Now that we have all reviewed our copies of the Constitution, and have particularly studied Article 1, sec. 8, as I suggested in entry preceding the election discussion, we are able to begin to tackle [albeit somewhat superficially] what the National, or General, or Central, Government was supposed to be doing, and what was none of its business. One question surrounding Article 1, sec. 8, partially explains why there was no “Bill of Rights” in the original body of the Constitution.
The general government was intended to be a government of enumerated powers, which means that things not expressly and specifically assigned to the general government were beyond its power. The specification of that assignment is generally found in Article 1, sec. 8: what’s not there, Washington could not regulate, order, have anything to do with. Things not there, if they were of a nature that government should deal with them, were state government business. And, of course to the liberty-focusing Framers, many things did not have, nor merit, a government solution, which seems bizarre in this modern “state-istic,” paternalistic, “we’ll take care of all ills” view of government.
While the general government was to be a government of enumerated powers, the state governments were to be governments of reserved powers: the sovereign people gave all government power to their states; they then specifically shunted some of the power they had given to their states to their national, general government, while leaving in the states what they had not expressly given to the general government. They also retained to themselves certain fundamental rights, which was their own reservation against assigning powers to either of the two levels of government.
Reading down through Article 1, sec. 8, you’ll be hard-pressed to locate the power of the general government to tell people what medicine is lawful; what guns can be possessed or what is required to purchase them; what speeds to drive on roads; whether children could be left behind or not in public schools, and what they needed to be given for lunch; what punishment to give bank robbers, or kidnappers crossing state lines; etc., about which more later; or to command the purchase if medical insurance, on the pain of fine or jail for not doing so.
When the subject came up in the Convention of 1787, which was supposed only to amend the Articles of Confederation but ended up establishing a new order and structure [which is the danger of doing a convention now], there was scholarly opposition to a Bill of Rights by some who proved to be clairvoyant. Their argument was that individual rights were protected by the various state charters of liberties and by common law traditions, and that there was no need to protect people against the general government, because that government could not do what was not specifically authorized.
That is, there would be no need, for instance, in prohibiting Congress from abridging freedom of speech, because the power to abridge it had never been granted. There would be no need to prohibit quartering of troops in people’s homes, because the power to do so had never been granted. There would be no need to prevent unreasonable searches, because there was a common law tradition against such and the general government had never been awarded the power to do any searches, let alone unreasonable ones. And so forth.
The prescient portion of the argument, advanced by Hamilton, Madison, Jay, and others, was that if they then wrote a bill prohibiting the general government from doing specified things, evil people in later generations would rationalize that the national government could do everything that was not prohibited, instead of only being able to do what was enumerated in Article 1, sec. 8. Bad captains of the ship of the American state would chart a self-serving and duplicitous course through the imagined shoals erected by the specific prohibitions. And that is what we see happening now; they predicted it 223 years ago.
Their [federalist framers’] position was that the very structure of the nation, with the limited assignment of power nationally and reserved powers locally, was its own and sufficient Bill of Rights, and dangers of usurpation lay on the horizon if there were to be express reservations against a system that axiomatically could not do what was never granted. But their political scholarship and insight did not carry the day; a sufficient number of framing parties insisted that there be a promise that a Bill of Rights would be produced in the first Congress sitting under the new Constitution, or there would be no such Congress because there would be no new Constitution.
That promise was made, so the Constitution was ratified, and the first Congress heeded the commitment to put together a Bill of Rights in 1791.
Of course, that 1791 effort was not labeled a “Bill of Rights” when being put together, and it was not originally designed as the “amendments” we see now. The order of the provisions defined the location in the original body of the Constitution where the provisions would be inserted. That is, the “First Amendment” is not “First” because the Framers considered it to be the most important provision of liberty [as some erroneously assert these days], but because it was the first thing to be inserted, and it coincidentally was to be inserted into Article 1. Moreover, that “First” was not what really would have become the first provision; it was really the third item of liberty voted upon, about which more the next time.
Thursday, November 4, 2010
The Election was not a "Conservative" Victory, Properly Understood
I tire of the simplistic analysis of the election [63 House gains for GOP; 6 Senate gains] as a victory for the “conservatives,” a loss for the “liberals,” and blah, blah, blah.
