Category Archives: Supreme Court

Who Makes the Constitution Real? The Supreme Court? the Senate? or No One.

People marching in the streets indicate there is a problem with justice. The Constitution states speedy trial and by trial jury.

As we appoint a justice for a lifetime, ought we notice this oversight?

A life long appointment is a serious matter, which certainly merits attention by our most deliberative body, the Senate. It is not a basketball game with a buzzer. And while the Judiciary Committee is getting the headlines, during early election time, we find ourselves talking about how the judge was so skilled at deflecting questions. What about the accountability of the Senate to the Constitution? … and to the People. What issues has the Supreme Court let slip? When, but Now, can we address this.You will find a short list at the bottom.

Justice Not Done.

When the Judiciary Committee of the senate rams through its prime time moment to beat the election, after people have been parading in the streets for five months protesting the frequent killings of blacks by police; justice is not done. If the senate cannot align the Court to the Constitution; an essential repair is absent, void. The Senate is failing in its duties and the entire Government could fall as a result. The court can lose its stature. A true Senate provides advice and consent to the executive and the judiciary. Justice is not done. Advice and Consent is written into the Constitution. It is not a rubber stamp for the president as it has been these last four years. One consequence can be seen as feeding the court a raft of partisan judges. Justice is not done. The Senate ought to deliberate. Just as a court might, were it fair. That is not taking place, even virtually. The Senate was once called the greatest deliberative body…. No longer. A senator now speaks to an empty chamber. The Senate says, Yes Sir. . to the President. In place of deliberations, as we can observe through committee workings, we have rulings.

Now we are watching the selection of a lifetime judicial position. If a judge cannot engage clear judgment outside of the law… How can the result be justice within it? Is a judge qualified to sit on the bench, if incapable of recognizing a clear and present danger? If judge Amy Coney Barrett is incapable of noting that literally millions of Americans and millions of acres of America are already damaged by an increasing physical threat this year alone… what will her judgments be good for? She is obviously very able with words. But it takes more than that to be just. How many billion dollar disasters does one need to add up to notice there is a real threat? There is politics, Judge Barrett, and there is simple counting.

NOAA covers the trend. Going back further in time than 1980 will show even more dramatic increases in the trend. https://www.ncdc.noaa.gov/billions/

Stare Decisis is nowhere in the Constitution

Process not justice seems to be the only result of the law, as we watch it grind away. ‘Stare decisis’ holds sway where similar thinking gets consistent results. Stare Decisis is latin for ‘let the decision stand’. Like the ouroboros, the snake that bites its own tail and rolls like a wheel, anywhere with no axle. Can we see how our law bites its own tail when our Supreme Court is composed so uniformly. One cannot help but wonder, when we have seven justices of the same religion, where all but one have graduated from two schools, either Harvard or Yale. Who does this Court represent? Consistency or the Constitution? Class or the populous? Money or the people? Which?

Fortunately, the Constitution is written in plain English. We can reclaim it.

But to stick with the point, what is the object here, justice or consistency? ….the consistency of bad judgments or that our laws be true to the Constitution? Isn’t the Constitution the axle to the wheel of the law?

Meanwhile, the Judiciary Committee cannot seem to find time to mention the right to speedy trial, meaning prompt trial. While the murderer of George Floyd that took place on May 25 in the springtime, it still has not been brought to ‘justice’ five months out, as the leaves of autumn fall. Officer Derick Chauvin has moved to another state. Ten thousand people in my city of Portland have protested by lying still and silent for nine minutes on the Burnside Bridge to bring home the fatal fact of “I can’t breathe” of George Floyd. Protesters here get gassed in the middle of a respiratory pandemic by federal armored troops. While the Senate hurries to appoint a new and seemingly partisan judge, but not deal with obvious extra legal murder by officer. The following thumbnail of the fourth and fifth amendments show clearly the law that protects all of us.

