Posts Tagged ‘US Constitution’

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Political Monday – Guns, Driving and Our Rights

January 28, 2013

freecopyofusconstitutionI posted a couple of years ago something regarding gun ownership and the Second Amendment(click here to read). Here are some follow on thoughts:

OK, I admit it, the NRA is right, guns do not kill people, people kill people. Of course, you might at well say cars do not cause road fatalities, people cause road fatalities and accept that as true too. Let’s do that, let’s accept they are equally true and treat them as equals. Here are some of the points being considered recently on just how we make them equal:

You want to drive a car, you have to pass a written test. 
    How about passing a written test to own a gun? 
You want to drive a car, you have to pass a driving proficiency 
road test. 
    How about passing a shooting proficiency shooting range test?
You want to drive a car, you have to carry liability insurance.
    How about carrying liability insurance to use a gun?
You want to drive a car, you follow the rules of the road.
    How about setting the same sort of rule structure for responsible 
    gun ownership?
You want to drive anything other than a basic car, you must have 
a special license, CDL & motorcycle, for example.
    How about having special licenses for specialized weapons 
    like assault rifles?

We all know driving and gun ownership are not the same thing. Cars and guns serve very different purposes in our lives, but both carry risks and both enjoy some level of legal protection. Wile the right to drive is one of our unenumerated rights, gun ownership is written directly into our Constitution.

In fact, the Supreme Court decided gun ownership is a fundamental right, but that does not mean there are no rules regarding guns. After all, we do not treat

1920s Machinegun Ad

1920s machine-gun Ad

owning a Thomson sub-machine gun the same as owning a Remington Model 870 Wingmaster. There was a time when they were treated the same. Hell, back then you could buy the Thompson as easy as you could a BB-gun. It was decided that allowing automatic weapons in the general population was simply too dangerous, so we modified our fundamental right to own a gun with some rules.

That is not to say you cannot own machine gun now, you can. All you have to do is obtain the pertinent federal license and follow the special rules that come with owning a weapon like a machine gun. In other words, to exorcise the fundamental right to own a machine gun, you must exorcise the fundamental responsibilities that come with it.

Regulating driving a car aids in safe driving and promotes another fundamental right – to live. Regulating gun ownership is no different on that point. We recognize the differences between driving an 18-wheel semi tractor-trailer and a Toyota Prius by having regulations for each. All I ask is for gun ownership to be treated the same way. Does anyone really think owning weapons capable of killing dozens of fellow citizens in a minute is any less dangerous than a Tommy-gun?

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Nothing Can Destroy A Government More Quickly…

October 2, 2010

As Justice Tom C. Clark said in Mapp V Ohio, “Nothing can destroy a government more quickly than its failure to observe its own laws[i].”  Of course, he was composing the majority opinion in the landmark case that forced individual states to exclude evidence obtained without a proper warrant.  His warning goes far beyond the reaches of the Fourth Amendment[ii].

Everyone, at some point, find themselves in a situation wondering, “How did I get here?”  It is easy to understand the consequences of a car wreck.  Understanding the way a child from a “good” family ends up a delinquent may not be so apparent.  We have to look to a series of events to truly understand the situation.  It is the later example that illustrates the danger the United States faces with our moves ever closer to the tipping point since Justice Clark’s observations back in 1961.

Over time, our freedoms, as citizens of the United States, have eroded.  With small steps, a government that seeks to control the population rather than lead it diminishes each freedom held sacred.  People often use the analogy of a pendulum swinging back and forth when talking about changes to our freedom.  In other words, laws restricting freedom are passed, then over time, changed to restore freedom.  This analogy is simplistic and misleading as restoring freedom always falls short of where it began.

A better analogy is a “rising bottom[iii]” trend (Figure 1).  Stock analysts us it to describe a company’s stock where the price is going up and down but the overall tend is up.  The lowest price of a particular swing is higher than the lowest price of the swing before.

In much the same way, our freedom swings from more restrictive to less restrictive and back again, but the overall tend is more restrictive.  The restrictiveness of our law is more restrictive than its change before.  Changes to the Fourth Amendment are prime examples of this theory.