There are few true conservatives in this or any recent American undertaking, because there is a fundamental misunderstanding among many people of the meaning of the term, and there is a purposeful co-opting of the term by bad-minded sorts to dignify their radical extremism.
There is nothing “conservative” about Limbaugh, Palin, Rove, Hannity, Beck, O’Donnell, etc.. Those people are statists; they are police power extremist reactionaries; they invoke the Framers for their reactionary positions without ever having studied them. They are to conservatism what Mussolini, Franco, Hitler, Rumsfeld, and Romney are to John Adams, Barry Goldwater, and Mike Kennedy [Captain Motion].
I am offended that they have co-opted the distinguished label of “conservative,” but I am even more distressed that people who properly attack the statists’ positions simple-mindedly call them “conservatives.”
What we see in Tea-Party-ism is a nominal and maybe superficial yearning for a return to certain fundamental founding standards, but most who are animating and marching and sandwich-boarding for such have never read founding documents, and they were curiously and tellingly silent when the Bush junta virtually eviscerated fundamental liberty values in service to “security,” which was anathema to the Framers.
As Justice O’Connor remarked upon her retirement, we will lose the Republic if people stay ignorant of its founding premises and of the Constitution.
There was no “conservative” victory here, but merely a shifting from the left-wing version of statism [socialism] to the right-wing version of statism [fascism], and liberty will suffer with either version in power, because statism is the enemy of liberty.
We need to return to the founding premises of small government [not even Reagan pressed for that, but merely mouthed the words], and big liberty, and limited central government involvement in our daily lives. Article 1, section 8, enumerates the extent of the central government’s power, and if it is not there, the central government cannot do it, and then the 9th and 10th Amendments announce the remainder. Neither those who lost nor those who won, now nor in 1994, understand that constitutional truism. Ron Paul is one of the few who does. As do I.
Sunday, October 31, 2010
Let's Discuss The Constitution, From the Git-Go
Let us discuss the Constitution and what this Republic is all about, or supposed to be. With all of the people running for the U.S. Senate, U.S. House of Representatives, various governors’ mansions, etc., and the Tea-Partyites and various pundits, blathering about the Constitution, and with the people in the White House and Supreme Court daily thumbing their noses at it, I feel it was important to start this project. The Constitution is not taught too intensively, or too originally, in the schools these days, so we will have to think about fundamental things here.
Justice Sandra Day O'Conner, upon retiring from the U.S. Supreme Court, observed that the greatest danger to the Republic comes from people being ignorant of their Constitution. Upon the pre-ratification writing of the fundamental charter, Ben Franklin commented that "Now you have a Republic..., if you can only keep it." It can only be kept if the public becomes educated about the founding premises and then commits itself to hewing close to the lines intended by the Framers.
It is most alarming that there is little instruction about the Constitution in the schools these days. Instruction on what we are about, and supposed to be about, and the evolving difference between the two, should begin in elementary and secondary school. But it does not, in most schools across this Fruited Plain. Many people never even read the Constitution until they get into certain college classes; some people have never read it. It is increasingly clear that many politicians, who swear to uphold it, have never read it, don't understand what they read, or intentionally violate its teaching. I had to interrupt my serious study of the Constitution when I went to law school, which says something about what is [or is not!] going on in the legal profession these days.
This series of offerings will help correct those shortcomings. You might not like all you read here, but that will only mean that either you do not understand, or are a counter-constitutionalist. And that is okay: your right to believe and spout other than what the Framers taught and intended is protected by what they wrote, the First Amendment, provided your position does not rise to the level of treason.
There are ideologues and polemicists on both, or all, sides, and talking heads competing for listenership instead of truth, who have agendas that have nothing to do with what the Framers intended, or which are downright violative of those founding intentions.
To begin, let us recall the founding notion that the national or central government [erroneously called "federal"] has, generally speaking, only the power conferred on it in Article 1, section 8, of the Constitution. If it is not there, the central government cannot regulate in the area without practicing usurpation. That is, the central government is a government of specifically enumerated powers, with implied powers of government reserved to the states. I leave it to you to track down a copy of the Constitution, read that section, and then we shall continue next time. You will return to these pages aghast at how far from its intended boundary line the national government has strayed, and that is partly why it has come to label itself "the" "Federal Government." Our scheme was to be that we would have "a" “federal” government, the difference about which we shall attend to next time.
