Defamation Debacles

These defamation cases featured plaintiffs Wally Butts, former athletic director of the University of Georgia, and Edwin Walker, a former Army general who had been in command of the federal troops during the school desegregation event at Little Rock, Ark., in the 1950s.

“Because the Georgia State Athletic Association, a private corporation, employed Butts, and Walker had retired from the armed forces at the time of their lawsuits, they were not considered public officials. The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to private figures.

Five members of the Court extended the Times v. Sullivan rule in cases involving “public figures.” Justice John Paul Harlan and three other justices would have applied a different standard and asked whether the defamation defendant had committed “… highly unreasonable conduct constituting an extreme departure from the standards investigation and reporting ordinarily adhered to by responsible publishers.”

Of course, this standard is no standard at all because it is based on a moving target – the professionalism of journalists, editors and publishers in the highly competitive – some say cut-throat – business of reporting news in a timely and entertaining fashion in order to sell their product and make a profit.

Notable cases of journalistic fraud included noted journalists such as Jason Blair, Jack Kelley, George Baghdadi, Mike Barnicle, Paul Bradley, Janet Cooke, Emily Davies, Mike Finkel, Steven Glass and Diana Gregg Erwin who have all had works published in prominent publications that contained absolute falsehoods or fabrications. Some even won awards for their “professionalism”. I could go on. Look them up.

“The Supreme Court clarified the limits of the “actual malice” standard and the difference between public and private figures in the defamation case of Gertz v. Robert Welch, Inc. (1974). The case involved a well-known Chicago lawyer named Elmer Gertz, who represented the family of a young man killed by police officer Richard Nuccio. Gertz took no part in Nuccio’s criminal case, in which the officer was found guilty of second-degree murder.

Robert Welch Inc. published a monthly magazine, American Opinion, which served as an outlet for the views of the conservative John Birch Society. The magazine warned of a nationwide conspiracy of communist sympathizers to frame police officers. The magazine contained an article saying that Gertz had helped frame Nuccio. The article said Gertz was a communist. The article contained several factual misstatements. Gertz did not participate in any way to frame Nuccio. Rather, he was not involved in the criminal case. He also was not a communist.

Gertz sued for defamation. The court had to determine what standard to apply for private persons and so-called limited-purpose public figures. Then, the Court had to determine whether Elmer Gertz was a private person or some sort of public figure. The news-media defendant argued that the Times v. Sullivan standard should apply to any defamation plaintiff as long as the published statements related to a matter of public importance. Justice Brennan had taken this position in his plurality opinion in the 1971 case Rosenbloom v. Metromedia.

The high court disagreed, finding a distinction between public figures and private persons. The Court noted two differences: (1) Public officials and public figures have greater access to the media in order to counter defamatory statements; and (2) public officials and public figures to a certain extent seek out public acclaim and assume the risk of greater public scrutiny. [I assume the Court wistfully contemplated a free and unbiased national media in their opinion.]

For these reasons, the Gertz Court set up a different standard for private persons: “We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” [Wow! The High Court finally recognized that the States can handle (a least some crumb) of sovereignty.]

This standard means that a private person does not have to show that a defendant acted with actual malice in order to prevail in a defamation suit. The private plaintiff usually must show simply that the defendant was negligent, or at fault. However, the Supreme Court also ruled that private defamation plaintiffs could not recover punitive damages unless they showed evidence of actual malice.

In its opinion, the high court also determined that certain persons could be classified as limited-purpose public figures with respect to a certain controversy. The Court noted that full-fledged public figures achieve “pervasive fame or notoriety.” However, the court noted that sometimes an individual “injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” These limited-purpose public figures also have to meet the actual-malice standard.

The high court then addressed the status of Gertz. The high court determined that he was a private person, not a limited-purpose public figure. “He took no part in the criminal prosecution of Officer Nuccio,” the court wrote. “Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so.”

These cases show that perhaps the most important legal issue in a defamation case is determining the status of the plaintiff. If the plaintiff is a public official, public figure or limited-purpose public figure, the plaintiff must establish that the defendant acted with actual malice with clear and convincing evidence.

If the plaintiff is merely a private person, the plaintiff must usually only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice.

The most egregious case of defamation occurred to Alaska’s sitting Republican Senator Ted Stevens and was committed by the government of the United States. As summarized by popular liberal icon, Lanny Davis:

“On July 29, 2008, Stevens was indicted by a federal grand jury on seven counts of failing to properly report gifts, a felony, and found guilty at trial three months later (October 27, 2008). The charges relate to renovations to his home and alleged gifts from VECO Corporation, claimed to be worth more than $250,000. The indictment followed a lengthy investigation by the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS) for possible corruption by Alaskan politicians and was based on Stevens’s relationship with one Bill Allen.

Allen, then an oil service company executive, had earlier pleaded guilty—with sentencing suspended pending his cooperation in gathering evidence and giving testimony in other trials—to bribing several Alaskan state legislators, including a disputed claim about Stevens’s son, former State Senator Ben Stevens. Stevens declared, “I’m innocent,” and pleaded not guilty to the charges in a federal district court on July 31, 2008. Stevens asserted his right to a speedy trial so that he could have the opportunity to clear his name promptly and requested that the trial be held before the 2008 election.

US District Court Judge in Washington, DC, Emmet G. Sullivan, on October 2, 2008, denied the mistrial petition of Stevens’s chief counsel, Brendan, due to allegations of withholding evidence by prosecutors. Thus, the latter were admonished, and would submit themselves for internal probe by the US Department of Justice. (Brady v. Maryland requires prosecutors to give a defendant any material exculpatory evidence. Judge Sullivan had earlier admonished the prosecution for sending home to Alaska a witness who might have helped the defense.)

The case was prosecuted by Principal Deputy Chief Brenda K. Morris, Trial Attorneys Nicholas A. Marsh and Edward P. Sullivan of the Criminal Division’s Public Integrity Section, headed by Chief William M. Welch II; and Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke from the District of Alaska.

On October 27, 2008, Stevens was found guilty of all seven counts of making false statements. Stevens was only the fifth sitting senator to be convicted by a jury in U.S. history, and the first since Senator Harrison A. Williams (D-NJ) in 1981 (although Senator David Durenberger (R-MN) plead guilty to a felony more recently, in 1995). Stevens faced a maximum penalty of five years per charge. His sentencing hearing was originally arranged February 25, but his attorneys told Judge Emmet Sullivan they would file applications to dispute the verdict by early December. However, it was thought unlikely that he would have seen significant time in prison.

Within a few days of his conviction, Stevens faced bipartisan calls for his resignation. Both parties’ presidential candidates, Barack Obama and John McCain, were quick to call for Stevens to stand down. Obama said that Stevens needed to resign to help “put an end to the corruption and influence-peddling in Washington.” McCain said that Stevens “has broken his trust with the people” and needed to step down—a call echoed by his running mate, Sarah Palin, governor of Stevens’s home state. Senate Minority Leader Mitch McConnell, as well as fellow Republican Senators Norm Coleman, John Sununu and Gorden Smith also called for Stevens to resign. McConnell said there would be “zero tolerance” for a convicted felon serving in the Senate—strongly hinting that he would support Stevens’s expulsion from the Senate unless Stevens resigned first.

Late on November 1, Senate Majority Leader Harry Reid confirmed that he would schedule a vote on Stevens’s expulsion, saying that “a convicted felon is not going to be able to serve in the United States Senate.” Had Stevens been expelled after winning election, a special election would have been held to fill the seat through the remainder of the term, until 2014. Some speculated Palin would have tried to run for the Senate via this special election. No sitting Senator has been expelled since the Civil War.

Nonetheless, during a debate with his opponent Mark Begich days after his conviction, Stevens continued to claim innocence. “I have not been convicted. I have a case pending against me, and probably the worst case of prosecutorial misconduct by the prosecutors that is known.” Stevens also cited plans to appeal. Begich went on to defeat Stevens by 3,724 votes.

On November 13, Republican Senator Jim DeMint of South Carolina announced he would move to have Stevens expelled from the Senate Republican Conference (caucus) regardless of the results of the election. (Absentee, provisional, and early ballots were, at the time, still being tallied in the close election.) Losing his caucus membership would cost Stevens his committee assignments. However, DeMint later decided to postpone offering his motion, saying that while there were enough votes to throw Stevens out, it would be a moot point if Stevens lost his reelection bid. Stevens ended up losing the Senate race, and on November 20, 2008, gave his last speech to the Senate, which was met with a rare Senate standing ovation.

In February 2009, FBI agent Chad Joy filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that could have resulted in a verdict of “not guilty” in Stevens’ case. In his affidavit, Joy alleged that prosecutors intentionally sent a key witness back to Alaska after the witness performed poorly during a mock cross examination.

The witness, Rocky Williams, later notified the defense attorneys that his testimony would undercut the prosecution’s claim that his company had spent its own money renovating Sen. Stevens’s house. Joy further alleged that the prosecutors intentionally withheld Brady material including redacted prior statements of a witness, and a memo from Bill Allen stating that Sen. Stevens probably would have paid for the goods and services if asked. Joy further alleged that a female FBI agent had an inappropriate relationship with Allen, who also gave gifts to FBI agents and helped one agent’s relative get a job.

As a result of Joy’s affidavit and claims by the defense that prosecutorial misconduct caused an unfair trial, Judge Sullivan ordered a hearing to be held on February 13, 2009, to determine whether a new trial should be ordered. At the February 13 hearing the judge held the prosecutors in contempt for failing to deliver documents to Stevens’s legal counsel. Judge Sullivan called this conduct “outrageous.”

On behalf of Obama U.S. Attorney General and Democrat partisan Eric Holder, Paul O’Brien submitted a “Motion of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice” in connection with case No. 08-231 early on April 1, 2009. Federal judge Emmet G. Sullivan soon signed the order, and since it occurred prior to sentencing it had the effect of vacating Stevens’s conviction.

During the trial, Sullivan expressed concern and anger regarding prosecutorial conduct and related issues. Holder, who had taken office only three months earlier, was reportedly very angry at the prosecutors’ apparent withholding of exculpatory evidence and wanted to send a message that prosecutorial misconduct would not be tolerated under his watch. After Sullivan held the prosecutors in contempt, Holder replaced the entire trial team, including top officials in the public integrity section. It should be noted that, even though Holder’s decision was the right one, the prosecutors were Republican appointees.

The final straw for Holder, according to numerous reports, was the discovery of a previously undocumented interview with Bill Allen, the prosecution’s star witness, that raised the possibility prosecutors had knowingly allowed Allen to perjure himself on the stand. Allen stated that the fair market value of the repairs to Stevens’s house was around $80,000—far less than the $250,000 he said it cost at trial.

More seriously, Allen said in the interview that he didn’t recall talking to Bob Persons, a friend of Stevens, regarding the repair bill for Stevens’s house. This directly contradicted Allen’s testimony at trial, in which he claimed Stevens asked him to give Persons a note Stevens sent him asking for a bill on the repair work. At trial, Allen said Persons had told him the note shouldn’t be taken seriously because “Ted’s just covering his ass.” Even without the notes, Stevens’s attorneys claimed that they thought Allen was lying about the conversation.

Later that day, Stevens’s attorney, Brendan Sullivan, said that Holder’s decision was forced by “extraordinary evidence of government corruption.” He also claimed that prosecutors not only withheld evidence, but “created false testimony that they gave us and actually presented false testimony in the courtroom”—two incidents that would have made it very likely that the convictions would have been overturned on appeal.

On April 7, 2009 federal judge Sullivan formally accepted Holder’s motion to set aside the verdict and throw out the indictment, declaring “There was never a judgment of conviction in this case. The jury’s verdict is being set aside and has no legal effect,” and calling it the worst case of prosecutorial misconduct he’d ever seen. He also initiated a criminal contempt investigation of six members of the prosecution. Although an internal probe by the Office of Professional Responsibility was already underway, Sullivan said he was not willing to trust it due to the “shocking and disturbing” nature of the misconduct.

In 2012, the Special Counsel report on the case was released. It said, “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

The fairness, quality and accuracy of the Special Prosecutor’s Report has been called into question, however, including the Special Prosecutor’s opinion that the exculpatory material allegedly withheld would not have made much of a difference in the outcome of the trial, and whether the material was deliberately concealed.

Upon the release of the Special Counsel report, the Stevens defense team released an analysis of its own which stated, “The meticulous detail paints a picture of the government’s shocking conduct in which prosecutors repeatedly ignored the law. The Report shows how prosecutors abandoned their oath of office and the ethical standards of their profession. They abandoned all decency and sound judgment when they indicted and prosecuted an 84-year old man who served his country in World War II combat, and who served with distinction for 40 years in the U.S. Senate.”

Most people assume, or have concluded, that Sen. Ted Stevens is guilty. After all, didn’t a D.C. grand jury indict Mr. Stevens on seven felony counts? Haven’t the U.S. government and its federal prosecutors concluded that Mr. Stevens failed to disclose taking more than $250,000 worth of gifts on his Senate financial disclosure forms?

 But just suppose all these media stories began with the following paragraph:

 “Sen. Ted Stevens, who must be presumed to be an innocent man until he is proven guilty by the U.S. government beyond a reasonable doubt, today was indicted on charges of filing false statements in Senate financial disclosure forms. As is normal, the grand jury voted the indictment based on one-sided evidence presented by prosecutors, without Sen. Stevens or his attorneys having an opportunity to be present, to cross-examine witnesses, or to present contrary evidence that could have created a reasonable doubt regarding his guilt.”

 Of course the media hype and page one, above-the-fold headlines about these charges lead to the public impression that Senator Stevens must be guilty of, well, something. Most media people and government prosecutors would probably say such a lead would be naive and ridiculous. What they couldn’t say is that a single word of the above paragraph is untrue.

Actually, the “presumption of innocence” appears nowhere in the U.S. Constitution. In 1895, the U.S. Supreme Court in Coffin v. U.S. held that such a presumption must be inferred from the 5th, 6th, and 14th amendments and guilt must be proven beyond a reasonable doubt. Here are a few examples to remember in case anyone forgets the importance of this presumption:

Remember the three Duke lacrosse team players indicted on rape charges in the spring of 2006 by Durham County District Attorney Mike Nifong? There was show host Nancy Grace on CNN proclaiming guilt before trial when she said, “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape.”

But then in 2007 came the findings of the North Carolina attorney general, who completely exonerated the indicted players and caused all charges to be dropped, accusing the since retired and disbarred Mr. Nifong of a “tragic rush to accuse.”

Remember Richard Jewell? During the 1996 Atlanta Olympics, he was publicly accused by the media in the Centennial Park bombing after having been lauded as a hero for having helped evacuate the park. The Atlanta Journal Constitution, citing anonymous law-enforcement officials, reported that he fit an FBI profile of a lone bomber and that the U.S. government was investigating him on that basis. He faced 24/7 media stakeouts in front of his home and news coverage every day that assumed his guilt. He was never even indicted.

Then, in April 2005, Eric Robert Rudolph plead guilty to planting the bomb and Mr. Jewell was completely exonerated. But not before his life was ruined and his heart broken long before he died, of diabetes and kidney failure at the age of 44.

Then there is Steven J. Hatfill, a former scientist at the U.S. Army Research Institute of Infectious Diseases at Fort Detrick, MD. Mr. Hatfill was named through anonymous leaks from “law enforcement sources” as a prime suspect in the anthrax scare. His life too was virtually ruined, his reputation forever tarnished by law enforcement leaks to the media rather than by evidence heard under the rules of due process.

And then the FBI has identified another suspect, Bruce E. Ivins, as the virtually certain source of the anthrax mailings at the same time it “settled” a civil case with Mr. Hatfill for a reported $5 million. Mr. Hatfill could be asking the same question as was once famously asked by former Republican Labor Secretary Raymond Donovan after a Bronx, N.Y., jury quickly acquitted him of multiple felony charges.

Mr. Donovan had suffered years of media innuendo fed largely by partisan Democrats making what turned out to be false charges of Mafia ties and corruption. When a reporter congratulated him after his quick acquittal on all charges, Mr. Donovan answered:

“Thank you: Now where do I go to get my reputation back?”

So, we all should learn and repeat the following Latin words: “Ei incumbit probatio qui dicit, non qui egat.” (“The burden of proof rests on he who asserts, not he who denies.”)”

So, where do all these people – and the literally thousands of other who have been destroyed by a government we created to protect our rights – go to obtain justice for lives of hard work destroyed by careless or malevolent but immunity protected, government functionaries?

Based upon the relevant facts presented above, it is apparent that there is no accepted standard concerning the issue of defamation for the courts in general, both State and federal, and the Supreme Court in particular, to follow. The tests described and the definitions of public, private and limited-public figures are entirely too subjective. The result has been that the debates in the public square – and even the arguments in the nations courts – have become free-for-alls with seemingly no limits to what can be said and written about any person – no matter how far from the truth such statements are, no matter how innocent a victim might be and no matter the damage wrought from deliberately defamatory speech.

The current state of affairs began to develop when exceptions to the traditional common-law consideration of defamation began to be “found” by the Supreme Court. For the Founders and Drafters of the Constitution, truth and honor were among the most important virtues in society and violating the sacred ground upon which each citizen’s reputation was built was tantamount to the most vile and vicious crimes imaginable. Settling such matters, on many occasions, came down to a duel. See Burr v. Hamilton.

That course of action is, of course, not recommended here but, that does not mean that the value an American citizen places on his or her reputation in the community has diminished in any way from colonial times.

The truth of the matter is that creating exemptions and finding exceptions and special considerations that benefit one class of persons and penalize another is unconstitutional on its face in that it treats citizens unequally with respect to their opportunities in our society.

Why should public persons – including public officials – and private persons be treated differently? Public persons have private lives and non-public persons have occasion to act in the public sphere – especially in the Internet Age and the advent of social media. The press/media don’t treat public and private persons differently – only progressive/ liberals and conservatives – all are newsworthy if politics, airtime or space for newsprint are available.

Even more to the point – that defamation law is chaotic and therefore unjust – is the timeless fact that truth matters. To say, in effect, that truth does not matter in some instances of defamation law and precedent is completely antithetical to the Judeo-Christian ethic upon which this nation was founded and which informed the Drafters of our Constitution.

The status of no citizen is necessary or sufficient to excuse or provide protection from making defamatory statements. This means that there are no exemptions for lawmakers in any forum, no exemption for perjuring witnesses in court, no exemptions for the failure of the press, in their reporting or editorializing, to exercise the standard level of care expected of professionals granted access beyond that available to other citizens.

Because of the nature of defamation – that once written or uttered, the damage is done – the issue of malice must become irrelevant to a finding that defamation has occurred. Malice may become a mitigating or contributing factor in the consideration of damages for the act of defamation but, not for the act itself.

A retraction of the same length and in the same location in the same periodical that published a defamatory item may mitigate damages while the failure of a reporter and editor to double check the veracity of the statements of a confidential (perhaps imaginary) source before publishing a defamatory story may contribute to enhanced damages.

Finally, defamation is injurious no matter if it was written or uttered, no matter if it involves public issues for private persons, private issues for public persons or vice-versa and no matter if it was accomplished with malice, contempt for the truth or carelessness.

Those defamed, slandered, libeled or likewise abused must have absolute recourse to the means to make them as whole as possible again – whether financially, professionally, personally, mentally, whatever. And the cost for that rehabilitation of one’s life, reputation, professional standing, financial well-being, etc. must be borne, in considerable part, by the defamer.