The right of the people to be secure in their persons, against unreasonable searches and seizures, shall not be violated by anybody
nor shall any person
be deprived of life, without due process of law

There are caveats omitted above, yet this is the broad outline of the Law of the Land, the highest law that cannot be superseded by process, delay or subordinate jurisdiction. Justice delayed is justice denied; as one might surmise as one observes the protests lingering in the streets for over 125 days; or as one may casually observe the list of judges that keep quitting on the twenty year old 911 cases in Guantanamo Bay. Where is the Senate here? Something obviously is not working. Is it a political problem or a judicial problem that the constitution is not being honored? As I see it, it is Both. It will become fixed when the Judiciary Committee of the Senate notes the breaches. We have seen protestors assassinated. This appears lawful to some, though inconsistent with the Bill of Rights of the Constitution.

Here is a list of Constitutional breaches that an English speaker might consider as currently engaged: First note that I have prevailed in a constitutional case with the Department of Defense in 1969. Having both taken an oath to defend it, and being victorious in holding the Navy up against the Constitution, I feel a sense of ownership here. Could the Judiciary Committee inquire about trial by jury? The language is very clear: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Or is it merely an antique nicety? These days it is replaced nine times out of ten by plea bargain. (Do you want to be charged with a hundred years, or would you plead guilty for just five years?) Why is this the mode of ”dealing out” so called justice across the land… a bargaining? Does it speak to the dominance of money in our politics, as Senator Sheldon Whitehouse so ably illustrated in the judiciary hearings.

President is, or is not King? War powers Tell an old burr under the saddle.

For more breaches, the Constitution states that the Congress must declare war, which states the condition for ending the war that only the People can authorize. We have been so very bad at ending wars these last 75 years. The power to declare war, the power to kill on authority, is reserved for the Congress representing the people. Period. That power is Not a power granted to the executive, otherwise we could legally have targeted assassinations directed by a political executive. This is written in the fresh blood of Portlands’ Michael Reinoehl’s murder by officers. And Trump’s comment: “We got him.” The soldiers understand this breech of authority. That is why we have a four story stack of their coffins resulting from their suicides…. every month. This lack of honoring the Constitution, alters the very structure of government. The Senate is no longer a serious place.

We now find ourselves watching a charade. Justice as process, nothing more. A process run by the clock, where the star is: ‘stare decisis’, a phrase nowhere within the founding document, our Constitution. It is the driving philosophy of chief justice John Roberts, which he touted before the Senate judiciary committee when he received his lifetime appointment. How can the Ouroboros take us back to the Constitution?

What is the Constitution for? Money or Justice?

When laws are made consistent but the axle is forgotten — speedy trial, trial by jury, and so much more written in plain English in the Constitution, then what is this charade for?… other than pretense to aggregate wealth to a few. Can equality under the law be enforced when we have over 620 billionaires? Now the richest 50 people, the cream of the cream, own as much as half of all Americans, 165 million of us; Citizens or serfs? That disequality manifests with one person having more wealth than three million others. How could any state practice equality under the law with that disparity? To our honor, Senator Sheldon Whitehouse showed how money warps our law, especially in selecting justices and creating precedents, painting the law with case after case to provide the preferred effect of protecting those with money. Far better than any reporting on him, his direct testimony before the Senate Judiciary Committee ought to wake up All citizens, of any political persuasion.

The King Clause

Bravely,  Benjamin Franklin, Thomas Jefferson and some folks back home gave the world a new and remarkable form of government:  A constitutional democratic republic.   The constitution replaced the King, and all that was required was a revolution and that the people of the United States honor their word.

Actually, this constitution took a lot of defending from threats on many levels.  There was the war of 1812, and the crash and panic 1792 and the collapse of the first United States Bank that Hamilton championed.  The panic of 1819 and the collapse of the second United States Bank.  The panic of 1857 and the civil war that followed within the decade, not to speak of political upheavals like the whisky rebellion and disenfranchisement of various political parties, parties you never learned about in your civics courses,  now long forgotten.   All these actions were to save us from the torture and executions that a King could order at will.   Kings of old would initiate wars or seize an enemies property, or execute a citizen on his own authority.    A constitution protected the people of the United States against such acts of whimsy.   At least till now.

