Category: U.S. Constitution

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Common Sense crime and punishment general freedom jury rights and duties U.S. Constitution

Guess Who Else Nullifies?

Jury Duty

Citizens have more power than they exercise. But folks in government aren’t exactly falling all over each other in the rush to help citizens participate and realize their potential.

Take juries. There are few more awesome responsibilities than sitting on a jury. And one of the things you can do, as a juror, is to refuse to follow the law or the judge, instead making your decision contrary to the immediate, official directive. Disapprove of a bureaucracy’s “legal” prosecution of an individual or group? Judge the law as well as the facts. Acquit.

Glenn Reynolds, writing in USA Today, shows that this practice has a long, honorable history in our country — he not unreasonably mentions how northern abolitionists fought the Fugitive Slave Act — and, if you, the juror, push it, “there’s nothing anyone can do about it…

Of course, prosecutors have essentially the same power, since they’re under no obligation to bring charges against even an obviously guilty defendant. But while the power of juries to let guilty people go free in the name of justice is treated as suspect and called “jury nullification,” the power of prosecutors to do the exact same thing is called “prosecutorial discretion,” and is treated not as a bug, but as a feature in our justice system.

Reynolds concisely makes the case that jury nullification is, itself, a designed feature of our American constitutional tradition, and not nearly so buggy as “prosecutorial discretion.”

Why? Its tendency is to liberate us from usurping government action.

Prosecutors’ “discretion” (on the other hand) gives folks in government more power over our lives. And ruins many.

This is Common Sense. I’m Paul Jacob.

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Jury Duty

 

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Common Sense crime and punishment general freedom government transparency national politics & policies U.S. Constitution

Swarms of Officers to Harass

Playing cards

Two wrongs don’t make a right.

It’s simple but true. And, as a corollary, let me add that using the power of the federal government to harass individuals or groups one happens to dislike or disagree with is wrong.

You might recall that our Declaration of Independence rebuked King George for sending “hither swarms of Officers to harass our people.” Or consider the recent civil-rights-violating behavior of the IRS against conservative groups during President Obama’s administration.

Yesterday, I proposed to end all taxpayer subsidies to Planned Parenthood. Obviously, I’m not a fan of the organization. And neither are the Republican presidential candidates — especially Louisiana Gov. Bobby Jindal.

“Planned Parenthood had better hope that Hillary Clinton wins this election,” Jindal boasted at last week’s JV presidential debate hosted by Fox News, “because I guarantee you that under President Jindal, January 2017, the Department of Justice and the IRS and everybody else that we can send from the federal government will be [looking] into Planned Parenthood.”

Speaking with reporters after the debate, Mr. Jindal doubled down, suggesting there might also be a role for the Environmental Protection Agency and perhaps other tentacles of the federal Leviathan.

Jindal has removed Planned Parenthood from Louisiana’s Medicaid program. That’s within his legitimate power. But directing an assault against anyone using the IRS and other federal agencies is both wrong and . . . against the law.

It promises not change but the same rotten, rights-robbing, goon-squad government we have now. Just with a different color shirt.

This is Common Sense. I’m Paul Jacob.

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Playing cards

 

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general freedom U.S. Constitution

An 800th “Birthday”

Magna Carta, free speech, collage, photomontage, http://cognitivebiasparade.prosite.com/, political, politics, King John

Something happened 800 years ago yesterday, something of note.

The much-loathed and legendary — but real-life — King John signed a document with his barons that limited his power. It was later called the “Magna Carta,” the great charter.

Strange history. It was signed, made a big deal of, and then quickly repudiated. But it was never completely dead, possessing a zombie afterlife, and eventually helping give birth to the Enlightenment idea of limited government, as well as to the United States Constitution.

Most of the document is concerned with the king’s relationship with his subordinate (and insubordinate) barons. There’s a lot of power-wrangling in it, it’s all about divvying up prerogatives and responsibilities and taxes and fees. But it does contain a few passages of note (I’ve listed them on my “Today in Freedom” feature, in the past, and revive one for today’s).