Justice Sandra Day O'Conner, upon retiring from the U.S. Supreme Court, observed that the greatest danger to the Republic comes from people being ignorant of their Constitution. Upon the pre-ratification writing of the fundamental charter, Ben Franklin commented that "Now you have a Republic..., if you can only keep it." It can only be kept if the public becomes educated about the founding premises and then commits itself to hewing close to the lines intended by the Framers.
It is most alarming that there is little instruction about the Constitution in the schools these days. Instruction on what we are about, and supposed to be about, and the evolving difference between the two, should begin in elementary and secondary school. But it does not, in most schools across this Fruited Plain. Many people never even read the Constitution until they get into certain college classes; some people have never read it. It is increasingly clear that many politicians, who swear to uphold it, have never read it, don't understand what they read, or intentionally violate its teaching. I had to interrupt my serious study of the Constitution when I went to law school, which says something about what is [or is not!] going on in the legal profession these days.
This series of offerings will help correct those shortcomings. You might not like all you read here, but that will only mean that either you do not understand, or are a counter-constitutionalist. And that is okay: your right to believe and spout other than what the Framers taught and intended is protected by what they wrote, the First Amendment, provided your position does not rise to the level of treason.
There are ideologues and polemicists on both, or all, sides, and talking heads competing for listenership instead of truth, who have agendas that have nothing to do with what the Framers intended, or which are downright violative of those founding intentions.
To begin, let us recall the founding notion that the national or central government [erroneously called "federal"] has, generally speaking, only the power conferred on it in Article 1, section 8, of the Constitution. If it is not there, the central government cannot regulate in the area without practicing usurpation. That is, the central government is a government of specifically enumerated powers, with implied powers of government reserved to the states. I leave it to you to track down a copy of the Constitution, read that section, and then we shall continue next time. You will return to these pages aghast at how far from its intended boundary line the national government has strayed, and that is partly why it has come to label itself "the" "Federal Government." Our scheme was to be that we would have "a" “federal” government, the difference about which we shall attend to next time.
Friday, October 29, 2010
Keep Your Mouths Shut!
Moving on to one of my favorite but apparently ineffectual rants, I keep having clients come to my office for help regarding their arrest for this and that, and over 95% of the time, they have, upon being apprehended by the police, confessed to a major component of what becomes the charge, or they have allowed searches which gave up the evidence being used against them, and I ask why.
We fought a Revolution partially to keep government out of our houses and out of our mouths, and yet people continue to blab to the cops when confronted. I ask why, and the answer is always a variation on “I thought I had to,” or “Well, he’s the man,” or some such contra-constitutional inanity.
You do not ever need to talk to the cops. You do not ever need to consent to searches. And you should never do so. NEVER. In the 1,000s of cases I have had in my career, it never, ever, once helped the accused’s situation to talk to the cops. NEVER! Why do you do it?
“Uh…, I had nothing to hide.” That is not the point. First off, they used it against you, so you should have hidden it. And secondly, it is part of our scheme, part of the thing we shed blood over, that the burden is government’s, and the default position is with the individual and in the direction of liberty.
Once you start talking, the cops are very deft in making you say what they need for their report and theory of the case. The interrogation techniques in vogue now play on the same psychological devices perfected by Nazi interrogators in the 30’s. You will eventually say what they want to fit their theory, so just shut up.
It NEVER, EVER HELPS to talk. “Uh…, but I am a honest person…, I don’t want to lie.” I didn’t say lie; I said don’t say anything. Government is not your friend when investigating crimes [or, indeed, most times]; it is only its own friend.
And the admonition against talking to the cops includes asking questions as well as answering them. If you ask, they can answer, then you will respond, and you think you are helping yourself, until the response comes back to haunt you. Just shut up.
Do NOT fall for the old cop ploy of "we really already know everything; we just need you to help us fill in the blanks," or the equivalent. Don't be softened up by the old "we're giving you this opportunity to...." Opportunity? To put yourself or your family in jail? That is not an opportunity; it is an indictment.
