Treason by Public Officials?
(Originally submitted to all Congressional Candidates running in 2002
To be found on the following website which is still online but which
all access was blocked so no changes or updates could be made.
http://www.angelfire.com/co4/constcommittee)
Based upon the following research and upon researching the plethora of
laws on the books today, it is obvious that many current laws and in
some cases, the laws they were based on are blatantly unconstitutional. I
make no interpretations myself but let the founding documents speak for
themselves with highlighting and underlining done for the sake of
clarity.
The following excerpts from founding documents will clearly show:
1. The Constitution of the United States is the “Supreme Law of the
Land” and any law that strays outside the boundaries enumerated in it are
undeniably unconstitutional.
2. The undisputable fact that acts passed by Congress or by State
legislatures which do not conform to the Constitution of the United States
have been found by the Supreme Court to be “null and void and have no
effect”.
3. The enactment of unconstitutional laws by legislators clearly
violated their Oath to “support and defend the Constitution of the United
States of America”.
4. The violation of this Oath by an elected official/public officer
could therefore be construed as a “Treasonable Act.”
It is important to note that the wording of Article 3 Section 3 of the
Constitution regarding the definition of treason has been an area of
debate as to its interpretation and implementation in law as mentioned
below. Whether legislators who pass unconstitutional acts are committing
the crime of treason or, just “treasonous acts” where they may be
charged with lesser offenses is the question at hand.
Note: At the end of this document I put forth possibilities for a
solution and would welcome comments or suggestions.
First, the Constitutional requirements for an Oath supporting the
Constitution:
Article 2, Sec 1 "I do solemnly swear (or affirm) that I will
faithfully execute the Office of
President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States."
Article 6. “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; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.”
Second, the areas of the Constitution regarding treason:
Article 1, Section 6. “The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out
of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest
during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in
either House, they shall not be questioned in any other Place.”
Article 2, Section 4. “The President, Vice President and all civil
Officers of the United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
Article 3, Section 3. “Treason against the United States, shall consist
only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.”
“The Congress shall have power to declare the punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.”
Article 4, Section 2. “A Person charged in any State with Treason,
Felony, or other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive Authority of the State from
which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.”
Definitions of Treason:
Tucker’s Blackstone Vol. 1 Appendix Note B [Section 3] 1803 – “If in a
limited government the public functionaries exceed the limits which the
constitution prescribes to their powers, every such act is an act of
usurpation in the government, and, as such, treason against the
sovereignty of the people.”
Bouvier’s Law Dictionary 1856- TREASON, crim. law. “This word imports a
betraying,
treachery, or breach of allegiance. 4 Bl. Com. 75.”
Black’s Law 6th Edition – “A breach of allegiance to one’s government,
usually committed
through levying of war against such government or by giving aid or
comfort to the enemy.”
(Note: The word, “usually” above is obviously used due to the fact that
the current interpretation being used in U.S. jurisprudence does not
coincide with traditional definitions, it excludes other specie of
treason such as “constructive treason”, traitorous conspiracies and
insurrections meant to alter the established law, or to render it ineffectual.
All of which are mentioned in the founding documents below.)
I. Research regarding Treason and treasonous acts.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 3 — Structure
and organization of the federal government]
I. The powers exclusively granted to the federal government.
Of these,
1. The legislative: or those vested in congress; that body being
empowered,
2. To borrow money on the credit of the United States.
1. To regulate commerce
1. With foreign nations;
2. Among the several states; and
3. With the Indian tribes. The commerce between the individuals of the
same state, being reserved to the state governments.
3. To coin money, regulate the value thereof, and the value of foreign
coin.
4. To fix the standard of weights and measures. These last powers seem
to be a necessary
appendage to that of regulating commerce.
5. To provide for the punishment of counterfeiting the securities and
current coin of the
United States.
6. To constitute tribunals, under the federal government, inferior to
the supreme court
7. To define and punish,
1. Piracies;
2. Felonies on the high seas;
3. Offences against the law of nations.
8. And to declare the punishment of treason against the United States.
9. To declare war; grant letters of marque and reprisal; and make rules
concerning
captures on land and water.
10. To provide and maintain a navy, [in time of peace.]
11. To make rules for the regulation and government of the land and
naval forces.
12. To raise and support armies, [in time of peace.]
In America the Senate are not a distinct order of individuals, but the
second branch of the national legislature, taken collectively. They
have no privileges, but such as are common to the members of the house of
representatives, and of the several state legislatures: We have seen
that these privileges extend only to an exemption from personal arrests,
in certain cases, and that it is utterly lost, in cases of treason,
felony, or breach of the peace.
Commentaries on American Law – James Kent Vol 1. LECTURE XII. [OF
JUDICIAL
CONSTRUCTIONS OF THE POWERS OF CONGRESS.]
The majority do not go further into the expediency of the measure than
to show that it was not
improper under the circumstances, but devote themselves more to showing
that it was not
inconsistent with the spirit of the Constitution and to overthrowing
the argument stated above.
Mr. Justice Strong suggests, as an answer, that the grant of power to
punish counterfeiting,
treason, &c., has been held not to exclude an implied power to make
other offences
punishable (citing United States v. Marigold, 9 How. 560). See also
United States v. Dewitt, 9
Wall. 41, 44, post, 439, n. 1.
Tucker’s Blackstone Volume 1 — Appendix Note B [Section 3 — Of the
several forms of
government]
If the constitution be founded upon the previous act of the people (the
creation of the U.S.
Constitution), the government is limited. If it have any other
foundation, it is merely constructive, and the government arrogates to itself
the sole right of making such a construction of it, as may suit with its
own views, designs, and interests: and when this right can be
successfully exercised, the government becomes absolute and despotic. In like
manner, if in a
limited government the public functionaries exceed the limits which the
constitution
prescribes to their powers, every such act is an act of usurpation in
the government, and, as
such, treason against the sovereignty of the people, which is thus
endeavored to be
subverted, and transferred to the usurpers .
Inseparably connected with this distinction between limited and
unlimited governments, is the
responsibility of the public functionaries, and the want of such
responsibility. Every delegated
authority implies a trust; responsibility follows as the shadow does
its substance. But where there is no responsibility, authority is no
longer a trust, but an act of usurpation. And every
act of usurpation is either an act of treason, or an act of warfare.
In case of treason … the power of pardon is taken away from the
governor by the act of 1794, c.
168, [66] nor can the executive now remit any fine or amercement
assessed by a jury, or imposed
by any court of record, court martial, or other power or authority
authorized to assess or impose
the same. [67]
If he (the executive) concurs in an unconstitutional act, he is guilty
of usurpation, and contempt of the sovereign authority, which has
forbidden him to pass the bounds prescribed by the constitution. He has
violated his oath, and the most sacred of all duties. To omit him at the
next election is not an adequate punishment for such a crime. Abuse of
power is despotism, and the democracy that does not guard against it, is
defective. If in any department of government, a man may abuse, or
exceed his powers, without fear of punishment, the right of one man is at
the mercy of another, and freedom in such a government, has no
existence.