Since its adoption with the Bill of Rights[iv] in 1789, the Fourth Amendment has received over sixty[v] reviews by the Supreme Court, most within the last one-hundred years.  It is understandable given criminals use it to try to get out of trouble and law enforcement pushes it to its limits trying to put criminals in prison.  On its face, that level of review might seem like a good thing, but in reality, it makes for an unsettled situation where nobody understands just what the right covers anymore.  Regardless, the overall trend is the cases limits the protection of every citizen and increases the power of state and federal governments to intrude in our lives.

For example, in Mapp v Ohio, the case overturned because the police failed to obtain a search warrant and simply intruded into the home.  Another case, United States v. Leon[vi], the court modified the ruling in Mapp saying the police can use evidence seized with an illegal or invalid search warrant, if they acted in good faith.  The key being what constitutes good faith.  In other words, if there is a mistake on a warrant or it is not specific enough, a judge can allow the evidence as long as the offices did not intend to violate the principles of the Fourth Amendment.  Sort of a “trust me, would I lie about it?” statement from the police.

While the Leon ruling does limit the protection granted in Mapp, the findings in the Arizona v. Evans (1995)[vii] and Herring v. United States (2009)[viii], in truth, blow it away.  The Evans case found if the police obtain a warrant based of false information retained in police records, the search is valid.  In Herring, the court further found if the police rely on false information provided by a different law enforcement agency a search is valid.  The net effect being the police can simply allow data to remain active, even when it is not true or accurate and then later rely on that false data to obtain a warrant.  In other words, it creates an atmosphere that encourages bad behavior by law enforcement with little or no recourse by citizens.

For about 130-years the Fourth Amendment went without challenge.  After that, the court muddled its meaning with weak and vague findings.  In 1961, in the Mapp case, the court again place clear definitions on the amendment’s meaning only to have later cases again whittle away at our individual protection, just like the raising bottom chart illustrates.  It is easy to side with the government and law enforcement as most of the people in these cases were trying to get away with some illegal activity.  To do so is a mistake; supporting the erosion of our Fourth Amendment protections allows the persecution of individuals without the proper oversight of courts or a grand jury.  Further, it allows and encourages an atmosphere of corruption within the various law enforcement agencies.

By no means is this action restricted to the Fourth Amendment.  Our freedom is under attack by the government our constitution seeks to limit.  The government takes our freedom in little bites we hardly notice and justify it with claims of national interest and serving the greater good.  We think of limitations, of the sort imposed after the terror attacks of 9/11, as temporary.  The government sees them as a windfall and will be hard pressed to ever return them to us.

This is exactly the point that Justice Clark tried to make.  You see, while the quote at the beginning is widely known, it leaves out most of the point Justice Clark intended.  Here it is in its entirety:

“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928):

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . .  If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.[ix]

This is the danger we face today.  In a misguided effort to allow law enforcement to prosecute criminals, we encourage criminal behavior by law enforcement and give up our rights in the process.  The time to stem the flow is now; waiting too long will lead to the anarchy Justice Brandies worried about.


[i] Mapp v. Ohio. Section V. Supreme Court. 19 June 1961. FindLaw. FindLaw, a Thomson Reuters Business. Web. 2 Oct. 2010. <http://laws.findlaw.com/us/367/643.html>.

[ii] “The Constitution of the United States,” Amendment 4, <http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html>

[iii] “Rising Bottom Definition.” Investopedia.com – Your Source For Investing Education. Web. 02 Oct. 2010. <http://www.investopedia.com/terms/r/risingbottom.asp>.

[iv] “Bill of Rights.” National Archives and Records Administration. Web. 02 Oct. 2010. <http://www.archives.gov/exhibits/charters/bill_of_rights.html>.

[v] “MediaWiki Talk:United States Constitution/Amendment Four.” Wikipedia, the Free Encyclopedia. Web. 02 Oct. 2010. <http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution>.

[vi] “United States v. Leon.” LII | Legal Information Institute at Cornell Law School. 17 Jan. 1984. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZX.html>.

[vii] “Arizona v. Evans, 514 U.S. 1 (1995).” LII | Legal Information Institute at Cornell Law School. 07 Dec. 1994. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/93-1660.ZS.html>.

[viii] “Herring v. United States.” LII | Legal Information Institute at Cornell Law School. 07 Oct. 2008. Web. 02 Oct. 2010. <http://www.law.cornell.edu/supct/html/07-513.ZS.html>.