My friend Sheldon Richman quotes scholar John Millar (1735-1801), one of Adam Smith’s most illustrious students, to put the document in its best perspective: “A great tyrant on the one side, and a set of petty tyrants on the other, seem to have divided the kingdom . . . who, by limiting the authority of each other over their dependents, produced a reciprocal diminution of their power.”

They were selfish men, Millar notes, not much concerned with ordinary folk, “But though the freedom of the common people was not intended in those charters, it was eventually secured to them. . . .”

Britain and then America stumbled onto liberty — a general and shared freedom — by the jealousy of competing powers.

We, the people, win when our “rulers” are divided, not united.

This is Common Sense. I’m Paul Jacob.

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Magna Carta

 

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Common Sense general freedom individual achievement meme U.S. Constitution

Everything That Could Be Done

Patrick Henry

Two hundred forty years ago, the situation was dire. In the Virginia Colony, not too far from where I live, representatives to the Second Virginia Convention were debating the problems they were having with their “masters” in Britain — and the more dangerous, violent situation that was developing to the north.

Several days into the convention, Patrick Henry spoke. His speech was rousing. And it changed minds, concluding with the famous words “give me liberty or give me death!” — an ultimatum quite stark indeed.

Mr. Henry was for action, and waiting no longer. Addressing himself to the president of the convention, he said, “Let us not, I beseech you, sir, deceive ourselves longer. Sir, we have done everything that could be done to avert the storm which is now coming on.” And they had done a great deal, engaging in

– petitioning

– remonstration

– supplication

and, Henry went on, had even “prostrated ourselves before the throne.” And they got worse than the cold shoulder for all their efforts. They got the brush-off, the turn of the cold robe. Along with troops of occupation.

Hence the need for serious action.

Then, Americans were wrestling with the world’s most powerful nation: the British Empire. Today we again face the world’s most powerful empire: our own.

A federal regime similarly out of control in terms of spending and debt, arrogance and corruption, intrusiveness and incompetence. As if dictated by a know-it-all king of old, or a cabal of insiders acting as oligarchs.

Then it was a far-off Parliament; today it is our own far out-of-it representatives . . . duly elected.

We are engaged in a sort of class war, insiders vs. outsiders, and it is the insiders who are bringing the country to the brink of collapse.

The biggest difference between 1775 and 2015? We haven’t done all we can. There is much more to do. And possibly even succeed before the doom of another financial collapse, sovereign debt crisis, or . . . worse.

It often seems a Herculean task, but as Mr. Henry implored, “Sir, we are not weak, if we make a proper use of those means which the God of nature hath placed in our power.”

Let’s join together to give ourselves, our loved ones, and generations hence liberty.

This is Common Sense. I’m Paul Jacob.

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Read the entire speech here

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The Meaning of "Liberal"

 

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Common Sense general freedom U.S. Constitution

Slavery & Racism

African Slaves

On Sunday, I marked an awful event in our history: The official beginning of chattel slavery as such in Britain’s American colonies.

At first, John Casor, an African indentured servant, had gained some control of his life. He charged his master, Anthony Johnson, a free black, with having forced him to labor longer than the term of his indentureship. He won, was freed, and then indentured himself to one Robert Parker.

But Johnson sued, and, on March 8, 1655, won Casor back — as a slave for life.

The case established a civil ground for slavery, also enabling free blacks to own slaves. Even as late as the Civil War, the South harbored families of obvious African descent who themselves owned African-Americans as slaves.

On the surface, American slavery wasn’t about race. But in the 1640 case of John Punch, sentenced to a life of slavery as criminal punishment for running away from his indentured servitude, his fellow escapees — whites — merely got longer terms of forced labor.

Racism, Thomas Sowell explains, became increasingly important to “the peculiar institution” as time went on. If you exalt the notion that “all men are created equal,” how do you square that with your slave-holding?

By denigrating the humanity of blacks.

This vile ugliness of racism is still with us, to some degree . . . and slavery, too — at least, in small pockets around the globe and in a much bigger way in the Muslim world. An estimated eleven million slaves are held in Africa and the Middle East. And black Africans are still the main victims.