It is indispensably necessary to the very existence of this species of
democracy, that there be a perfect equality of rights among the
citizens: the unqualified use of the term equality has furnished the enemies
of democracy with a pretext to charge it with the most destructive
principles. By equality, in a democracy, is to be understood, equality of
civil rights, and not of condition. Equality of rights necessarily
produces inequality of possessions; because, by the laws of nature and of
equality, every man has a right to use his faculties, in an honest way,
and the fruits of his labour, thus acquired, are his own. But, some men
have more strength than others; some more health; some more industry;
and some more skill and ingenuity, than others; and according to these,
and other circumstances the products of their labour must be various,
and their property must become unequal. The rights of property must be
sacred, and must be protected; otherwise there could be no exertion of
either
ingenuity or industry, and consequently nothing but extreme poverty,
misery, and brutal ignorance.
In this species of democracy, it is further indispensably necessary to
its preservation, that the constitution be fixed, that the duties of
the public functionaries be defined, and limited, both as to their
objects, and their duration; and that they should be at all times responsible
to the people for their conduct. The constitution, being the act of the
people, and the compact, according to which they have agreed with each
other, that the government which they have established shall be
administered, is a law to the government, and a sacred reverence, for it is an
indispensable requisite in the character and conduct of every public
agent. A profound obedience to the laws, and due submission to the
magistrate entrusted with their execution, is equally indispensable on the
part of every citizen of the commonwealth, in order to preserve the
principles of this government from corruption. Neglect of the principles of
the constitution by the public functionary is a substitution of
aristocracy, for a representative democracy: such a person no longer
regards himself as the trustee, and agent of the people, but as a ruler
whose authority is independent of the people, to whom he holds himself
in no manner accountable; and he so degenerates into an usurper and a
tyrant.
Thus while a democracy may be pronounced to be the only legitimate
government, and that form of government, alone, which is compatible with
the freedom of the nation, and the happiness of the individual, we may
perceive that it is on every side surrounded by enemies, ready to sap the
foundation, convulse the frame, and totally destroy the fabric. In such
a government a sacred veneration for the principles of the
constitution, a perfect obedience to the laws, an unremitting vigilance on the part
of the people over the conduct of their agents, and the strictest
attention to the morals and principles of such as they elect into every
office, legislative, executive, or judiciary, seem indispensably necessary
to constitute, and to preserve a sufficient barrier against its
numerous foes.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 10 — Powers of
Congress (cont.)]
13. Congress have power to declare the punishment of treason, against
the United States; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted.
C. U. S. Art. 3. Sec. 3. The act of 1 Cong. 2 Sess. c. 9. accordingly
declares, that the punishment shall be death, by hanging; and that no
conviction or judgment for treason, shall work any forfeiture of estate.
The constitution. itself declares, that treason against the United
States shall consist only in levying war against them, or in adhering to
their enemies, giving them aid and comfort: and that no person shall be
convicted of treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open court.
The precise definition of treason, and the limitation of it to two
cases, only, both of which are clearly and explicitly described, at once
evince the prudence, caution, and wisdom, of the framers of the
constitution, by shutting the door (as far as human prudence, and human
foresight, could provide the means of doing so), against all possible cases of
constructive treason.
The abolition of forfeiture, and of the corruption of blood, in cases
of treason, is moreover a
happy expedient for lessening the incentives, to prosecutions for
treason, in corrupt governments.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 15 - Executive
Powers (cont.)]
31. The privileges both of the federal and state legislature, so far at
least as respects the members, appear to be few and definite. "They
shall, in all cases, except treason, felony, and breach of the peace, be
privileged from arrest during their attendance at the session of their
respective houses, and in going to, and returning from the same: and for
any speech, or debate in either house, they shall not be questioned in
any other place. C. U. S. Art. 1. §. 6. V. L. 1705, c.
1. §. 13. Edi. 1769 .... 1785, c. 55. Edi. 1794, c. 17. 1798,c. 11.
The president of the United States may be removed from office on
impeachment for, and conviction of treason, bribery, or other high crimes and
misdemeanors: and the chief justice of the United States shall preside
at his trial. C. U. S. Art. 2, Sec. 4. Art. 1, Sec. 3.
Tucker’s Blackstone Volume II Chapter 2 Section 1
12. It is otherwise in the United States; the president is the chief
magistrate, but he is not the sole magistrate of the nation. He may
nominate, but he cannot make a permanent appointment, to office (except in
some particular instances) without the concurrence of the senate. Many
of those who are nominated and commissioned are not responsible to him,
or removeable by him; but are responsible only to the people, and to
the law, and removeable only upon impeachment by their representatives,
and upon conviction of treason, bribery, or other high crimes and
misdemeanors.
C. U. S. Art. 2, 3.
United States v. Burr
25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807
Marshall, Chief Justice, delivered the opinion of the court as follows
(regarding what constituted
treason under the U.S. Constitution):
But the term is not for the first time applied to treason by the
constitution of the United States. It
is a technical term. It is used in a very old statute of that country
whose language is our language, and whose laws form the substratum of
our laws. It is scarcely conceivable that the term was not employed by
the framers of our constitution in the sense which had been affixed to it
by those from whom we borrowed it. So far as the meaning of any terms,
particularly terms of art, is completely ascertained, those by whom
they are employed must be considered as employing them in that ascertained
meaning, unless the contrary be proved by the context. It is,
therefore, reasonable to suppose, unless it be incompatible with other
expressions of the constitution, that the term … is used in that instrument in
the same sense in which it was understood in England, and in this
country, to have been used in the statute of the 25th of Edw. III. from which
it was borrowed.
It is said that this meaning is to be collected only from adjudged
cases. But this position cannot be conceded to the extent in which it is
laid down. The superior authority of adjudged cases will never be
controverted. But those celebrated elementary writers who have stated the
principles of the law, whose statements have received the common
approbation of legal men, are not to be disregarded. Principles laid down by such
writers as Coke, Hale, Foster, and Blackstone, are not lightly to be
rejected.
It is not deemed necessary to trace the doctrine, that in treason all
are principals, to its source. Its origin is most probably stated
correctly by Judge Tucker in a work, the merit of which is with pleasure
acknowledged. (regarding whether it was necessary for someone to have
weapons or implements of war to constitute treason) …If the party be in a
condition to execute the purposed treason without the usual implements of
war, I can perceive no reason for requiring those implements in order
to constitute the crime.
United States v. Hoxie
26 Fed. Cas. 397, no. 15,407 C.C.D.Vt. 1808
Treason, not only holds a conspicuous, and generally the first place in
every catalogue of crimes, but is almost universally punished with
death. Government is so high a blessing, and its preservation and support
are so essential to the welfare of every member of the body politic,
that to attempt its subversion, has ever been regarded a most aggravated
offence.