Some say the Magna Carta saved English subjects from such whimsy.  Tell that to Henry the VIII.   Tell that to Chief Justice John Roberts; who orchestrated the People’s United decision that says money is speech and corporations are persons.

To note the watershed, the difference between kings ordering by fiat, and free men (and women) living under their own law, the framers inserted the king clause into the constitution which reads (Only)” Congress shall have the power…. to declare war, grant letters of marque and reprisal, or make rules concerning captures on land and water.”

The King Clause of the constitution has three parts: authorizing war, authorizing private contractors to kill and seize, and controlling rules of military capture.

This clear language makes a significant break with the previous royal form of government.  The Congress (whose etymology means ‘stands upright’) not an individual, has the power to engage the country in a war.   The president is not a king, in fact the title is derived from the verb: “preside” meaning guidance and literally meaning to sit in front, sedere: sit;  pre, in front.  It was understood that war was not an informal thing, but needed a reason, and a demand….. thus it could be drawn to conclusion when the demand was met.    The founders had watched such inanities as the 30 years war, and the hundred years war because of such a lack of focus.   The United States has seen the same with its decadal wars in  Viet Nam and Afghanistan….  where no reason was given, and no demand proffered that the People of the United States stood behind.   With no goal, it is impossible to find the victory of achieving it.

This was the reason for the first part, the declaration of war has two functions a) to announce a clear set of demands, and b) to see that the American people are behind those demands.     It must be noted that whenever these conditions have been met, the United States has been victorious; and these conditions have not transpired in the last 65 years.

Actually war is still not an informal thing… people do not say to themselves: “Dang, I wonder who is dropping bombs on us today?”   As accustomed as we are to having murder brought into our living rooms nightly by the TV, and we are all conditioned to accept it a normal… the question “Who is shooting at me?” is not of the same emotional caliber as in watching a whodunit.

The second part of the King Clause makes Congress responsible for “granting letters of Marque and Reprisal,” or  what was considered at the time of writing: A pirate’s license.    A pirate was someone sailing a private vessel who seized property of a foreign vessel and likely killed people in so doing.   Once granted a letter of Marque  and Reprisal, the captain in possession of such could attack, seize and in the process, kill persons of the country or counties listed in the letter.   (Such a letter would not allow the killing of an American citizen.)  In short, such a letter was grant of limited power to violate the sovereignty of the nation listed within it.

The third portion of the King Clause, makes it clear that it is the American people that will subjugate any foreign people, and will themselves determine the conditions of that.   This was seen as a power so grave as not to be allowed to be deferred to a mere administrator.

It is worth pointing out that of the founders who created this ‘new’ form of government, many were familiar with the classics, and more than a few read Greek.   While the Greeks did have slaves, they brought their slaves to the theater, and indeed treated them well.  For the Greeks lived in a city-state environment, where there were periodic wars and border skirmishes, and while  your city  may have won this year,  the city next door may win the next, and who won took slaves.   Thus it was wise to treat the slaves with some respect,  for there was a live possibility that the next slave holder would be the very slave you had held, and you in turn would be in captivity.    This trained the populous in the evenhandedness that is such a requirement for democracy to flourish.     A point profoundly forgotten in today’s ‘winner take all’ politics.

Thus the King Clause was made part of the constitution to prohibit a King from whimsically taking rule, and killing whatever opposition arose.   It is the Law.

If only people could honor their own oath;  their word.

The Cheating Culture

The Cheating Culture is a website and book by David Callahan, and the following podcast outlays the depth of of the Kim Chee

download the Cheating Culture podcast

General Strip-Search, are you secure?

I encountered two young veterans last week, as hot about the current violation of national security as I am.  They too remember taking the oath to protect and defend the constitution of the United States.  In all sobriety, I suggest the Supreme Court is forgetting that oath.   Last week’s news provides an example.