[ix] reference i

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Freedom: Individuals, Corporations, and the Constitution

July 2, 2010

Throughout history there are few, very few, documents or phrases known worldwide.  The opening three words of the U.S. Constitution, “We the People,[1]” is such a phrase.  Another is the Constitution’s first amendment.  It 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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[2]

While the exact words are not universally known, its parts most certainly are.  From it, citizens are guaranteed freedom of speech, freedom of religion, freedom of the press and the right to protection from an over zealous government through the courts, public hearings, and demonstrations.  It is these freedoms known around the world.  It is these freedoms that make the United States different from all other countries.

That is not to say our freedom is unlimited.  For instance, a religious belief that calls for human sacrifice simply is not tolerated.  Nor is speech that proves harmful, as in someone shouting “fire” in a crowded theater, unless, of course, there really is a fire.  The fact is the penalties for stepping beyond our limits of freedom are severe.  In the case of human sacrifice, we would charge a person with murder.  In the case of shouting “fire,” the charge would be something like reckless endangerment.

The protection afforded citizens of the United States follows common sense.  Stating it as a protection is the correct way to think about it.  Our constitution does not limit the rights of citizens; it limits our government’s ability to interfere with citizens.  Poignantly, our constitution includes an amendment that makes that abundantly clear, the tenth amendment.  It reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[3]

Our federal government is limited to only the powers granted in the Constitution.  States retain their sovereignty and the powers granted in the various state constitutions.  More importantly, each citizen retains all other powers.  The ninth amendment reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[4]

Another way to think about this is we do not have laws telling us what is legal for a citizen to do; we have laws telling us what is illegal.  The Constitution, and its amendments, specifically limits the power of government regarding the particular rights addressed.  It does not limit citizens to only those rights.

Just what is a citizen anyway?  The Constitution, in its original form, did not address the issue specifically.  It does speak to the mechanics of counting people for determining representation, but not to the requirements to become a citizen in the first place.[5] Granting citizenship through immigration simply was not a priority as the nation was taking its first steps.

After the Civil war, with the end of slavery, the fourteenth amendment was adopted.  It states being born in the United States carried with it citizenship, but left the naturalization process for immigrants up to the legislature.  Clause 1 reads:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[6]

How a person becomes naturalized is still not addressed within the Constitution.  Currently, the Immigration and Naturalization Act of 1965 covers naturalization.  According to the U.S. Citizenship and Immigration Services’ website[7], to gain naturalization an applicant must meet the following requirements:

  • Be 18 or older
  • Be a permanent resident (green card holder) for at least 5 years  immediately preceding the date of filing the Form N-400, Application for Naturalization
  • Have lived within the state, or USCIS district with jurisdiction over the applicant’s place of residence, for at least 3 months prior to the date of filing the application
  • Have continuous residence in the United States as a permanent resident for at least 5 years immediately preceding the date of the filing the application
  • Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
  • Reside continuously within the United States from the date of application for naturalization up to the time of naturalization
  • Be able to read, write, and speak English and have knowledge and an understanding of U.S. history and government (civics).
  • Be a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States during  all relevant periods under the law

Becoming naturalized is a long and involved process.  There are exceptions, for instance individuals that join the military have a fast track to citizenship.

A person must either be born in the United States or go through a process to gain citizenship.  We have citizens by birth and by naturalization, but there is a third type of citizen, a corporate citizen.  As strange as it sounds, corporations in the United States enjoy many of the same rights as citizens of flesh and blood.  For example, if a corporation wrongs you, you sue it and not the stockholders.  The corporation, in this case, has the same legal standing as an individual.  When you think about it, it makes sense – just because a person owns a single share of IBM stock is no reason to drag them into court over an issue regarding the corporation.

Corporations may be citizens but they are limited ones.  If a citizen-person breaks the law, they go to prison.  There is no corporate body to send to jail.  The normal course of action is to levy a monetary fine.  This sort of issue highlights the problem of rights regarding corporations.  How rights apply to corporations and the constitutional implications affect all citizens daily.  A quick search of the Constitution shows the words corporation and business do not appear.  Given that, what makes a corporation a citizen?  Ironically, it is the same amendment that defines citizenship by birthright, the fourteenth amendment.

In 1886, the Supreme Court ruled on the case of Santa Clara County v. Southern Pacific Railroad Company[8]. The case dealt with a taxation issue.  California changed their state constitution to prevent railroad companies from deducting outstanding mortgage amounts from property values for tax purposes, something individuals were allowed.  The court sided with the railroads on the tax issue.  Part of the claim by Southern Pacific was the fourteenth amendment guaranteed them equal protection.  Technically, the court did not issue an opinion on the merits of that argument but found the state was wrong to apply such a tax.  Regardless, from that date on, corporations have claimed corporate “personhood,” and some of the rights of citizenship protected by the Constitution.