James Wilson, Of Crimes Immediately against the Community, Lectures on
Law
1791 Works 2:663--69.Treason is unquestionably a crime most dangerous
to the society, and most repugnant to the first principles of the social
compact. … the famous statute of treasons was made in the reign of
Edward the third, on the application of the lords and commons. This statute
has been in England, except during times remarkably tyrannical or
turbulent, the governing rule with regard to treasons ever since. Like a
rock, strong by nature, and fortified, as successive occasions required,
by the able and the honest assistance of art, it has been impregnable by
all the rude and boisterous assaults, which have been made upon it, at
different quarters, by ministers and by judges; and as an object of
national security, as well as of national pride, it may well be styled the
legal Gibraltar of England.
The great and the good Lord Hale observes upon this clause, "the great
wisdom and care of the parliament, to keep judges within the bounds and
express limits of this statute, and not to suffer them to run out, upon
their own opinions, into constructive treasons, though in cases which
seem to have a parity of reason"--cases of like treason--"but reserves
them to the decision of parliament. This," he justly says, "is a great
security as well as direction to judges; and a great safeguard even to
this sacred act itself."
It is so. And it was all the safeguard which the parliament, by the
constitution, as it is called, of
England, could give. It was a safeguard from the arbitrary
constructions of courts: it was a shelter
from judicial storms: but it was no security against legislative
tempests.
In this manner, the citizens of the Union are secured effectually from
even legislative
tyranny: and in this instance, as in many others, the happiest and most
approved example of other times has not only been imitated, but
excelled. This single sentence comprehends our whole [law] of national
treason; and, as I mentioned before, is transcribed from a part of the statute
of Edward the third.
"Treason consists in levying war against the United States." In order
to understand this proposition accurately and in all its parts, it may
be necessary to give a full and precise answer to all the following
questions.
What is meant by the expression "levying war?"
By whom may the war be levied?
Against whom must it be levied?
I begin with the second--by whom may the war spoken of be levied? It is
such a war as constitutes treason. The answer then is this: the war
must be levied by those who, while they levy it, are at the same time
guilty of treason. This throws us back necessarily upon another question--
who may commit treason against the United States? To this the answer
is--those who owe obedience to their authority. But still another
question rises before us--who are they that owe obedience to that authority? I
answer--those who receive protection from it.
In the United States, the authority of the nation is the sole object on
one side. An object strictly corresponding to that, should be the only
one required on the other side. The object strictly corresponding to
authority is, obedience to that authority. I speak, therefore, with
propriety and accuracy unexceptional, when I say, that those who owe
obedience to the authority, are such as receive the protection, of the United
States.
I now proceed to another question--what is meant by the expression
"levying war?" From what has been said in answer to the former question, an
answer to this is so far prepared as to inform us, that the term war
cannot, in this place, mean such a one as is carried on between
independent powers. The parties on one side are those who owe obedience. All the
curious and extensive learning, therefore, concerning the laws of war
as carried on between separate nations, must be thrown out of this
question. This is such a war as is levied by those who owe obedience - by
citizens; and therefore must be such a war, as, in the nature of things,
citizens can levy.
But this question will receive a farther illustration from the answer
to the third question; because the fact of levying war is often evinced
more clearly from the purpose for which, than from the manner in which,
the parties assemble. I therefore proceed to examine the last
question—against whom must the war be levied? It must be levied against the
United States.
Insurrections in order to … alter the established law, or to render it
ineffectual-- insurrections to accomplish these ends, by numbers and an
open and armed force, are a levying of war against the United States.
In England, the punishment of treason is terrible indeed. The criminal
is drawn to the gallows, and is not suffered to walk or be carried;
though usually a hurdle is allowed to preserve him from the torment of
being dragged on the ground. He is hanged by the neck, and is then cut
down alive. His entrails are taken out and burned, while he is yet alive.
His head is cut off. His body is divided into four parts. His head and
quarters are at the disposal of the king.
Joseph Story, Commentaries on the Constitution 3:§§ 1292, 1294--96,
1791--94, 1796 -
1833
§ 1792. Nor have republics been exempt from violence and tyranny of a
similar character. The
Federalist has justly remarked, that newfangled, and artificial
treasons have been the great engines, by which violent factions, the natural
offspring of free governments, have usually wreaked their alternate
malignity on each other.
§ 1793. It was under the influence of these admonitions furnished by
history and human
experience, that the convention deemed it necessary to interpose an
impassable barrier against arbitrary constructions, either by the courts,
or by congress, upon the crime of treason.
II. Research regarding the Oath to preserve, protect and defend the
Constitution of the United States
Tucker’s Blackstone Volume II Chapter 2 Section 2 (Precedent to Oath)
2. By the act of May, 1777, c. 3, all free male inhabitants of the
state, above sixteen years, were
required to give assurance of allegiance to the state; which consisted
in taking the following oath
.... I do swear [or affirm], that I renounce and refuse all allegiance
to George the third, king of
Great Britain, his heirs and successors, and that I will be faithful
and bear true allegiance to the commonwealth of Virginia, as a free and
independent state, and that I will not at any time do, or cause to be
done any matter or thing that will be prejudicial to the freedom and
independence thereof as declared by congress; and also that I will discover
and make known to some one justice of the peace for the said state, all
treasons, or traitorous conspiracies which I now or hereafter shall
know to be formed against this or any of the United States of America."
This oath was to be tendered by the justices of the peace to all persons
required to take it, and all such as refused were to be disarmed. But
this act seems to have been merely temporary. The title only is
retained. Edi. 1785, p. 50.
From Jefferson's Opinion on the Constitutionality of a National Bank,
1791 “…I consider the foundation of the Constitution as laid on this
ground: That ‘all powers not delegated to the United States, by the
Constitution, nor prohibited by it to the States, are reserved to the States
or to the people.’ [10th amendment.] To take a single step beyond the
boundaries thus specially drawn around the powers of Congress, is to
take possession of a boundless field of power, no longer susceptible of
any definition.”
Tucker’s Blackstone Volume I Chapter 10 Section 2 (Regarding the Oath)
The members of the several state legislatures, and all executive and
judicial officers, both of the
United States and of the several states, and all members of congress
shall be bound by oath or affirmation to support the constitution of the
United States. C. U. S. Art. 6, which oath must be taken by all
persons, chosen or appointed after the first day of August, 1789, before they
proceed to execute the duties of their office. L. U. S. 1 Cong. 1 Sess.
c. I.
The formal profession, therefore, or oath of subjection, is nothing
more than a declaration in words of what was before implied in law. Which
occasions sir Edward Coke very justly to observe, that "all subjects
are equally bounden to their allegiance, as if they had taken the oath;
because it is written by the finger of the law in their hearts, and the
taking of the corporal oath is but an outward declaration of the same."
The sanction of an oath, it is true, in case of violation of duty,
makes the guilt still more accumulated, by superadding perjury to treason:
but it does not increase the civil obligation to loyalty; it only
strengthens the social tie by uniting it with that of religion.