Sunday was also the 240th anniversary of Tom Paine’s first American call for slavery’s abolition.

Ending slavery: it’s way past time.

This is Common Sense. I’m Paul Jacob.

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Common Sense general freedom individual achievement judiciary U.S. Constitution

Racial Justice Advanced

Racial Justice Advanced (Paul Jacob on the leading thinker on race today)

[mks_dropcap style=”letter” size=”60″ bg_color=”#ffffff” txt_color=”#000000″]I[/mks_dropcap] don’t know if Juan Williams is right about who qualifies as America’s most influential thinker on race. But I hope he is.

In a Friday Wall Street Journal op-ed, Fox News’s liberal-leaning political analyst and author of Thurgood Marshall: American Revolutionary (1998), argues that our country’s most important influencer of thought on race is neither some current and trendy academic writer nor our current president (or his outgoing attorney general). Instead, it is none other than Supreme Court Justice Clarence Thomas.

While more famous figures of African-American descent have dominated the news talk shows and airwaves and popular consciousness, Justice Thomas has gone about “reshaping the law and government policy on race by virtue of the power of his opinions from the bench.” While previous African-American racial activists and thinkers have striven to defend the rights of black people, Justice Thomas, “the second black man on the court, takes a different tack. He stands up for individual rights as a sure blanket of legal protection for everyone, including minorities.”

Opposed to “perpetual racial tinkering,” Thomas has marshaled Frederick Douglass’s words to make his case: “What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice.” And justice, in Clarence Thomas’s judgment, does not entail a constant rescue-worker attitude towards minorities, or other disadvantaged folks. It requires nothing other than equality of rights before the law.

And perhaps some hard work on the part of the disadvantaged.

Hats off, then, to Juan Williams for recognizing the importance of Thomas’s common sense contention that “black people deserve to be treated as independent, competent, self-sufficient citizens.”

This is Common Sense. I’m Paul Jacob.

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ideological culture Tenth Amendment federalism too much government U.S. Constitution

Manly Firmness

“Is repealing the Affordable Care Act an issue of manhood?” asks Alan Rappeport in the New York Times. He’s referring to the “macho language” in a resolution introduced recently in Jefferson City, Missouri, by State Rep. Mike Moon.

Moon’s House Resolution 99 decimates the Affordable Care Act, or Obamacare, in a dozen whereas clauses, noting the legislation was

  1. “passed under questionable circumstances”;
  2. found constitutional only on the contradictory determination that it was both a tax and not a tax; and, most notably,
  3. resoundingly opposed by Missouri voters, who have twice trudged to the polls to overwhelming pass measures to block this federal legislation.

HR 99 resolves that, “the members of the Missouri House of Representatives, Ninety-eighth General Assembly, hereby insist that each member of the Missouri Congressional delegation endeavor with ‘manly firmness’ and resolve to totally and completely repeal the Affordable Care Act, settling for no less than a full repeal.”

Among today’s sophisticates, the phrase “manly firmness” elicits giggles, of course. Seasoned Democrats like U.S. Senator Claire McCaskill play the “war on women” card.  She complained that those words come from “a point in time when women were chattels and didn’t have the right to vote. I think we can update our vocabulary.”

Lost on — or purposely ignored by — the senator? The fact that the phrase “manly firmness” comes from the Declaration of Independence, from the fifth listed grievance against King George III.

And firmness is exactly what’s needed: adult, strong, serious standing up as our representatives — rather than representing themselves — and defending our individual freedom and its corollary, constitutionally-limited government.

That’s what was needed back in 1776. It is every bit as desperately needed today.

This is Common Sense. I’m Paul Jacob.

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ideological culture U.S. Constitution

Dead Document?

Could it be? We do not live under the Constitution of the United States. The document has been a dead letter for a century, maybe longer.

Ours is a Post-Constitutional America.

Surely, there have been great moments of executive usurpation.