The Supreme Court rendered a judgement  in Florence v Burlington that it is OK to strip-search a person if they find themselves in prison, even if by mistake.   The Supreme Court decided that prison regulations trump the constitution in the above case, of a black man who was riding as a passenger in his wife’s BMW and the police  computer erroneously said he had a warrant out for his arrest, when he had already paid the traffic fine.

The judgement is pertinent in the context of the Occupy movement this spring  with many people seeking to assemble and petition their government for redress of grievances.   Those people are being intimidated by the law that they may be strip searched for engaging their first amendment rights.

The fourth amendment,  is explicit: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It guarantees the right of someone, anyone, to be secure “in their person” from search unless served with a search warrant, signed by a judge naming whom is to be searched, and for what particular things, and stating the probable cause.  The founders included this to prohibit mass intimidation by any agency of law.   I pray you can get this very meaning from the words of the fourth amendment quoted above.  I hope you can commit those words to memory.  It could save you.

I believe that We the People can put these things together; we stand up to the Supreme Court and say:  “Black is not White!”    The people are not secure if they can be strip-searched for whimsy, or by mistake, and without probable cause.   The fourth amendment says as much!

I write this because I want people,  We the People, who give consent and tax money to be governed, to indeed be governed according to law of the land, the constitution as Article VI states.  (Not the law of some institution, be it the Burlington prison or the park service).  I write this so that we can know, and state our rights.   For if we do not stand up for them, they will go away…. as they seem to be doing, with judicial sanction before our eyes.

I refer you to the previous post if you have not read it.  It concerns the legal case, again before the Supreme Court in which President Obama wants a brand new power to be granted to the government, namely to compel people to make a purchase from a private company.    For one to read and understand the constitution, this seems an open and shut case, an argument I made.  But if we all sit back and expect the “experts” to decide, we are going the way of the Reichstag in the 1930’s.   The Germans are not, nor were they, a flippant people.  But by relinquishing their authority to the ‘experts’ they succumbed to a very dark leadership.

Hence, I ask that you write your paper, your Senator and mention to your friends the document that was begun with the words We,  is being countermanded by justices who took an oath to protect it.

Grieving ….

Fact 1.
Ted Glick will be charged in Washington DC with up to three years for displaying a banner in the US Senate building that said: ” Green Jobs Now” and “Get to Work”. He was petitioning the government for a redress of grievances, namely, its inattention to Global Warming.

Fact 2.
The US constitution states: Congress shall make no law …abridging the freedom … to petition the Government for a redress of grievances. (the full text of the First Amendment in which this is found in Exhibit A below)

Fact 3/
Most police work to enforce statutes, which are the laws that usher from the law of the land, the constitution. They are made by the legislature and in theory are in concert with it. Most lawyers argue statutes in court. Almost no one today refers to the constitution out of what some see as perverse custom, very different from the early days of our country. If you Know the constitution, and Know grammar well enough to abstract correctly what is written in Fact 2. above from the full text of the First Amendment below, and can state that to the police…. you have a very good case.

Question: Is the Constitution, which is written in clear English to be obeyed? If not, why not.

Exhibit A.
The full text of the first Amendment:

“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.”

Liberty

The New Colossus

Not like the brazen giant of Greek fame
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame,
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore,
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”

– Emma Lazarus
New York City, 1883
(Inscribed on the Statue of Liberty)