"You can do one of two things out of this; you can turn your life around or get in deeper." Uh, Gang, your life will assuredly get turned around if you big-mouth yourself into an easy conviction. Don't fall for the crap. "We know the answer to our question; we need to hear it from you." Oh really? Why do you need to hear it from me if you already have the answers?
The interrogation tactics employed by our police are the same as those employed by the Gestapo in 30's and 40's Germany; there is no difference. And the courts have said it's okay for the cops to lie to you to get where they want to go, and they will, and they do. "I'll be straight up with you." No they won't, and the courts won't care if they are not.
Keep your mouths shut.
Are your liberties in general in peril? "Oh, No; we are free..., aren't we"?
If you think your liberties are not imperiled, drop in to your local court house some day and watch from afar what goes on there. Of course, you’ll have to pass through the search-o-matic machine to make sure you are not a danger to the building and its occupants. That indignity is its own danger to the rule of law. Courts were envisioned as a place the public could go to seek protection from bad government. Yet the government agents from whom we were to be protected by the courts walk in and out of the court without scrutiny; you, who are there to have the court scrutinize government, are treated like an outsider, while the people you are coming to be protected against are invited in as part of the insiders. That symbolism alone undermines the pretense of rule of law and detracts from what the Framers envisioned for the judiciary.
But then just watch; do you feel that those in the public or those in the government, especially police, are being given the best service and most respect by the courts? Your answer to that defines whether we still have a government of laws, or whether instead we have devolved into something else, and less, and dangerous. Check for yourselves.
Justice O’Conner said, upon her retirement, that the greatest danger to our system of government, our republic, our ultimate safety is for the people to be ignorant of the Constitution and of the premises underlying its founding. As I have frequently noted over the years, You can only rein in a rampaging government if you understand at what point its actions are rampaging, and if you have a patriotic resolve to take affirmative stands to preserve the Republic.
Many of us have taken oaths at various times in our lives to defend the Constitution against all enemies, foreign and domestic. It does not overstate the issue to assert that there are far more domestic enemies of the Constitution than there are foreign ones, and ignorance of its precepts and founding is a catalyst for the reactions of bad-minded sorts who would destroy our Constitution in the hypocritical pretense of enforcing it.
Recall the immortal words of a personal hero of mine, Barry Goldwater: "Extremism in defense of liberty is no vice, moderation in the pursuit of justice is no virtue." That defines ultimately my outlook on life; what about you?
And so, My Fellow Americans, Ask Not What Kennedy & Roe can Do For You; Ask What Together We Can Do to Restore the Republic. If you care.
We fought a Revolution partially to keep government out of our houses and out of our mouths, and yet people continue to blab to the cops when confronted. I ask why, and the answer is always a variation on “I thought I had to,” or “Well, he’s the man,” or some such contra-constitutional inanity.
You do not ever need to talk to the cops. You do not ever need to consent to searches. And you should never do so. NEVER. In the 1,000s of cases I have had in my career, it never, ever, once helped the accused’s situation to talk to the cops. NEVER! Why do you do it?
“Uh…, I had nothing to hide.” That is not the point. First off, they used it against you, so you should have hidden it. And secondly, it is part of our scheme, part of the thing we shed blood over, that the burden is government’s, and the default position is with the individual and in the direction of liberty.
Once you start talking, the cops are very deft in making you say what they need for their report and theory of the case. The interrogation techniques in vogue now play on the same psychological devices perfected by Nazi interrogators in the 30’s. You will eventually say what they want to fit their theory, so just shut up.
It NEVER, EVER HELPS to talk. “Uh…, but I am a honest person…, I don’t want to lie.” I didn’t say lie; I said don’t say anything. Government is not your friend when investigating crimes [or, indeed, most times]; it is only its own friend.
And the admonition against talking to the cops includes asking questions as well as answering them. If you ask, they can answer, then you will respond, and you think you are helping yourself, until the response comes back to haunt you. Just shut up.
Do NOT fall for the old cop ploy of "we really already know everything; we just need you to help us fill in the blanks," or the equivalent. Don't be softened up by the old "we're giving you this opportunity to...." Opportunity? To put yourself or your family in jail? That is not an opportunity; it is an indictment.
"You can do one of two things out of this; you can turn your life around or get in deeper." Uh, Gang, your life will assuredly get turned around if you big-mouth yourself into an easy conviction. Don't fall for the crap. "We know the answer to our question; we need to hear it from you." Oh really? Why do you need to hear it from me if you already have the answers?
The interrogation tactics employed by our police are the same as those employed by the Gestapo in 30's and 40's Germany; there is no difference. And the courts have said it's okay for the cops to lie to you to get where they want to go, and they will, and they do. "I'll be straight up with you." No they won't, and the courts won't care if they are not.
Keep your mouths shut.
Are your liberties in general in peril? "Oh, No; we are free..., aren't we"?
If you think your liberties are not imperiled, drop in to your local court house some day and watch from afar what goes on there. Of course, you’ll have to pass through the search-o-matic machine to make sure you are not a danger to the building and its occupants. That indignity is its own danger to the rule of law. Courts were envisioned as a place the public could go to seek protection from bad government. Yet the government agents from whom we were to be protected by the courts walk in and out of the court without scrutiny; you, who are there to have the court scrutinize government, are treated like an outsider, while the people you are coming to be protected against are invited in as part of the insiders. That symbolism alone undermines the pretense of rule of law and detracts from what the Framers envisioned for the judiciary.
But then just watch; do you feel that those in the public or those in the government, especially police, are being given the best service and most respect by the courts? Your answer to that defines whether we still have a government of laws, or whether instead we have devolved into something else, and less, and dangerous. Check for yourselves.
Justice O’Conner said, upon her retirement, that the greatest danger to our system of government, our republic, our ultimate safety is for the people to be ignorant of the Constitution and of the premises underlying its founding. As I have frequently noted over the years, You can only rein in a rampaging government if you understand at what point its actions are rampaging, and if you have a patriotic resolve to take affirmative stands to preserve the Republic.
Many of us have taken oaths at various times in our lives to defend the Constitution against all enemies, foreign and domestic. It does not overstate the issue to assert that there are far more domestic enemies of the Constitution than there are foreign ones, and ignorance of its precepts and founding is a catalyst for the reactions of bad-minded sorts who would destroy our Constitution in the hypocritical pretense of enforcing it.
Recall the immortal words of a personal hero of mine, Barry Goldwater: "Extremism in defense of liberty is no vice, moderation in the pursuit of justice is no virtue." That defines ultimately my outlook on life; what about you?
And so, My Fellow Americans, Ask Not What Kennedy & Roe can Do For You; Ask What Together We Can Do to Restore the Republic. If you care.
Saturday, September 18, 2010
Constitution Day - Forgotten Again
The Constitution was signed by the 39 patriots who were its architects on September 17, 1787. There is no date in our founding’s history that should be more celebrated, because the Constitution [far more mentioned than understood these days!] was a careful crafting of values, structures, and assignments [and withholdings!] of power by a group of titanic thinkers who carefully factored in observations of what had worked and failed over history with the needs of a people who opposed tyranny but were anxious about anarchy. So, where were the celebrations this past September 17?
What is ominously troubling to me is that the current cute trend of neo-patriotism, with rah-rah-rah, sis-boom-bah, about 9/12, 8/28, “Tea Party-ism” [by pseudo-patriots who generally can't tell me the date of the real, original "Tea Party"] is not going to effect a real change in the growth of usurpatious, repressive national statism, because most people are really not serious about it. You can have all of the “yankee-doodlism” at a Glenn Beck religio-moralistic-red/white/bluism event, but until there is a true resurrection of deep commitment to founding values, the Reids and Byrds and Obamas of the world will remain the ascendant governmental reality. The one clear exemplar to me that this rash of neo-patriotism does not signal a resurrection of originalistic values is the comparative silence of this past September 17. Where were the rallies, the flags, the parades, the megaspeeches? Naturally, Hillsdale College [an originalism teaching “liberal” arts college in Michigan] commendably had a significant event, and other venues of serious Americanism marked that most important of all Americanism days with appropriate, but not very crowded, remembrances, but most of the Palin/O’Donnell hooplah-ites were oblivious to the coming and going of the day, because they were not commanded to march and celebrate by the various rightist demagogues who orchestrate the events that mobs are dutifully showing up at.