Tucker’s Blackstone Volume I Chapter 1 (As the Oath applies to the
judiciary…)
But here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to be
determined? The answer is, by the judges in the several courts of
justice. They are the depositaries of the laws; the living oracles, who must
decide in all cases of doubt, and who are bound by an oath to decide
according to the law of the land (the U.S. Constitution).
Now this is a positive law, fixed and established by custom, which
custom is evidenced by judicial decisions; and therefore can never be
departed from by any modern judge without a breach of his oath and the law.
For herein there is nothing repugnant to natural justice; [19]…
Tucker’s Blackstone Vol I – Appendix A
“This constitution” is “the supreme law of the land.” This supreme law
“all judicial officers of the United States are bound, by oath or
affirmation, to support.”
[91] 20. “… in America, the Constitutions, both of the individual
States, and of the federal
Government, being the acts of the people, and not of the Government,
and the powers of
Government being by those Constitutions, respectively, distributed into
three distinct, and coordinate, branches; viz: the legislature, the
executive, and the judiciary; all which are equally bound by Duty to their
Constituents, the people; and by Oath, also, to support the
Constitution; it follows, as has been already shewn [Appendix, Note A.] that the
legislature can possess, no power, or obligation over the other Branches
of Government, in any case, where the principles of the Constitution,
may be in any degree infringed by an acquiescence under the authority of
the legislative department. The examples supposed, and the authority
cited in that note, sufficiently evince the Justice of the position here
contended for; and will warrant us in extending the rule here laid down
by the learned commentator, by adding thereto, That all acts of the
Congress of the United States, impairing, infringing or violating the
principles of the federal Constitution; and all acts of the legislature of
this Commonwealth, which violate, infringe or impair the same, or any
law of the United States made pursuant to the powers granted to the
Congress by the federal Constitution, or any Treaty made under the
authority of the United States, or the Bill of
Rights, and Constitution of this Commonwealth, are not binding upon any
other branch of the federal or State-government: and any Citizen of the
Commonwealth, who may be aggrieved by any such unconstitutional Act,
hath an undoubted right to redress, by application to the judicial Courts
of the State, or of the United States according to the nature of the
case. "The constitution and its laws," as Vattel justly observes, "are
the basis of the public tranquility, the firmest support of the public
authority, and pledge of the liberty of the citizens. But this
Constitution is a vain phantom, and the best Laws are useless, if they
are not religiously observed. The nation ought then to watch very
attentively, in order to render them equally
respected by those who govern, and by the people destined to obey. To
attack the Constitution
of the State, and to violate its laws is a capital crime against the
society, and if those guilty
of it are invested with authority, they add to this crime a perfidious
abuse of the power with
which they are entrusted. The nation ought constantly to suppress these
abuses, with its utmost
vigor, and vigilance, as the importance of the case requires. It is
very uncommon to see the Laws
and Constitution of the State, openly and boldly opposed; it is against
silent and slow attacks
that a nation ought to be particularly on its guard.'' Vattel's Law of
nations B: 1. 3. act: 30.
See also, the Federalist; vol: 2, no: 78.
Tucker’s Blackstone Commentaries 1:App. 151--53, 378--79, 412--13,
416--17, 418--26, 428--33; 5:App. 3--10
The people are not only not bound by them, but the several departments
and officers of the governments, both federal, and state, are bound by
oath to oppose them; for, being bound by oath to support the
constitution, they must violate that oath, whenever they give their sanction, by
obedience, or otherwise, to any unconstitutional act of any department
of the
government.
1 Hayw. 28 N.C. 1794
The judges of the land are a branch of the government, and are to
administer the constitutional
laws, not such as are repugnant to the Constitution. It is their duty
to resist an unconstitutional act. In fact, such an act made by the
General Assembly, who are deputed only to make laws in conformity to the
Constitution, and within the limits it prescribes, is not any law at all.
Whenever the Assembly exceeds the limits of the Constitution, they act
without authority, and then their acts are no more binding than the
acts of any other assembled body.
But what end is an equivalent for a precedent so dangerous as that
where the Constitution is disregarded by the Legislature, and that
disregard sanctioned by the judiciary? Where, then, is the safety of the
people, or the freedom which the Constitution meant to secure?
One precedent begets another, one breach will quickly be succeeded by
another, and thus the giving way in the first instance to what seems to
be a case of public convenience in fact prepares the way for the total
overthrow of the Constitution--the surest palladium of our rights… “No
man is to be deprived of his property or rights, but according to the
law of the land, or the common law.”
I would like to suggest the following possibility of a solution for
comment:
I would suggest that, in order to correct the problem in a manner that
would be amenable to the general populace and Congress, there would
need to be two separate amendments to the Constitution and an Act passed
as follows:
1. Amend the Constitutional Article 3, Section 3 currently:
“Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony of
two Witnesses to the same overt Act, or on Confession in open Court.”
Amended to:
“Treason against the United States, shall consist in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort,
committing constructive treason, involvement in traitorous conspiracies
or insurrections, or performing acts meant to alter the Supreme Law,
or, through either their actions to render the Supreme Law ineffectual.
No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.”
Note: As current and past legislators could not be convicted of this
violation due to the “Ex Post Facto” clause, they would simply be forced
to adhere to the Constitution from the point of ratification forward.
Also, as Congress is already given the right to dictate punishment for
treason, it would not necessarily require capital punishment, as was
traditionally the case. The general public, who almost unanimously will
agree to adherence to the Constitution would favor its passage.
2. Amend the Constitutional Article 6, currently:
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding…”
Amended, adding the following declarative clause:
“All Amendments to this Constitution, and the Laws of the United
States, prior to their passage shall require proofs of Constitutional
Authority and that they violate no rights, either inalienable or those
enumerated in the Bill of Rights. These proofs must be performed by a Council
of Constitutionality in the House.”
Note: As “committees” are a standard procedure in the Congress, this
should not be an issue.
3. An Act should be created that would mandate to Congress that they
review all prior Acts and Resolutions passed by Congress for
Constitutionality and adding the required proofs of Constitutional Authority and
assuring that it violated no rights, either inalienable or those
enumerated in the Bill of Rights or, if the Act or Law will not pass these
requirements, to be declared null and void. This should be performed in a
reasonable timeframe of 5 years.
AddTRUAX
v. CORRIGAN
257 U.S. 312 (1921) NO MAN IS ABOVE THE LAW
The real strengths of these Amendments and Act would be threefold:
1. It would enforce the Constitutionality of Acts as the founders
clearly intended from the point of ratification forward.
2. It would either correct or remove unconstitutional Acts, which could
easily be rationalized as “improper” or “misinterpretation” by earlier
legislators and leaving the current legislators free from political
suicide.
3. The members of the committee, being from multiple parties and now
obliged under the threat of treason to follow their oath, would
necessarily be more likely to follow a strict interpretation of the
Constitution.