What delicious poetic justice that would have been for Senator Ted Stevens and what a bitter – but much deserved – pill to swallow by his peers in Washington, DC.

Next: Hate Crimes

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Freedom of Speech

Confidential sources

No one doubts the value of confidential sources to the press in the performance of duty in holding power to account and informing the public on matters of interest in the public square. The issue here is whether their confidentiality or their information or a combination of both is significant enough to trump the rights of the rest of the citizens of the United States to safety, security and domestic tranquility. When a journalist or editor invokes the confidentiality standard when he or she is in possession of information, or has confidential source who is in possession of such information, that may jeopardize citizens’ safety and/or security, then citizens rightly perceive a problem.

The fundamental issue in situations like this is that the source perceives that his or her safety, security or domestic tranquility will be compromised if they are identified as the source of their information. The anonymity guaranteed by the journalist is the key factor in gaining an agreement for the source to share their information.

The obvious solution to the journalist’s problem, should he or she be compelled to divulge the confidential information and its source, is to establish an entity where the rights of not just the source and the journalist are protected but where all parties – source, journalist/editor, law enforcement, the judiciary, the national security apparatus (if applicable) and the American people – may receive consideration and due process.

An appropriate site for such procedures and officials is the United States Foreign Intelligence Surveillance Court (FISC) (also called the FISA Court), a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants by federal law and intelligence agencies against alleged foreign operatives inside the United States. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Its powers have evolved and expanded to the point that it has been called “almost a parallel Supreme Court.”

In 2011, the Obama Administration secretly won permission from the Foreign Intelligence Surveillance Court to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases. The FISC also extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years with an extension possible for foreign intelligence or counterintelligence purposes. Both measures were done without public debate or any specific authority from Congress – a significant power indeed.”

As a result of this action by the Obama administration, PLDC operatives – especially within the Obama administration itself – abused this authority to conduct surveillance on members of the Trump campaign staff in an attempt to obtain embarrassing information to use against the Republican candidate in the 2016 Presidential campaign and thereby assist Democrat candidate Hillary Clinton to win the Presidency. Fortunately for the rule of law, they failed.

“Because of the sensitive nature of its business, the court is a “secret court” – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only certified government attorneys are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be “on call” at all times to hear evidence and decide whether or not to issue a warrant.

The court’s judges are appointed solely by the Chief Justice of the United States                    without confirmation or oversight by the U.S. Congress. The resulting secrecy of the court’s participants and proceedings is tailor made for “confidential source” issues where the likely outcome is for journalists to identify sources to the court in cases involving the safety of any portion of the general population or the national security and for the appropriate agency to begin a surveillance of the particular target with a warrant issued by the FISA Court.

The U.S. Supreme Court has already recognized an exemption to the Warrants Clause “outside the foreign intelligence context, in so-called “special-needs” cases. The “special-needs” doctrine is an exemption to the 4th Amendment’s Warrants Clause which commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be and seized”. In those cases, the Court excused compliance with the Warrant Clause when the purpose behind the governmental action went beyond routine law enforcement and insisting upon a warrant would materially interfere with the accomplishment of that purpose. See, Vernonia Sch. Dist. 4 v. Acton, 515 U.S. 646, 653 (1995). The requirements of the Freedom of Information Act are subordinate to this Constitutional provision.”

 This exemption to the Warrants Clause would be vital and appropriate to the work of State militias involved with anti-gang, anti-drug and human trafficking and anti-subversive operations using time-sensitive, crowd-sourced operational intelligence. Operational intelligence is especially time-sensitive information usually concerning the current location of a human target, or targets, of an interdiction operation.

 

Defamation

The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the elements of defamation and they must also prove that the defendant acted with “actual malice.”

 People who aren’t elected but who are still public figures because they are influential or famous – like movie stars or news ‘anchors’ – also have to prove that defamatory statements were made with actual malice, in most cases.

 The elements of slander/libel are: “First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff. Second, the plaintiff must prove that the defendant made an unprivileged statement/publication to a third party. Third, the plaintiff must prove that the speaker/publisher acted at least negligently in uttering/publishing the communication. Fourth, in some cases, the plaintiff must prove special damages.”

 In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court held that certain defamatory statements were protected by the First Amendment. The case involved a newspaper article that said unflattering things about a public figure, a politician. The Court pointed to “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

 “The Court acknowledged that in public discussions – especially about public figures like politicians – mistakes can be made. If those mistakes are “honestly made,” the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with “actual malice.”

 “Actual malice” means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth – for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.

 Later cases have built upon the New York Times rule, so that now the law balances the rules of defamation law with the interests of the First Amendment. The result is that whether defamation is actionable depends on what was said, who it was about, and whether it was a subject of public interest and thus protected by the First Amendment.”

 Private persons who are defamed have more protection than public figures – apparently, freedom of speech isn’t as important when the statements don’t involve an issue of public interest and does not acknowledge the fact that when a public figure is defamed, the whole world hears it whereas, when a private person is defamed, only a small coterie of friends and acquaintances are aware. Repairing the damage in the latter is possible, while the former is impossible. A private person who is defamed can prevail without having to prove that the defamer acted with actual malice.

 “Defamation law aims to strike a balance between allowing the distribution of information, ideas, and opinions, and protecting people from having lies told about them.

 What the victim must prove to establish that defamation occurred varies from state to state, but there are some generally accepted rules. If you believe you have been “defamed,” to prove it you usually have to show there’s been a statement that is all of the following:

·   published

·   false

·   injurious

·   unprivileged

 1. First, the “statement” can be spoken, written, pictured, or even gestured. Because written statements last longer than spoken statements, most courts, juries, and insurance companies consider libel more harmful than slander however, in the Internet Age, slanders may also be memorialized so this standard must change.

 2. “Published” means that a third party heard or saw the statement – that is, someone other than the person who made the statement or the person the statement was about. “Published” doesn’t necessarily mean that the statement was printed in a book – it just needs to have been made public through television, radio, speeches, gossip, Internet or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs.

 3. A defamatory statement must be demonstrably false – otherwise it’s not considered damaging. Even terribly mean or disparaging things are not defamatory if the shoe fits. Most opinions don’t count as defamation because they can’t be proved to be objectively false. For instance, when a reviewer says, “That was the worst book I’ve read all year,” she’s not defaming the author, because the statement can’t be proven to be false. [Perhaps the reviewer had only read The Great Gatsby by F. Scott Fitzgerald (1925), The Sound and the Fury by William Faulkner (1929) and To Kill a Mockingbird by Harper Lee (1960) that year.]

 4. The statement must be “injurious.” Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how their reputations were hurt by the false statement – for example, the person lost work; was shunned by neighbors, friends, or family members; or was harassed by the press. Someone who already had a terrible reputation most likely won’t collect much in a defamation suit but could receive some compensation.

 5. Finally, to qualify as a defamatory statement, the offending statement must be “unprivileged.” Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. For example, witnesses who testify falsely in court or at a deposition can’t be sued. (Although witnesses who testify to something they know is false could theoretically be prosecuted for perjury.)

 Lawmakers have decided that in these and other situations, which are considered “privileged,” free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation. Lawmaker’s themselves currently also enjoy this privilege: They aren’t liable for statements made in the legislative chamber or in official materials, even if they say or write things that would otherwise be defamatory.

 Public officials and figures have a harder time proving defamation: A defamation plaintiff must usually establish the following elements to recover:

·    Identification: The plaintiff must show that the publication was “of and              concerning” himself or herself.

·       Publication: The plaintiff must show that the defamatory statements were disseminated to a third party.

·      Defamatory meaning: The plaintiff must establish that the statements in question were defamatory. For example, the language must do more than simply annoy a person or hurt a person’s feelings.

·      Falsity: The statements must be false; truth is a defense to a defamation claim [despite the Supreme Court’s stated preference???]. Generally, the plaintiff bears the burden of proof of establishing falsity.

·      Statements of fact: The statements in question must be objectively verifiable as false statements of fact. In other words, the statements must be provable as false. (Caveat: Expressions of opinion can imply an assertion of objective facts. See Milkovich v. Lorain Journal)

·   Damages: The false and defamatory statements must cause actual injury or special damages.

There are numerous defenses and privileges to a defamation claim. Many of these vary from State to State. Sometimes, a particular party has carte blanche to make certain statements even if they are false. This is called an absolute privilege. Other privileges can be established as long as certain conditions are met. Some of the more common defenses and privileges include:

·      Truth or substantial truth: Truth is generally a complete defense. Many jurisdictions have adopted the substantial-truth doctrine, which protects a defamation defendant as long as the “gist” of the story is true.

·      Statements in judicial, legislative, and administrative proceedings: Defamatory statements made in these settings by participants are considered absolutely privileged. For example, a lawyer in a divorce case could not be sued for libel for comments he or she made during a court proceeding.

·      Fair report or fair comment: This privilege varies from jurisdiction to jurisdiction. Generally, it provides a measure of protection to a defendant who reports on the deliberations of a public body, such as a city council meeting.

·      Neutral-reporting privilege: Protects news organizations when they publish statements, even reckless statements, made by others about a public figure even if the press suspects the statements are not true. As one federal appeals court wrote in 1977 when describing the privilege:

 “We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth.”

 The neutral-reporting privilege differs from the similar fair-report privilege in that fair report generally applies only when the allegedly defamatory statements are made directly from a public record, public meeting or government press release. Neutral reporting applies to statements outside the context of official government proceedings or records. Not all jurisdictions recognize the neutral-reporting privilege. The U.S. Supreme Court has never directly ruled on it.

·      Libel-proof plaintiffs: This defense holds that some plaintiffs have such lousy reputations that essentially, they are libel-proof. The theory is that one cannot harm someone’s reputation when that person already has a damaged reputation.

·      Rhetorical hyperbole: Some courts will hold that certain language in certain contents (editorial/opinion column) is understood by the readers to be figurative language not to be interpreted literally.

·      Retraction statutes: Nearly every state possesses a statute that allows a defamation defendant to retract, or take back, a libelous publication. Some of these statutes bar recovery, while others prevent the defendant from recovering so-called punitive damages.

 Before 1964, defamation weighed more heavily in the legal balance than the First Amendment. Defamation, like many other common-law torts, was not subject to constitutional baselines. In fact, the Supreme Court compared libel to obscenity and fighting words — categories of expression that receive no First Amendment protection, as the Court held in Chaplinsky v. New Hampshire (1942):

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

This is an interesting collection of categories of speech. They are all subjective and can only be interpreted as libelous or slanderous or not either by the target of the speech. The Supreme Court has also ruled that obscenity is a local community standard and can vary from place to place. So, which is it, individual?, community?, national?

“American and English law had a storied tradition of treating libel as wholly without any free-speech protections. In fact, libel laws in England and the American Colonies imposed criminal, rather than civil, penalties. People were convicted of seditious libel for speaking or writing against the King of England or Colonial leaders. People could be prosecuted for blasphemous libel for criticizing the church, as Robert Wagman has noted.

Even truth was no defense to a libel prosecution. In fact, some commentators, including John Nowak and Ronald Rotunda, have used the phrase “the greater the truth, the greater the libel” to describe the State libel laws. The famous trial of John Peter Zenger in 1735 showed the perils facing a printer with the audacity to criticize a government leader.

“Zenger published articles critical of New York Governor William Cosby. Cosby had the publisher charged with seditious libel. Zenger’s defense attorney, Andrew Hamilton, colonial aristocrat and father of the founder of the Hamilton Watch Company, persuaded the jury to ignore the settled law that truth was no defense to a libel action. Zenger’s acquittal still stands as a 1st Amendment triumph in American jurisprudence. However, the case did not establish truth as a defense in other cases. The jury’s decision was more an act of jury nullification.”

The Zenger case did not create a new era of press freedom. Rather, as shown by Al Knight, English concepts of libel continued to prevail in the Colonies. Historian Leonard Levy explains that “the persistent notion of Colonial America as a society where freedom of expression was cherished is a hallucination which ignores history. … The American people simply did not believe or understand that freedom of thought and expression means equal freedom for the other person, especially the one with hated ideas.”

Even though the First Amendment was ratified as part of the Bill of Rights in 1791, a Federalist-dominated Congress, not surprisingly, then passed the Sedition Act of 1798, which was designed to silence political opposition. The draconian law prohibited “publishing any false, scandalous and malicious writing or writings against the government … with intent to defame … or to bring them … into contempt or disrepute.” The law was used to silence political opposition.

Until the latter half of the 20th Century, the law seemed to favor those suing for reputational harm. At common law for most of the 20th Century, a defendant could be civilly liable for defamation for publishing a defamatory statement about (or “of and concerning”) the plaintiff. A defamation defendant could be liable even if he or she expressed her defamatory comment as opinion. In many states, the statement was presumed false and the defendant had the burden of proving the truth of his or her statement. In essence, defamation was a strict-liability tort, as observed by legal scholar Rex Heinke.

The landscape of libel law dramatically changed when the U.S. Supreme Court issued its decision in New York Times v. Sullivan. The case arose out of the backdrop of the civil rights movement. The New York Times published an editorial advertisement in 1960 titled “Heed Their Rising Voices” by the Committee to Defend Martin Luther King. The full-page ad detailed abuses suffered by Southern black students at the hands of the police, particularly the police in Montgomery, Ala.

“Two paragraphs in the advertisement contained factual errors. For example, the third paragraph read: “In Montgomery, Alabama, after students sang ‘My Country, Tis of Thee’ on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.”

The paragraph contained undeniable errors. Nine students were expelled for demanding service at a lunch counter in the Montgomery County Courthouse, not for singing ‘My Country, ‘Tis of Thee’ on the State Capitol steps. The police never padlocked the campus-dining hall. The police did not “ring” the college campus. In another paragraph, the ad stated that the police had arrested Dr. Martin Luther King Jr. seven times. King had been arrested four times.

Even though he was not mentioned by name in the article, L.B. Sullivan, the city commissioner in charge of the police department, sued The New York Times and four black clergymen who were listed as the officers of the Committee to Defend Martin Luther King. Sullivan demanded a retraction from the Times, which it refused. The paper did print a retraction for Alabama Gov. John Patterson. After not receiving a retraction, Sullivan then sued the newspaper and the four clergymen for defamation in Alabama State court.

The trial judge submitted the case to the jury, charging them that the comments were “libelous per se” and not privileged. The judge instructed the jury that falsity and malice are presumed. He also said that the newspaper and the individual defendants could be held liable if the jury determined they had published the statements and that the statements were “of and concerning” Sullivan.

The jury awarded Sullivan $500,000. After this award was upheld by the Alabama appellate courts, The New York Times appealed to the U.S. Supreme Court. The high court reversed, finding that the “law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the 1st and 14th Amendments in a libel action brought by a public official against critics of his official conduct.” In other words, according to the United States Supreme Court, truth does not matter!

For the first time, the Supreme Court ruled that “libel can claim no talismanic immunity from constitutional limitations,” but must “be measured by standards that satisfy the First Amendment.” In oft-cited language, the high court wrote: “Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Notice the absence of the word “false” in the Court’s list of applicable adjectives.

The Court reasoned that an “erroneous statement is inevitable in free debate” and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court established a rule for defamation cases that dominates modern-day American libel law. The Court wrote: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

But “error” implies a mistake – a blunder. Journalists are expected to practice and exhibit professionalism when gathering information and to verify information before publishing. Apparently neither of these standards were met by the Times’ reporters or editors. The Court required a public official defamation plaintiff to show evidence of actual malice or reckless disregard for the truth by “convincing clarity” or clear and convincing evidence. This threshold has meant that many defamation defendants have stopped defamation suits before they go to a jury.

But, what does reckless mean? Synonyms include irresponsible, thoughtless, inattentive, careless, rash, uncaring, negligent, unconcerned and impulsive – any one of which could fairly be accurate descriptions of the level of professionalism – basic professionalism – exhibited by the Times during their information gathering efforts, if there were any efforts to begin with.

The high court extended the rule for public official defamation plaintiffs in 1967 in the consolidated cases of Curtis Publishing Co. v. Butts and The Associated Press v. Walker. 

Next: More defamation.

Changes to the 1st Amendment

Proposed change to Amendment One of the U.S. Constitution:

               “Section 1. The right of any citizen or citizens of the United States to freely practice all aspects of a constitutionally recognized religion shall not be denied or abridged in any manner by the Congress, by any federal court, including the Supreme Court, or by the Executive branch of the federal government of the United States or by any federal entity or by any government entity of any State, on the basis of any religious beliefs or by opposition to or the lack of, any religious beliefs.”

               “Section 2. No citizen of the United States shall be compelled to participate in any activity that violates their beliefs about the tenets and practices of their constitutionally recognized religion, under any circumstances, for any purpose, by any individual, government agency, court or congress. Such beliefs can only be considered in an employment decision if the individual acknowledges their constitutionally recognized religion to their potential employer and their beliefs are deemed incompatible with the essential duties of their employment. Should this situation arise, employers must make a reasonable attempt to place the duties in question within the job description of another position so that the candidate’s religious beliefs are not the sole reason for denial or termination of employment.”

            “Section 3. Confidential sources can provide an important service to the press and their anonymity is essential. Such sources having information considered vital to the national security and/or the public safety may be compelled to testify before the United States Foreign Intelligence Surveillance Court in order for appropriate agencies to take actions to prevent harm to United States’ interests. The anonymity of confidential sources shall be maintained after such testimony and their testimony shall remain confidential and not available under Freedom of Information Act requirements or for use in any public forum.”

            “Section 4. The citizens of the United States shall not be subjected to defamation under any form of protected speech. Neither malice, public station, method, damages, whether economic or otherwise, shall be considered as mitigating. Only the veracity of the defamation shall be germane.

            “Section 5. Discreet audio and visual actions and/or depictions of actual psychological and/or physical violence directed toward or committed against any person, group of persons, communities or any other confederation of persons shall not be considered protected speech and shall be subject to sufficient legal sanction against creators, performers, producers, distributors and providers as may be warranted by statute to eliminate such content from the community-at-large.”

            “Section 6. All crime is hateful in one form or another. The statutory definition of a crime shall stand on its own before the law. Any provable degree of bias shall be addressed by degree in the charge against the accused. The term “hate” shall not be applied to any unproven charge.”

            “Section 7. Should a formal petition addressed to the President of the United States receive a number of signatures, in any form, equal to one-percent of the number of votes cast for the sitting President, that petition must be presented to the Congress for consideration. Congress must take the appropriate action in consideration of the subsequent bill.”

            “Section 8. All official government business, operations, speech and correspondence, generated within the United States, shall be conducted in the English language.”

            “Section 9. The communal value of the printed news of the day is integral to the strength of the community, hence no activities associated with the printed press shall be taxed.”

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

The 1st Amendment reads:

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

The First Amendment of the Bill of Rights above says that “Congress shall make no law respecting an establishment of religion.” These ten words are known as the Establishment Clause and apply to State legislatures as well as the federal Congress. This clause prohibits the government from establishing an official religion or favoring one religion over another.

The Establishment Clause also prohibits the government from preferring religion over non-religion in the sense that the government cannot compel religious activity and, by extension, cannot prohibit any religious activity that does not impinge upon other constitutionally protected rights. The Establishment Clause not only affects the types of laws a government may pass, but also the sort of action governments may take.

 It was no accident that the issue of religious freedom was first in the minds of the People when it came to demanding and then creating the Bill of Rights and appending it to the Constitution. Their new nation would be grounded in the Judeo-Christian ethic that had sparked Western Civilization after the fall of the Roman Empire to godless hordes in the 5th Century.

