The power of III

Summum ius summa iniuria--More law, less justice

24 December 2010

Jury Nullification? How about Jury Pool nullification?

The citizens in Missoula Montana staged a mini revolt against the prosecutor, and the court dropped a case because they couldn't seat an entire jury:


A funny thing happened on the way to a trial in Missoula County District Court last week.
Jurors – well, potential jurors – staged a revolt.
They took the law into their own hands, as it were, and made it clear they weren’t about to convict anybody for having a couple of buds of marijuana. Never mind that the defendant in question also faced a felony charge of criminal distribution of dangerous drugs.
The tiny amount of marijuana police found while searching Touray Cornell’s home on April 23 became a huge issue for some members of the jury panel.
No, they said, one after the other. No way would they convict somebody for having a 16th of an ounce.
In fact, one juror wondered why the county was wasting time and money prosecuting the case at all, said a flummoxed Deputy Missoula County Attorney Andrew Paul.
District Judge Dusty Deschamps took a quick poll as to who might agree. Of the 27 potential jurors before him, maybe five raised their hands. A couple of others had already been excused because of their philosophical objections.
“I thought, ‘Geez, I don’t know if we can seat a jury,’ ” said Deschamps, who called a recess.
And he didn’t.
During the recess, Paul and defense attorney Martin Elison worked out a plea agreement. That was on Thursday.
On Friday, Cornell entered an Alford plea, in which he didn’t admit guilt. He briefly held his infant daughter in his manacled hands, and walked smiling out of the courtroom.
“Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances,” according to the plea memorandum filed by his attorney.
“A mutiny,” said Paul.
“Bizarre,” the defense attorney called it.
In his nearly 30 years as a prosecutor and judge, Deschamps said he’s never seen anything like it.

The rest of the article, including more information about the defendant than the jury was aware, is here.
Now, you can look at this two ways.  It turns out the defendant is a dirtbag with multiple convictions and issues, and should be "out of circulation."  But the legal system has become very selective about what information reaches the juror's ears.  It wasn't always like that.  In this case, the jury pool acted on what it knew about the defendant, which was minimal.
Based on this minimal information, they rebelled, deciding that justice was not being pursued, and announced their refusal to consider a conviction in such a case.
Why is this a good thing?  In the era of the founders, since the people were sovereign, and the judges were servants of the people, juries would hear all evidence and legal argument, and judge not just guilt or innocence, or that a case was proven or not proven, but whether or not the law itself was just.
A wikipedia article on jury nullification states:

Standard jury trial practice in the USA during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that "The defense can argue law to the jury before the court gives instructions."[18] Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in limine, to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury.

The power of the judiciary today is much more powerful than 200 years ago.  Moreover, the citizens are much more passive.  They trust the judges.  They doubt themselves.  This must end.  I hope and believe that the citizenry will feel more empowered by the success of the Tea Party, and the continual spread of information through the free internet.  Montana is known for it's libertarian streak.  This should act as an example to other individuals.

Reassertion of the power of jury nullification is reassertion of one of the rights that would be covered by the Ninth Amendment to the Bill of Rights.
"A person who doubts himself is like a man who would enlist in the ranks of his enemies and bear arms against himself."

23 December 2010

TSA security is a facade without substance

It is either about more government control, lulling the public by the perception that something is being done on their behalf, or more government control.  Probably more government control...

In the news story below, a pilot films the lax security for the airport crews and employees.  Security seems to be tight to the traveller, but behind the scenes it is a joke. 

What would/could a determined enemy do?  Whatever they want, apparently. 

But al Qaida or other enemy of the United States can get the US goverment to spend millions reacting to shadows now-- just by internet chatter.  They dont need to attack anything...they "live rent free in the heads" of the administration.  (to use an expression from Sipsey Street)

Meanwhile, our personal freedom continues to erode, and the federal government grows at our expense...

22 December 2010

Traveling today

I left a love note for the TSA in my checked bag that says:

My desire to travel freely in my own country does not
Imply consent to search my belongings,
Despite unconstitutional laws which may give you the power to do so.

Since I cannot do anything otherwise, I write this reminder to whomever may read it if/when my bag is opened when I am not present.

If you swore an oath to uphold the Constitution, you should read what the Constitution says, and understand the clear meaning and intent of the words.