Found in WethePeople Group & a very "nice" find indeed
(Originally submitted to all Congressional Candidates running in 2002
To be found on the following website which is still online but which
all access was blocked so no changes or updates could be made.
http://www.angelfire.com/co4/constcommittee)
Based upon the following research and upon researching the plethora of
laws on the books today, it is obvious that many current laws and in
some cases, the laws they were based on are blatantly unconstitutional. I
make no interpretations myself but let the founding documents speak for
themselves with highlighting and underlining done for the sake of
clarity.
The following excerpts from founding documents will clearly show:
1. The Constitution of the United States is the “Supreme Law of the
Land” and any law that strays outside the boundaries enumerated in it are
undeniably unconstitutional.
2. The undisputable fact that acts passed by Congress or by State
legislatures which do not conform to the Constitution of the United States
have been found by the Supreme Court to be “null and void and have no
effect”.
3. The enactment of unconstitutional laws by legislators clearly
violated their Oath to “support and defend the Constitution of the United
States of America”.
4. The violation of this Oath by an elected official/public officer
could therefore be construed as a “Treasonable Act.”
It is important to note that the wording of Article 3 Section 3 of the
Constitution regarding the definition of treason has been an area of
debate as to its interpretation and implementation in law as mentioned
below. Whether legislators who pass unconstitutional acts are committing
the crime of treason or, just “treasonous acts” where they may be
charged with lesser offenses is the question at hand.
Note: At the end of this document I put forth possibilities for a
solution and would welcome comments or suggestions.
First, the Constitutional requirements for an Oath supporting the
Constitution:
Article 2, Sec 1 "I do solemnly swear (or affirm) that I will
faithfully execute the Office of
President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States."
Article 6. “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; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.”
Second, the areas of the Constitution regarding treason:
Article 1, Section 6. “The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out
of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest
during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in
either House, they shall not be questioned in any other Place.”
Article 2, Section 4. “The President, Vice President and all civil
Officers of the United States, shall be removed from Office on Impeachment
for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
Article 3, Section 3. “Treason against the United States, shall consist
only in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court.”
“The Congress shall have power to declare the punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.”
Article 4, Section 2. “A Person charged in any State with Treason,
Felony, or other Crime, who shall flee from Justice, and be found in
another State, shall on Demand of the executive Authority of the State from
which he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.”
Definitions of Treason:
Tucker’s Blackstone Vol. 1 Appendix Note B [Section 3] 1803 – “If in a
limited government the public functionaries exceed the limits which the
constitution prescribes to their powers, every such act is an act of
usurpation in the government, and, as such, treason against the
sovereignty of the people.”
Bouvier’s Law Dictionary 1856- TREASON, crim. law. “This word imports a
betraying,
treachery, or breach of allegiance. 4 Bl. Com. 75.”
Black’s Law 6th Edition – “A breach of allegiance to one’s government,
usually committed
through levying of war against such government or by giving aid or
comfort to the enemy.”
(Note: The word, “usually” above is obviously used due to the fact that
the current interpretation being used in U.S. jurisprudence does not
coincide with traditional definitions, it excludes other specie of
treason such as “constructive treason”, traitorous conspiracies and
insurrections meant to alter the established law, or to render it ineffectual.
All of which are mentioned in the founding documents below.)
I. Research regarding Treason and treasonous acts.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 3 — Structure
and organization of the federal government]
I. The powers exclusively granted to the federal government.
Of these,
1. The legislative: or those vested in congress; that body being
empowered,
2. To borrow money on the credit of the United States.
1. To regulate commerce
1. With foreign nations;
2. Among the several states; and
3. With the Indian tribes. The commerce between the individuals of the
same state, being reserved to the state governments.
3. To coin money, regulate the value thereof, and the value of foreign
coin.
4. To fix the standard of weights and measures. These last powers seem
to be a necessary
appendage to that of regulating commerce.
5. To provide for the punishment of counterfeiting the securities and
current coin of the
United States.
6. To constitute tribunals, under the federal government, inferior to
the supreme court
7. To define and punish,
1. Piracies;
2. Felonies on the high seas;
3. Offences against the law of nations.
8. And to declare the punishment of treason against the United States.
9. To declare war; grant letters of marque and reprisal; and make rules
concerning
captures on land and water.
10. To provide and maintain a navy, [in time of peace.]
11. To make rules for the regulation and government of the land and
naval forces.
12. To raise and support armies, [in time of peace.]
In America the Senate are not a distinct order of individuals, but the
second branch of the national legislature, taken collectively. They
have no privileges, but such as are common to the members of the house of
representatives, and of the several state legislatures: We have seen
that these privileges extend only to an exemption from personal arrests,
in certain cases, and that it is utterly lost, in cases of treason,
felony, or breach of the peace.
Commentaries on American Law – James Kent Vol 1. LECTURE XII. [OF
JUDICIAL
CONSTRUCTIONS OF THE POWERS OF CONGRESS.]
The majority do not go further into the expediency of the measure than
to show that it was not
improper under the circumstances, but devote themselves more to showing
that it was not
inconsistent with the spirit of the Constitution and to overthrowing
the argument stated above.
Mr. Justice Strong suggests, as an answer, that the grant of power to
punish counterfeiting,
treason, &c., has been held not to exclude an implied power to make
other offences
punishable (citing United States v. Marigold, 9 How. 560). See also
United States v. Dewitt, 9
Wall. 41, 44, post, 439, n. 1.
Tucker’s Blackstone Volume 1 — Appendix Note B [Section 3 — Of the
several forms of
government]
If the constitution be founded upon the previous act of the people (the
creation of the U.S.
Constitution), the government is limited. If it have any other
foundation, it is merely constructive, and the government arrogates to itself
the sole right of making such a construction of it, as may suit with its
own views, designs, and interests: and when this right can be
successfully exercised, the government becomes absolute and despotic. In like
manner, if in a
limited government the public functionaries exceed the limits which the
constitution
prescribes to their powers, every such act is an act of usurpation in
the government, and, as
such, treason against the sovereignty of the people, which is thus
endeavored to be
subverted, and transferred to the usurpers .
Inseparably connected with this distinction between limited and
unlimited governments, is the
responsibility of the public functionaries, and the want of such
responsibility. Every delegated
authority implies a trust; responsibility follows as the shadow does
its substance. But where there is no responsibility, authority is no
longer a trust, but an act of usurpation. And every
act of usurpation is either an act of treason, or an act of warfare.
In case of treason … the power of pardon is taken away from the
governor by the act of 1794, c.
168, [66] nor can the executive now remit any fine or amercement
assessed by a jury, or imposed
by any court of record, court martial, or other power or authority
authorized to assess or impose
the same. [67]
If he (the executive) concurs in an unconstitutional act, he is guilty
of usurpation, and contempt of the sovereign authority, which has
forbidden him to pass the bounds prescribed by the constitution. He has
violated his oath, and the most sacred of all duties. To omit him at the
next election is not an adequate punishment for such a crime. Abuse of
power is despotism, and the democracy that does not guard against it, is
defective. If in any department of government, a man may abuse, or
exceed his powers, without fear of punishment, the right of one man is at
the mercy of another, and freedom in such a government, has no
existence.
