Sunday, February 7, 2016

A Real Constitutional Attorney Explains the Legality of the Oregon Standoff.


Tim Turner said...

Bunny, thanks for posting this.

The woman in your video makes some great points:

"Congress cannot pass laws to alter the Constitution outside the Article 5 amendment process."

"Marbury VS. Madison was a travesty of the letter and spirit of the Constitution." (I'm paraphrasing.) The Supreme Court was established to adjudicate between states as a last resort, NOT to create law, or find rights or rephrase the Constitution.

"The Constitution is the foundation of America."

BAM! Obama. *THAT* is what makes America exceptional, you jackass.

The Constitution - the rule of law - and the synthesis of Christian morality, Lockian individual rights and Smith's economic freedom of the individual are the standards, beliefs and goals of the United States of America. Those ideals had never been expressed as cogently and as definitively EVER in human history before that.

Unfortunately, leftists, statists and democrats will sneer at this woman's video. They don't believe that the Constitution sets out to delegate limited powers to government granted by a sovereign people. They think it's just another manifesto promulgated by oppressors - white or otherwise.

Within hours of the killing of Finicum, there were hundreds of commenting posts in Oregon and elsewhere suggesting that these whackos got what they deserved. Wikipedia makes reference to a "U.S. militia movement," although it's fairly clear that the most committed participants were acting on personal conviction, not out of loyalty to some "sect."

There is a fundamental divide in America now. In its simplest most brutal form it is belief in the sanctity of the individual or the necessity of the state.

Tim Turner said...

By the way, the Wikipedia article about Marbury vs. Madison is pretty one sided. It quotes real arguments made at the time for judicial review, but leaves out many arguments against it. Please read further.

But even the Wikipedia article concludes with:

"However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system:

" The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
— U.S. Constitution, Article III, Section 2, Clause 1"

There is NO mention in the Constitution of "judicial review." That is, there is no justification for the Supreme Court to find a "right of privacy" which deems abortion a federal "right." There is no Constitutional basis for the Supreme Court to change the written law of the Affordable Care Act into an unconstitutional "tax."

And of course, there is no Constitutional basis for Congress to relegate its statutory authority to EPA or any other body.

The fact that the federal government of the United States of America could "own" as much as 81% of a state's land (that land belonging to the people, a priori) and allow Fish and Game, the Bureau of Land Management and the Forestry Service to intimidate citizens is as ludicrous as it is Orwellian.

Tim Turner said...

Sorry, but one last thing!

We haven't talked too much about police over-reaction. (See Karl Denninger's Market Ticker forum for those discussions.)

But, vis-a-vis the Finicum shooting, one could say, "Well, you can't really know until you see the video." I mean, at least one "eyewitness" report contradicts the FBI's original story. (Granted, the teen-age woman to whom I'm referring was on the "other side" and admits she was huddled down in a truck and couldn't see anything.)

So. The FBI released a drone or helicopter video within 24 hours of the incident.

But how often have we heard authorities say they can't release information (including videos) while an investigation is pending? To put this in immediate perspective: Given that this was an FBI arranged meeting, an FBI setup of the road block and an FBI operation from day 2, isn't it reasonable to imagine that there must be SEVERAL FBI videos of the Finicum shooting?

I have conflicting thoughts about this. On the one hand, you have authorities saying, "We shouldn't release videos, because that might influence eye-witness reports or possible witnesses who might come forward."

On the other hand, you have people (whackos, honest citizens and the electorate) who have a RIGHT to see whatever their government is doing.

Anyway, even after the FBI aerial video was released, several hundred commenters said Finicum "got what he deserved," while dozens of others claimed the video was inconclusive because it appeared his hands were up in surrender until the FBI (or an Oregon policeman) shot first.

If the government released one video of the confrontation, shouldn't they release ALL videos?

I'm really up in the air about this. (Pardon the pun.) I can see why you wouldn't want to "pre-prejudice" a jury. But if our government is the servant of "we, the people" shouldn't it release the information it has to ensure that it is serving us rather than its own agenda?

Further, in these days when most people have camera phones, it's not as if video won't find its way to the internet anyway.