Of those who could read, the first book most of them read from was the Bible. Now they would memorialize it in the very fabric of the new nation. The religion that it described and proscribed was what they conceived of as “religion”. They were aware of the “Mohammedans” and other religions of South Asia from their trading in the Mediterranean but, their concept of God and his relationship with man was drawn from the pages of the Judeo-Christian Bible.

It was the story of a caring and forgiving God who had inspired and protected the Jewish people in the Old Testament and who, in the New Testament, invited people to accept His grace and have faith in the Christ who had sacrificed himself for the forgiveness of man’s sins. It was a relationship of love and living in harmony with all of God’s creation and the Constitution would reflect that sentiment in its brevity and dedication to the concept that all men are free to pursue whatever dream they want, as long as they don’t interfere with another’s right to do the same.

That simple concept is under attack – from within and without – and the Constitution must be strengthened and enhanced in order to deal with these threats. There are three primary threats. They are: the concept of “freedom from religion” propounded by the secular activists; the activism of the Supreme Court in removing social issues, emanating from the Judeo-Christian ethic and which are not delineated in the 10th Amendment, from the purview of the States; and the classification of some politicalinstitutions as “religions”.

Any discussion of religion in American public life must start with Thomas Jefferson’s reference to the “separation of church and state” mentioned only in random correspondence written by several of the Founders. Separation of church and state does not mean separation of faith from organized religion and it certainly doesn’t mean that the state has any role in any debate about “freedom from religion”, which is what the “separation of church and state” crowd is really after.

Jefferson, echoing the language of the founder of the first Baptist church in America, Roger Williams – who had written in 1644 of “[A] hedge or wall of separation between the garden of the church and the wilderness of the world” – Jefferson wrote;

 “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

 Understand that it was not the concern of the Founders, or the People, that organized religion would somehow take control of the state – their concern was that the state would take control of religion. The purpose of the Establishment clause and the Free Exercise clause was to bind the Federal government, not religious freedom. It was hoped that religious principles would run wide and deep through American public life.

 Most Americans have heard of the “separation between church and state.” What is not so well understood is that, although this idea resides in the 1st Amendment and prohibits the government from either forcing or preventing religious activity, when combined with the same 1st Amendment principle regarding speech, in all of its forms,should prohibit the government from either forcing or preventing religious speech. In the end, religious speech (concerning faith and morals) is not political speech and therefore, not subject to restriction in any form by any statute.

 We met the great 19th Century jurist, Joseph Story, earlier. He thought that:

 “ … the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well-being of the state, and indispensable to the administration of civil justice,”

 He looked upon the prohibition in the 1st Amendment simply as an exclusion from the Federal Government of all power to act upon the subject.

 ”The situation . . . of the different States equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the States, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment.”

 “The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice, and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

 ”Probably,” Story also wrote, ”at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.

 An attempt to level all religions, and to make it a matter of State policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.” The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.

 This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ”aid one religion” or ”prefer one religion over another,” but as well those that ”aid all religions.”

Of course, if this were the intent of the Drafters, they would have simply outlawed religion – after which they would surely have been hanged.

 Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ”preferential” governmental promotion of some religions, allowing general governmental promotion of all religion in general. The “common sense” clause.”

 Although Story’s interpretation of the Establishment clause has fallen out of favor in legal circles, it reflects the centrality of the Judeo-Christian culture in America at its founding. This fact must inform any discussion about religion in the public life of this country. It certainly does not support the contention that religion has no place in the public square. It certainly does if we are to honor Jefferson’s caution that it is the experience with governing that must take precedence in any discussion about amending the Constitution.

 Today, the “Lemon Test” is a three-part test the court applies when a law or governmental action regarding religion and has been challenged as violating the Establishment Clause of the First Amendment. This three-pronged test was first established in Lemon v. Kurtzman, and a law or government action must pass all three parts of the test to be deemed constitutional.

 “First Prong: Non-Religious Purpose: The first prong of the Lemon Test requires that a law have a non-religious, or secular, purpose. This means that the government must not intend to encourage participation in religion. A law that reasonably serves other purposes will likely pass this prong of the test.

 Consider, for example, a law that provides financial aid to low-income children to attend any private school of their choice, including religious schools. Such a law will probably have the non-religious purpose of ensuring that all children are able to receive a quality education.

 Second Prong: Primary Effect: Under this prong, the court will ask whether the law has the primary effect of promoting or advancing religion. In making this determination, the government will consider several factors. A law that affects a large group of citizens will probably not violate the Establishment Clause. In contrast, a law that only benefits a particular religious group would likely be unconstitutional.

 Similarly, a law that provides direct benefits to a single religious group will probably have a primary effect of advancing religion. A law that only indirectly benefits religious groups will probably not be viewed as a violation the Establishment Clause.

 Third Prong: Government Entanglement: The final question of the Lemon Test asks whether there will be “excessive government entanglement” in carrying out the law or government action. Like the second prong of the Lemon Test, there is no clear method of evaluating this question.

 However, courts are concerned with whether or not a law will require the government to become closely involved with religious groups to enforce the law. For example, a law that requires the government to pay for history textbooks in religious schools will require less oversight than a law that requires specific teacher salaries in religious schools to be paid.”

It is when the Court inserts itself into issues of religious speech, in any or all of its forms, that it runs afoul of its own process, specifically, the Second Prong of the Lemon Test (underlined). The 1st Amendment states, unequivocally, that

 “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

 Surely, communication – speech, in all of its forms – is essential to the free exercise of religious rights and speech emanating from most established religions affects a large number of people.

 If the particular religious question in a case has nothing to do with a law or government regulation, the Court has no standing in the religious issues at play in the matter. In limiting the speech of religious-based interests in the public square, the Court has forsaken not only one, but two of the protections in the 1st Amendment in order to pacify some who apparently have little regard for either.

 The basis of these rulings lies in the offense that religious-based speech apparently gives to non-religious “believers”, or different-religious believers. There is, of course, no mention of a prohibition for “offensive speech” in the Constitution – in fact, it is to protect offensive speech – speech that may offend some listeners who may have a different opinion on the subject at hand – that freedom of speech was included in the Amendment in the first place.

 And, so finally comes the question – what is a religion and what isn’t? If we are to debate any issues of morality, rights, law, culture or history – we must define what a religion is – and is not – in the United States.

The First Amendment guarantee of freedom of religion has deeply rooted historical significance. Many of the colonists who founded the United States came to this continent to escape religious persecution and government religious oppression – Roman Catholics in England, for example. This country’s founders advocated religious freedom and sought to prevent any one religion or group of religious organizations from dominating the government or imposing its will or beliefs on society as a whole, thereby oppressing the People. The revolutionary philosophy encompassed the principle that the interests of society are best served if individuals are free to form their own opinions and beliefs.

An extensive body of law has developed in the United States around both the Establishment Clause and the Free Exercise Clause – as we have previously discussed. To determine whether an action of the federal or State government infringes upon a person’s right to freedom of religion, the court must decide what qualifies as religion or religious activities for purposes of the First Amendment.

“The Supreme Court, in United States v. Seeger, 380 U.S. 163 (1965), has interpreted religion to mean a sincere and meaningful belief that occupies in the life of its possessor “a place parallel to the place held by God in the lives of other persons”. In a nation founded upon the Judeo-Christian ethic, that place is an approachable, accessible, merciful and compassionate Supreme Being and Creator of all things who advocates love by all, for all.

According to other opinions handed down by the Supreme Court, the religion or religious concept need not include belief in the existence of God or a supreme being to be within the scope of the First Amendment which is illogical on its face because its stated interpretation; “a place parallel to the place held by God in the lives of other persons” includes the concept of “God” at its very heart – the God at the heart of the Abrahamic religions.

As the case of United States v. Ballard (1944), demonstrates, the Supreme Court must look to the sincerity of a person’s beliefs to help decide if those beliefs constitute a religion that deserves constitutional protection.

 Governments do not enjoy freedom of speech, but, instead, are controlled by the second half of the First Amendment—the Establishment Clause, which forbids any official establishment of religion.

 The first half of the Amendment, the Free Exercise Clause, guarantees a person the right to practice a religion and propagate it without government interference. This right is a liberty interest that cannot be deprived without Due Process of Law.

 Although the government cannot restrict a person’s religious beliefs, it can limit the practice of faith when a substantial and compelling state interest exists. The courts have found that a substantial and compelling state interest exists when the religious practice poses a threat to the health, safety, or welfare of the public.

 For example, the government could legitimately outlaw the practice of polygamy that was formerly mandated by the doctrines of the Church of Jesus Christ of Latter-day Saints (Mormons) but could not outlaw the religion or belief in Mormonism itself which is centered on the Christian God.

  In the 1997 case of City of Boerne v. P. F. Flores, the U.S. Supreme Court voted 6–3 to invalidate The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA). It is a 1993 United States federal law that “ensures that interests in religious freedom are protected.” on the grounds that Congress had exceeded the scope of its enforcement power under Section 5 of the 14thAmendment in enacting RFRA. Section 5 of the 14th Amendment permits Congress to enact legislation enforcing the Constitutional right to free exercise of religion. However, the Court held that this power is limited to preventive or remedial measures. 

 Because of these considerations, a “religion” that demands that its believers kill other human beings in defense of their religious beliefs (beheading “infidels”, “honor” killings, etc.) is incompatible with the Constitution of the United States and is, therefore, not a religion for constitutional purposes. The prime case in point – Islam (discussed earlier). 

Like the courts, the press has been subject to little critical scrutiny over the two centuries it has been functioning under the simple mandate of the 1st Amendment to the Constitution. Unlike the courts, which have usurped more and more power unto themselves, thereby expanding their mandate, the press has fundamentally changed the nature of their mandate.

As originally conceived, journalists ran with the riff-raff of society – the underlings, servants and ne’er-do-wells and exposed the corruption and hypocrisy of the power brokers – the “swells” of the time. Today, journalists run with the swells and have become complicit with their corruption and hypocrisy. The freedom of the press must be protected from the moral and ethical riff-raff endemic among the swells of contemporary America.

Next time: The freedom of the press.

Article Four Amendments

Proposed change to Article Four, Section Two, of the U.S. Constitution:

            “Section 1.  No legal immunity shall extend to any citizen or any non-citizen if it has been charged that they have committed a violation of the laws of the United States, unless such immunity is granted by the proper authorities as part of due process.”

             “Section 2. Should the President of the United States be accused of committing libel or slander, all legal proceedings, including any statute of limitations, shall be held in abeyance until the President completes his or her term.”

“Section 3. No justice of the Supreme Court or their clerks and no elected or appointed member of the executive and their staff and no federal or State appointed or elected judge or their clerks and no member of the bar in any of the several States or the District of Columbia or the several Territories, may libel or slander another American citizen with impunity. All are subject to the applicable laws and do not enjoy any immunity as a privilege of office or a condition of service.

“Section 4. Any justice of the Supreme Court or sitting federal or State judge or any practicing attorney before the bar, in comments before the courts, including the Supreme Court, or in written submissions or opinions, who are charged and convicted of slander or libel shall have committed an impeachable offense and shall be prosecuted by the appropriate judge advocate.

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

Libel and slander laws are predicated upon truth. Under no circumstances can the truth be set aside in favor of an individual. The essence of libel and slander is the intentional and deliberate corruption of truth. The minimum standard for all public discourse about matters in the public square in America must be the truth, the whole truth and nothing but the truth. Public officials, both elected and appointed, and the press must be held to the highest possible standard of truth in order to ensure an informed electorate.

 

Proposed change to Article Four, Section Four, of the U.S. Constitution:

 

            “Section 1. The United States shall guarantee to every State in this Union a Republican form of Government, and shall protect each of them against invasion by foreign forces however constituted, by providing sufficient police and military forces and material to maintain sovereign, safe and secure international borders and sufficient internal controls and forces to guarantee absolute control of political and economic refugees, non-citizen immigrants or visitors coming into and living within the United States for a period of time exceeding their visa, if applicable; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), or of the Governors of the several States, against domestic Violence, especially in a form of terrorism or acts of war, by organized and armed, non-state sponsored, non-authorized groups operating outside national and/or international law such as officially designated gangs, drug and human trafficking organizations, unlawful combatants, illegal combatants or unprivileged combatants/belligerents and their domestic support groups.”

            “Section 2. Legal immigration shall be limited to one-tenth of one-percent of the national citizen population by census in any one year.”

            “Section 3. A person or persons, apprehended in connection with actions that are considered a form of terrorism or acts of war described in Section 1 above, shall be processed in accordance with the Laws of War and shall be incarcerated, without access to the American legal system, until they are no longer considered to be a threat to the American people.”

            “Section 4. A non-citizen shall not sponsor another non-citizen for purposes of immigration into the United States. A non-citizen immigrant shall not apply for citizenship status prior to the fifth anniversary of their entry in to the United States. The citizenship process shall take five years. A naturalized citizen shall be permitted to sponsor primary family members only into the United States. Primary family members are one’s legal spouse and children only. Such sponsorships shall count against the annual maximum number of immigrants into the United States.

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

“At the end of the 19th century, the Supreme Court declared that Congress had “plenary power” (meaning full and complete) to regulate immigration. Derived from Article 1, Section 8 of the Constitution, the doctrine is based on the concept that immigration is a question of national sovereignty, relating to a nation’s right to define its own borders and restrict entrance therein. As the high court observed.  “Over no conceivable subject is the legislative power of Congress more complete.”

 Article II, Section 3 requires that the President “shall take Care that the Laws be faithfully executed.” Nowhere is it written that the chief executive is granted the latitude to pick and choose which laws he or she wants to enforce. He cannot ignore or nullify laws he does not like because the Constitution specifically prohibits the power not to execute laws by the use of the command “shall”.

 Illegal immigration and chaotic legal immigration are the most dangerous long-term threats to America. Estimates are that more than 700,000 illegal immigrants cross the southern border of the U.S. from Mexico every year. In addition, an estimated 350,000 babies are born to illegal immigrants already residing in the U.S. every year. That is more than one-million more people for the American taxpayer to support in one way or another every year, a callous disregard for the American people.

In recent years, this number has been supplemented by 100,000 unaccompanied minors, including infants, being sent across the border by Central American parents – knowing that the good people of the U.S. can be exploited and will take care of them.”

Some other statistics may be of interest:

“Between 10-20 million illegal aliens presently roam the U.S.  The number of illegal aliens doubled in the 1990’s. Each year more than 1.3 million legal and illegal aliens settle permanently in the U.S. For every 100 illegal aliens who find jobs in the U.S., 65 American citizen workers are displaced.

 Illegal immigrants cost the American taxpayer more than $1.6 billion per year (cost of services provided minus taxes paid by illegal workers). On average, every illegal immigrant sponsors six (6) additional immigrants into the United States. This statistic means that 3.5 million (700,000 x 6 = 3.5 million) more immigrants will come to the United States every year.

 Each year, more than 72,000 aliens are arrested for drug offenses in the U.S. Illegal aliens constitute over 25% of the federal prison population. Think about that for a moment. This means that a group which comprises less than 5% of the population is committing 25% percent of the crime.

 In Los Angeles alone, 95% of all outstanding warrants for homicide (which total approximately 1,200 -1,500) target illegal aliens. Up to two-thirds of all fugitive felony warrants (approximately 17,000) are for illegal aliens. For context, Los Angeles has about 9,800 sworn officers.

 In Lake County, Illinois (Chicago area), half of the murderers and more than 21% of all criminals now in jail are illegal aliens, costing the county an annualized rate of more than $4 million. Approximately 400,000 illegal aliens who have committed crimes and have been given a deportation order are still at large in the U.S., their whereabouts unknown.

 It has been established that the nationwide costs to States and localities for housing illegal criminal aliens is about $2 billion per year. A 2011 report on the fiscal burden of illegal immigration on United States taxpayers found the following: Illegal immigration costs U.S. taxpayers about $113 billion a year at the federal, State and local level. The bulk of the costs — some $84 billion — are absorbed by State and local governments.

 The annual outlay that illegal aliens cost U.S. taxpayers is an average amount per native-headed household of $1,117 – add that to the more than $63,000 every man, woman and child owes to pay off the national debt, now exceeding $20 trillion. The fiscal impact per household varies considerably because the greatest share of the burden falls on State and local taxpayers whose burden depends on the size of the illegal alien population in that locality

 Education for the children of illegal aliens constitutes the single largest cost to taxpayers, at an annual price tag of nearly $52 billion. Nearly all of those costs are absorbed by State and local governments. The cost in Los Angeles is more than $7 billion all by itself.

 At the federal level, about one-third of outlays are matched by tax collections from illegal aliens. At the State and local level, an average of less than 5 percent of the public costs associated with illegal immigration is recouped through taxes collected from illegal aliens. Most illegal aliens do not pay income taxes. Among those who do, much of the revenues collected are refunded to the illegal aliens when they file tax returns. Many are also claiming tax credits resulting in payments from the U.S. Treasury.

 This astounding list goes on and on!

Quite simply, law enforcement, as presently constituted in the United States in politics, manpower and budget, is incapable of successfully eradicating the problem of organized, illegal or extralegal groups intent upon conducting operations – such as domestic and foreign gangs controlling great swaths of America’s cities and the illicit trade in drugs in these “territories” and now branching out into rural areas; shepherding illegal immigrants across our borders and into the interior of the country; human trafficking for economic slavery and sexual exploitation; drug-trafficking foreign cartels and foreign inspired lone-wolf and terrorist cells – that constitute a real and present danger of domestic terror or other forms of violence against persons and property and call into question the safety, security and the very survival of every citizen, and domestic tranquility itself, in the United States.

Without a philosophical change in the official approach to these issues, they will simply continue to overwhelm law enforcement until society crumbles into anarchy. The invasion of the United States by these groups constitute acts of war and, as we see every day, can only be defeated by much more robust domestic, military-style response (think SWAT on steroids). The basic law-enforcement model has proven to be a failure against this new domestic threat (terror – in all of its manifestations) despite the valiant efforts of our federal, state and local law enforcement personnel.

 There are also issues with the legal immigration system. American consular offices around the world receive twelve-million visa applications per year – that breaks down to 50,000 per day, every day. It is simply impossible to process a workload that great. Changes must be made to allow for the proper vetting and processing of these millions of unsolicited applications.

 An initial change that would dramatically reduce the number of visa applications is a requirement that all adult applicants must be fluent in written and spoken English. All forms being completed in English and all interviews being conducted in English would certify this requirement. Another change would be to administer a general knowledge exam that would certify a fundamental knowledge of America’s history, customs and traditions and the “immigrant path” to successful assimilation into American society.

 Congressionally mandated numbers of immigrants with specific skills to contribute to growth in the economy shall govern the application process. A small number of unskilled immigrants should also be approved but assiduously completed background investigations are the most critical factor. Finally, all immigrants must have a financially responsible citizen sponsor to help guide them through their transition and their path to citizenship.

 This all must begin with a change in the mindset of those departments responsible for the administration of legal immigration into the United States. Begin with this: anyone not born to a citizen of the United States has no right to be in the United States. If a person becomes a naturalized citizen, he or she attains that right. Second; the United States, as a sovereign nation, has an absolute right to control who is allowed to enter the country and under what conditions. Third; visas granted to live and work in the United States must not place any burden whatsoever on American taxpayers. In other words, immigrants must pay their own way.