It is indispensably necessary to the very existence of this species of
democracy, that there be a perfect equality of rights among the
citizens: the unqualified use of the term equality has furnished the enemies
of democracy with a pretext to charge it with the most destructive
principles. By equality, in a democracy, is to be understood, equality of
civil rights, and not of condition. Equality of rights necessarily
produces inequality of possessions; because, by the laws of nature and of
equality, every man has a right to use his faculties, in an honest way,
and the fruits of his labour, thus acquired, are his own. But, some men
have more strength than others; some more health; some more industry;
and some more skill and ingenuity, than others; and according to these,
and other circumstances the products of their labour must be various,
and their property must become unequal. The rights of property must be
sacred, and must be protected; otherwise there could be no exertion of
either
ingenuity or industry, and consequently nothing but extreme poverty,
misery, and brutal ignorance.
In this species of democracy, it is further indispensably necessary to
its preservation, that the constitution be fixed, that the duties of
the public functionaries be defined, and limited, both as to their
objects, and their duration; and that they should be at all times responsible
to the people for their conduct. The constitution, being the act of the
people, and the compact, according to which they have agreed with each
other, that the government which they have established shall be
administered, is a law to the government, and a sacred reverence, for it is an
indispensable requisite in the character and conduct of every public
agent. A profound obedience to the laws, and due submission to the
magistrate entrusted with their execution, is equally indispensable on the
part of every citizen of the commonwealth, in order to preserve the
principles of this government from corruption. Neglect of the principles of
the constitution by the public functionary is a substitution of
aristocracy, for a representative democracy: such a person no longer
regards himself as the trustee, and agent of the people, but as a ruler
whose authority is independent of the people, to whom he holds himself
in no manner accountable; and he so degenerates into an usurper and a
tyrant.
Thus while a democracy may be pronounced to be the only legitimate
government, and that form of government, alone, which is compatible with
the freedom of the nation, and the happiness of the individual, we may
perceive that it is on every side surrounded by enemies, ready to sap the
foundation, convulse the frame, and totally destroy the fabric. In such
a government a sacred veneration for the principles of the
constitution, a perfect obedience to the laws, an unremitting vigilance on the part
of the people over the conduct of their agents, and the strictest
attention to the morals and principles of such as they elect into every
office, legislative, executive, or judiciary, seem indispensably necessary
to constitute, and to preserve a sufficient barrier against its
numerous foes.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 10 — Powers of
Congress (cont.)]
13. Congress have power to declare the punishment of treason, against
the United States; but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person attainted.
C. U. S. Art. 3. Sec. 3. The act of 1 Cong. 2 Sess. c. 9. accordingly
declares, that the punishment shall be death, by hanging; and that no
conviction or judgment for treason, shall work any forfeiture of estate.
The constitution. itself declares, that treason against the United
States shall consist only in levying war against them, or in adhering to
their enemies, giving them aid and comfort: and that no person shall be
convicted of treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open court.
The precise definition of treason, and the limitation of it to two
cases, only, both of which are clearly and explicitly described, at once
evince the prudence, caution, and wisdom, of the framers of the
constitution, by shutting the door (as far as human prudence, and human
foresight, could provide the means of doing so), against all possible cases of
constructive treason.
The abolition of forfeiture, and of the corruption of blood, in cases
of treason, is moreover a
happy expedient for lessening the incentives, to prosecutions for
treason, in corrupt governments.
Tucker’s Blackstone Volume 1 — Appendix Note D [Section 15 - Executive
Powers (cont.)]
31. The privileges both of the federal and state legislature, so far at
least as respects the members, appear to be few and definite. "They
shall, in all cases, except treason, felony, and breach of the peace, be
privileged from arrest during their attendance at the session of their
respective houses, and in going to, and returning from the same: and for
any speech, or debate in either house, they shall not be questioned in
any other place. C. U. S. Art. 1. §. 6. V. L. 1705, c.
1. §. 13. Edi. 1769 .... 1785, c. 55. Edi. 1794, c. 17. 1798,c. 11.
The president of the United States may be removed from office on
impeachment for, and conviction of treason, bribery, or other high crimes and
misdemeanors: and the chief justice of the United States shall preside
at his trial. C. U. S. Art. 2, Sec. 4. Art. 1, Sec. 3.
Tucker’s Blackstone Volume II Chapter 2 Section 1
12. It is otherwise in the United States; the president is the chief
magistrate, but he is not the sole magistrate of the nation. He may
nominate, but he cannot make a permanent appointment, to office (except in
some particular instances) without the concurrence of the senate. Many
of those who are nominated and commissioned are not responsible to him,
or removeable by him; but are responsible only to the people, and to
the law, and removeable only upon impeachment by their representatives,
and upon conviction of treason, bribery, or other high crimes and
misdemeanors.
C. U. S. Art. 2, 3.
United States v. Burr
25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807
Marshall, Chief Justice, delivered the opinion of the court as follows
(regarding what constituted
treason under the U.S. Constitution):
But the term is not for the first time applied to treason by the
constitution of the United States. It
is a technical term. It is used in a very old statute of that country
whose language is our language, and whose laws form the substratum of
our laws. It is scarcely conceivable that the term was not employed by
the framers of our constitution in the sense which had been affixed to it
by those from whom we borrowed it. So far as the meaning of any terms,
particularly terms of art, is completely ascertained, those by whom
they are employed must be considered as employing them in that ascertained
meaning, unless the contrary be proved by the context. It is,
therefore, reasonable to suppose, unless it be incompatible with other
expressions of the constitution, that the term … is used in that instrument in
the same sense in which it was understood in England, and in this
country, to have been used in the statute of the 25th of Edw. III. from which
it was borrowed.
It is said that this meaning is to be collected only from adjudged
cases. But this position cannot be conceded to the extent in which it is
laid down. The superior authority of adjudged cases will never be
controverted. But those celebrated elementary writers who have stated the
principles of the law, whose statements have received the common
approbation of legal men, are not to be disregarded. Principles laid down by such
writers as Coke, Hale, Foster, and Blackstone, are not lightly to be
rejected.
It is not deemed necessary to trace the doctrine, that in treason all
are principals, to its source. Its origin is most probably stated
correctly by Judge Tucker in a work, the merit of which is with pleasure
acknowledged. (regarding whether it was necessary for someone to have
weapons or implements of war to constitute treason) …If the party be in a
condition to execute the purposed treason without the usual implements of
war, I can perceive no reason for requiring those implements in order
to constitute the crime.
United States v. Hoxie
26 Fed. Cas. 397, no. 15,407 C.C.D.Vt. 1808
Treason, not only holds a conspicuous, and generally the first place in
every catalogue of crimes, but is almost universally punished with
death. Government is so high a blessing, and its preservation and support
are so essential to the welfare of every member of the body politic,
that to attempt its subversion, has ever been regarded a most aggravated
offence.