Finally - and this is my paranoia speaking - wouldn't IMMEDIATE release of any "official" videos forestall claims that the videos had been "photoshopped?"

Thomas Flinchum said...

One question keeps resurfacing in my mind as I listen to this young lady and others like her. How? How do they propose to stop the federal juggernaut and put the genie back in the bottle? The game is rigged, the deck is stacked, the dice are loaded. And not in favor of those good people who believe as this young lady does. And I count myself among them.

Col. B. Bunny said...

Tim, you've about touched all the bases. The rationale of the great experiment of 1789 is as plain as the nose on my face, and that's pretty plain. The intent was to limit federal power, limit pernicious democracy (an equally dangerous force), and keep the bulk of government activity as much within the reach of the electorate (at the state level) as possible. The FSA put up its recruiting posters relatively quickly and free stuff trumps principle every time. A sad, sad fact of human nature. The abandonment of statist excess will never come from a return to our principles and the worship of reason, as Marcus Aurelius would phrase it, but because we run out of other people's money, a la Thatcher.

I have not studied on the issue of judicial review by the Supreme Court. Though not mentioned in haec verba in the Constitution, it does specifically provide for the establishment of federal courts. Thus, I think for the Supreme Court to exercise plain-vanilla appellate functions such as some courts did in colonial times and after is not per se objectionable. The failure of the Framers and the Ratifiers to specify that federal courts are not to exercise appellate functions is pretty significant.

Marbury itself was a reasonable resolution of a minor point of constitutional law and the actual decision did not begin the process of constitutional evisceration. It's been 40 years or so since I read the decision but I don't recall that its dicta or extraneous language was a huge red flag that the Court was henceforth the sole arbiter or what the Constitution means. The basic scheme of the Framers and Ratifiers was that the three branches of the federal government had different institutional interests which they would protect from encroachment by any other branch AND that, like the states, they were free to make their own judgments on constitutionality lest there be a whiff of judicial overreach or tyranny. President Jackson is said to have declared re the Worcester case, "John Marshall has made his decision []; now let him enforce it!" If that's an apocryphal account, it nonetheless points the way to each branch and the states accepting only such decisions as they deemed to be honestly decided, which Marbury was.

To our great sorrow, political zealots appointed to the Court did not, a la Thomas a Becket, succumb to a principled objectivity where the Court as an institution was concerned. Nor did the three branches prove to be that jealous of their prerogatives so that now we see the operative principle at work in the federal government is mutual support. E.g., NFIB v. Sebelius, a monument to expediency and hypocrisy if ever there was one.

Pro Libertate is probably the first place to go for decent analysis of police conduct. The video of the shooting of Finicum is absolutely damning and you're right that there are probably others, not to mention recordings of the transmissions on the tactical net, which I assume includes agent-to-agent communications. The whole idea of a "legal stop" stinks which assertion is buttressed by the obvious evidence of preparation on the part of the officers. It doesn't seem likely that it was a legit traffic stop and it resembles more of an execution than a response to a clear threat from Finicum. Working hypothesis. Shades of Vicki Weaver and the photo of her outside her house after her son was killed by federal Marshals. Horiuchi murdered her and the man in overall charge of the operation with the "shoot-to-kill" ROE was promoted to deputy director of the FBI IIRC. Vicki was a threat to NO . . . ONE.

Col. B. Bunny said...

Mr. Flinchum, I do not know the answer to that question. Listening to the blather from the the vast majority of Republican candidates over the years, I recall few who cared to speak of the growth of the federal Leviathan. Ryan, the great Fiscal Understander, sold out the country with his support of the last spending bill monstrosity. Citizens themselves show little interest in simple principles of constitutional law and the millennials are all slobbering over a man with communist sympathies, if not roots.

I fear it is Solzhenitsyn's "pitiless crowbar of events" that will smash the current diseased structure. The elites have disenfranchised and neutered popular opposition -- though God bless Trump if he can show otherwise -- but even they can't stave off the inevitable consequences of financial, political and social scheming by moving money around from one bank to another. "Too clever by half" is writ large over everything you see now in the public sphere.