Law

Human and political rights, as defined 330 years ago today by England's Parliament, King and Queen

... 

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;

By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

By violating the freedom of election of members to serve in Parliament;

By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;

And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;

All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

. . . 

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; ...

From English Bill of Rights 1689: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown


Happy Birthday to the self-deprecating vice-president who saved the Supreme Court and the independent judiciary

My cousin and contemporary John Nance "Cactus Jack" Garner III (born 150 years ago today, d. 1967) is known only for saying the vice-presidency "isn't worth a bucket of warm spit," or something like that. But he is actually one of the most important vice-presidents. In 1937, FDR relied on Garner, a former Speaker of the House and legendary back-room politicker, to get his "court packing" bill through Congress. The bill would have let the President appoint enough additional justices to create a compliant majority on the court. But 

"From the start, Garner loathed the plan and thought that it would be a threat to party harmony. He began covertly to rally the opposition."

-- "Court-Packing Plan of 1937," by Lionel V. Patenaude, Texas State Historical Association, citing Lionel V. Patenaude, "Garner, Sumners, and Connally: The Defeat of the Roosevelt Court Bill in 1937," Southwestern Historical Quarterly 74 (July 1970). Lionel V. Patenaude, Texans, Politics and the New Deal (New York: Garland, 1983). Bascom N. Timmons, Garner of Texas (New York: Harper, 1948). 

Garner and his allies managed to make the environment for the bill so toxic that he finally was able to tell FDR he had to withdraw it. "Eventually, Garner was given credit for smoothing over the crisis, but he had also rendered himself persona non grata with the administration." So we have John Nance Garner to thank for the U.S.'s independent judiciary, which has given us everything from racial integration to gay marriage.


When incorporating was a privilege, only the privileged got to incorporate and do business. Do we really want to go back to that?

The Warren Plan and the History of Corporate Chartering

By WALTER OLSON at cato.org, citing

 

See also

Elizabeth Warren’s Batty Plan to Nationalize . . . Everything

 

 


Yes, Virginia, "You, too, will meet the secret police!"

-- So Jello Biafra sang on his Spoken Word Album, which he gave me several copies of when my ACLU chapter had him come speak to an unexpectedly huge and raucous crowd at my college. But I never thought we would actually have entirely secret police in Virginia, where the Bill of Rights was invented. 

Virginia bill to keep officers' names secret would be first in the nation, experts say

By Gary A. Harki and Patrick Wilson, The Virginian-Pilot

Jefferson is why the modern world values equality, democracy, and human rights

By John Crouch

On his 275th birthday, Thomas Jefferson is in danger of getting run out of town on a rail, his statues teetering on a slippery slope which we had been told would become dry and level as soon as Robert E. Lee was cast down it. We already knew he was a slaveowner and probably a race-mixing unwed father, but lately we’ve been confronted with the inhumane cruelties that slavery involved even at Monticello, and some are calling him a rapist and a child molester because Sally Hemings was a slave and was 16 when she first became pregnant.

But without Jefferson, we would not have today’s movements for racial equality and other human equality, we wouldn’t have had the Civil Rights movement and its imitators, and even Abolitionism would have been very different and less popular. Now, it’s well known that he is where Americans think we get most of our ideas about liberty. But what we forget, in these days when we’re focused on a mostly false opposition between liberty and equality, is that he is much more uniquely, and crucially, the source of our beliefs in equality, democracy, and universal human rights. As the author of the Declaration of Independence, as the founder of the Democratic Party, and as a powerful, lifelong agitator for expanding political liberty and equality.

Without him the American Revolution, and the American idea, would likely have been about defending the hereditary rights of free-holding Englishmen. Perhaps inspiring enough to achieve independence, perhaps not. But not much of an inspiration to the rest of the world, and far less appealing to Christians and philosophers than declaring our independence by announcing:

"That all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."

This ideology and theology of radical human equality was not Jefferson’s invention: it had colorful, eccentric champions during the English Civil War and Commonwealth era (1640s-50s), Quakerism seems consistent with it if not based on it, and Hobbes and Locke used it in different ways as a starting point for their philosophies. The idea had recently been expressed in Thomas Paine’s Common Sense, and in George Mason’s Virginia Declaration of Rights. But Jefferson put it at the top of America’s founding document, its public statement of what its war was about, where everyone read it or had it read to them.

And Americans would not have their wide and deep belief in equality and democracy if it were not for the ongoing work of Jefferson and the political party he founded, which was always the democratic party even when it was still named “Republican” or “Antifederalist.” Even when it fostered and exploited racism, it did so using democratic rhetoric that ultimately arcs towards equality for all. Even now and in the days of Woodrow Wilson when it seems like the more elitist and “Progressive” party, it pays truly valuable lip service to democracy and believes it can reconcile all such contradictions; it contains multitudes with more consistently, democratic impulses, which they carry with them to other parties if they leave the party in disgust, fear and sorrow. Even the Whigs and the modern Republican party inherited more from it than from the old, aristocratic Federalists.