If ever you needed proof that the road to hell is paved with good intentions, this perversion of the fourteenth amendment provides it.  An amendment meant to protect the most vulnerable and disenfranchised citizens is used to protect the interests of powerful corporations.  That decision, 124 years ago, still affects every citizen today.  Its reach goes beyond the mundane issues of corporate taxation and interferes with the rights of real citizens, the ones with a heartbeat.

Corporations use this decision to remain beyond the reach of state governments regarding business regulations on many levels.  More directly, corporations claim a right to the first amendment protection of free speech.  Most recently, in the case Citizens United v. Federal Election Commission the court found that corporations (both for profit and non-profit) and unions cannot be limited in political speech as specified in The Bipartisan Campaign Reform Act of 2002[9], also know as The McCain-Feingold Act.  The result being by granting corporations the same right of free speech as individual citizens, they can spend virtually unlimited amounts of money to promote a particular point of view to the benefit of a particular candidate.

In effect, by granting corporations unfettered free speech rights, based on corporate personhood, individual citizens or candidates that do not hold a popular corporate or union view will receive no such support, effectively killing their right to equal access to the public.  Election costs are already out of control, this decision will drive them unbelievably higher still.

One solution is to treat corporations as individuals.  Simply throw away the corporate tax code and tax them as individuals with the same limited deductions real citizens face each tax season.  No longer allowed to write off expenses such as investment property or office space leases, billions of dollars would flow into the federal and state coffers.  Money used to pay for election related materials would remain taxable income.  People are not allowed to claim a non-profit status, remove it from corporations too, and tax them accordingly.  If corporations wish to be treated as people, they need to be taxed as people too.  Maybe then, they would have other matters to attend to than interfering with elections.

Of course, that idea is outrageous, but it further illustrates the problem with classifying corporations as citizens.  If they wish the rights of citizenship, they must carry the burdens of citizenship.  At the very least, limited corporate citizens should not enjoy rights real citizens do not have.  The right to raise and spend an unlimited amount of money to influence elections and policy matters undermines the very fabric of democracy.  It prevents real citizens from full and fair participation in elections and violates the first and fourteenth amendments by institutionalizing a “who can yell the loudest” mentality, thereby drowning out individual voices of dissension.

Only people born on the soil of the United States have a constitutional right to citizenship.  All other forms of citizenship are granted through legislation.  That legislation requires years of time and study for individuals to become citizens.  Corporations simply have to file some paperwork and pay a fee.  One has to wonder if a person here illegally gains the limited rights of citizenship by simply purchasing stock.  At the very least this Supreme Court decision granting unfettered first amendment rights to corporations gives foreign investors the means to legally influence U.S. federal elections.  They simply form a corporation, collect huge amounts of overseas money, pay the tax on it, and spend it.

In the end, by granting rights to corporations, rights of individuals are restricted.  Only extremely wealthy citizens like Warren Buffett and Bill Gates have the ability to compete with our corporate citizens’ spending.  From now on, free speech is only for corporations and the super rich.  It’s been sold out from under the average citizen.  Do not act surprised when you wake up one morning to find the Constitution has changed to read “We the Corporations,” and it is the people with limited citizenship.


[1] “The Constitution of the United States,” Preamble.

 

[2] Ibid, Amendment I.

[3] Ibid, Amendment X.

[4] Ibid, Amendment IX.

[5] Ibid, Article 1, Section 2, Clause 3.

[6] Ibid, Amendment XIV, Clause 1.

[7] “USCIS – Citizenship Through Naturalization.” USCIS Home Page. Web. 02 July 2010. <http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=d84d6811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=d84d6811264a3210VgnVCM100000b92ca60aRCRD>

[8] “SANTA CLARA COUNTY V. SOUTHERN PACIFIC R. CO., 118 U. S. 394 :: Volume 118 :: 1886 :: Full Text.” US Supreme Court Cases from Justia & Oyez. Web. 02 July 2010. <http://supreme.justia.com/us/118/394/case.html>.

[9] H.R. 2356, 107 Cong., Congressional Record (2002) (enacted). Print.

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