James Wilson, Of Crimes Immediately against the Community, Lectures on
Law
1791 Works 2:663--69.Treason is unquestionably a crime most dangerous
to the society, and most repugnant to the first principles of the social
compact. … the famous statute of treasons was made in the reign of
Edward the third, on the application of the lords and commons. This statute
has been in England, except during times remarkably tyrannical or
turbulent, the governing rule with regard to treasons ever since. Like a
rock, strong by nature, and fortified, as successive occasions required,
by the able and the honest assistance of art, it has been impregnable by
all the rude and boisterous assaults, which have been made upon it, at
different quarters, by ministers and by judges; and as an object of
national security, as well as of national pride, it may well be styled the
legal Gibraltar of England.
The great and the good Lord Hale observes upon this clause, "the great
wisdom and care of the parliament, to keep judges within the bounds and
express limits of this statute, and not to suffer them to run out, upon
their own opinions, into constructive treasons, though in cases which
seem to have a parity of reason"--cases of like treason--"but reserves
them to the decision of parliament. This," he justly says, "is a great
security as well as direction to judges; and a great safeguard even to
this sacred act itself."
It is so. And it was all the safeguard which the parliament, by the
constitution, as it is called, of
England, could give. It was a safeguard from the arbitrary
constructions of courts: it was a shelter
from judicial storms: but it was no security against legislative
tempests.
In this manner, the citizens of the Union are secured effectually from
even legislative
tyranny: and in this instance, as in many others, the happiest and most
approved example of other times has not only been imitated, but
excelled. This single sentence comprehends our whole [law] of national
treason; and, as I mentioned before, is transcribed from a part of the statute
of Edward the third.
"Treason consists in levying war against the United States." In order
to understand this proposition accurately and in all its parts, it may
be necessary to give a full and precise answer to all the following
questions.
What is meant by the expression "levying war?"
By whom may the war be levied?
Against whom must it be levied?
I begin with the second--by whom may the war spoken of be levied? It is
such a war as constitutes treason. The answer then is this: the war
must be levied by those who, while they levy it, are at the same time
guilty of treason. This throws us back necessarily upon another question--
who may commit treason against the United States? To this the answer
is--those who owe obedience to their authority. But still another
question rises before us--who are they that owe obedience to that authority? I
answer--those who receive protection from it.
In the United States, the authority of the nation is the sole object on
one side. An object strictly corresponding to that, should be the only
one required on the other side. The object strictly corresponding to
authority is, obedience to that authority. I speak, therefore, with
propriety and accuracy unexceptional, when I say, that those who owe
obedience to the authority, are such as receive the protection, of the United
States.
I now proceed to another question--what is meant by the expression
"levying war?" From what has been said in answer to the former question, an
answer to this is so far prepared as to inform us, that the term war
cannot, in this place, mean such a one as is carried on between
independent powers. The parties on one side are those who owe obedience. All the
curious and extensive learning, therefore, concerning the laws of war
as carried on between separate nations, must be thrown out of this
question. This is such a war as is levied by those who owe obedience - by
citizens; and therefore must be such a war, as, in the nature of things,
citizens can levy.
But this question will receive a farther illustration from the answer
to the third question; because the fact of levying war is often evinced
more clearly from the purpose for which, than from the manner in which,
the parties assemble. I therefore proceed to examine the last
question—against whom must the war be levied? It must be levied against the
United States.
Insurrections in order to … alter the established law, or to render it
ineffectual-- insurrections to accomplish these ends, by numbers and an
open and armed force, are a levying of war against the United States.
In England, the punishment of treason is terrible indeed. The criminal
is drawn to the gallows, and is not suffered to walk or be carried;
though usually a hurdle is allowed to preserve him from the torment of
being dragged on the ground. He is hanged by the neck, and is then cut
down alive. His entrails are taken out and burned, while he is yet alive.
His head is cut off. His body is divided into four parts. His head and
quarters are at the disposal of the king.
Joseph Story, Commentaries on the Constitution 3:§§ 1292, 1294--96,
1791--94, 1796 -
1833
§ 1792. Nor have republics been exempt from violence and tyranny of a
similar character. The
Federalist has justly remarked, that newfangled, and artificial
treasons have been the great engines, by which violent factions, the natural
offspring of free governments, have usually wreaked their alternate
malignity on each other.
§ 1793. It was under the influence of these admonitions furnished by
history and human
experience, that the convention deemed it necessary to interpose an
impassable barrier against arbitrary constructions, either by the courts,
or by congress, upon the crime of treason.
II. Research regarding the Oath to preserve, protect and defend the
Constitution of the United States
Tucker’s Blackstone Volume II Chapter 2 Section 2 (Precedent to Oath)
2. By the act of May, 1777, c. 3, all free male inhabitants of the
state, above sixteen years, were
required to give assurance of allegiance to the state; which consisted
in taking the following oath
.... I do swear [or affirm], that I renounce and refuse all allegiance
to George the third, king of
Great Britain, his heirs and successors, and that I will be faithful
and bear true allegiance to the commonwealth of Virginia, as a free and
independent state, and that I will not at any time do, or cause to be
done any matter or thing that will be prejudicial to the freedom and
independence thereof as declared by congress; and also that I will discover
and make known to some one justice of the peace for the said state, all
treasons, or traitorous conspiracies which I now or hereafter shall
know to be formed against this or any of the United States of America."
This oath was to be tendered by the justices of the peace to all persons
required to take it, and all such as refused were to be disarmed. But
this act seems to have been merely temporary. The title only is
retained. Edi. 1785, p. 50.
From Jefferson's Opinion on the Constitutionality of a National Bank,
1791 “…I consider the foundation of the Constitution as laid on this
ground: That ‘all powers not delegated to the United States, by the
Constitution, nor prohibited by it to the States, are reserved to the States
or to the people.’ [10th amendment.] To take a single step beyond the
boundaries thus specially drawn around the powers of Congress, is to
take possession of a boundless field of power, no longer susceptible of
any definition.”
Tucker’s Blackstone Volume I Chapter 10 Section 2 (Regarding the Oath)
The members of the several state legislatures, and all executive and
judicial officers, both of the
United States and of the several states, and all members of congress
shall be bound by oath or affirmation to support the constitution of the
United States. C. U. S. Art. 6, which oath must be taken by all
persons, chosen or appointed after the first day of August, 1789, before they
proceed to execute the duties of their office. L. U. S. 1 Cong. 1 Sess.
c. I.
The formal profession, therefore, or oath of subjection, is nothing
more than a declaration in words of what was before implied in law. Which
occasions sir Edward Coke very justly to observe, that "all subjects
are equally bounden to their allegiance, as if they had taken the oath;
because it is written by the finger of the law in their hearts, and the
taking of the corporal oath is but an outward declaration of the same."
The sanction of an oath, it is true, in case of violation of duty,
makes the guilt still more accumulated, by superadding perjury to treason:
but it does not increase the civil obligation to loyalty; it only
strengthens the social tie by uniting it with that of religion.