Lately both the elitist Progressives, and a few loud, immature, shallow Libertarians, like to pit liberty and equality against each other. They envision a wealthy and antisocial Individual exercising individual liberty for his own amusement and benefit, at the expense and indulgence of a democratic government that seeks to constrain him for the common good of the many and the poor. But that wasn’t the situation in Jefferson’s time, nor for most of our history, nor today. Jefferson and generations of his contemporaries feared governments that suppressed individual rights in order to suppress the majority and subvert or prevent democracy. They saw absolutist governments create privileged elites, not equality. They knew that democracy can’t function as democracy if individuals aren’t free to express their actual beliefs, spread news, and try to persuade each other and their representatives. Nor without the other freedoms in our Constitution. And they fought for individual liberty not because it let them do selfish things or express their unique selves, but to be free to do what they thought was their duty to God and to society.

On Jefferson’s birthday, we remember that he was far from perfect on issues of liberty and of equality. But he worked to expand both of them, and so should we.


"Investigating" citizens who lobby against you (AKA "petition for redress of grievances") has a long and un-American history

"At the behest of the Roosevelt administration in 1935, the U.S. Senate established a special committee to investigate lobbying activities by opponents of the ... Public Utility Holding Company Bill. Chaired by Hugo L. Black (D-Ala.), the “Black Committee” expanded its mission into a more general probe of anti–New Deal organizations and individuals. The committee used highly intrusive methods, notably catch-all dragnet subpoenas, to secure evidence. It worked closely with the IRS for access to tax returns and with the FCC to obtain copies of millions of telegrams. When the telegram search became public information, there was a major backlash from the press, Congress, and the courts. Court rulings in 1936, resulting from suits by William Randolph Hearst and others, not only limited the committee’s powers but provided important checks [on] future investigators, including Senator Joseph McCarthy."

New Deal Mass Surveillance: The “Black Inquisition Committee,” 1935–1936

 

David T. BeitoJournal of Policy History,Volume 30Issue 2, April 2018 , pp. 169-201

Other formats, publication info and abstract


"Corporations are people" is irrelevant to "Citizens United" and other federal-law cases -- just read the case's name!

The phrase "corporations are people" deliberately conjures up images of huge money-grubbing businesses that don't care about people, getting favors from a government that cares more about them than people.  It's widely known to come from from early, "Gilded Age" pro-business interpretations of the 14th Amendment. And yet the very name of the "Citizens United" case should be a giveaway that the freedom of non-profit groups of citizens, advocating about political issues, was at stake in the case. Do those who scoff at Citizens United, for supposedly saying corporations are people, really believe that civil rights groups, women's groups, antiwar groups, veterans' groups, and religious groups, have no Constitutional rights?

The second half of the case's name, "v. Federal Election Commission", is a big clue that 14th Amendment case law about "persons" has nothing to do with it. The part of the 14th Amendment about persons and rights, Section 1, solely restricts what states can do to people or "persons". It 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But the First Amendment, which works directly on the federal government, and indirectly on states through the 14th Amendment, focuses on prohibiting the government from violating freedom of speech, press, or religion, with absolutely no exceptions concerning who or what is speaking, publishing, etc.

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; ...

There is a reference to "the people" in the second half of it:

"... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Justice Kennedy's majority opinion in Citizens United does not say corporations are people. Instead it points out that the First Amendment does not make exceptions for who is doing the speaking or publishing; that all effective speech costs money, and that an argument that "corporations aren't natural persons" is not wrong, but irrelevant to the First Amendment.

Joe Albanese pointed out this crucial but apparently never-noticed distinction today, reveling in the irony of Ben & Jerry's using its free-speech rights to argue against corporations having free-speech rights, in "Is Big Ice Cream Trying to Hijack Our Democracy?" Former Federal Election Commission member Brad Smith says more about groups' free speech rights, and another threat to them, in "Tester’s assault on corporate rights is an assault on people’s rights."

I wish people would read the case opinion before criticizing it, but if you don't do that, you could at least read the case's name and the most important sentence in our Constitution.


The Burgering of Buchanan and JQ Adams; the apolitical Golden Age never was

 One last leftover from my attempt to provide a full history of "Borking" and "Burgering" during the Garland nomination:

"Justice Robert Trimble died in August 1828 as the election campaign between President John Quincy Adams and Andrew Jackson was concluding. Adams allegedly asked Henry Clay to consider replacing Trimble, and Adams then nominated John Crittenden in December 1828, after Jackson won the general election. The Senate postponed any vote on Crittenden until Jackson became President. After Jackson became president the following March, he named John McLean to the position.

