Replies

OneWingedShark: "First off, Section V of the proposal means that this is not an ad hoc group, but rather sets forth the means by which a valid grand jury is to be instituted. Moreover, Section 4 obviously does not prohibit the members of a Grand Jury from facing justice as well as preventing the courts from meddling with the composition thereof. — As far as I can tell you wish that the grand jury is placed squarely in subordination to the judiciary."

Malarkey! Section V of your proposed Grand Jury amendment indicates that, "The local Sheriff of each county shall appoint the members of the federal Grand Jury for that county.." If somehow you imagine that the Sheriff appointing them makes this group not be any sort of "ad hoc" group, and one deliberately chosen for their beliefs, you're off your rocker! What you've provided license for is those angry mobs in Ferguson to be their own grand jury, provided they only can force someone of like-mind into the office of Sheriff. Then you further worsen an extremely bad idea by making the duration of that Grand Jury, appointed by a single person, be the duration of that Sheriff's own term in office -- creating nothing but a "King's Court". Nice job! We need more tiny fiefdoms; that will surely fix everything!

Perhaps some dolt told you that the Sheriff is the only law enforcement officer recognized by the Constitution, and from some mistakenly imagine that those Sheriffs are somehow mystically endowed with anf innate wisdom and regard for that Constitution. People need to get out more, and learn more, as this is quite obviously not the case. Furthermore, no rational individual would want BOTH the policing and then ALSO legal prosecution to be based on the same source - an individual Sheriff -- talk about a corrupt system, resulting in a Kangaroo Court mob rule. All we need then is to remove all sentencing guidelines and we can have the death penalty for parking violations outside the Sheriff's home!

I apologize for my lack of diplomacy in needing to state this so directly, but this idea is nothing short of galactically stupid.

(No people are not seated on a grand jury based on any sort of "Judiciary approval", and when actually hearing a case the prosecution and defence are each entitled to challenge the seating grand jury members.)

Your side comment section on the Grand Juries, already shows you do not understand grand juries, the legal system, common law, and the Magna Carta, all while fabricating your own history of this country. This is only part of why having an Article V convention right now is such an extremely bad idea, ignoring those who fully intend the overthrow of our form of government, not just doing so by unintended ignorance.

OneWingedShark: "Either a constitutional amendment alters the Constitution or it does not, if the former then to say The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. means that the Congress has that power regardless of what the previous state of the Constitution was, correct? Now, given that it says without apportionment this means that the power so referred is not bound by apportionment; and to say without regard to any census or enumeration means that it is without regard to census or enumeration."

My comment, which you quoted, was specifically addressing the Court's corrupt indication in Stanton vs Baltic Mining Company, that a tax to personal income had always been an indirect tax, thereby needing no 16th Amendment, which is untrue. I was NOT commenting about the 16th Amendment itself -- which makes this reference by you to that 16th Amendment entirely irrelevant.

OneWingedShark writes about the "incorporation" of Rights to be applicable to the States, "What you are doing is validating the textual transformation of the Constitution and applying it w/o an amendment. — i.e. the "magic" of a living constitution as 'enlivened' by judicial activism rather than actual amendment. *spit* "

Eh, no. Your own appalling ignorance of the constitutional principle, and this country's history, does not involve any sort of advocacy for a "living Constitution" on my part.

No, the recognition of Rights being applicable to the States involves no such "textual transformation of the Constitution", but rather only necessitates a valid understanding of that document. In FACT the Bill of Rights does not CREATE those rights, but only references them in regard to the construction of the federal government itself, which is the business of the Constitution! Even as indicated in the 9th Amendment itself, there are further rights not so enumerated by the Constitution. Those rights are equally applicable to the States themselves. You're still fundamentally clinging to the corrupt concept that Rights only apply to the federal government because rights are only referenced in the Constitution in their application to the federal government, which is a corrupt understanding, but is a total awesome idea of creating a brave new local despotism, and would fit nicely with your Sheriffs creating their own King's Court grand juries. Bottom line, the only thing being improperly applied to the Constitution is your own failed understanding thereof, and it needs no Amendment to that Bill of Rights to make observation of those Rights applicable to the States -- they already are.