The uber-Left will continue to rise because truly committed originalists are few, far between, and increasingly marginalized by the superficial Woodstockism of neo-patriotism.
And that is irksome.
What is ominously troubling to me is that the current cute trend of neo-patriotism, with rah-rah-rah, sis-boom-bah, about 9/12, 8/28, “Tea Party-ism” [by pseudo-patriots who generally can't tell me the date of the real, original "Tea Party"] is not going to effect a real change in the growth of usurpatious, repressive national statism, because most people are really not serious about it. You can have all of the “yankee-doodlism” at a Glenn Beck religio-moralistic-red/white/bluism event, but until there is a true resurrection of deep commitment to founding values, the Reids and Byrds and Obamas of the world will remain the ascendant governmental reality. The one clear exemplar to me that this rash of neo-patriotism does not signal a resurrection of originalistic values is the comparative silence of this past September 17. Where were the rallies, the flags, the parades, the megaspeeches? Naturally, Hillsdale College [an originalism teaching “liberal” arts college in Michigan] commendably had a significant event, and other venues of serious Americanism marked that most important of all Americanism days with appropriate, but not very crowded, remembrances, but most of the Palin/O’Donnell hooplah-ites were oblivious to the coming and going of the day, because they were not commanded to march and celebrate by the various rightist demagogues who orchestrate the events that mobs are dutifully showing up at.
The uber-Left will continue to rise because truly committed originalists are few, far between, and increasingly marginalized by the superficial Woodstockism of neo-patriotism.
And that is irksome.
Sunday, September 12, 2010
9/11; Let's Not Forget What We Should Not Forget
It has been nine years since the coordinated homicidal attacks on the World Trade Center, on the Pentagon, and possibly on the capitol, which was commendably thwarted by heroic passengers to plop into a field in Pennsylvania. And we, of course, should never forget. But there are many things we should never forget.
We should not forget our regime of liberty, which was spawned from and during emergency, which found its ultimate voice in the Constitution. The Constitution, born of emergency, axiomatically does not admit of emergency exceptions. That was a point that eluded the Bush Administration, and which seems to be forgotten by the Obama one too. We do not inspire others elsewhere to embrace constitutional government by flouting its teachings and standards here. If the Bush theory that turbaned hooligans in distant lands wanted to destroy our way of life by this attack and by other measures was correct, then the assault on civil liberties here, which was installed by thoughtless and hysterical [or maybe calmly purposeful?] sorts in the Bush administration, has given the thugs the victory that we thought we were preventing by our illegal invasion of other sovereign lands without congressional declaration.
And even though we need to pay our respects to the horrors and deaths and sacrifices of 9/11, we must desist from the apparently increasing vogue of yearly ritual victimization ceremonies, which are both morbid and unhelpful to the advancement of legitimate values.
Let’s rebuild the Twin Towers [after we get a lucid and scientifically valid explanation of how the curiously unmentioned third tower collapsed when it was not hit by a plane!], let’s start to mind our own business around the globe, and let’s start to recall what the Founding Fathers intended when they launched their marvelous experiment of popularly sovereign governance in Philadelphia. That is what we really must not forget and what we should celebrate yearly with vigor and appreciation and resolve.
We should not forget our regime of liberty, which was spawned from and during emergency, which found its ultimate voice in the Constitution. The Constitution, born of emergency, axiomatically does not admit of emergency exceptions. That was a point that eluded the Bush Administration, and which seems to be forgotten by the Obama one too. We do not inspire others elsewhere to embrace constitutional government by flouting its teachings and standards here. If the Bush theory that turbaned hooligans in distant lands wanted to destroy our way of life by this attack and by other measures was correct, then the assault on civil liberties here, which was installed by thoughtless and hysterical [or maybe calmly purposeful?] sorts in the Bush administration, has given the thugs the victory that we thought we were preventing by our illegal invasion of other sovereign lands without congressional declaration.
And even though we need to pay our respects to the horrors and deaths and sacrifices of 9/11, we must desist from the apparently increasing vogue of yearly ritual victimization ceremonies, which are both morbid and unhelpful to the advancement of legitimate values.