Tucker’s Blackstone Volume I Chapter 1 (As the Oath applies to the
judiciary…)
But here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to be
determined? The answer is, by the judges in the several courts of
justice. They are the depositaries of the laws; the living oracles, who must
decide in all cases of doubt, and who are bound by an oath to decide
according to the law of the land (the U.S. Constitution).
Now this is a positive law, fixed and established by custom, which
custom is evidenced by judicial decisions; and therefore can never be
departed from by any modern judge without a breach of his oath and the law.
For herein there is nothing repugnant to natural justice; [19]…
Tucker’s Blackstone Vol I – Appendix A
“This constitution” is “the supreme law of the land.” This supreme law
“all judicial officers of the United States are bound, by oath or
affirmation, to support.”
[91] 20. “… in America, the Constitutions, both of the individual
States, and of the federal
Government, being the acts of the people, and not of the Government,
and the powers of
Government being by those Constitutions, respectively, distributed into
three distinct, and coordinate, branches; viz: the legislature, the
executive, and the judiciary; all which are equally bound by Duty to their
Constituents, the people; and by Oath, also, to support the
Constitution; it follows, as has been already shewn [Appendix, Note A.] that the
legislature can possess, no power, or obligation over the other Branches
of Government, in any case, where the principles of the Constitution,
may be in any degree infringed by an acquiescence under the authority of
the legislative department. The examples supposed, and the authority
cited in that note, sufficiently evince the Justice of the position here
contended for; and will warrant us in extending the rule here laid down
by the learned commentator, by adding thereto, That all acts of the
Congress of the United States, impairing, infringing or violating the
principles of the federal Constitution; and all acts of the legislature of
this Commonwealth, which violate, infringe or impair the same, or any
law of the United States made pursuant to the powers granted to the
Congress by the federal Constitution, or any Treaty made under the
authority of the United States, or the Bill of
Rights, and Constitution of this Commonwealth, are not binding upon any
other branch of the federal or State-government: and any Citizen of the
Commonwealth, who may be aggrieved by any such unconstitutional Act,
hath an undoubted right to redress, by application to the judicial Courts
of the State, or of the United States according to the nature of the
case. "The constitution and its laws," as Vattel justly observes, "are
the basis of the public tranquility, the firmest support of the public
authority, and pledge of the liberty of the citizens. But this
Constitution is a vain phantom, and the best Laws are useless, if they
are not religiously observed. The nation ought then to watch very
attentively, in order to render them equally
respected by those who govern, and by the people destined to obey. To
attack the Constitution
of the State, and to violate its laws is a capital crime against the
society, and if those guilty
of it are invested with authority, they add to this crime a perfidious
abuse of the power with
which they are entrusted. The nation ought constantly to suppress these
abuses, with its utmost
vigor, and vigilance, as the importance of the case requires. It is
very uncommon to see the Laws
and Constitution of the State, openly and boldly opposed; it is against
silent and slow attacks
that a nation ought to be particularly on its guard.'' Vattel's Law of
nations B: 1. 3. act: 30.
See also, the Federalist; vol: 2, no: 78.
Tucker’s Blackstone Commentaries 1:App. 151--53, 378--79, 412--13,
416--17, 418--26, 428--33; 5:App. 3--10
The people are not only not bound by them, but the several departments
and officers of the governments, both federal, and state, are bound by
oath to oppose them; for, being bound by oath to support the
constitution, they must violate that oath, whenever they give their sanction, by
obedience, or otherwise, to any unconstitutional act of any department
of the
government.
1 Hayw. 28 N.C. 1794
The judges of the land are a branch of the government, and are to
administer the constitutional
laws, not such as are repugnant to the Constitution. It is their duty
to resist an unconstitutional act. In fact, such an act made by the
General Assembly, who are deputed only to make laws in conformity to the
Constitution, and within the limits it prescribes, is not any law at all.
Whenever the Assembly exceeds the limits of the Constitution, they act
without authority, and then their acts are no more binding than the
acts of any other assembled body.
But what end is an equivalent for a precedent so dangerous as that
where the Constitution is disregarded by the Legislature, and that
disregard sanctioned by the judiciary? Where, then, is the safety of the
people, or the freedom which the Constitution meant to secure?
One precedent begets another, one breach will quickly be succeeded by
another, and thus the giving way in the first instance to what seems to
be a case of public convenience in fact prepares the way for the total
overthrow of the Constitution--the surest palladium of our rights… “No
man is to be deprived of his property or rights, but according to the
law of the land, or the common law.”
I would like to suggest the following possibility of a solution for
comment:
I would suggest that, in order to correct the problem in a manner that
would be amenable to the general populace and Congress, there would
need to be two separate amendments to the Constitution and an Act passed
as follows:
1. Amend the Constitutional Article 3, Section 3 currently:
“Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony of
two Witnesses to the same overt Act, or on Confession in open Court.”
Amended to:
“Treason against the United States, shall consist in levying War
against them, or in adhering to their Enemies, giving them Aid and Comfort,
committing constructive treason, involvement in traitorous conspiracies
or insurrections, or performing acts meant to alter the Supreme Law,
or, through either their actions to render the Supreme Law ineffectual.
No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.”
Note: As current and past legislators could not be convicted of this
violation due to the “Ex Post Facto” clause, they would simply be forced
to adhere to the Constitution from the point of ratification forward.
Also, as Congress is already given the right to dictate punishment for
treason, it would not necessarily require capital punishment, as was
traditionally the case. The general public, who almost unanimously will
agree to adherence to the Constitution would favor its passage.
2. Amend the Constitutional Article 6, currently:
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding…”
Amended, adding the following declarative clause:
“All Amendments to this Constitution, and the Laws of the United
States, prior to their passage shall require proofs of Constitutional
Authority and that they violate no rights, either inalienable or those
enumerated in the Bill of Rights. These proofs must be performed by a Council
of Constitutionality in the House.”
Note: As “committees” are a standard procedure in the Congress, this
should not be an issue.
3. An Act should be created that would mandate to Congress that they
review all prior Acts and Resolutions passed by Congress for
Constitutionality and adding the required proofs of Constitutional Authority and
assuring that it violated no rights, either inalienable or those
enumerated in the Bill of Rights or, if the Act or Law will not pass these
requirements, to be declared null and void. This should be performed in a
reasonable timeframe of 5 years.
Add
257 U.S. 312 (1921) NO MAN IS ABOVE THE LAW
The real strengths of these Amendments and Act would be threefold:
1. It would enforce the Constitutionality of Acts as the founders
clearly intended from the point of ratification forward.
2. It would either correct or remove unconstitutional Acts, which could
easily be rationalized as “improper” or “misinterpretation” by earlier
legislators and leaving the current legislators free from political
suicide.
3. The members of the committee, being from multiple parties and now
obliged under the threat of treason to follow their oath, would
necessarily be more likely to follow a strict interpretation of the
Constitution.
Found in WethePeople Group & a very "nice" find indeed