If you would contend otherwise, then please DO show me any writing by the founders whatsoever wherein they indicate it's infinitely preferable to have our rights and property confiscated by the local States, rather than the federal government. Can you do so? No such writing exists, because your interpretation has no basis in rationality, particularly given that those rights are "unalienable".

OneWingedShark: "Or, to put it another way, not all of the preexisting rights are natural. The 7th amendment provides a jury trial for common law controversies exceeding $20 — is there some human property that makes $20 relevant? Is there some magic to a jury trial? (The primary advantage of the jury is, in fact, that they are distinct and separate from the judge and, as they decide the verdict, removing from them a large temptation towards corruption.) "

Had you followed my previous suggestion and read my comment regarding the 7th Amendment, in the fourth comment following that article, you would save yourself enormous hardship, and actually gain some real understanding.

The 7th Amendment provides for a grand jury under concerns initially stipulated to be "under common law". That reference to "common law" indicates that their is no applicable existing law to the consideration. In fact what the 7th Amendment does, under conditions without any existing applicable written law, is to porhibit the Court itself from dictating "what the law is", and instead leaves judgement up to the people. The 7th Amendment actually undermines common law, and common law practice, taking the dictate of the law from the Court itself.

The practice of Courts creating law, is actually what British "common law" is, rather than written laws created by a legislature. That common law is not something sacrosanct, is not a founding principle of this country, and is not the equivalent of our natural law rights. The 7th Amendment most certainly does not validate ad hoc so-called "common law" grand juries.

British“common law” got its name for the laws that were derived from the various decisions made by British circuit court judges, actually empowered to make the law themselves. Originally these judge-derived laws were all made locally. When these local judge-derived laws were recognized by a large number of those various circuit courts, those laws were recognized as being held in common across the land, and thereby given more weight than laws that only had local recognition. Over time these un-codified Court-decreed laws, commonly recognized across Britain, became recognized as the “common law”.

Contrary to your implied claim, nowhere does the 7th Amendment's reference to a Grand Jury involve them being entirely separate from the legal system. Grand Juries are in fact, and by necessity, for our very own security, tied to the legal system.

OneWingedShark: "Finally, incorporation is terrible because it elevates the courts above the Constitution. We've already seen that they elevate themselves above the law, so why not the supreme law? "

Again,"incorporation" is not terrible, because the States should already be obligated to recognize unalienable rights -- our whole country is founded on that principle. The only thing that "incoporation" of the 14th Amendment did was reverse the previous Supreme Court corruption that gross corruption most foul, that indicted the Bill of Rights did not apply to the States, and therefore those States are not obligated to recognized those Rights. The 14th Amendment's "incorporation" claim is only vile because it puts the government in the position of policing rights in the States, as well as picking and choosing what rights to recognize, and under what conditions, when those rights are specifically recognized to prohibit any government action whatsoever (inclusive of State government). The obligation of States to recognize rights has nothing whatsoever to do with elevating the Courts above the Constitution.

OneWingedShark: "First off, Section V of the proposal means that this is not an ad hoc group, but rather sets forth the means by which a valid grand jury is to be instituted. Moreover, Section 4 obviously does not prohibit the members of a Grand Jury from facing justice as well as preventing the courts from meddling with the composition thereof. — As far as I can tell you wish that the grand jury is placed squarely in subordination to the judiciary."
Malarkey! Section V of your proposed Grand Jury amendment indicates that, "The local Sheriff of each county shall appoint the members of the federal Grand Jury for that county.." If somehow you imagine that the Sheriff appointing them makes this group not be any sort of "ad hoc" group, and one deliberately chosen for their beliefs, you're off your rocker!

