], Pix 11, 6 Dec 2016

Revision as of 21:30, 13 January 2017

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 the Constitution is being ignored, and this article is the beginning of such documentation. We've put together a fairly broad list (though we don't expect to ever consider it complete, unfortunately) and are working on going into detail about each item. At that point we'll probably start shopping around for feedback and more examples.

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

List of Abuses to Expand on

This list may contain esoteric terms. These are mostly stub headings which should eventually become their own subsections. with explanation where necessary

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 fetuses 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.

See Also

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 indicated 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 as 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

Contempt of Court

In many cases, contempt of court can be used by judges to infringe upon the first, fifth, sixth, eighth, ninth, or 10th amendment rights.

1st and 5th Amendments
When we think of contempt of court, we often think of a defendant being jailed for telling off the judge, or a lawyer being jailed for exposing sealed evidence, constituting direct disruption of court proceeding, and showing contempt for the process of the court. Generally this sounds reasonable and necessary in order for any court to function properly. However, how do we feel about a journalist being jailed for refusing to divulge his sources, or a politician being jailed for refusing to exercise discretion the way the judge wants?

There have been many cases of reporters being jailed for refusing to turn over material or reveal sources.[1] The first amendment grants special protections for the press, but it is worth noting that these protections are legislative in nature. Specifically, "Congress shall make no law ... abridging the freedom of speech, or of the press". The sixth amendment specifically grants that the courts can and should compel witnesses to serve on behalf of defendants, and further the 4th amendment does acknowledge an authority to issue warrants. Nevertheless, in none of the cases reviewed was testimony demanded in support of a defendant, nor were such reporters acting as accusers. Warrants allow for search and seizure, but such jailing was not made in response to interfering with any search and seizure. rather, the reporters are generally held in contempt for refusing to act as agents of the court in searching for evidence and turning it over. It is not at all clear that this is allowed.

The fifth amendment protects the right of individuals to not be forced to testify against themselves, but generally this is not the issue either. Reporters are being coerced into acting as agents of the state in procuring evidence and building a case against a defendant. This is reminiscent of the FBI's attempts to coerce Apple into hacking their own customer's hardware. This would seem, on the face of it, to be a violation of the 5th amendment's provision that the government cannot deprive us of our liberty without due process of law. Generally we would imagine that we need to be found guilty of a crime in order to be deprived of our liberty, or at least be charged with a crime. We will note that witnesses benefiting a defendant can be compelled to testify, and this is constitutionally mandated. This begs the question: Is there a difference? The answer, we think, is yes. The Constitution identifies the compelling of witnesses in favor of a defendant as the process of law, while nothing identifies the current compelling of witnesses in favor of the prosecution. Some process needs to be defined to allow it. However, the only body which has any legal ability to define such a process, has been prohibited from doing so by the first amendment. Judges can create procedural rules for their courts, but they cannot grant themselves authority they didn't already have.

Hence, we conclude that where legislation has been created to allow compelling journalists to divulge their sources in support of prosecution, it is a violation of the first amendment, and where such legislation has not been defined, it is a violation of the fifth amendment.

Fifth, Sixth, Seventh, Eighth and Ninth Amendments
If a contemner is held to have committed a crime, the right to a trial by jury is constitutionally required by the sixth amendment in order to determine guilt. Generally, it is held that if the contemner commits the crime in the presence of the judge, then he can be sentenced immediately because the judge saw the crime and it does not need to be proved to him. However, this glosses over the purpose of the jury system quite incompletely. One of the purposes of the jury system is to act as a check against potential abuse of the judge's power. Hence, while a judge may have seen the evidence and know the truth of the matter, he should still require the consent of a jury in order to hold him in contempt. Though, if such crimes are committed in the presence of a jury, and the contemner's lawyer, this might be resolved rather quickly. Indefinite or extended holding as punishment or coercion on presumption of criminal guilt, without assent from a jury, is unconstitutional.

In civil matters the constitution holds that the right to trial by jury must be guaranteed for matters exceeding $20, though it is hard to think how this must translate when the judge is not seeking financial relief, but rather compliance with an order or jail time. It would seem though, that jail can't get very far for $20, even assuming a minimum wage translation. (Though, if we assumed that $20 could run a month when the constitution was written, then contempt could really get some legs, but this is not how the seventh amendment is generally interpreted.) Generally, however, in civil contempt cases, such arguments are not brought to bear. It is, rather, held that because the contemner can get out of jail at any time by complying with the judge's orders, that his due process rights are not necessary. The affect is that a judge can order anything he likes and put people in jail for not doing what he says, regardless of their rights, his jurisdiction, or the authority of his office. Thus, while law suits for small sums may not cause major concerns regarding the potential of the judge to do harm, civil contempt, by way of comparison, is very dangerous indeed. People have languished in jail for years because the would not sacrifice their constitutional rights to a judge that didn't care about due process, or some other part of the bill of rights. Hence, the eighth amendment is violated as well.[2] If we consider the case of Kim Davis, who refused to comply with the Supreme Court's violation of the ninth amendment in forcing all states to allow for same-sex marriages, then we can see how easily the ninth amendment is violated as well.

See Also

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.

See Also

Fining of Businesses or Professionals 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.

See Also

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.

See Also

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 seeing 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.

See Also

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 or transportation) are not enacted or implemented based on any a legitimate authority of the federal government, and punishments are often cruel and unusual.

See Also

External Resources

References

  1. ↑ "Paying the Price: A recent census of reporters jailed or fined for refusing to testify", Reporters Committee for Freedom of the Press
  2. ↑ Ashby Jones, "No Charge: In Civil-Contempt Cases, Jail Time Can Stretch On for Years", Wall Street Journal, 8 Jan 2009
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