Elena Kagan: the only thing that matters… is Congress’ intent

Oh, am I dismayed.   With Elena Kagan’s view of her mission: “only thing that matters in interpreting any statute — is Congress’ intent.” as she told Senator Franken.    I ask:  What about the Constitution!    For that document is rather explicit on the subject.    Article IV  Clause 2 states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made,….. shall be the supreme Law of the Land.”   And in Clause 3 states:”..judicial Officers, (and legislators as well), shall be bound by Oath or Affirmation, to support this Constitution;”
Similarly Congress’ actions, if not their perception of mission is to obfuscate “the law” and make plenty work and money for lawyers. For example: the  “Money is not Speech” DISCLOSE Act took 94 pages, didn’t get the job done, and created more problems.   Who puts the intent of one person, one vote into force?    The “money is speech” fantasy cancels that very intent.
If the law is incomprehensible, who can obey it?   It makes work for lawyers, though.  I deeply understand the frustration of the Tea Party folks, who are really not that different in what Ralph Nader was saying in past years:   “None of the Above!, give me a choice other than tweedle dum and tweedle dummer, give me a choice other than the Democratic machine, or the Republican machine.”  Political parties, as you may recall, are not to be found in the US constitution, nor are the rules of the senate which currently require a 60% margin to win a vote.  When I was a boy, and throughout the successful part of American history, 50% plus one made for a majority.
I want Justice to protect myself, and my fellow citizens by using the Bill of Rights and the force of law.   Who is going to do that?    I spent my life believing that was the job of the Justices of the Supreme Court.  The textural identity of “supreme Law of the Land” and “Supreme Court” seems rather obvious to this carpenter.  I find all three branches… The Court, the Congress and the Executive to be mere partisans as though this is some sport.    It is not.    I am a veteran who served and who still feel bound by the Oath I took.   They have taken the same oath!   I feel forsaken.
I repeat:  Who will make the constitution real?  You know… speedy trial, jury of peers, the people shall be secure from unreasonable search and seizure, only the Congress declares war…. things like that.      What do we have?  Stare decisis, money is speech, corporations are persons and elections are now legal bribathons.
Why does no one quote the Constitution?  The language is crystal clear.  Millions of Americans took that oath.    Our constitution is  being forsaken.
Anyhow,    Happy Fourth of July,  your Senators are coming home to celebrate with you.      Have a good BBQ and give them a good grilling.
See you there.

Elena Kagan: the only thing that matters… is Congress' intent

Oh, am I dismayed.   With Elena Kagan’s view of her mission: “only thing that matters in interpreting any statute — is Congress’ intent.” as she told Senator Franken.    I ask:  What about the Constitution!    For that document is rather explicit on the subject.    Article IV  Clause 2 states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made,….. shall be the supreme Law of the Land.”   And in Clause 3 states:”..judicial Officers, (and legislators as well), shall be bound by Oath or Affirmation, to support this Constitution;”
Similarly Congress’ actions, if not their perception of mission is to obfuscate “the law” and make plenty work and money for lawyers. For example: the  “Money is not Speech” DISCLOSE Act took 94 pages, didn’t get the job done, and created more problems.   Who puts the intent of one person, one vote into force?    The “money is speech” fantasy cancels that very intent.
If the law is incomprehensible, who can obey it?   It makes work for lawyers, though.  I deeply understand the frustration of the Tea Party folks, who are really not that different in what Ralph Nader was saying in past years:   “None of the Above!, give me a choice other than tweedle dum and tweedle dummer, give me a choice other than the Democratic machine, or the Republican machine.”  Political parties, as you may recall, are not to be found in the US constitution, nor are the rules of the senate which currently require a 60% margin to win a vote.  When I was a boy, and throughout the successful part of American history, 50% plus one made for a majority.
I want Justice to protect myself, and my fellow citizens by using the Bill of Rights and the force of law.   Who is going to do that?    I spent my life believing that was the job of the Justices of the Supreme Court.  The textural identity of “supreme Law of the Land” and “Supreme Court” seems rather obvious to this carpenter.  I find all three branches… The Court, the Congress and the Executive to be mere partisans as though this is some sport.    It is not.    I am a veteran who served and who still feel bound by the Oath I took.   They have taken the same oath!   I feel forsaken.
I repeat:  Who will make the constitution real?  You know… speedy trial, jury of peers, the people shall be secure from unreasonable search and seizure, only the Congress declares war…. things like that.      What do we have?  Stare decisis, money is speech, corporations are persons and elections are now legal bribathons.
Why does no one quote the Constitution?  The language is crystal clear.  Millions of Americans took that oath.    Our constitution is  being forsaken.
Anyhow,    Happy Fourth of July,  your Senators are coming home to celebrate with you.      Have a good BBQ and give them a good grilling.
See you there.