Oh, does this mean that the cabinet is ad hoc because the President makes the appointments? Ridiculous!

What you've provided license for is those angry mobs in Ferguson to be their own grand jury, provided they only can force someone of like-mind into the office of Sheriff.

First, the Sheriff is one of the biggest checks against contraconstitutional government there is, he can stop federal agents and send them packing. (Link)
Second, given that this moves the grand jury from the purview of the federal courts to that of local law-enforcement this makes cases against the federal government enter the realm of possibility again.
Third, I've not said anywhere that any of my ideas are without danger — but given that without changes those in power are disinclined to surrender that power [and likely will need to have it wrested away by force of arms] the dangers are minimal compared to rolling over and accepting the status quo even as it slides ever towards tyranny.

I apologize for my lack of diplomacy in needing to state this so directly, but this idea is nothing short of galactically stupid.

No, continuing to allow the federal government to reign in supremacy especially where the supremacy clause gives no legitimacy is galactically stupid. In order to change that, we need to unchain the institutions they have bound up and bind up the tyrannies that their usurpations have unbound.

Your side comment section on the Grand Juries, already shows you do not understand grand juries, the legal system, common law, and the Magna Carta, all while fabricating your own history of this country. This is only part of why having an Article V convention right now is such an extremely bad idea, ignoring those who fully intend the overthrow of our form of government, not just doing so by unintended ignorance.

Then enlighten me; all you've done so far is assert that I'm wrong.
I do not want an appeal to what we're doing now, I don't even want an appeal to what we've done for 50 or 100 years.
Show me where the Magna Carta and the history there is wrong.

No, the recognition of Rights being applicable to the States involves no such "textual transformation of the Constitution", but rather only necessitates a valid understanding of that document. In FACT the Bill of Rights does not CREATE those rights, but only references them in regard to the construction of the federal government itself, which is the business of the Constitution! Even as indicated in the 9th Amendment itself, there are further rights not so enumerated by the Constitution.

Nowhere did I assert that rights just come from the Bill of Rights.
In fact, your constant assertion that I do assert this, even implicitly, makes me question your intellectual honesty in this discussion.

I believe natural rights exist, and I believe that the Bill of Rights is a codification of the guarantee of recognition of those rights — but, again, not all of those rights mentioned therein are natural rights. A Jury-trial, for example, is not a natural right because it is not inherent in the nature of man — the right to have an opinion and make it known, that is a natural right... the right not to have the law's changes applied retroactively is a natural right, because man is not recognizance and adhering to the whole law today even should it change tomorrow is the best that man can do and man cannot [in general] see in the future what is legal today that might be illegal tomorrow.

But I have not been talking about natural rights, in general, though they do underlie many of the proposed changes:

No tax, fee, fine, or judgement —federal, State, or subdivision of either— shall ever be withheld from any wage. — acknowledges the right a worker has to his wage.
No property shall be seized for failure to pay taxes until after conviction in a jury trial; the right of the jury to nullify (and thereby forgive) this debt shall never be questioned or denied. — Reiterates what the 5th Amendment recognizes: that the stripping of property w/o conviction is unjust.
No income tax levied by the federal government, the several States, or any subdivision of either shall ever apply varying rates to those in its jurisdiction. and
No federal employee, representative, senator, judge, justice or agent shall ever be exempt from any tax, fine, or fee by virtue of their position. — reiterates the classical jurisprudence maxim that all are equal before the law.
Fiscal Responsibility Amendment — Limits what another can do in you name, preventing them from inbebting you to the point of slavery.
Commerce Clause Amendment — Sets limits on a power that has been taken wildly out of context. (Have you ever noticed that the interstate commerce lies betwixt foreign and domestic nations? This means that it is the same power over import/export.)

In fact, I find it interesting that you are so vehement against the Grand Jury amendment — are you perchance a judge or lawyer? &mdsah; and instead of being at all constructive in your criticism, you seek to tear down and quite frankly insult me and my work.