Let’s rebuild the Twin Towers [after we get a lucid and scientifically valid explanation of how the curiously unmentioned third tower collapsed when it was not hit by a plane!], let’s start to mind our own business around the globe, and let’s start to recall what the Founding Fathers intended when they launched their marvelous experiment of popularly sovereign governance in Philadelphia. That is what we really must not forget and what we should celebrate yearly with vigor and appreciation and resolve.
Friday, September 10, 2010
What's Wrong with the Juries?
So, what has happened to the jury system? The Framers adopted the common law jury as something essential to be installed in our Constitution, because they believed that the best safety we had from our government was that liberties could not be taken by government without the say-so of a group of neutral citizens. And those citizens were to be skeptical of their government, which was the real meaning of proof beyond a reasonable doubt and of the burden lying with the government, before liberty could be stolen. And the jury, constitutionally, could adjudge the facts and the law – jury nullification was and is a vital fixture in the firmament of our rights. Of course, judges now, being jealous of becoming irrelevant if the jury makes judgments about the law, will not permit nullification arguments and will shriek that the jury can only assess the facts, not the law. But the jury has the constitutional power to nullify prosecutions by disagreement with the law and with how it is implemented in any particular case, and nothing the judiciary can shriek about such undermines that power. The Framers gave it and the judiciary cannot take it away.
But notwithstanding the importance of the jury in protecting people’s rights, juries increasingly cleave to the government. Juries, during the voir dire process, will claim that they do not believe everything government says, they do not think cops are telling the truth just because they are cops, and they know the defendant is not guilty unless or until they find otherwise, and to the requisite level of proof. However, they smile and nod when a shiny-badged cop says things, and look askance when defense witnesses say things, and forget that the government has an agenda in all cases which could well result in untruths being told. But they just don’t want to believe this cop is lying or shaving the truth; they know it happens elsewhere, but…, oh, just not here!
Wow, we are tossing into the ash can one of the great constitutional protections we have, and we are thereby dissolving into just another banana republic police state. We weep when we muse that our boys and girls are dying in distant lands to protect our rights here, but we are utterly oblivious to the rights they are dying for, and while they protect them over there, we tear them up over here.
Every time a juror blindly believes their beloved cops, or the government position, against contradictory evidence [or even without contradictory evidence!], they sully the memories of the founding fathers who long ago died for us here, and of the young kids who are still doing so over there. For shame, for shame.
First they came for the murderers, with insufficient evidence, and I did not vote not guilty, because I was not a murderer.
Then they came for the kidnappers, with insufficient evidence, and I did not vote not guilty, because I was not a kidnapper.
Then they came for the drunk drivers, with insufficient evidence, and I did not vote not guilty, because I was not a drunk driver.
Then they came for me, with insufficient evidence, and there was no one left with courage to vote not guilty.
But notwithstanding the importance of the jury in protecting people’s rights, juries increasingly cleave to the government. Juries, during the voir dire process, will claim that they do not believe everything government says, they do not think cops are telling the truth just because they are cops, and they know the defendant is not guilty unless or until they find otherwise, and to the requisite level of proof. However, they smile and nod when a shiny-badged cop says things, and look askance when defense witnesses say things, and forget that the government has an agenda in all cases which could well result in untruths being told. But they just don’t want to believe this cop is lying or shaving the truth; they know it happens elsewhere, but…, oh, just not here!
Wow, we are tossing into the ash can one of the great constitutional protections we have, and we are thereby dissolving into just another banana republic police state. We weep when we muse that our boys and girls are dying in distant lands to protect our rights here, but we are utterly oblivious to the rights they are dying for, and while they protect them over there, we tear them up over here.
Every time a juror blindly believes their beloved cops, or the government position, against contradictory evidence [or even without contradictory evidence!], they sully the memories of the founding fathers who long ago died for us here, and of the young kids who are still doing so over there. For shame, for shame.
First they came for the murderers, with insufficient evidence, and I did not vote not guilty, because I was not a murderer.
Then they came for the kidnappers, with insufficient evidence, and I did not vote not guilty, because I was not a kidnapper.
Then they came for the drunk drivers, with insufficient evidence, and I did not vote not guilty, because I was not a drunk driver.
Then they came for me, with insufficient evidence, and there was no one left with courage to vote not guilty.
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