Supreme Disgust

Article. VI. of the US  Constitution lays it out in plain English:

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made,….. shall be the supreme Law of the Land; ….

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

In stark contrast and  polite (if vapid) charade Supreme Court nominee Elena Kagan responded to the Judiciary committee’s inquiry today with these words:

ELENA KAGAN: Well, Senator Franken, the most important thing in interpreting any statute — in fact, the only thing that matters in interpreting any statute — is Congress’ intent. Congress gets to make the laws under Article One of the Constitution. And what the court should be doing in applying those laws is trying to figure out what Congress meant and how Congress wanted the laws to be applied. And that is the only thing that the court should be doing.
AND
SEN. LINDSEY GRAHAM: So what is your definition of an activist judge?
ELENA KAGAN:” Well, Senator Graham, I think my definition is somebody who doesn’t take three principles to heart.
The first principle is deference to the political branches in making the policy decisions of this nation because that’s who ought to be making the policy decisions of this nation.
The second principle is respect for precedent, precedent as a doctrine of constraint and humility, and also stability in the law.
And the third principle is deciding cases narrowly, deciding them one at a time, deciding them on narrow grounds, if one can, avoiding constitutional questions, if one can.”
——————

——————
Millions of people took an oath to preserve and protect the constitution; That includes judges, elected officials, federal employees and all service personnel. Let me speak here as one of them, and a lover of the constitution:

That testimony sounds like that of a… let me say it kindly, a non-comittal, to the legislative body that must confirm her. It does not sound like someone familiar with the text quoted verbatim above from the US constitution, nor like a person who is dedicated to preserve the integrity of the Bill of Rights with the first three words of that document: “We the People”.   My prime objection is the very narrow conformity of the Court.   And yet, as I have observed Elena Kagan, I ask… does this person stand for anything?    I believe a Supreme Court Justice ought to stand, and stand fiercely For the US Constitution and the justice that it enshrines.    I see just another process worker like John Roberts.
I do not believe the contradiction between the text and the testimony needs ANY explaination. On its face, it is contradictory. And it is only through acceptance of such contradiction that any court could come up with the absurdity” “money is speech”.

I look forward to your comments…  and hope you find the comments tab under the title of each post.

The Constitution of the Supreme Court

Mt Rainier

Mt Rainier

The Supreme Court enacts the US Constitution.

It sees that the statutes made in state legislature, and the federal congress comport with
the Constitution of the Unites States.

Lawyers very rarely refer to the constitution… they make their living contesting statutes.

There are 11 federal circuit courts, appeals courts that funnel law suits to the Supreme court

So the Supreme Court represents the American People in making the laws in the United States
to be consistent, and not to conflict with the US Constitution.

So let us look at the composition of the Supreme Court, and it’s new nominee to see what is the constitution of the court the adjudicates the constitution.
Number of Members: 9

Number of men: 6
Number of birthplaces: 5 Alito and Scalia are from Trenton, New Jersey
Number of women: 3
Number of birthplaces of the women-   1:  New York City
Number of colleges represented-            2 :Yale and Harvard
Number of religions represented-          2 :Catholic and Jewish

Military Experience: 1 year, Army Nat’l Guard of CA, _ Kennedy.

My view is that all justices rightfully have had mountains of legal experience and  yet regretfully almost no experience with the elements, with elected life or with a perspective Other than legal.  My view is that common sense is the arbiter of what fleshes out the constitution, not stare decisis, the latin term not found in the constitution  which seeks that the mass of law matches the mass of previous law which thus suborns the Constitution…. and does not respect it as Supreme Law of the Land.   This is Chief Justice Roberts position, and as far as I can read by Elena Kagan’s testimony, hers as well.