Justice Peter Vivian Daniel died in late May 1860 during the race that saw Abraham Lincoln win the White House. President James Buchanan failed to get Jeremiah Black confirmed as Daniel’s replacement in February 1861. Lincoln finally had Samuel Miller confirmed in July 1862 to replace Daniel.

--

From "Why the current Supreme Court nomination situation isn’t that unique"

The Supreme Court and Military Justice by Jonathan Lurie - 2013

Lincoln's Supreme Court

Some Legal Myths About Lincoln


Police successfully justify killings with irrational fears, some based on training & jargon

The Unwritten Law That Helps Bad Cops Go Free

by DAVID FRENCH in the National Review

And that's because of "jurors with an authoritarian mindset," Brian Lambert writes:

“... the “authoritarian” aspect refers to those on the receiving end, people who have been acculturated to give uncritical respect to any authority figure, be they parents, teachers, government leaders or cops.

Justice for Castile v. the Authoritarian Juror


Civil forfeiture's worse than we thought; blurs difference between cops & robbers, compliance & bribery.

I already knew Civil Asset Forfeiture was often horribly misused and somehow started affecting people who hadn't been convicted of crimes. But people who aren't even charged? In some places, it has taken America back to the bad old days where it isn't safe to travel if you're a minority or from out-of-state. Worse, some counties have become like those corrupt third-world countries where there's no real difference between cops & robbers; bribes & "fines". Where innocent travelers might get stopped at any time for a bogus crime and have to sign over whatever cash they have with them to get out of jail and -- a particularly American twist on this barbarity -- to not have their children taken away.

And sometimes, as described below, public servants are so focused on grabbing the cash etc. that when they do stop actual, serious drug-runners, they let them go, as long as they literally "get the goods" off them. 

There have been bipartisan efforts in many states, most recently Virginia, to reform "civil forfeiture" so it only applies to convicted criminals. (If something's actual evidence of a crime that someone's charged with, it would still be kept temporarily as evidence anyway.) But what this New Yorker article has to say makes it far more urgent than I knew.

TAKEN: Under civil forfeiture, Americans who haven’t been charged with wrongdoing can be stripped of their cash, cars, and even homes. Is that all we’re losing?


CBS edit totally changes what Bill Clinton told Charlie Rose on Big Question of the Day -- HRC health

If you saw the headline you may have thought, as I did, that it was a vague hook about something that probably amounted to nothing ("CBS News Edits Out Embarrassing Verbal Slip"). Well, it's not nothing, it's big. CBS, in its broadcast, removed Bill's first and most revealing answer and retraction, changing “frequently—well not frequently, rarely”  to simply "rarely". The full sentence and other context are in CBS's article about the interview:

“Well if it is, it’s a mystery to me and all of her doctors,” he said, “because frequently—well not frequently, rarely—but on more than one occasion, over the last many, many years, the same sort of thing happened to her when she got severely dehydrated.” 

Sorry, if anyone, but ESPECIALLY Bill Clinton, says something like, "frequently, I mean rarely, multiple occasions, but I mean over many many years", the public deserves to hear all of that and decide for themselves which parts to believe, which part of his teeming brain to listen to as its more and less honest and dishonest hatchlings jostle and trample each other in the rush for his mouth. The guy is a master: he really doesn't hardly ever lie, he talks in a way that makes you want to believe he's totally on your side, and to stop listening before he gets through all of the qualifiers and reversals at the end of the sentence, but you have to doggedly listen to all that while reserving all judgment on what impression to form, or you'll misunderstand him every time. So if you ever take a jot or a tittle out of one of his sentences, you'll change the meaning a hundredfold.

Depressing that this was with Charlie Rose. Rose gives every impression of setting the gold standard for thoughtful, nuanced discourse and intellectual honesty that brings everyone together around his table. "Talking with Charlie Rose" is almost a sacred rite, even more so than testifying to a court under oath on penalty of perjury. 

Dsc02594rw

I may have only clicked on the story because the part of the article that showed up in Facebook's link had a word missing, and I have a pet peeve about people who leave mistakes uncorrected when they are criticizing someone else's minor wording mistake or writing about how important good grammar is. But that typo had been fixed in the article although it remains in Facebook's display, and it wasn't in an article about a trivial mistake, as it turns out.

CBS News Edits Out Embarrassing Verbal Slip in Bill Clinton Interview

By  on mediaite.com

Bill Clinton Says Hillary Has Had Fainting Spells ‘On More Than One Occasion’

By Chuck Ross on The Daily Caller. (The key part of the story is "below the fold" -- or rather below the ribbon of "Sponsored Content" ads.)

CBS article that contained the full sentence as of this writing, 4:00 p.m. 9/13/16: