Where is the Power to Suspend Habeas Corpus?

The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?

In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:

“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”

He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)

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Why We Need a Constitution

Cross Posted from the Pennsylvania Tenth Amendment Center.

Bear with me. We need some background before I get to my point.

In the article, “On Violence, Government, and Self-Deception”, I offered three possible philosophical stances on violence. Those were,

1.) Pacifism: No violence under any circumstances; 2.) Non-Aggression: Defensive violence is allowed, aggressive violence is not; 3.) The end justifies the means. Aggressive use of violence is allowed, “for the right reasons”.

I also noted that,

In order to develop a personal philosophy about government, one of the first requirements is to come to an understanding of one’s beliefs about violence. When is it OK to use violence and when is it not? This understanding is necessary because at it’s core, all of government is violence.

At the time, I described my own personal philosophy towards violence as “non-aggression”. My understanding of that phrase is similar to how it is stated by Tom Woods, here, “nobody should initiate aggression against anybody else“. Alternatively, wikipedia describes it, thusly, “In contrast to nonviolence, the non-aggression principle does not preclude violence used in self-defense or defense of others“.

Of course, taken to its conclusion, strict adherence to the non-aggression principle requires elimination of the state because taxation is a form of aggression. Knowing that, I have been aware of the contradiction between my actions and my beliefs when I promote state level legislation and adherence to the US Constitution at the same time as believing in the principle of non-aggression. I don’t like it when there is inconsistency between my beliefs and actions, so the attempt to resolve this conflict has been a frequent area of thought for me during the last few years.

Eventually, I came up with this simple thought experiment:

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Anti-Nullifiers Embrace ‘Living Breathing’ Constitution

“Conservatives” and Republicans often rail against the “liberal” belief in a “living breathing” Constitution.

And rightly so.

A written constitution operates just like a contract. Its meaning remains static unless amended, and the understanding of those who entered into the contract at the time of its approval governs that meaning. It does not change over time. The people must make changes via the amendment process.

Contrast that with an unwritten or “uncodified” constitution. England does not have a written constitution. Its government operates based on custom, statute, usage and precedent. Who decides the meaning and proper operation of “constitutional” government? The judiciary, government committees and legal experts. This type of government offers a great deal of elasticity. When it faces a problem, it need not worry about violating a written constitution with static meaning. The Parliament can simply pass new statutes. Or judges can formulate a new legal maxim. The judiciary takes precedence in this kind of system, setting legal precedent and guiding the evolution of the government.

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NSA Doublespeak, Federal Crimes and Punishment

The oath of office for any federal employee (excepting the President) reads as follows:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

With this in mind, I have a hard time figuring out what part of this oath the NSA leaker violated…  Bob Schiefer from CBS news appears to think Snowden  should give himself up, and start making himself comfortable in the generous accommodations that are available in American Cuba…

I’m sure that is something Snowden is considering, yet Maybe Mr. Schiefer’s argument needs a little more consideration to be sure that justice would be accomplished with this approach.  Lets consider a few things:

1.       Which part of Snowden’s oath was violated?

The Federal oath begins “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic.”

Are there foreign enemies of the Constitution that were empowered by the disclosure of the fact that the Federal govt. was collecting most of the phone data from virtually every American ?  Possibly, but I think they already had an understanding that this was happening.  Were there Domestic enemies who would benefit from the release of the same information?  On the contrary, Domestic enemies who were violating the Constitution were exposed as a consequence of Snowden’s actions.

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How Do We Determine the Original Meaning of the Constitution?

How do we determine the meaning of the Constitution? Where do we ultimately find the authoritative source for original understanding? Do we look to the Supreme Court? To the Federalist Papers? To notes from the Philadelphia Convention?

Actually, we should look to the ratifiers. They were the ones who represented the people and agreed to approve the Constitution. Jefferson affirmed this idea.

“On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

This video, with narration from the audio version of Our Last Hope: Rediscovering the Lost Path to Liberty, explains this idea in more depth.

WATCH IT:

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A Founder’s Case Against A ‘National’ Government

File:LutherMartinBig.jpgOn June 27-28, 1787, for over three hours, Luther Martin, Maryland’s Attorney General and delegate, objected vehemently on the floor of the Constitutional Convention. Transcripts of Mr. Martin’s remarks were recorded into history by Robert Yates (NY) and James Madison (VA). Madison was author of the Virginia plan, which Mr. Martin vigorously debated at regular intervals throughout the Convention.

Upon his arrival at the Philadelphia Convention, Luther Martin pondered possible remedies, as was his charge, to amend the Articles of Confederation, ratified and adopted March 1, 1781. An air of mystery presided over the statehouse, as the founders and framers conducted the work of the Grand Convention.

Mr. Martin reflected on his arrival to the Convention, on June 9, 1787, in a speech given to the Maryland Delegation on November 29 of that same year.

When I joined the Convention I found that Mr. Randolph, of Virginia, had laid before the Body certain propositions (the Virginia Plan) for their consideration, and that the Convention had entered into many Resolutions, respecting the manner of conducting Business, one of which was that seven states might proceed to Business, and therefore four states composing a Majority of seven, might eventually give the Law to the whole Union.

Different instructions were given to Members of different states – The delegates from Delaware were instructed not to infringe on their Local Constitution – others were prohibited their assent to any duty in Commerce: the Convention enjoined all to secrecy; so that we had no opportunity of gaining information by a Correspondence with others; and what was still more inconvenient, extracts from their own Journals were prohibited even for our own information.

One of the critical issues debated after the introduction of the Virginia Plan was the distinction between the differing types of general governments, particularly a federation and a national government. A federation exists by a compact, or contract, resting upon the good faith of the states, contrasted with a national government exercising complete control over the operation of the states. The nationalist position of the Virginia Plan was repulsive to many delegates, including Mr. Martin, who opposed the prospect of a central government. He argued it would consume the sovereignty of the states.

Beginning his remarks on the floor of the Constitutional Convention, Mr. Martin addressed the function of a general government.

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Separation of Constitution and State?

It seems we have reached a new point of inversion.

Are we at a point where references to the Constitution are now censored by the public education system? The curriculum has long been compromised with Constitutional half-truths, but are we now censoring student’s speeches that reflect on the Constitution? Is it too controversial, or just too obviously true, to allow a valedictorian to point out that the federal government is trampling rights?

According to reports, a North Texas valedictorian’s microphone was recently shut off mid-speech when his speech varied from the submitted script. The speech varied and “…he was talking about getting constitutional rights getting taken away from him.” the microphone was cut off. In fairness to the school, there was a policy in place that microphones would be shut off if the speech went off-script.

However, this trend to micromanage the speech of those that have earned the highest academic position available is problematic. What prompts the school to implement such authoritarian measures of censorship of a valedictorian’s speech? Who’s speech is it anyway?  Why did this valedictorian feel the need to remove references to the Constitution in the draft submitted to the school censors?

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Texas Senate Passes Bill to Nullify Warrantless Drone Spying, 29-1

A bill has passed through the Texas State Senate that aims to protect the privacy of their residents from the police state by instituting strict limitations on the use of unmanned drones in surveillance by law enforcement.

Dubbed the ‘Texas Privacy Act’, H.B. 912 is an attempt to rein in potential abuses related to the rapidly-developing drone technology that has made its hands into the hands of government at the state and federal levels. The bill was originally authored by Rep. Gooden (R-District 4) and has amassed over 100 co-sponsors since it was introduced Feb. 1, showing vast and bipartisan support for stopping the government’s Orwellian takeover of our skies.

The House passed the bill by a vote of 128-11 on May 10th. (roll call here)  And last Friday the Senate passed a slightly amended version of the bill by a vote of 29-1. (roll call here).  HB912 will now go back to the State House to either concur on the amendments or form a conference committee to approve a final version acceptable to both the House and Senate.  Then it’s off to Governor Perry’s desk for a signature.

BILL INFORMATION

The bill states that “a person commits an offense if the person uses or authorizes the use of an unmanned vehicle or aircraft to capture an image without the express consent of the person who owns or lawfully occupies the real property captured in the image.” The offender would be charged with a Class C misdemeanor if they were caught violating this part of the law.

Data gathered by law enforcement illegally ‘may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding’ according to the bill and ‘is not subject to discovery, subpoena, or other means of legal compulsion for its release.’ This incentivizes police to not misuse the drone technology unless they wish to risk jeopardizing their entire investigation.

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Will DC be the next “State” to Nullify Federal Prohibition?

Oh the irony to think that the capital city of these united states will be nullifying their own law even while their agents are raiding dispensaries in the states.  The voters in the city of DC approved medical Marijuana in 1998, and finally all of the licensing is complete.  The dispensary by the name of Capital City Care will be the first to open on the 22nd of April within blocks of the White House, and with a clear view of the US Capital.  This will be a hugevictory for the forces of liberty, in the face of the growing police state.

After resisting the clear will of the American people for so long, DC could have to call it quits and accept the demise of the war on drugs (police state), as they join the 18 states that have already nullified the war on pot (as a legal drug) .  As I have always said, weed is much like the war on drugs.

Respectable opinion on weed seems to be that it is a “gateway drug”.  This is meant to give the impression that one puff of it will lead one through a gateway and down a path towards desperation, and dependence upon drugs for daily functioning.  Doing unspeakable things for the next hit of your current drug of choice.  Theft and violence will become the life of the addict or so says this paradigm.  In reality it is the war on drugs that is the gateway, it is a gateways towards tyranny, and authoritarianism.

It is ironically the so called “Constitutional” Conservative who are the biggest cheerleaders for this insane policy.  Even as they hold the correct position on so many policies that you should not pile additional laws on already illegal behavior (such as opposing gun control because murder is already illegal, or opposing hate crimes because the crimes they punish are already illegal.)  None the less they point towards the culture of crime that surrounds the drug trade (as surrounds all black markets regardless of the banned items for sale) and say “look drugs cause murders and robberies.”  Murder and theft are already illegal, so why is that an argument for prohibition?

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