 Historically, the United States has been able to successfully, effectively and efficiently assimilate approximately one quarter-million immigrants per year. Initially, the availability of land made possible the absorption of a high percentage of immigrants (think a quarter-million into a population of ten-million => 2.5% in 1825 or into a population of 50 million => .5% in 1880) in the great migrations of the 19th Century but, with the closing of the frontier at the end of that century, the historically high percentage of annual immigrants began to overwhelm America – especially in the larger cities.

 The resulting overcrowding of the cities – leading to medieval-style slums where raw sewage was thrown into the streets, abject poverty, crime, depravity, disease (think mental stress from that environment) and hopelessness have been with us for more than a century – in reality, since the 1880s when the industrial revolution took hold in America. When the immigration rate reached one-million a year in 1990, assimilation became impossible.

 We have now created a nation of “balkanized” communities in our major cities that resemble foreign countries with predominantly foreign languages, foreign lifestyles, foreign moral codes, foreign ideas of what constitutes justice and with no impetus to assimilate. Although many residents are foreign born, many are American citizen members of minority groups who experience the hopelessness of poverty in the welfare state and have assumed the identity of foreigners in their own land. Remember “Ebonics”?

 “Ebonics, or “African-American Vernacular English”, is a distinctive dialect, or variety, of English spoken by African-Americans. On December 18, 1996 the Oakland Unified School District school board of Oakland, CA, passed a controversial resolution recognizing the legitimacy of Ebonics as an African language [then why refer to it as English in the official title ???!!!] The resolution set off a firestorm of derision, media criticism and ignited a national debate.

For students whose primary language was “Ebonics”, the Oakland resolution mandated some instruction in this, both for “maintaining the legitimacy and richness of such language… and to facilitate their acquisition and mastery of English language skills.” This also included the proposed increase of salaries of those proficient in both Ebonics and Standard English to the level of those teaching limited English proficiency (LEP) students and the use of public funding to help teachers learn AAVE themselves.

Some interpretations of the controversial issues in the resolution include the idea that Ebonics is not a vernacular or dialect of English, that it is a separate language; a member of the African language family; that African-Americans’ particular language and their dialects; that speakers of Ebonics should qualify for federally funded programs traditionally restricted to bilingual populations; and that students would be taught American Standard English via Ebonics.”

 Understand that few, if any of these students or teachers, were Africans or had ever been to Africa to learn this “language”. That however, didn’t dim the passion for this project because it reflected the sense of the community that these American citizens were living in a “foreign” country – America!

 “For the residents of these areas, traditional American values, lifestyles, moral codes, system of justice and language are “foreign” elements that they resent and do not respect. The result is a lawlessness (by traditional American standards) and a hopelessness that breeds hatred and violence both within the balkanized community and in the surrounding areas. These are areas that nearby residents warn others not to go out of fear for their lives.”

 It is in and around these areas that terrorism and other forms of domestic violence breed in the form of urban gangs, human trafficking for economic slavery and sexual exploitation, drug trafficking cartels and foreign inspired lone-wolf and terrorist cells that are overwhelming law enforcement forces. The “military forces” referred to in the amendment include National Guard and National Guard Reserves, i.e. State militia forces operating under the authority of the Governors of the respective states.

 “The “law of war” mentioned above is “… that part of international law that regulates the resort to armed force; the conduct of military style operations and the protection of innocent victims in both international and non-international armed conflict; belligerent occupation; and the relationships between belligerent, neutral, and non-belligerent (in general, “irregular”) forces.

 ·         Purposes of the “Law of War”. The main purposes of the “law of war” are: • protecting combatants, noncombatants, and civilians from unnecessary suffering; • providing certain fundamental protections for persons who fall into the hands of the opposing forces, particularly prisoners, civilians, wounded, sick, and/or shipwrecked; • facilitating the restoration of peace; • assisting military commanders in ensuring the disciplined and efficient use of military force; and • preserving the professionalism and humanity of combatants.

 ·         The object of the use of force is to vindicate rights [principally, the inherent rights of life, liberty, the pursuit of happiness, self-defense and constitutionally protected civil rights] under international law: The object of military style action has been understood to be the submission of the opposition as quickly and efficiently as possible. The defeat of the opposition is intended to advance political objectives, even where those political objectives are limited. The object of military style action informs the principle of military necessity and what uses of force may be justified. Nevertheless, the “law of war” limits what uses of force the object may justify.

 ·         Certain “law of war” rules already apply to non-international armed conflicts (such as intra-state conflicts or conflicts between a State and a non-State armed group). There is no single legal definition of “war,” “hostilities,” or “armed conflict,” and the definition of these terms has varied in both domestic and international law. In domestic law, “war,” “hostilities,” and “armed conflict” have been interpreted differently depending on the specific legal context at issue.

 ·         For example, under the Constitution, Congress has the power to “declare war.” Thus, “war” might be interpreted to determine whether a military operation constitutes “war” in this sense. Similarly, the War Powers Resolution states certain requirements that are triggered when U.S. forces are introduced into “hostilities.” Other statutes may require a determination that conduct has occurred “[w]hen the United States is at war” or during “time of war.” The Civil War, for example, was a domestic “war” – primarily utilizing State militia forces.

 ·         Other examples of law of war rules and situations in which it may be appropriate to apply those rules by analogy include: (1) applying “jus in bello” (law of war) rules in certain situations involving neutral or non-belligerent states; (2) applying law of war rules with a humanitarian purpose in situations outside the context of armed conflict; (3) applying occupation law provisions for the protection of the civilian population in situations not constituting belligerent occupation; and (4) applying certain international armed conflict rules in situations of non-international (domestic) armed conflict.

 ·         Because law of war rules often reflects elementary considerations of humanity, it may be appropriate to apply such standards to military operations occurring outside the context of armed conflict. Unlawful combatants are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. “Belligerent” has also been used to contrast armed groups that have “belligerent rights” with armed groups that lack such rights, such as “insurgents.

 ·         Types of Unprivileged Belligerents. Unprivileged belligerents may generally be classified into two categories that may be distinguished from one another by the presence or absence of state authorization: • persons who have initially qualified as combatants (i.e., by falling into one of the three categories mentioned above), but who have acted so as to forfeit the privileges of combatant status by engaging in spying or sabotage; and • persons who never meet the qualifications to be entitled to the privileges of combatant status, but who have, by engaging in hostilities, incurred the corresponding liabilities of combatant status (i.e., forfeited one or more of the protections of civilian status) – like violent gang members, e.g. the Hispanic gang known as MS13. Remember it!

 ·         Members of militia and volunteer corps that are not part of the armed forces of a sovereign state (country) already qualify as combatants and receive the rights, duties, and liabilities of combatant status. More specifically, Article 4(A)(2) of the GPW defines combatants to include: Members of other militias and members of other volunteer corps, … belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign (uniform or flag) recognizable at a distance; (c) that of carrying arms openly. [Mexican federal police, who frequently cross the border into the United States to conduct operations – yes, they do — are a prime example.

 ·         In general, journalists are civilians. However, journalists may be members of the armed forces, persons authorized to accompany armed forces, or unprivileged belligerents.”

 ·         So, why talk about the “Law of War” in this context? Because legally constituted militia will be operating, not as law enforcement – appropriate for situations where the general population actually understand and respect the necessity for the concept of “law and order” – but will be confronting well-connected corrupt officials and well-armed, extra-legal, non-state operators – “enemies of the sovereign state system” – who have no respect for – and sometimes actually outnumber with superior fire-power – law enforcement and so must be confronted with force (and operable intelligence) superior to their own in order to ensure the safety, security and tranquility of the general population.

 Such actors, when apprehended, shall be incarcerated in camps operated by State militia forces until they are considered to no longer be a threat to the American people or until their status has been determined by the Staff Judge Advocate. As “irregular” combatants, they shall have no rights under the writ of habeas corpus nor access to either the American judicial system or any international agency.

 They shall be accorded minimum acceptable care per the United States Red Cross and shall be provided with the same necessities of life as the American soldier in the field. They shall not be classified as “prisoners-of-war” which require a sovereign-state sponsor. Should an escape occur, the escapees shall be hunted down and returned to the facility. Should it be necessary to protect life and property, an escapee may be terminated with extreme prejudice by the appropriate forces.

 All irregular forces who are American citizens shall be afforded due process through the Office of the Staff Judge Advocate for the State in which they were operating. As with citizens who have committed subversive acts, irregular forces, who have, in effect, taken up arms against the citizens of the United States, may be subject to revocation of citizenship. Should this occur, such persons will be sent to any sovereign country that will accept them, provided they are not able to do harm to America or Americans from that location – probably an impossible standard.

 As with all persons with revoked citizenship who are unacceptable to any other sovereign country, they shall be sent to a remote offshore location administered by the United States, where they will remain until the end of their natural lives or until a sovereign country agrees to accept them provided they do not present a threat to the United States.

 All irregular forces who are not American citizens shall be afforded due process through the Office of the Staff Judge Advocate for the State in which they were operating. Such persons will be sent to their homeland or any other sovereign country that will accept them, provided they are not able to do harm to America or Americans from that location.

 For persons who are unacceptable to any other sovereign country, they shall be sent to a remote offshore location administered by the United States, where they will remain until the end of their natural lives or until a sovereign country agrees to accept them – provided they do not present a threat to the United States or its citizens.

 Such an offshore location would be Johnston Atoll, located about 750 nautical miles southwest of Hawaii. The 1973 movie Papillon comes to mind.

 Finally, consideration should be given to a plan that would have a wristband placed on every foreign citizen entering the United States which contains a GPS system so that officials can find the foreign citizens, if necessary.

Next time: Changes/clarifications to the 1st Amendment.

Proposed Amendments to Art. 2, 3, 4

Proposed change to Article Two, Section Two, Clause Two of the U.S. Constitution:

Section 1. The President shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, or any other signed agreements with Foreign States which levy responsibilities upon the United States, provided two thirds of the Senators present concur, and the President shall not present these Treaties or agreements to any other body or entity, or act upon the provisions contained within, until the Senate has acted.”

Section 2. All votes in each house of Congress; floor votes, committee votes, for whatever purpose, except for those votes indicated in the original written Constitution, if not previously amended, shall be simple majority votes for passage. Ties in the House shall be broken by the Speaker; ties in the Senate shall be broken by the Vice President.

Section 3. The President is vested with the authority to appoint the Heads of Executive Departments, with the Advice and Consent of the Senate. The Congress is vested with the authority to establish and fund the Departments. The Departments of Commerce, Defense, Health, Homeland Security, State, Treasury, and Veterans Affairs, as well as the Attorney General, appointed by the Chief Justice of the Supreme Court, with the Advice and Consent of the Senate, are hereby authorized.

Section 4. All Reprieves and Pardons granted by the President for offenses against the United States may be overturned at any time by a vote of two-thirds of either house of Congress.

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

The fundamental and founding principle of the United States is that power is to be exercised by a majority. So important was this principle that the only exceptions to this principle were included within the written Constitution. No other super-majorities are permitted in the functioning of the federal government. Specifically, the super-majority rule in the United States Senate – requiring 60 votes to act on a bill – is hereby prohibited.

Elimination of the departments of Agriculture, Education, Energy, Human Services, Housing and Urban Development, Interior, Labor and Transportation would save approximately $1.5 trillion (40%) in 2015 dollars. Where still required, the services provided by the eliminated Departments shall be transferred to other Departments, where appropriate, or delegated to the several States, if desired, or eliminated.

Treaties and other agreements with foreign countries, reprieves and pardons, as with all powers granted to the federal government, are not absolute powers and, as such, must be subject to the balance of powers between the branches of the federal government and between the People and their government before they may be acted upon.

 

 

 Proposed change to Article Two, Section Three of the U.S. Constitution:

 

Section 1. The President shall take Care that all of the Laws of the United States be faithfully executed. If and when notified by the Majority Leader or Minority Leader of the Senate or the Speaker of the House or the Minority Leader of the House of Representatives or by any sitting justice of the Supreme Court or by any seated Governor of the several States, that certain laws are not being faithfully executed, either through oversight or deliberately due to actions taken or not taken by individuals or jurisdictions with Constitutional responsibilities, the President shall immediately take steps to ensure rigorous enforcement of the subject laws and to censure those whose responsibility it is to enforce such laws. He shall report back to the Congress as to the remediation of each issue during the next report to the Congress by the President on the State of the Union.”

Section 2. The President shall take Care that all of the Laws of the United States be faithfully and vigorously defended by the Attorney General of the United States in whatever court they may arise.”

              “Section 3. Failure on the part of the President to vigorously pursue instances of or issues concerning the failure to faithfully execute all of the Laws of the United States, after official notification by the Congress or the Supreme Court or the Governors of the several States, shall be an impeachable offense. Failure of the Attorney General to defend all laws of the United States faithfully and vigorously shall be an impeachable offense.”

Section 4. All Ambassadors, and specific public ministers representing foreign countries shall enjoy immunity from the legal processes of the United States in accordance with accepted custom and tradition and in accordance with any Congressionally approved treaties or agreements which may exist between them and the United States, with the following exceptions: any action resulting in the death or severe injury requiring hospitalization of another human being allegedly committed within the United States or any Territory or possession of the United States; any violation of United States espionage laws allegedly committed within the United States or any Territory or possession of the United States; any violation of United States terrorism laws allegedly committed within the United States or any Territory or possession of the United States; any violation of United States laws against slavery or involuntary servitude allegedly committed within the United States or any Territory or possession of the United States.”

Section 5. Should any Ambassadors, and/or specific public ministers representing foreign countries in the United States, evade United States authorities pursuing resolution of allegations concerning such violations of diplomatic immunity, and should any damage, injury or death occur during the process of apprehension of such individuals and/or their return to the United States for prosecution, the country housing and/or shielding these individuals or groups and that nation’s leaders, shall bear all responsibility and liability.”

Section 6. For the purposes of this amendment, all occasions of statutory rape shall be considered involuntary servitude for a single occurrence. Multiple occasions of statutory rape involving the same individuals shall be considered sexual slavery.”

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

Perhaps the most egregious example of the failure of a President to ensure his Constitutional responsibility to faithfully execute the Laws of the United States is the existence of “sanctuary cities” within the United States.

Currently, several hundred cities and similar jurisdictions and several States within the United States refuse to follow the immigration laws passed by the Congress and signed into law by numerous Presidents. The Executive has failed to ensure that immigration laws and other laws respecting the presence of non-citizens within the United States are vigorously and properly enforced by all jurisdictions within the United States, without exception.

“This failure has resulted in the criminal histories of 55,322 aliens in federal or State prisons and local jails who “entered the country illegally.” Those illegal aliens were arrested 459,614 times, an average of 8.3 arrests per illegal alien, and committed almost 700,000 criminal offenses, an average of roughly 12.7 offenses per illegal alien.

The 2011 GAO Report is more of the same. The criminal histories of 251,000 criminal aliens showed that they had committed close to three million criminal offenses. Sixty-eight percent of those in federal prison and 66 percent of those in state prisons were from Mexico. Their offenses ranged from homicide and kidnapping to drugs, rape, burglary, and larceny.

Out of all of the arrests, 12 percent were for violent crimes such as murder, robbery, assault and sex-related crimes – that’s 55,154 violent crimes; 15 percent were for burglary, larceny, theft and property damage; 24 percent were for drug offenses; and the remaining offenses were for DUI, fraud, forgery, counterfeiting, weapons, immigration, and obstruction of justice.”

Let’s assume only 1% of the violent crimes committed by illegal aliens were killings, that would be 551 dead people that wouldn’t be dead. That’s not tragic, that’s criminal – for our own government officials! The actual figures are nowhere to be found. Interesting!

These statistics are not fully representative of crimes committed by illegal aliens — this report only reflects the criminal histories of aliens who were in prison. If there were a way to include all crimes committed by criminal aliens, the numbers would likely be much higher and starkly represent the cultural divide between persons from other, mainly Latin-American, countries and the vast majority of the people of the United States and casts serious doubt on the ability or desire of these cultures to assimilate into the Constitutional American culture.

The presence of foreign diplomatic persons within the United States is a necessity in order to maintain international relations. Such persons however, are not entitled to prey upon or commit crimes against American citizens with impunity. Some violations against American citizens or non-citizens in the United States who do have a reasonable expectation of safety and security, must be prosecuted in the United States to ensure that victims and society receive justice.

The priority of all who serve the People of the United States must be the safety and security and Constitutional protections of every American citizen. If the fear is that this diplomatic policy change will result in similar prosecutions of our diplomats on trumped-up charges in foreign lands, then perhaps we don’t want diplomatic relations with such nations.

 

Proposed change to Article Three, Section One, of the U.S. Constitution:

“Section 1. The judicial Power of the United States, shall be vested in one Supreme Court consisting of nine sitting justices and one alternate justice who can fill in if another justice is unable to participate in a matter accepted by the Court for review or if a vacancy occurs due to death, retirement or failure to be reconfirmed. The alternate justice shall sit on the U.S. Court of Appeals for the District of Columbia when not called to serve on the Supreme Court.”

“Section 2. All Associate Justices of the Supreme Court shall be nominated by the President, confirmed by the Senate and reconfirmed by the Senate at each ten-year anniversary.”

“Section 3. The Chief Justice of the Supreme Court shall be nominated by the President and confirmed by both the Senate and the House of Representatives and reconfirmed by the Senate at each ten-year anniversary.”

“Section 4. The Attorney General of the United States shall be nominated by the Chief Justice of the Supreme Court, confirmed by both the Senate and the House of Representatives and reconfirmed by the Senate at each ten-year anniversary.”

“Section 5. The Director of the Federal Bureau of Investigation of the United States shall be nominated by the Chief Justice of the Supreme Court, confirmed by both the Senate and the House of Representatives and reconfirmed by the Senate at each ten-year anniversary.”

“Section 6. All federal judges of the United States Circuit Courts of Appeal and the Foreign Intelligence Surveillance Court shall be nominated by the President, confirmed by the Senate and reconfirmed by the Senate at each ten-year anniversary.”

“Section 7. The Inspector General of the United States shall be nominated by the Chief Justice of the Supreme Court, confirmed by both the Senate and the House of Representatives and reconfirmed by the Senate at each ten-year anniversary.”

“Section 8. The Judge Advocate General of the United States shall be nominated by the President, confirmed by both the Senate and the House of Representatives and reconfirmed by the Senate at each ten-year anniversary.”

“Section 9. The annual budgets for the Supreme Court of the United States, the Attorney General, the Federal Bureau of Investigation, the United States Circuit Courts of Appeal and the Inspector General of the United States shall be prepared and submitted to the Congress by the Chief Justice of the United States Supreme Court.

“Section 10. Those officials nominated by the Chief Justice of the Supreme Court may only be removed from office through the impeachment process originating in the House of Representative with impeachment considered by the Senate.”

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

The nature of decisions made by a closely divided Supreme Court have, on several occasions, caused great upheaval among the People. In two specific cases; Dred Scott v. Sanford and Roe v. Wade, Court decisions led directly to the deaths of more than 600,000 Americans in the Civil War and 60 million deaths in a subsequent legal infanticide.

The nature of the nominating process often results in the seating of Justices who have previous history with cases that come before the Court. In those instances, the Chief Justice will decide whether an Associate Justice should step aside for a particular case, to be replaced for that case by the Alternate Justice. Should the Chief Justice have a conflict, a majority of the sitting Associate Justices shall be required to remove the Chief Justice from that particular matter.