Andrew Jackson, in defiance of the Supreme Court, and against all normal principles of law and justice, removed the Cherokee from their agrarian holdings in Georgia and contiguous southeastern United States, sending them marching to Oklahoma. The Supreme Court said his order was unconstitutional. Jackson’s response? Not really much different from “nyah nyah, nyah nyah, nyah nyah.”

Much of the Civil War and Reconstruction was undertaken on the shakiest of constitutional grounds. And then came the “great progressive” presidents.

Republican Teddy Roosevelt and Democrat Woodrow Wilson defied the explicit intent of the Constitution’s authors — as written in The Federalist as well as in the state houses that adopted the new compact. Both presidents construed the Constitution as authorizing the federal government to do pretty much darn near anything not explicitly forbidden in the document.

That was not the original understanding.

And then there is war. The U.S. Congress hasn’t declared an explicit war since World War II. But we’ve been in a never-ending string of wars.

With Obama, the post-constitutional prevarication has reached new . . . effrontery. The current president says that, though he had previously declared the “Iraq War” a done deal, over, finito, he now says his new attacks upon ISIS are constitutionally justified by 2002’s Authorization for Use of Military Force against Iraq.

“Post-constitutional”? It means our leaders are liars, beyond the law.

This is Common Sense. I’m Paul Jacob.

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general freedom ideological culture U.S. Constitution

Principled, and Un-

Can one “rise above principle”?

Aren’t most (all?) who think they “rise above principle” actually sinking below it?

Economist David Henderson called our attention to this notion in reference to legal theorist Richard Epstein’s call for a war against ISIS. On AntiWar.com, he challenged Epstein’s support for the president’s war on ISIS on constitutional grounds, and wondered why constitutional scholar Epstein hadn’t addressed this concern.

Then Epstein addressed it — using that curious phrase “rise above principle.”

Henderson’s response? Characteristically astute:

In which times of crisis do you need to “rise above principle?” What are the criteria for doing so? If you don’t specify criteria, then I think you’re saying that anything goes. If you do specify criteria, don’t those criteria amount to a principle? In that latter case, are you really rising above principle?

It’s not just a matter of constitutionality, though. Just war requires coherent goals. And a debate and vote in Congress over going to war against ISIS could help establish those goals.

Clearly, the continuing interventions in the Islamic East have suffered from massive confusion. A year ago, President Obama called for regime change in Syria and wanted to bomb government forces; today, we are bombing ISIS, the main opposition to that same government.

Sinking below principle on matters of warfare is the least excusable abandonment of law. It’s the suppression of hasty warfare — individual, group, or national — upon which the rule of law rests. Upon which civilization rests.

There’s no “rising above.” There’s no acceptable abandonment. There is only sticking to principle upon the issues that matter most.

This is Common Sense. I’m Paul Jacob.

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crime and punishment too much government U.S. Constitution

Thieves With Badges

Civil forfeiture is the government practice of taking property from citizens without due process, but while pretending that it’s all above-board. When police say they suspect a crime, they can impound property associated with that crime. “Civil forfeiture” is the legal legerdemain: instead of suing the owner, the government sues (get this) the property itself.

And, because of this trickery, burden of proof is inverted: victims must prove their innocence and their right to the impounded property.

Generally, governments keep it. Some police departments are “rolling in the dough” they get from impounding property.

This has been known for some time; I’ve written about it before. But now the Washington Post has finally taken notice … and unearthed a new element to the story.

“Behind the rise in seizures is a little-known cottage industry of private police-training firms that teach the techniques of ‘highway interdiction’ to departments across the country,” the Post’s report relates. There’s even a private intelligence network, the Black Asphalt Electronic Networking & Notification System, through which police “share detailed reports about American motorists — criminals and the innocent alike — including their Social Security numbers, addresses and identifying tattoos, as well as hunches about which drivers to stop.”

Participating police officers compete to steal more and more booty from drivers and their passengers.

Yes, it is stealing. It is only nominally “legal.”

Unfortunately, it is only one practice among many that have turned local police departments into the moral equivalent of gangland robbers.

If you say you want limited government, this is an issue ripe for protest. And lobbying for reform. And citizen initiatives.

For starters.

This is Common Sense. I’m Paul Jacob.