Should a vacancy occur on the Court, the Alternate Justice shall be seated until a new Associate Justice can be nominated and confirmed, thereby preventing an inordinate number of cases being unresolved. The U.S. Court of Appeals for the District of Columbia shall be supplemented by an alternate judge from another Court of Appeals previously appointed by the Chief Justice and confirmed by the Senate.

Removing the federal law enforcement nominating processes from the Office of the President will remove the administration of justice from the tumult and turbulence of the political process and shall enhance the ability of the People to ensure that justice is indeed blindfolded.

 

 Proposed change to Article Three, Section Two, of the U.S. Constitution:

 

Section 1. In all the other Cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make by a two-thirds vote of each House. The Supreme Court shall not consult or cite foreign law or precedent in any manner when engaged in any appellate discussions or opinions. Only the Constitution of the United States, the statutes emanating therefrom, and previous judicial precedents of the United States Supreme Court shall be considered in the Court’s deliberations.”

Section 2. Any non-unanimous decision handed down by the Supreme Court, after being argued before the Justices by the Plaintiff or Defendant and the government in the person of the Executive Branch, may be declared null and void by the Congress of the United States by a vote of two-thirds of the Senate and House of Representatives. The result of such an act by the Congress shall be to return the issue to the legal status quo ante.”

Section 3. No non-unanimous decision handed down by the Supreme Court,  after being argued before the Justices by the Plaintiff or Defendant and the government in the person of the Executive Branch, shall have the effect of law or regulation, or precedent for trial courts, unless and until such a decision is transcribed into statute or regulation and passed into law by the Congress and signed by the President.”

Section 4. In matters resulting in economic damages being awarded to a plaintiff by a defendant or a defendant by a plaintiff, the trial judge, another sitting judge or retired judge emeritus shall determine the award after considering arguments from both sides and, if the judge desires, a recommendation from the jury after the penalty phase. Such decisions may not be appealed.”

Section 5. Challenges to ratified Amendments to the Constitution seeking nullification may not be entertained by the Supreme Court for a period of twenty years after their ratification.

Section 6. Every citizen has the right to a timely and speedy trial. The United States and the several States shall endeavor to ensure that trials and other judicial resolution proceedings shall conclude within one calendar year of the filing of charges in criminal cases or the bringing of a lawsuit in civil cases. If it is anticipated by the courts that this requirement cannot be achieved, the charges or lawsuit shall be dismissed until such time as the court of jurisdiction is convinced that the timeframe can be met. The time required to resolve any motions made by a defendant shall stop the clock until the matter is resolved by the courts.”

Section 7. A single route of appeal shall be available to either plaintiff or defendant. Matters considered in State courts shall only be appealed in appropriate State courts of appeal and the States’ Supreme Courts of the several sovereign States. They shall not be reviewable in the federal court system, including the United States Supreme Court. Matters considered in the federal courts shall only be appealed in appropriate federal courts of appeal and the Supreme Court of the United States. All appeals, regardless of jurisdiction, shall be concluded within one year of resolution, or the rulings of the court of first jurisdiction shall stand.”

            “Section 8. The President and each House of the Congress, by their very existence as co-equal branches of the federal government, shall have standing before the Supreme Court and have the right to be heard on any issue of Constitutionality and receive a priority, non-binding opinion from the sitting Justices.”

            “Section 9. The several States, being sovereign unto themselves within the confederation of States, shall not be compelled to accept any judicial ruling or opinion of any other State or State Appellate Court nor any United States District Court or United States Court of Appeals with which they are not enjoined.”

            “Section 10. The several States, being sovereign unto themselves within the confederation of States, shall not be compelled to accept any judicial fiat from the United States Supreme Court that purports to instruct any of the several States as to the particulars of any State law.”

            “Section 11. At the beginning of every trial by jury in any court under the jurisdiction of the United States, the assigned judge shall stand before the jury and shall proclaim the following oath or affirmation:

“Members of the jury; during these proceedings, you shall be provided the means to ascertain only the truth, the whole truth and nothing but the truth, and those providing false testimony shall be severely sanctioned, so help me God.”

            “Section 12. Upon felony conviction, the Constitutional rights of the victim or victims shall be considered superior to the rights of the defendant felon in all matters subsequently brought before the courts, including the Supreme Court.”

            “Section 13. The concept of “precedent”, appearing nowhere in the Constitution, such a concept shall not be included in any appellate decision in any appellate court. Since judges are arbitrators of the judicial process, precedent may be used in trial courts in order to keep proceedings timely and cohesive. The application of that precedent may be evaluated at the appellate level. Since appellate judges are arbitrators of judge’s trial-unique processes on Constitutional grounds, no precedent is appropriate or necessary for timeliness or cohesion. Supreme Court justices are arbitrators of the appeal-unique process on Constitutional grounds, no sub-Supreme Court precedent is appropriate or necessary for timeliness or cohesion.”

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 

Among the three co-equal branches of the federal government, the judicial has been the most effected by actual practice rather than Constitutional fiat. Starting with Chief Justice John Marshall in Marbury v. Madison, the Court has carved out its own unassailable place in the federal system without any interference from either of the other two branches, which have routinely acceded to power and influence claimed by the Court for itself.

In addition to the tabula rasa upon which the courts have writ large their belief that they stand alone at the apex of American jurisprudential authority, and have demonstrated a foolhardy disconnect between justice and the law in many of their most bizarre (for lack of a better – or is it worse – word) rulings. A case in point:

A federal appeals court tossed out a veteran’s conviction for wearing military medals he didn’t earn, saying it was a form of free speech protected by the Constitution. A specially convened 11-judge panel of the 9th U.S. Circuit Court of Appeals (the most overturned appeals court in the United States, sometimes approaching 80% !!!) ruled that the First Amendment allows people to wear unearned military honors.

 Elven Joe Swisher of Idaho was convicted in 2007 of violating the Stolen Valor Act, which made it a misdemeanor to falsely claim military accomplishments – in other words, to lie. President George W. Bush signed it into law in 2006, but the U.S. Supreme Court struck it down in 2012 as a violation of free speech protections.

 Investigators looked into Swisher’s military claims after he testified at the 2005 trial of a man charged with soliciting the murder of a federal judge. Swisher wore a Purple Heart on the witness stand.

 Swisher testified that David Roland Hinkson offered him $10,000 to kill the federal judge presiding over Hinkson’s tax-evasion case. Swisher said Hinkson was impressed after Swisher boasted that he killed “many men” during the Korean War.

 Prosecutors say Swisher enlisted in the Marine Corps a year after the Korean War ended but was never wounded in the line of duty. Swisher was honorably discharged in 1957, and discharge documents indicate that he didn’t receive any medals, according to the 9th Circuit ruling.

 During his 2007 trial, prosecutors showed the jury a photograph of Swisher wearing several military medals and awards, including the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, and the Navy and Marine Corps Commendation Medal with a Bronze “V.”

 After the Stolen Valor Act was struck down, Congress passed a new law making it a crime to profit financially by lying about military service. President Barack Obama signed it in 2013. After Swisher’s conviction, Congress removed a provision making it illegal to wear unearned medals.

 This institutional lack of respect for the truth, even when it affects those who protect us from death and destruction is emblematic of a mental state approaching insanity. It is time for the People to weigh in on the power assumed by the Court after a quarter-millennium of ad hoc activity.

The Congress, by a vote of two-thirds of each house, shall decide whether a matter of public interest is settled law and shall not be considered by the Supreme Court. Another vote of two-thirds of each house shall be required to overturn an issue of settled law.

As is the case with a convicted felon, where the Constitutional right to liberty is suspended, other Constitutional rights may be suspended or subordinated. The rights of the victim or victims of a convicted felon shall have superior rights to those of the convicted felon.

For example; thousands of convicted felons have Hepatitis C, a disease that is contracted through the sharing of needles for intravenous drug use – a practice of many people who end up in prison. Some of their victims may have been exposed to the bodily fluids of these felons but current issues of constitutional privacy are preventing officials from getting specific Hep-C information to them. That practice ends with this amendment.

In National Federation of Independent Businesses v. Sebelius, the Supreme Court stated that: “…a State cannot be compelled or coerced to participate in a federal program which it has chosen not to participate in…” The instances in the past few years where the Administration has attempted to strongarm States into actions that they oppose are too numerous to mention. This amendment would require that the Congress must support the Administration for any of these actions to be legal, which would go a long way toward eliminating the practice.

If an opinion by the Supreme Court is issued with less than a unanimous vote, the opinion may not be used as precedent in any other case before a trial judge, in either federal or State trials or appeals. In virtually all cases, historically, the decisions that have, over time, produced the worst unintended consequences, have come from 5-4 decisions of the Court (Plessy excepted). With the passage of this amendment, it is hoped that we shall be spared from any more disastrous decisions.

Precedent has been misused by the Supreme Court itself to justify, and also to discredit issues by applying precedent where it suits the majority and by ignoring precedent when it thwarts the majority. The most egregious case where this policy is evident is the infamous case of Roe v. Wade. If the Court itself is so cavalier about precedent, it should not be imposed upon any other court without legislative and executive concurrence.

Because each case brought before an appellate court is unique, court rulings on Constitutional issues shall apply only to the case-at-hand and not as a substitute for justices to avoid doing the job they were appointed to do – apply the Constitution to the case-at-hand.

What Chief Justice John Marshall had to say about a case in the early 19th Century, where he had no precedent to apply, is not applicable to a unique case in the early 21st Century. Marshall simply applied the Constitution to the situation. All Justices should be expected to do the same. The administration of justice is not the place for lazy thinking.

Next time: The Constitution and immigration.

Constitutional Amendments, Art. 1 & 2

Proposed change to Article One, Section Eight, Clause Eighteen of the U.S. Constitution:

             “Section1. There shall be no adjudication without representation. No finding or ruling of any court shall have, in addition to the judgement in the specific case adjudicated, the automatic effect of a statute passed into law by a duly constituted legislative body except for a unanimous opinion of the United States Supreme Court by a vote of all of the sitting justices. All other opinions must be introduced, considered and passed by the appropriate legislative body and signed by the appropriate executive before it has the effect of law within the appropriate jurisdiction.

“Section 2. There shall be no regulation without representation. No regulation implementing a statute passed by a duly constituted legislative body shall be promulgated by a non-elected regulatory body until it is certified as acceptable by the appropriate legislative body.

“Section 3. There shall be no delegation without representation. The executive shall not delegate jurisdiction or regulatory authority to any agency outside of the Constitutionally established executive branch without the consent of the appropriate legislative body.

“Section 4. There shall be no executive order without representation. The President shall issue no executive orders while Congress is in session. All executive orders issued while Congress is not in session shall be approved by the Congress within thirty days of returning from recess. In the absence of approval within thirty days, the executive order shall be rescinded by the President and all relevant conditions returned to the status quo ante.

“Section 5. There shall be no federal expenditures for welfare programs, projects or issues benefiting individuals or other private entities. No federal revenues shall be expended for the support or encouragement of illegal activities.

“Section 6. Should abuses be discovered in the Executive, the Congress, under its oversight responsibilities, is authorized to assign a “Special Prosecutor” with powers of subpoena, to investigate and report back to the Congress.”

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

Only rulings by a majority of the sitting justices of the Supreme Court can judicially constrain the powers of the President of the United States acting within Constitutional bounds. No federal judge of any standing can overrule or hold in abeyance a lawful order of  the President. For national security reasons, should there be a legitimate question about the scope of any Presidential action, only co-equal branches of the federal government, the Congress and the Supreme Court, have standing to challenge the authority of the President of the United States.

The effect of court precedent in the United States has frequently become, in effect, amending of the Constitution. This was not the intent of the Framers since they included a detailed procedure for amending the Constitution in Article V. Based on Article V, it appears that a two-thirds majority was the minimum majority to be considered for any action that would have the effect of changing the original Constitutional provisions.

The Constitutional method for amending the Constitution rests in the legislatures, both federal and State – not in the courts. This amendment guarantees sufficient majorities in the appropriate bodies to affect amended change and hopefully will eliminate those circumstances that permitted such historically erroneous decisions as Dred Scott, Plessy and Roe.

All federal projects or programs that provide monetary, or an equivalent, assistance to individual citizens, either directly or through a federally supported agency, must include a quid-pro-quo from the recipient. All able-bodied persons of sound mind in the United States, either citizens or those under visa, are expected to contribute to society.

There shall be no federal expenditures under the “General Welfare Clause” of the Constitution unless justified for a specific strategic need that benefits all Americans. The needs of the poor are expected to be met by the local community or the several States in which those communities exist, either through private entities, charities or community run programs. Substantially disabled persons are exempt from this provision and may be supported at the federal level through grants to local organizations. The several States are encouraged to utilize means-testing for all assistance programs.

For instance:

·         Welfare shall become workfare.

·         Free public-school shall be means-tested. Parents shall pay an appropriate amount             of tuition.

·         The need for school books, computers, meals and busing shall be means-tested.

·         Public-housing subsidies shall be means-tested. The goal should be home-                             ownership.

·         Local governments may build public-housing on government property; withhold               part of rent subsidy in escrow for eventual down payment; and counsel occupants             on responsible employment and financial responsibility/money-management.                     Tenants can eventually purchase their residence using low-interest local                               government financing.

·         Food stamps should be item-specific to ensure good nutrition.

 Some organizations exist within the United States which receive federal funds for their activities. If any organization espouses, encourages or supports illegal activities, in any form whatsoever, that organization shall be prohibited from receiving federal funding until such activity has been disavowed and has ceased.

 Proposed change to Article One, Section Nine, Clause Seven of the U.S. Constitution:

          Section 1. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; each Line Item and amount being set down through the Legislative process and the signature of the President; who is obligated to spend the appropriated Monies in strict accordance with the statute.

         “Section 2. No Monies in excess of the amount contained within a particular Line Item included in the legislation may be re-allocated to any other Line Item without the approval of the Congress in supplemental appropriations requested by the President. During a declared national emergency, the President may allocate funds from a related line item in order to cover short-term expenses but, these monies must be reallocated in a timely supplemental appropriation.”

Section 3. A regular Statement and Account of the Receipts and Expenditures of all public monies shall be made available to the public on a continuous basis, in digital form, or its equivalent as technology advances.”

Section 4. As a matter of national security, all national military and intelligence appropriations shall be classified, except for the sum total of all military expenditures, and are exempt from the above reporting requirements. The appropriate Congressional committees and members, having the appropriate access, shall exercise the requisite oversight of the military and intelligence budgets and shall hold the Executive accountable for all statutory responsibilities.

Section 5. Any publication or public disclosure of any national military or intelligence information that has not been formally and publicly declassified shall be considered a treasonous or subversive offense and all individuals involved shall be prosecuted to the fullest extent of statute law or the Law of War.

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

The President shall see to the spending of the federal government in strict accordance with the appropriations mandated by the Congress.

Information related to the defense of the United States and its citizens is to be considered the most sensitive information this nation has and must be protected by the most stringent measures possible.

America’s most potent enemies and trusted allies all have clandestine services who ferret out and gather any and all information they can about America’s defense capabilities and readiness to use against the United States whenever, wherever and however they can to do as much damage possible to America’s strategic interests.

Not protecting all defense related information all of the time contributes to America’s vulnerability to exploitation by foreign enemies.

 

Proposed change to Article Two, Section One, Clause Eight of the U.S. Constitution:

 

“Before he enters on the Execution of his Office, the President, with his or her hand placed upon a Bible, in recognition and remembrance of the Judeo-Christian heritage of the United States, shall take the following National Oath or Affirmation:”

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, actively and assertively enforce, preserve, protect and defend the Constitution of the United States in its original words, meaning, understanding, interpretation, intention and implementation as expressed in all statutes passed into law by the Congress for the safety, security and tranquility of the People, and from all enemies, foreign and domestic, to bear true faith and allegiance to the same and to the one nation, under God and indivisible, which it defines.”

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

In the Federalist #70, originally published on March 15, 1788 in The New York Packet under the pseudonym Publius, Alexander Hamilton argues that unity in the executive branch is a main ingredient for both energy and safety. Energy arises from the proceedings of a single person, characterized by, “decision, activity, secrecy, and dispatch,” while safety arises from the unitary executive’s unconcealed accountability to the People.

 The President of the United States, using all the powers granted to the office by the Constitution of the United States, shall see to it that all laws passed by the Congress are enforced with consistent and persistent vigor, to ensure that no law is neglected or ignored either accidently or deliberately and to guarantee that all citizens are treated equally under the law.

Failure to ensure that all laws are enforced as intended by the Congress shall be considered a high crime and misdemeanor and thus, an impeachable offense.

It is intended that each federal, state or local elected or appointed office holder, publicly take this same oath of office.

 

Proposed change to Article Two, Section Two, Clause One of the U.S. Constitution:

 

            “Section 1. The President shall be the Commander in Chief of the Armed Forces of the United States, and of the organized militia of the several States, when called into the actual service of the United States.”

“Section 2. The President shall maintain the Armed Forces of the United States in such a state of readiness as to be able to defend all American national interests, both foreign and domestic, from attack or degradation by foreign forces or domestic forces under foreign influence or control, either within or without the territorial limits of the United States and its Territories. The fiscal requirements to maintain the appropriate readiness shall be reported to the Congress annually, or when necessary during periods of national emergency.”

“Section 3. The President shall unilaterally take the necessary and sufficient military actions to defend all American national interests in occurrences requiring immediate military action to protect American national interests, lives and property either within or without the territorial limits of the United States and its Territories and/or that of United States’ treaty allies. Such actions must be reported to the Congress at the earliest tactical opportunity and must be authorized by the Congress within thirty calendar days of such report. Such a report may include a request for a declaration of war and must include proposed conditions for the termination of military activity.”

 “Section 4. Should Congress declare War, after consultation with, but irrespective of, the desires of the Executive, by exercising its power under Article One, Section 8 of the Constitution of the United States, with a vote of at least two-thirds of the members of each House voting in the affirmative, the  President, as Commander-in-Chiefshall take all necessary and sufficient military actions to defend all American national interests, including requiring preemptive military self-defense action, to protect American life and property either within or without the territorial limits of the United States and its Territories and/or that of United States’ treaty allies. Such actions must be reported to the Congress at the earliest tactical opportunity and must include proposed conditions for the termination of military activity, and continue use of such forces in hostilities or in such situations until the objectives of the declaration have been met.”

              “Section 5. Under Article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.”

               “Section 6. The constitutional powers of the President as Commander-in-Chief, to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization and direction, (3) a national emergency created by attack or imminent attack upon the United States, its territories or possessions, or its armed forces and (4) that the President shall ensure that all laws of the United States are faithfully executed.”

                “Section 7. Should the President, in his role as Commander-in-Chief of the Armed Forces, find that he or she is physically, psychologically, morally or ethically unable to execute the specific statutory provisions authorized by the Congress regarding the successful prosecution of such a war, he or she shall resign from the Presidency immediately or face immediate impeachment by the Congress, with all deliberate speed, under Article One, Section 3 of the Constitution.”

               “Section 8. The President shall ensure that the maximum necessary and feasible military preparedness, diplomatic, economic, financial, industrial and technological power and intelligence of the United States is employed prior to any armed conflict in order to minimize American casualties if war is the last resort and to bring a victorious conclusion to the proceedings in the shortest feasible and possible period of time.

                “Section 9. Failure by the President to aggressively prosecute military action against a declared threat to any American national interest, or defend American citizens abroad, and/or that of United States’ treaty allies or failure to attain the conditions agreed upon for the termination of military activity, when so directed by the Congress, shall be an impeachable offense.”

                 “Section 10. The President shall cause the following to be printed in all passports issued by the United States:

‘The bearer of this passport, issued by the government of the United States of America is a sovereign citizen of the United States. The sovereignty of the United States emanates from her citizens. Any crime committed against a citizen of the United States while outside the United States or any Territory or possession of the United States shall be considered by the United States as a crime against the United States itself.

Therefore, the United States of America reserves the right to pursue any and all remedies to safely return any citizen to the United States and to apprehend and prosecute any individual or groups of individuals for whom warrants have been issued in the United States pursuant to an alleged crime committed against any and all citizens of the United States.

Should any damage, injury or death occur during the process of repatriation or in the apprehension of such individuals or groups responsible and/or their return to the United States for prosecution, the nation housing and/or shielding these individuals or groups, and that nation’s leaders, shall bear all legal and moral responsibility and liability.’”

                 “Section 11. The National Governor’s Conference shall meet annually to issue a report for the Congress on the State of the Union. Should the Conference decide on a vote of “no confidence” in the performance of the President of the United States, by a two-thirds majority, a Congressional Inquiry will be mandated. Should a finding of malfeasance or inadequate performance result from such inquiry, an impeachment by the Congress under Article One, Section 3 of the Constitution, may be warranted.

 Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

Any so-called “Presidential War Powers” Acts are hereby declared null and void.

The Office of the President of the United States has become an all-consuming issue in the body politic. Campaigns run for all four years of a President’s term. Presidents fund-raise throughout their terms instead of governing. The result is that the United States is virtually ungoverned. It merely functions bureaucratically.

The ultimate fate of the United States and its citizens should never depend upon one individual in a position of power who may choose not to exercise it in accordance with the Constitutional provisions of Article 2 of the document – for whatever reason. Having seen the power and prestige of the United States decline to historic post-war lows because of the political ideology of a President, it is no longer inconceivable that the United States could be placed in imminent, mortal peril with no means to protect or defend itself – or the citizens to defend themselves.

The Congress alone has the Constitutional power to declare war. That declaration has the force of law. A President, choosing not to enforce a declaration of war with all of the talents and skill he or she possesses, in order to protect the American people, their warriors and their nation, shall have committed an impeachable offense of the very highest order and shall be immediately compelled to resign or be impeached expeditiously.

Should the President decide not to enforce duly made laws in such a manner that the citizens of the United States are placed in immediate jeopardy by illegal entrants, domestic enemies or terrorists, he or she has committed an impeachable offense of the very highest order and shall be immediately compelled to resign or be impeached expeditiously.

Terrorists are persons or groups of persons who use violence or fear of violence to one’s person for political, social, personal, religious or economic reasons. One’s person includes life, family, friends, property, work or anything else one holds dear. Violence includes fatal or non-fatal injury or threat of injury to one’s physical, emotional, psychological, economic or spiritual well-being.

In the absence of either off these eventualities, the American people have an absolute right, expressed in the Declaration of Independence, to rise up and immediately overthrow the federal government by whatever means are necessary.

“President George W. Bush created the doctrine of preemptive self-defense in response to the unprovoked attacks on the American homeland on September 11, 2001.The main elements of the Bush Doctrine were delineated in a document, the National Security Strategy of the United States, published on September 17, 2002. This document is often cited as the definitive statement of the doctrine. It recognizes the political realities of the 21st Century world and was updated in 2006 and is stated as follows:

“The security environment confronting the United States today is radically different from what we have faced before. Yet, the first duty of the United States Government remains what it always has been: to protect the American people and American interests. It is an enduring American principle that this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD (weapons of mass destruction – nuclear, chemical, radiological, biological).

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that non-military actions succeed. And no country should ever use preemption as a pretext for aggression.”

The Bush Doctrine has been defined as a collection of strategy principles, practical policy decisions, and a set of rationales and ideas for guiding United States foreign policy. Two main pillars are identified for the doctrine: preemptive strikes against potential enemies and promoting democratic regime change.

The Bush administration claimed that the United States is locked in a global war; a war of ideology, in which its enemies are bound together not by geography but, by a common ideology and a common hatred of democracy.

Out of the National Security Strategy, four main points are highlighted as the core to the Bush Doctrine: Preemption, Military Primacy, New Multilateralism, and the Spread of Democracy. The document emphasized preemption by stating:

“America is now threatened less by conquering states than we are by failing ones. We are menaced less by fleets and armies than by catastrophic technologies in the hands of the embittered few,” and required “defending the United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders.”

In his 2010 memoir Decision Points, President Bush articulated his discrete concept of the Bush Doctrine. According to the former President, his doctrine consisted of four “prongs,” three of them practical, and one idealistic. They are the following: (In his words)

1.       Make no distinction between terrorists and the nations that harbor them – and hold           both to account.

2.       Take the fight to the enemy overseas before they can attack us again here at home.

3.       Confront threats before they fully materialize.

4.       Advance liberty and hope as an alternative to the enemy’s ideology of repression               and fear.

Bush addressed the cadets at the U.S. Military Academy (West Point) on June 1, 2002, and made clear the role pre-emptive war would play in the future of American foreign policy and national defense:

“We cannot defend America and our friends by hoping for the best. We cannot put our faith in the word of tyrants, who solemnly sign non-proliferation treaties, and then systemically break them. If we wait for threats to fully materialize, we will have waited too long —

 Our security will require transforming the military you will lead — a military that must be ready to strike at a moment’s notice in any dark corner of the world. And our security will require all Americans to be forward-looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.”

 This sound strategic doctrine for the 21st Century has not only been adopted by Republican and Democrat administrations alike, it has been expanded and is the preeminent strategic tool of United States’ military engagement, primarily utilizing weaponized aerial drones to kill enemy combatants without exposing service men and women to hostilities.

 With the advent of social media outlets worldwide, the safety of Americans outside of the United States, its Territories and Possessions has become less secure. Kidnappings for ransom are now commonplace. Properly, the United States does not negotiate with kidnappers, but private entities do, sometimes openly, sometimes secretly. This practice only perpetuates the occurrences of such kidnappings.

 [It must be noted that law enforcement agencies within the United States commonly negotiate with kidnappers, some of whom could be described as foreign-inspired unauthorized combatants. Applying the Bush Doctrine to these situations would preclude negotiations and perhaps result in a reduction in domestic kidnappings.]

 There are more than 25,000 kidnappings for ransom worldwide every year. Statistics on how many Americans have been kidnapped for ransom in foreign countries are hard to find, with the Obama Administration claiming there are 30 that they knew about in mid-2015. The actual number is certainly much higher as kidnappers negotiate through private channels and, more importantly, many are kidnapped for human trafficking purposes and just disappear.

 As many as 300,000 people, mostly young, mostly girls, one-quarter of whom are children, are kidnapped each year in America. Most will be forced into domestic or sexual slavery in the United States and overseas by foreign-inspired unauthorized combatants. If only one in ten is sent overseas, that is 30,000 American citizens per year who are never heard from again! A decade ago, government sources said that it is not unreasonable to believe that 50,000 Americans are being held, against their will, in foreign countries.

 It is unconscionable that the United States would allow this situation to fester. Today there is no organization or operation in any federal department whose responsibility it is to find and return kidnapped or captured American citizens to their country and their families. In essence, they’re on their own.

 America must have the wherewithal, the means and the mission to find any American citizen held here or in any foreign country at any time for any reason and the will to rescue them. It is a moral imperative!

The Subversives Act

The subjects of the above amendment have special access to the voting public, from one’s earliest days, and therefore have a unique opportunity to help mold their belief system and thought processes. From pre-kindergarten through college, in the press, on television and in the theater and the movies and, of course, in politics, they have a special responsibility to the truth – the whole truth and nothing but the truth. But, it is among these exalted in society, pursuing power and privilege, that judgement has been clouded and has contributed mightily to the degradation of liberty in America, and with it – the successful pursuit of possibilities.

That’s not a shame – it is the result of subversive, perhaps criminal, activity. Anyone engaged in such activity is an enemy of liberty – to put it in plain, truthful English. They are, quite literally, trying to destroy the system of government bequeathed to us by the Founders in the Constitution. Simple truth is the rarest commodity in the public square in 21st Century America. These individuals have uniquely and collectively set grievance above achievement and permissiveness above order.

And no one is defending it – certainly not our professional politicians who seek fame and fortune at the public trough; nor is it the courts, who have made a mockery of judicial review by creating new Constitutional rights where none exist; nor academia, which has sold its soul to the highest bidder – the PLDC; nor is it the press, who have exchanged their ethical standards for access to celebrity; nor the entertainment industry which has created “infotainment”, using the People’s airways or the taxpayer supported stage to blur the lines between fact and fiction to the point where truth is undiscoverable and diatribe masquerading as documentary is celebrated.

In another amazingly prescient work, this one by English author George Orwell, this condition was predicted in 1949. It is popularly known as “doublespeak”. The term “doublespeak” probably has its roots in Orwell’s book Nineteen Eighty-Four.

“Although the term is not used in the book, it is a close relative of one of the book’s central concepts, “doublethink”. Another variant, “doubletalk,” also referring to deliberately ambiguous speech, did exist at the time Orwell wrote his book, but the usage of “doublespeak” as well as of “doubletalk”, in the sense emphasizing ambiguity, clearly postdates the publication of Nineteen Eighty-Four. Parallels have also been drawn between doublespeak and Orwell’s classic essay Politics and the English Language, which discusses the distortion of language for political purposes.

Edward S. Herman, political economist and media analyst, has highlighted some examples of doublespeak and doublethink in modern society. Herman describes in his book Beyond Hypocrisy the principal characteristics of doublespeak:

“What is really important in the world of doublespeak is the ability to lie, whether knowingly or unconsciously, and to get away with it; and the ability to use lies and choose and shape facts selectively, blocking out those that don’t fit an agenda or program.” Sound familiar?

“In his essay “Politics and the English Language“, George Orwell observes that political language serves to distort and obfuscate reality. Orwell’s description of political speech is extremely similar to the contemporary definition of doublespeak:

“In our time [postwar 1940s], political speech and writing are largely the defence of the indefensible… Thus, political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness… the great enemy of clear language is insincerity. Where there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms…”

When it comes to the issues of the day in the public square, every citizen has the absolute, inalienable and irrevocable right to the truth about public matters and, in some cases private matters, in order to protect their right to exercise an informed vote and to support the Constitutional necessity for oversight of all government activity – although I have every expectation that the Supreme Court could find no such right in either the words or the spirit of the Constitution.

 In order to protect the right to exercise an informed vote, by all eligible citizens of the United States of America, from the withholding of facts or truthful information or the dissemination of misinformation or disinformation by entities functioning within widely accepted American institutions, all designed and intended to deceive the voters, this act is created.

 Understanding that there is no inalienable right to untrue speech in the public square – that falsely shouting “fire” in a crowded theater is not protected speech specifically because it is untrue speech – and realizing that long term use of untrue speech connotes intent, this act rightly and properly expands the right to free speech by enhancing the character of truthful speech.

 Subversives are persons, institutions or organizations seeking or intending to overtly or surreptitiously destroy the essence of a Constitutionally created or permitted system or institution, through the control and manipulation of information intended for the general public (doublespeak, doubletalk, doublethink), either personally or through any organization receiving taxpayer support, any educational institution receiving taxpayer support, the press/media in their official capacity and/or entertainment industry content created, broadcast or disseminated through taxpayer supported means, for the purpose of circumventing or destroying Constitutional restrictions on the power exercised by the federal government.

 For the purposes of this act, subversive activity is any activity by any person or persons, entity or entities that has the effect of keeping, hiding, disguising, misinforming, dis-informing, not informing, purposely distorting, inventing or discerning non-existent information or false, inappropriate or incorrect usage or misusage or meanings for the ordinary and universally accepted convention of common words or in any other manner preventing truth, factual information and truthful context from being available, learned, discovered, received, retrieved or in any other manner kept from any citizen, with the result of such acts of commission or omission thus compromising, through ignorance or fear, any citizens’ ability to complete the civic duties of informed voting, oversight, investigation, petition or exercising any other Constitutional right.

 Additionally, designing, mandating or using a school curriculum in any recognized institution of learning, at any level of education, that has as its outcome, the reduction or distortion of students’ knowledge and/or understanding with respect to any aspect of world or American history, civic affairs, foreign affairs, current events or any other area of learning, that would negatively impact the ability of that student to later exercise the inalienable right to cast an informed vote, shall be considered subversion.

 Because of the damage done to and the manner in which such activities inflict injury on the body politic, as seen by the manner in which many, if not most, ordinary citizens live in fear of the power of the federal government manifested as a tyranny of regulation by nameless bureaucrats, intimidation by police agencies of the Executive and terrorism by the federal courts, principally by the Supreme Court – power largely created and/or consolidated by the efforts of subversive citizens over the past seventy years – subversive activities are hereby categorized and classified as felony domestic treason or terrorism – which uses fear as a standard weapon of intimidation and compliance.

 Persons participating in prima facie subversive activity shall be immediately prohibited and prevented from conducting whatever activity has been called into question as being subversive. Voluntary compliance shall become a mitigating factor in their subsequent habeas corpus hearing and prosecution. Those who refuse to comply with the Act shall immediately forfeit their right to habeas corpus and shall be detained by appropriate authorities until their cases are resolved.

 Because of national security aspects of subversive activity and the secretive nature and pervasiveness of subversive activists and sympathizers within the great institutions of the United States, for the purposes of this Act, all cases shall be handled under the purview of the Judge Advocate General of the United States. In the case of State activity under this doctrine, the appropriate initiating authority is the Staff Judge Advocate of the State.

 If some of the wording looks familiar, part of the text is taken from the Sedition Act of 1798. The Sedition Act was introduced in order to increase the power of the federal government over the People by limiting criticism. The Subversives Act is intended to increase protections for the Constitution and thereby increase the power of the People.

 The federal statute implementing this amendment shall contain the following provisions:

 “That if any person or persons acting individually shall, or persons or entities enjoying the protections of the press, or the privileges of elected or appointed office in, or employment in, any branch or level of government, or the responsibilities of the civic duty to educate those citizens who have yet to reach their majority, or who create and/or transmit content over airways or digital or other pathways – based upon the public record or facts known to be true by those persons based upon the ‘reasonable man’ standard – knowingly and deliberately counsel, advise and/or act to convey information which is untrue or which is essentially fiction but purports to be factual or that is the author’s opinion but is not labeled clearly and correctly as such, or through lie, distortion, innuendo, implication, half-truth or similar construct, is intended to deceive; or who shall combine or conspire together or shall counsel, advise or attempt to procure cooperation, or who shall materially or financially aid or assist others, with intent to deny any citizen the absolute, inalienable and irrevocable right to the truth in non-classified political speech about public matters and, in some cases private matters or withhold facts or truthful information or disseminate misleading information or disinformation about public matters, and in this manner deceive or interfere with the right of each citizen to prepare for and exercise an informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be immediately removed from any and all opportunities to continue such activities, shall be detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity. Comments labeled as opinion, satire or exaggeration that are not based on factual, objective truth – adjectives are subjective and therefore don’t qualify – shall also be considered as subversive.”

 “And be it further enacted; That if any person or persons or entities described above shall knowingly, based upon the public record or facts known to be true by those persons, employing the “reasonable man” standard, shall, or shall conspire to, write, print, utter, broadcast or publish, or shall cause or procure to be written, printed, uttered, broadcast or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, broadcasting or publishing any false, scandalous and malicious political speech in writing or writings that are not correctly and clearly labeled as the author’s unique opinion, but that have the effect of misleading or dis-informing any citizen and thus adversely effecting that citizen’s absolute, inalienable and irrevocable right to the truth about public matters and, in some cases private matters or, by these actions, bring any citizen into contempt or disrepute; or to excite against them the hatred of the good people of the United States, or to excite any unlawful combinations therein, or to aid, encourage or abet any hostile designs of any foreign nation or national against the United States, their people or government, whether the activities aforementioned shall occur in concert with an election, or not, or whether the activities aforementioned shall have the proposed effect or not, they shall be immediately removed from any and all opportunities to continue such activities, shall be detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity per the provisions. Published comments labeled as opinion, satire or exaggeration that are not based on factual, objective truth – adjectives are subjective and therefore don’t qualify – are to be considered as subversive.”

 For the purposes of this discussion, “legitimate advocates” shall speak to those views supported by at least 20% of the population per a preponderance of published statistical polls. Equal opportunity shall be provided on all communication outlets; newspapers – print or digital, news magazines, online outlets associated with news organizations, print or digital periodicals that routinely publish articles or comment on issues of the day, and similar entities. Such standards apply to “hard news” as well as editorial comment.

 Some institutions and organizations that presently meet the requirements for sanction under the Subversives Act include: the national Democrat Party; the Union of Concerned Scientists; The New York Times; Planned Parenthood; MSNBC; the AARP; the National Education Association and the American Federation of Teachers and their state councils; the administrations of most of the elite private and some public universities; the Service Employees International Union (SEIU); PLDC “think tanks” like the Council on Foreign Affairs, The Brookings Institute, the Center for American Progress, the Human Rights Watch, and others.

 So, how would this amendment work in the real world? Let’s look at a hypothetical example:

 Let’s suppose that the newspaper of record in the state capitol of Tennessee, the Tennessean, publishes a story in the months leading up to a gubernatorial election that the Governor, who is running for re-election, was, according to anonymous “sources”, involved in an illegal practice in a company owned by the governor’s birth family, but in which he has no interest because all of his investments are in a blind trust while he is in office. No confirmed facts are ever provided but the implications are obvious.

 The sheriff of Davidson County, where the state capitol, Nashville, is located receives a complaint from a Tennessee citizen – in this case, the Governor’s campaign chairman – reporting the incident in the Tennessean and accusing the paper of subversive activity under the new amendment to the Constitution.

 The sheriff opens an investigation, questions the newspaper staff – editor, reporter, researchers, etc. but can find no substantiation for the details reported in the story yet the paper sticks to its story and refuses to identify the anonymous “sources”.

 The sheriff refers the investigation to the Tennessee office of the Staff Judge Advocate of the Army in Tennessee for prosecution under the provisions of the Subversive Activity Act. The Judge Advocate immediately requires the Tennessean to suspend the participants in the story or shut down the political reporting division of the paper until the issue is resolved, as required by the Act.

 The paper refuses to suspend the implicated participants. They are therefore, taken into custody by the office of the Judge Advocate (perhaps using Tennessee militia MP assets) and detained until their case is resolved. They may be sent to an Internment Camp to update their familiarity with the Constitution of the United States – specifically, the 1st Amendment.

 Did I say the story was hypothetical? I misspoke. It really happened (just not the Judge Advocate part). By the way, the governor was re-elected in a landslide. This was also a minor example. A significant example would be the “Rathergate” incident discussed earlier. For his part, under the Subversives Act – which can be retroactively applied because the damage a subversive act does alters reality for many years, perhaps decades – Mr. Rather should have his citizenship revoked and should be incarcerated, until his case is resolved, in an appropriate offshore facility reserved for subversives and away from the United States. One delicious candidate would be the facility at Guantanamo Bay.

 Mind-altering drugs are not only a subversive threat because they effect judgement, but they are also a strategic threat because they change the user’s priorities – which center on getting the next fix – not family, not children, not country, not service, not contribution, not citizenship, not right and wrong. Even “entry-level” drugs like marijuana turn reliable citizens into unreliable liabilities according to a Harvard University study which highlighted long-term, irreversible emotional and motivational damage.

 If America has 175 million citizens of working age and 20% of them use mind-altering drugs on a regular basis (probably a conservative estimate), then we really only have a reliable, productive workforce of 140 million people who have to work 20% harder just to stay even. That means that a 40-hour work week just became a 48-hour work week. How does that sound?

Next time: Congress and federal spending.

Subversive Act

AMENDMENT XXXV

 

 

Section 1. That if any person or persons acting individually shall, or persons or entities who have access to means of communications with the citizens of the United States or organizations and institutions who routinely participate in the public debate about matters of voter interest, shall knowingly and deliberately deny them the truth, the whole truth and nothing but the truth or make comments, under the color of opinion or satire, that are not based on truth, about any matters of public interest that may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

Section 2. And be it further enacted; That if any person or persons or entities described above shall knowingly, based upon the public record or facts known to be true by those persons, employing the “reasonable man” standard, shall, or shall conspire to knowingly and deliberately publish in any manner, material that would deny to any citizen of the United States the truth, the whole truth and nothing but the truth or publish comments, under the color of opinion or satire, that are not based on truth, about any matters of public interest that may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

“Section 3. And that it be further enacted; That if any person or persons or entities described above shall knowingly fail to provide, or prevent, a substantially equivalent opportunity to legitimate advocates for all views in the public debate on the political and social issues of the day in the public square, such that their actions or inaction may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

“Section 4. And be it further enacted, that if any person acting individually shall, or person or persons or entities shall conspire to, buy, sell, manufacture, transport, distribute or in any other way, provide or make available for consumption, Schedule 1 mind-altering drugs to any American citizen certified to vote in any federal, State or local election and thereby influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not;  shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

“Section 5. And be it further enacted, that if any person acting individually shall, or person or persons or entities shall conspire to use violence, and/or fear, and/or psychological or physical intimidation or threats of intimidation to force an American citizen to forsake their complete allegiance to the United States of America and therebyinfluence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

“Section 6. Subversive activity conducted by an American citizen shall be the legal equivalent of treason, under domestic circumstances, for prosecutorial process. Subversive activity involving violence and/or fear and/or intimidation shall be the legal equivalent of terrorism, under domestic circumstances, for prosecutorial process.”

 

“Section 7. An indictment for domestic treason or domestic terrorism shall result in the immediate forfeiture of rights under the writ of habeas corpus, the right to a trial by a jury of peers and the right to appeal to United States’ appellate courts or the United States Supreme Court. Jurisdiction shall fall to the Judge Advocate General of the United States who shall ensure appropriate due process, under judge advocate jurisdiction, in all habeas corpus matters.”

“Section 8. A conviction of an American citizen for domestic treason or domestic terrorism shall result in the immediate revocation of American citizenship and deportation to a sovereign nation that agrees to take the convicted person. Should no nation agree to take the convicted person, said person shall be sent to an offshore penal colony ceded to the control of the United Nations.

Section 9. Any citizen who materially interferes with the spirit, intent and/or implementation of each and every provision of additions and amendments to the Constitution of the United States shall be detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

“Section 10. No government employee, either hired, elected or appointed, shall expend or cause to be expended, any public monies for the collection and/or distribution of information and/or statistics intended to deceive the consumer of the information. Such a person shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

Section 11. The age of majority for federal purposes is twenty-one years from the date of birth, unless a citizen is engaged in national service, under which one’s majority shall become the date of commission or enlistment.”

“Section 12. Due to the political nature of most cases of alleged subversive activity, at the federal level they shall be directed to the Office of the Judge Advocate General of the United States. All non-federal cases of alleged subversive activity shall be directed to the Staff Judge Advocate of the Army in the State in which they were filed.

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation and intention of the words of the Amendment:

 

President John Adams said:

 

“Liberty cannot be preserved without a general knowledge among the People, who have a right … and deserve to know.”

 

The 1st Amendment states that “Congress shall make no law…abridging the freedom of speech…” which has caused much discussion over the years about the all-encompassing nature of the specific words. The Supreme Court has held, in many cases, that not all speech is free.

 

“Esteemed Supreme Court Justice Oliver Wendell Holmes, Jr., authored a number of opinions on “free speech” cases in the early part of the 20th Century and has been the focal point for Court discussions ever since.

 

In Schenck v. United States, 249 U.S. 47 (1919), the Court stated in the opinion that the 1st Amendment did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances. The opinion’s most famous and most often quoted passage was this:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Justice Holmes then overturned that criteria in his opinion Schenck v. United States in Abrams v. United States, 250 U.S. 616 (1919), that it was his conviction:

 

“…that freedom of opinion was central to the constitutional scheme because competition in the ‘marketplace’ of ideas was the best test of their truth (my emphasis) 

 

The “clear and present danger” criteria were endorsed, then condemned, then endorsed again and again over the years, leading to much confusion. [But, thecompetition in the ‘marketplace’ of ideas is the central tenet of Justice Holmes’ observation.]

 

Finally, in 2010, the Supreme Court rejected the argument of Holmes’s Abrams 

dissent. The facts in Holder v. Humanitarian Law Project were similar to those in Abrams: persons who planned to advocate the causes of Sri Lankan and Kurdish organizations, designated terrorist groups, had a reasonable fear of prosecution under the USA PATRIOT Act, 18 U.S.C. Section 2339B, for providing material support for terrorist organizations.

 

The Supreme Court held that such prosecutions were not barred by the First Amendment, expressly rejecting the argument that a “specific intent” to assist terrorist acts was required, rejecting also the claim of the dissenting justices that the case was governed by the concurrence in Whitney, or by the standard stated in Brandenburg.

 

Finally, in Citizens United v. FEC, the majority of the Court rejected the argument made by the dissenters that the First Amendment was premised on the value of democratic deliberation in the “marketplace of ideas.” Instead, they held that First Amendment rights are individual rights, not based on communitarian considerations. This prevents individuals from hiding behind a legitimate organization or institution for protection when they unilaterally violate Constitutional provisions. [But, this concept also denies the fundamental property of communication – that there be an author and a consumer of the communication. Accepting this eminently logical observation requires that the “individual” rights of the citizen speaker can only be judged in a marketplace of citizen consumers.]

 

Inherent in all of these discussions is the fundamental nature of the speech referred to in the Amendment. That fundamental nature is that the protected speech must be, as stated by Justice Holmes – truthful speech – in order to have any protection whatsoever. The “clear and present danger” criteria raised by Justice Holmes masked the real truth about the status of “falsely shouting fire in a theatre” is that the words are not trueUntrue political speech is notprotected speech – it is potentially criminal speech.

 

The entire American system of republican-democracy is predicated upon the informed vote of the citizenry. To argue otherwise would be nonsensical. Systematic denial of truthful information to voters, literally denying them the right to cast an informed vote, is the most heinous attack upon America imaginable. The best the uninformed voters can do is to cast an uninformed vote, an ignorant vote, a wasted vote. Additionally, if a voter is incapable of processing the truth to its logical end because of deliberately applied educational shortcomings, that vote is not an informed vote – it is a vote cast under coercion, similarly corrupted.

Habeas Corpus and Due Process

By far, the most famous case for suspending habeas corpus and due process comes to us from none other than Democrat icon, President Franklin Roosevelt, in his executive order for internment of Japanese-American citizens from the West Coast in early 1942 – again citing military necessity.

 Recall that the internment of Japanese-Americans within the United States was the forced relocation and incarceration, in camps in the interior of the country during World War II, of between 110,000 and 120,000 persons of Japanese ancestry who lived on the Pacific coast. Sixty-two percent of the internees were United States citizens. The U.S. government ordered the removal of Japanese-Americans in 1942, shortly after Imperial Japan’s attack on Pearl Harbor.

 As we have discussed earlier, Roosevelt authorized the deportation and incarceration with Executive Order 9066, issued February 19, 1942, which allowed regional military commanders to designate “military areas” from which “any or all persons may be excluded.” This power was used to declare that all people of Japanese ancestry were excluded from the entire West Coast, including all of California and much of Oregon, Washington and Arizona, except for those in government camps.

 In 1944, the Supreme Court upheld the constitutionality of the removal by ruling against Fred Korematsu’s appeal for violating an exclusion order. The cowardly Court limited its decision to the validity of the exclusion orders, avoiding the issue of the incarceration of U.S. citizens with no due process.

 In 1980, under mounting pressure from the Japanese-American Citizen’s League , Democrat President Jimmy Carter opened an investigation to determine whether the decision to put Japanese-Americans into internment camps had been justified by the government. He appointed the Commission on Wartime Relocation and Internment of Civilians (CWRIC) to investigate the camps.

 The Commission’s report, titled “Personal Justice Denied,” found little evidence of Japanese disloyalty at the time and, by concluding the incarceration had been the product of racism [a PLDC staple even then but, more accurately described as a product of national origin – Japanese is not a race, it is a nationality, but racism plays better in the PLDC template for America as an inherently racist country], recommended that the government pay reparations to the survivors.

 In 1988, President Ronald Reagan signed into law the Civil Liberties Act, which apologized for the internment on behalf of the U.S. Government and authorized a payment of $20,000 to each individual camp survivor. The legislation admitted that government actions were based on “race prejudice, war hysteria, and a failure of political leadership” – an extraordinary comment from a Democrat congress about a Democrat icon!

 In May 2011, U.S. Solicitor General Neal Katyal after a year of investigation, found Charles Fahy had intentionally withheld The Ringle Report drafted by the Office of Naval Intelligence, in order to justify the Roosevelt administration’s actions in the cases of Hirabayashi v. U.S. and Korematsu v. U.S.

 The report would have undermined the administration’s position of the military necessity for such action, as it concluded that most Japanese-Americans were not a national security threat, and that allegations of communication espionage had been found to be without basis by the FBI and the Federal Communications Commission

 The rulings of the US Supreme Court in the Korematsu and Hirabayashi cases, specifically in its expansive interpretation of government powers in wartime, have yet to be overturned. They are still the law of the land because a lower court cannot overturn a ruling by the US Supreme Court.

 “Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended [without sufficient cause], and despite the Fifth Amendment’s command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066.”, writes former Supreme Court Justice Tom C. Clark in his 1992 book, Executive Order 9066: The Internment of 110,000 Japanese Americans – but are still Supreme Court precedent.”

 “There also is a federal habeas corpus statute, 28 U.S.C. § 2241, which states, in pertinent part: (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions . . . (c) The writ of habeas corpus shall not extend to a prisoner unless — (1) He is in custody under or by color of the authority of the United States . . . (3) He is in custody in violation of the Constitution or laws or treaties of the United States . . .

 Since its inclusion in the Judiciary Act of 1789, 28 U.S.C. § 2241 has given federal district courts jurisdiction to grant writs of habeas corpus to people who are held in “custody” by the federal government in violation of the Constitution, laws, or treaties of the United States. Under this statute, federal courts have considered both constitutional claims and claims of statutory interpretation.

 Habeas rights involve jurisdiction while due process rights relate to substantive claims. The Suspension Clause governs structural constitutional relations among the branches of government. The Due Process Clause provides rights to individuals. Existing case law offers no clarity regarding the relationship between habeas and due process.

 The Supreme Court’s early, landmark pronouncement on habeas emerged, through an opinion by Chief Justice Marshall, in Ex parte Bollman. Yet, Bollman involved the Court’s jurisdiction to entertain habeas petitions and did not shed much light on the general substantive content of such petitions, instead evaluating the particular requirements for the charge of treason at issue in the case.

 The phrase “due process” appeared nowhere in Marshall’s opinion for the Court or in Justice Johnson’s dissent. Subsequent centuries of Supreme Court jurisprudence have not resolved how habeas review relates to due process protections or even offered much clarity as to the nature of the relationship. Justice Scalia, in a 2001 dissent, suggested that the Suspension Clause provides no substantive guarantee whatsoever in the absence of other protections:

 “A straightforward reading of [the Suspension Clause] discloses that it does not guarantee any content to (or even the existence of) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” Scalia added, “If one reads the Suspension Clause as a guarantee of habeas relief, the obvious question presented is: What habeas relief?”

 Scalia’s suggestion as to the Suspension Clause’s lack of substantive content emerged in the context of a dispute over habeas jurisdiction and did not command the votes of a majority of the Court so, the Court’s majority explicitly avoided having “to answer the difficult question of what the Suspension Clause protects.”

 “The uniqueness of habeas corpus in the American legal system would seem to suggest that, from this structural perspective, due process need not follow habeas access.

 Perhaps most persuasive would be an argument based on the imperatives of intelligence-gathering in confronting “the particular dangers of terrorism in the modern age” to the extent that diverging from what might otherwise be the practices required by due process could be necessary to gather intelligence and prevent a catastrophic terrorist attack, then recognizing due process protections might indeed be seen as both impracticable and anomalous. In fact, the Due Process Clause has been found by the Court to not apply to suspected terrorist aliens detained at the American prison facility at Guantanamo Bay in Cuba.

 What these cases demonstrate is that the Constitution cannot predict, prohibit or prevent the exigencies of national emergencies from overwhelming the orderly conduct of governmental affairs. Although ours is a nation of laws, it is also a nation governed by human beings who are subject to battering and bashing by the hurricanes of history as it happens.

 Occasionally, decisions are made that reflect the conflict between the orderliness of routine and the chaos of conflict. The circumstances do not make them bad decisions, just different decisions than might have been made under different circumstances. The difficulty of these habeas corpus/due process decisions is reflected by the fact that the Supreme Court, in over 150 years since Merryman, has not been able to come to grips with a solution.”

 In the specific case of Japanese-American internment during World War II, it might gracefully be said that just because President Roosevelt could order the internment doesn’t mean he should have.

 With respect to terrorism, rebellion and subversion, it would seem that the exigent circumstances surrounding each general issue would necessitate suspension of habeas corpus in favor of the security of the American people and the Constitution – both of which have shown distinct vulnerability to nefarious organized and secret actions by those who would weaken or destroy both.

 An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a combatant who directly engages in armed conflict or in support of armed combat in violation of the laws of war.  The Geneva Conventions – to which the United States is a party – do not recognize any lawful status for combatants in conflicts not involving two or more nation-states. A state in such a conflict is legally bound only to observe Article 3 of the Geneva Conventions and may ignore all the other Articles. But each one of them is completely free to apply all or part of the remaining Articles of the Convention.

“The term “unlawful combatants” was first used in U.S. municipal law in a 1942 U. S. Supreme Court decision in the case Ex parte Quirin. In this case, the Supreme Court upheld the jurisdiction of a U.S. military-tribunal, over the trial of eight German saboteurs who were landed by submarine on Long Island, NY during World War II. This decision states:

“By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”

Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism which allowed “individuals … to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals”, where such individuals are members of the organization known as al Qa’ida and like groups; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

 With this discussion – of the wars on terrorism, trafficking and drugs, rebellion and subversion, State-militias, habeas corpus, due process, the laws of war and the treatment of unauthorized combatants and the like – as prologue, the Convention of the States can proceed to nationalizing the Rebellion Acts and the Subversives Act of the various states.

AMENDMENT XXXV

 Section 1. That if any person or persons acting individually shall, or persons or entities who have access to means of mass communications with the citizens of the United States or organizations and institutions who routinely participate in the public debate about matters of voter interest, shall knowingly and deliberately deny them the truth, the whole truth and nothing but the truth or make comments, under the color of opinion or satire, that are not based on truth, about any matters of public interest that may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

 “Section 2. And be it further enacted; That if any person or persons or entities described above shall knowingly, based upon the public record or facts known to be true by those persons, employing the “reasonable man” standard, shall, or shall conspire to knowingly and deliberately publish in any manner, material that would deny to any citizen of the United States the truth, the whole truth and nothing but the truth or publish comments, under the color of opinion or satire, that are not based on truth, about any matters of public interest that may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

 “Section 3. And that it be further enacted; That if any person or persons or entities described above shall knowingly fail to provide, or prevent, a substantially equivalent opportunity to legitimate advocates for all views in the public debate on the political and social issues of the day in the public square, such that their actions or inaction may influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; they shall be removed from any and all opportunities to continue such activities, shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and shall be prosecuted for subversive activity.

 “Section 4. And be it further enacted, that if any person acting individually shall, or person or persons or entities shall conspire to, buy, sell, manufacture, transport, distribute or in any other way, provide or make available for consumption, Schedule 1 mind-altering drugs to any American citizen certified to vote in any federal, State or local election and thereby influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not;  shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

 “Section 5. And be it further enacted, that if any person acting individually shall, or person or persons or entities shall conspire to use violence, and/or fear, and/or psychological or physical intimidation or threats of intimidation to force an American citizen to forsake their complete allegiance to the United States of America and thereby influence or interfere with the absolute right of each citizen in good standing to prepare for and exercise a sober and informed vote, whether the activities aforementioned shall occur in concert with an election, or not, or whether they have the proposed effect, or not; shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

 “Section 6. Subversive activity conducted by an American citizen shall be the legal equivalent of treason, under domestic circumstances, for prosecutorial process. Subversive activity involving violence and/or fear and/or intimidation shall be the legal equivalent of terrorism, under domestic circumstances, for prosecutorial process.”

 “Section 7. An indictment for domestic treason or domestic terrorism shall result in the immediate forfeiture of rights under the writ of habeas corpus, the right to a trial by a jury of peers and the right to appeal to United States’ appellate courts or the United States Supreme Court. Jurisdiction shall fall to the Judge Advocate General of the United States who shall ensure appropriate due process, under judge advocate jurisdiction, in all habeas corpus matters.”

 “Section 8. A conviction of an American citizen for domestic treason or domestic terrorism shall result in the immediate revocation of American citizenship and deportation to a sovereign nation that agrees to take the convicted person. Should no nation agree to take the convicted person, said person shall be sent to an offshore penal colony ceded to the control of the United Nations.

 “Section 9. Any citizen who materially interferes with the spirit, intent and/or implementation of each and every provision or additions and amendments to the Constitution of the United States shall be detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

 “Section 10. No government employee, either hired, elected or appointed, shall expend or cause to be expended, any public monies for the collection and/or distribution of information and/or statistics intended to deceive the consumer of the information. Such a person shall be deterred and, if necessary, detained under a suspension of habeas corpus for exigent circumstances and prosecuted for subversive activity.”

 “Section 11. The age of majority for federal purposes is twenty-one years from the date of birth, unless a citizen is engaged in national service, under which one’s majority shall become the date of commission or enlistment.”

 “Section 12. Due to the political nature of most cases of alleged subversive activity, at the federal level they shall be directed to the Office of the Judge Advocate General of the United States. All non-federal cases of alleged subversive activity shall be directed to the Staff Judge Advocate of the Army in the State in which they were filed.

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

 President John Adams said:

 “Liberty cannot be preserved without a general knowledge among the People, who have a right … and deserve to know.”

 The 1st Amendment states that “Congress shall make no law…abridging the freedom of speech…” which has caused much discussion over the years about the all-encompassing nature of the specific words. The Supreme Court has held, in many cases, that not all speech is free.

“Esteemed Supreme Court Justice Oliver Wendell Holmes, Jr, authored a number of opinions on “free speech” cases in the early part of the 20th Century and has been the focal point for Court discussions ever since.

In Schenck v. United States, 249 U.S. 47 (1919), the Court stated in the opinion that the 1st Amendment did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances. The opinion’s most famous and most often quoted passage was this:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

 Justice Holmes then overturned that criteria in his opinion Schenck v. United States in Abrams v. United States, 250 U.S. 616 (1919), that it was his conviction

“…that freedom of opinion was central to the constitutional scheme because competition in the ‘marketplace’ of ideas was the best test of their truth (my emphasis) 

 The “clear and present danger” criteria were endorsed, then condemned, then endorsed again and again over the years, leading to much confusion. [But, the competition in the ‘marketplace’ of ideas is the central tenet of Justice Holmes’ observation.]

Finally, in 2010, the Supreme Court rejected the argument of Holmes’s Abrams dissent. The facts in Holder v. Humanitarian Law Project were similar to those in Abrams: persons who planned to advocate the causes of Sri Lankan and Kurdish organizations, designated terrorist groups, had a reasonable fear of prosecution under the USA PATRIOT Act, 18 U.S.C. Section 2339B, for providing material support for terrorist organizations.

The Supreme Court held that such prosecutions were not barred by the First Amendment, expressly rejecting the argument that a “specific intent” to assist terrorist acts was required, rejecting also the claim of the dissenting justices that the case was governed by the concurrence in Whitney, or by the standard stated in Brandenburg.

Finally, in Citizens United v. FEC, the majority of the Court rejected the argument made by the dissenters that the First Amendment was premised on the value of democratic deliberation in the “marketplace of ideas.” Instead, they held that 1st Amendment rights are individual rights, not based on communitarian considerations. This prevents individuals from hiding behind a legitimate organization or institution for protection when they unilaterally violate Constitutional provisions. [But, this concept also denies the fundamental property of communication – that there be an author and a consumer of the communication. Accepting this eminently logical observation requires that the “individual” rights of the citizen speaker can only be judged in a marketplace of citizen consumers.]

Inherent in all of these discussions is the fundamental nature of the speech referred to in the Amendment. That fundamental nature is that the protected speech must be, as stated by Justice Holmes – truthful speech – in order to have any protection whatsoever. The “clear and present danger” criteria raised by Justice Holmes masked the real truth about the status of “falsely shouting fire in a theatre” is that the words are not trueUntrue political speech is not protected speech – it is potentially criminal speech.

The entire American system of republican-democracy is predicated upon the  informed vote of the citizenry. To argue otherwise would be nonsensical. Systematic denial of truthful information to voters, literally denying them the right to cast an informed vote, is the most heinous attack upon America imaginable.

The best the uninformed voters can do is to cast an uninformed vote, an ignorant vote, a wasted vote. Additionally, if a voter is incapable of processing the truth to its logical end because of deliberately applied educational shortcomings, or a drug-addled mind, that vote is not an informed vote – it is a vote cast under coercion, similarly corrupted.

Next time: Coercing the vote.

Immigration and Habeas Corpus

 Proposed change to Article One, Section Eight, of the U.S. Constitution:

 Section 1. Except in cases of national emergency declared by the President, to approve all regulations and mandates created by the Executive that have significant public policy implications or costs and have, as their intent or effect, the force of law. Such regulations must be presented for approval to the Congress by the Executive within ten working days of their proposal.

Section 2. No regulations of this nature may be enforced before they are enacted into law by the Congress and signed by the President.”

Section 3. All regulations and mandates, created by the Executive and passed into law by the Congress, which require the expenditure of public funds, shall be paid for exclusively from federal revenues. There shall be no unfunded mandates imposed upon the several States or any other municipality without their concurrence”

“Section 4. The resettlement of refugees is a federal responsibility. Any involvement of the several States in the resettlement process shall result only with the agreement, through legislation by the States, to federal proposals and appropriated funding.

“Section 5. The annual limitation for foreign nationals to enter the United States from all sources, to live and work, shall be one-tenth of one percent of the estimated census population of the United States in that year. Foreign nationals who desire to remain in the United States beyond ten years from the date of admittance must have attained United States citizenship. The intent of the annual limitation is to ensure that only those foreign nationals who intend to renounce all other loyalties to become citizens and who will benefit the United States have the opportunity to attain the privilege of citizenship.”

“Section 6. For purposes of this amendment, the term “naturalization” in the original document shall refer to the legal immigration of foreign nationals into the United States and their eventual naturalization as American citizens.”

“Section 7. Foreign nationals found to be illegally in the United States shall be afforded human rights in accordance with international conventions. They shall not be accorded civil rights reserved for citizens of the United States or those foreign nationals legally residing or visiting in the United States, its possessions or Territories. They shall be placed in the custody of State Judge Advocates for due process proceedings before military tribunal for all alleged crimes for which they have been charged in State court. They shall be placed in the custody of Judge Advocate General of the United States for due process proceedings before military tribunal for all alleged crimes for which they have been charged in federal court. They may retain legal representation but shall not have access to the United States Judicial System.

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation, intention and implementation of the words of the Amendment:

Executive Orders that have significant public policy implications shall be an extremely rare and limited tool of the Executive, since they bypass the checks and balances mandated in the Constitution. Their use should be limited to national emergencies where expediency is required or to minor administrative matters.

The United States is obliged to recognize valid claims for asylum under the 1951  Convention Relating to the Status of Refugees and its 1967 Protocol. As defined by these agreements, a refugee, sometimes referred to as a political refugee for purposes of this discussion, is a person who is outside his or her country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state.

The United States recognizes the United Nations’ desire to locate political refugees in temporary locations as close to their homeland as practicable. “Half-way around the world” does not qualify as “close as practicable” unless the world is engaged in global war.

Refugee status is a temporary condition. It shall be the goal of the United States to return refugees safely to their homeland as soon as politically possible. To that end, it shall be the policy of the United States to assist forces attempting to provide a safe homeland for all refugees temporarily living in the United States.

Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. The signatories to these agreements are further obliged not to return or “refoul” refugees to the place where they would face persecution. Refugees shall have no pro forma path to United States citizenship. Every effort shall be made to return refugees to their homeland at the earliest opportunity, conditions permitting. Should that not be possible after ten years in the United States under refugee status, every effort must be made to resettle refugees in a suitable sovereign country as close as possible to their homeland.

This commitment was codified and expanded with the passing of the Refugee Act of 1980 by the Congress of the United States. Besides reiterating the definitions of the 1951 Convention and its Protocol, the Refugee Act provided for the establishment of an Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services (HSS) to help refugees begin their temporary lives in the U.S.

The structure and procedures evolved and by 2004, federal handling of refugee affairs was led by the Bureau of Population, Refugees and Migration (PRM) of the U.S. Department of State, working with the ORR at HHS. Asylum claims are mainly the responsibility of the Bureau of Citizenship and Immigration Services (CIS) of the Department of Homeland Security (DHS). These responsibilities will change significantly with the ratification of this amendment.

The Office of Refugee Resettlement shall be eliminated as refugees will remain under the cognizance of the federal government in federally run refugee camps on federal land or federally leased land. Refugees shall remain under federal jurisdiction unless they pursue relocation to another sovereign nation, attain United States citizenship or secure an individual or State sponsor who will guarantee financial support throughout their stay in the United States or until they leave the protection of the United States.

Each year, the President of the United States sends a proposal to the Congress for the maximum number of refugees to be admitted into the country for the upcoming fiscal year, as specified under section 207(e) (1)-(7) of the Immigration and Nationality Act. This number, known as the “refugee ceiling”, is the target of annual lobbying by both refugee advocates seeking to raise it and advocates for responsible immigration seeking to lower it. However, once proposed, the ceiling is normally accepted without substantial Congressional debate.

The September 11, 2001 attacks on America resulted in a substantial disruption to the processing of resettlement claims with actual admissions falling to about 26,000 in FY2002. Claims were double checked for any suspicious activity and procedures were put in place to detect any possible terrorist infiltration, though some advocates noted that, given the ease with which foreigners can otherwise legally enter the U.S., entry as a refugee is comparatively unlikely. The actual number of admitted refugees rose in subsequent years with the refugee ceiling for 2006 at 70,000. Critics note these levels are still among the lowest in 30 years.

The annual number of refugees admitted to the United States shall lower by a corresponding number, the number of foreign nationals legally admitted as immigrants. For instance, if the target for legal immigration was 330,000 for 2017 and the refugee target was 70,000, the number of legal immigrants admitted would be reduced to 260,000.

But, no matter what the number, the key to an effective immigration policy is how quickly new arrivals can successfully assimilate into the culture and society of the United States. There must be sufficient sponsors, adequate jobs and ample educational opportunities to enable the new arrivals to succeed civically, economically, culturally and intellectually. Communities that are overwhelmed by an unfunded, federally mandated large number of immigrants cannot provide this support and will experience any number of unanticipated, unwanted and unwarranted social ills as a result – a situation that is not good for immigrants or citizens.

To that end, the following requirements for long-term visa entry into the United States shall be codified in statute by the Congress and be enforced by the Department of State and the Department of Homeland Security, who are to function as advocates for the United States in order to ensure that immigration applicants are a benefit and not a burden to taxpayers:

·         The foreign applicant shall be of strong moral character and shall have a standard background investigation completed by the Federal Bureau of Investigation. If all information cannot be successfully verified in accordance with Bureau standards, the application shall be rejected. No applicant shall be approved if they have ever been a member of, supported or have been associated with, a known terrorist organization or has lived in any country which has been identified as a state sponsor of terrorism within the previous ten years.

·         The applicant shall be proficient in written and spoken English. All forms shall be completed by the applicant in English and all interviews shall be conducted in English in order to assess this proficiency. Such a proficiency will demonstrate a desire to assimilate into the American culture and to attain citizenship status.

·         All applicants shall have a United States citizen sponsor in good standing who shall have a standard background investigation completed by local law enforcement at the point of ultimate destination, shall not have traveled to a country identified as a state sponsor of terrorism within the previous ten years and shall be certified to be capable of being financially responsible for the applicant until citizenship is attained or the applicant returns to the country of origin.

·         All applicants shall have certified employment or schooling in the United States arranged prior to approval. Such certification shall be obtained by local law enforcement at the point of ultimate destination.

·         The applicant or sponsor shall be responsible for all fees and shall provide sufficient funds, to be placed in escrow, for return passage to the country of origin should the applicant be required to exit the United States prior to attaining citizen status. Once citizenship is attained, the funds shall be returned to the applicant.

·         All applicants shall be provided a photo identification card upon entry into the United States. This card shall be renewed annually, in person at the point of ultimate destination, and any changes shall be reported to the appropriate authorities when they occur. This element shall define a record of respect for the laws of the United States.

Persons found to be in the United States illegally shall be processed by the appropriate Judge Advocates and shall not enter the judicial system of the United States which shall be reserved for persons legally in the United States. If charged with crimes by State or federal authorities, their trials will take place before appropriate military tribunals under the expedited policies and procedures of the Judge Advocate General of the United States.

If convicted, all sentences shall be served in a military stockade followed by deportation and shall never be allowed to return to the United States. While in custody, they shall be treated humanely and shall be fed, sheltered and cared for under the same standards as United States military personnel in the field.

This policy is a complement to and mirrors the requirement that military units in the field must be capable of holding and processing captured foreign nationals during combat operations in a humane manner

  

Proposed change to Article One, Section Nine, Clause Two of the U.S. Constitution:

Section 1. The Privilege of the Writ of Habeas Corpus shall not be suspended unless, when in Cases of Subversion, Rebellion, Domestic Terrorism or Invasion by either state-sponsored or non-state-sponsored entities, the public Safety may require it or when suspended by the President for issues of national security that may include, but are not limited to, the activities cited above. In the latter case, the Congress may override the suspension whenever two thirds of both Houses shall deem it necessary.”

Section 2. Individuals, citizen and non-citizen alike, engaged in subversion, rebellion or domestic terrorism shall be considered as unlawful combatants, illegal combatants or unprivileged combatants/belligerents. They are not entitled to the same due process as United States citizens. Their cases will be heard by military tribunal.”

Section 3. United States citizens who have had the Privilege of the Writ of Habeas Corpus suspended, for activities cited in Section 1 above, shall be accorded due process before the United States Foreign Intelligence Surveillance Court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) and, upon conviction, shall have their Privilege of Citizenship revoked as part of their sentence. Any application for a reinstatement of United States citizenship shall not be entertained for ten years following revocation.

 

Addenda for future judicial reviews to clarify the meaning, understanding, interpretation and intention of the words of the Amendment:

Invasion need not be conducted or inspired by a foreign sovereign state. Non-state actors outside of the community of nations may target the United States with untoward activities leading to subversion, rebellion or domestic terrorism.

United States’ citizenship provides numerous societal and human rights and privileges, some inalienable, as delineated in the Constitution of the United States. It also carries substantial duties and responsibilities under the social contract between the People and their government. Chief among these duties is the protection, preservation and defense of the Constitution of the United States, ones’ fellow citizens and their institutions which maintain, support and provide for the common good and domestic tranquility.

An abrogation of those duties and responsibilities that results in an attack upon the citizens of the United States, anywhere in the world, by a fellow citizen – whether in a direct or supporting role – is the most serious of all transgressions against the United States and must be dealt with most severely.

Rebellion and Subversion have been defined and discussed above. Domestic terrorism is defined as any activity by a person or persons (henceforth referred to as “domestic enemies”) acting independently or in concert, that invokes fear or trepidation or uses violence or the threat of violence or retribution in support of a goal incompatible with the traditional functions of America’s public and private institutions and/or the safety, peace and prosperity of the People or their enjoyment of their lives, their liberty and/or their pursuit of happiness.

“The Baltimore riot of 1861 was an incident that took place on April 19, 1861, in Baltimore, Maryland between armed Confederate sympathizers and members of the Massachusetts State militia en route to Washington for Federal service to put down the Southern Rebellion after being requested by President Abraham Lincoln (after the Confederate attack on Fort Sumter in Charleston, SC). It is regarded by historians as the first bloodshed of the American Civil War. The nation was now at war – the War of the Southern Rebellion, the War of Northern Aggression or the Civil War – depending whose side you favored, if either.

 After the April 19th rioting, some small skirmishes occurred throughout Baltimore between citizens and police for the next month, but a sense of normalcy returned as the city was cleaned up. Mayor George William Brown and Maryland Governor Thomas Hicks implored President Lincoln to reroute troops around Baltimore City and through Annapolis to avoid further confrontations. On the evening of April 20th Hicks also authorized Brown to dispatch the Maryland State militia for the purpose of disabling the railroad bridges into the city – an act he would later deny. One of the militia captains was John Merryman, who was arrested without a writ of habeas corpus one month later, sparking the famous Supreme Court case of Ex parte Merryman.

 At first, Lincoln rerouted troops through Union-friendly Annapolis (since 1845, home to the United States Naval Academy). Once enough troops had made it to Washington, D.C. to defend the capital, Lincoln resolved to end the problems in Baltimore and restore the rail connection. On May 13, the Union army, on orders from Lincoln, entered Baltimore, occupied the city, and declared martial law. The mayor, city council, and police commissioner, who were pro-Confederacy and seemingly incompetent at maintaining order in the situation, were arrested and imprisoned at Fort McHenry in Baltimore harbor – the site of the battle in the War of 1812 that inspired Francis Scott Key to pen the words that later became our National Anthem. Ironically, Francis Scott Key’s grandson, Francis Key Howard, was one of these political detainees.

 After the occupation of the city, Union troops were garrisoned throughout the State. Several members of the Maryland legislature were arrested, days before a delayed secession vote, and the State was placed under direct federal administration to prevent Washington, DC from becoming surrounded by Confederate States. Days afterward, North Carolina became the final state to approve secession (May 21).

 Delaware was occupied by Union troops due to its proximity to (and to prevent a repeat of the events that took place in) Maryland. Kentucky declared its neutrality (although it would eventually join the Union’s side), and although Missouri was on the Union side, a Confederate government-in-exile existed in Arkansas and Texas. Maryland would remain under federal administration until April 1865, the end of the war.”

 James Ryder Randall, a teacher in Louisiana but a native Marylander who had lost a friend in the riots, wrote “Maryland, My Maryland” for the Southern cause in response to the riots. The poem was later set to music popular in the South, and referred to the riots with lines such as “Avenge the patriotic gore /That flecked the streets of Baltimore.” Seventy-eight years later, it became Maryland’s state song; there have been efforts to remove it since.

“Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487), is a well-known and controversial U.S. federal court case which arose out of the Civil War. It was a test of the authority of the President to suspend “the privilege of the writ of habeas corpus” under the Constitution’s Suspension Clause, when Congress was in recess and therefore unavailable to do so itself. 

Article 1, Section 9, Clause 2 of the U.S. Constitution: Referring to the powers conferred on the Congress: “The Privilege of the Writ of Habeas Corpus (Latin for “you shall have the body”, i.e. deliver a person to the physical jurisdiction of the court) shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

U.S. Supreme Court Chief Justice and southern sympathizer Roger Taney (who had also authored the infamous Dred Scott decision in 1857), sitting as a federal circuit court judge, ruled that the authority to suspend habeas corpus lay exclusively with Congress. Saying that Taney’s orders were unconstitutional [based on the Suspension Clause], President Abraham Lincoln defied them, as did the Army under Lincoln’s orders, and John Merryman remained inaccessible to the judiciary while Congress remained in recess.

When a person is detained by police or other authority, a court can issue a writ of habeas corpus, compelling the detaining authority either to show proper cause for detaining the person (e.g., by filing criminal charges) or to release the detainee. The court can then remand the prisoner to custody, release him on bail or release him outright.

The threat to Washington was serious, and Lincoln eventually responded by declaring martial law in Maryland. On April 27, 1861, he told General Winfield Scott (commander-in-chief of the army) that if there was any resistance on the “military line” from Annapolis to Washington, Scott or “the officer in command at the point” was authorized to suspend habeas corpus if necessary.

 Chief Justice Roger B. Taney ruled that the President can neither suspend habeas corpus nor authorize a military officer to do it, and that military officers cannot arrest people except as ordered by the courts. 

Lincoln did not comply with the ruling or the writs issued by Chief Justice Taney, and kept Merryman in custody while Congress remained in recess. He also received an opinion supporting his suspension from his Attorney General Bates. That opinion formed the basis for Lincoln’s July 4 speech to Congress, in which he framed the issue:

“The whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated?

To state the question more directly, are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?

But it was not believed that this question was presented. It was not believed that any law was violated. The provision of the Constitution that “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” is equivalent to a provision – is a provision – that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it.

It was decided that we have a case of rebellion and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power; but the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

The passage of the Habeas Corpus Suspension Act in March 1863 ended the controversy, at least temporarily, by authorizing presidential suspension of the writ during the Civil War, requiring indictment by grand jury (or release) of political prisoners and no U.S. Supreme Court decision has ever endorsed Taney’s opinion in Merryman.

 Seven months later, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus, this time through the entire country, and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to martial law.

 Former Governor Hicks, by then a U.S. Senator, told the Senate, “I believe that arrests and arrests alone saved the State of Maryland not only from greater degradation than she suffered, but from everlasting destruction.” He also said, “I approved them [the arrests] then, and I approve them now; and the only thing for which I condemn the Administration in regard to that matter is that they let some of these men out.”

 Incidentally, more than 2,500,000 State militia volunteers fought for the Union during the Civil War to counter the rebellion and invasion which had occurred. That would be the equivalent of more than 30,000,000 State volunteers today to counter the invasion of America by an effective army of (undocumented and/or foreign born) domestic enemies and their campaign against institutions of the citizens of the United States which has placed large swaths of (especially urban) America in virtual rebellion. Those 2.5 million volunteers represented almost half of the Union men of draft age. Imagine that, when only about 15,000,000 Americans served in all of World War II!

Next time: Habeas Corpus and Manzanar