On a second page is the following:

Ninth Amendment

The enumeration in the Constitution,
Of certain rights,
Shall not be construed to deny or disparage others retained by the People.

Fourth Amendment

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

Lets see if I get in trouble for reminding them of their oath.  Let you know.

Executive Order, instrument of tyranny

We already know that the President can order the extrajudicial killing of American citizens.

How would you like indefinite imprisonment for certain classifications or prisoners.

Give the Feds an inch (by passive acceptance of emergency powers during a crisis--like what we did with the Patriot Act) and they will take a mile. A precedent has been set, and the power is never, ever relinquished, only expanded. We're screwed.

With the stroke of a pen, the president can "legally" kill a citizen deemed an enemy. keep you safe, you know...

How long before they declare original intent constitutionalists as enemies and apply these principles to us? 

Totalitarian shifts occur in dribs and drabs, just like this.  Do you doubt it?

Clear Brian aitken

How about a pardon and an apology to Brian aitken for violation of his 2nd amendment rights?

If I am not mistaken, he now has a record as a convicted felon, as his sentence was commuted, but his conviction has not been expunged?

Let's hear some indignity in the Constitutionalist/IIIper/2A/RKBA crowds out there!

Governor Christie seems like a good guy, he needs some motivation. We need a new action day to make calls to his office.

Quote of the Day 12/22

Wishful thinking I guess, but this was part of the Southern perspective on Secession at the time:

The New Orleans Bee, January 10, 1861, said:

"Among the advocates of secession it is safe to say there are many thousands who believe that the decided position assumed by the South is the only practicable means left of bringing the free States to a recognition of our rights and of their constitutional obligations. It is thought that when once the act of separation will have been consummated by a large segment of the South, the North will be thoroughly convinced of its past errors; that an overpowering popular reaction will occur; that Black Republicanism will be overthrown, and that the people of the free States will, with one accord, invite the South to reconstruct the Union upon a satisfactory basis of immutable constitutional guarantee."

21 December 2010

Chris Christie frees Brian Aitken

Text of Commutation of Sentence:

NOW, THEREFORE, I, CHRIS CHRISTIE, Governor of the State of New Jersey by virtue of the authority conferred upon me by the Constitution of New Jersey and the statutes of this State, do hereby grant to the said Brian D. Aitken, a commutation of the aforesaid sentence to time served, and satisfied on December 20,2010.
IT IS FURTHER ORDERED, that Brian D. Aitken's release from the custody of the New Jersey Department of Corrections be effected as soon as administratively possible, or within a reasonable period to allow for release processing pursuant to customary policy and procedure.

(insert rebel yell here)...;-)

Ayn Rand on Liberty vs. Socialism

Quote of the Day 12/21

"The difference between treason and patriotism is only a matter of dates."
— Alexandre Dumas (The Count of Monte Cristo)

Original Intent: Do the States or the Federal Government have ultimate authority?

In a book entitled A Brief Enquiry into the Nature of the Federal Government, written in 1840, Abel P. Upshur, a lawyer, judge, Virginia state politician, (who would become the 15th Secretary of State under Tyler, be one of the primary movers in bringing Texas into the Union, and 13th Secretary of the Navy), refutes the National Theory of the nature of the Federal government, as expounded by Daniel Webster and Joseph Story, who claimed that the Federal government was created as a national entity by a unified single people, not as an agent for the States and the people.

(Boldface statements below reflect my comments on the preceding sentence(s)):


The Federal Government is the creature of the States.

Creature = Creation...Thirteen independent Sovereign states, through State Ratifying conventions, each independently voted to create the Federal government with the Constitution.  Historical fact.  There was no national referendum.

It is not a party to the Constitution, but the result of it the creation of that agreement which was made by the States as parties.

Each of the ratifying States was a party to a contract/compact/agreement that we call the Constitution.  The States and the people existed before the Federal government.  The Federal government was not a party to its own creation.

It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution.

The thirteen original States made a new thing, the Federal government, to act as their agent, and delegated to it very specific tasks/powers.  Specifically, the numbered, listed, limited powers of Article I Section 8 of the Constitution.

Shall the agent be permitted to judge the extent of its own powers, without reference to his constituent?

That is:  Can the Federal government (logically) be the decider of just how much power it has?  No!  It could not be limited in its power.    Madison, Jefferson and others of their generation, federalists and anti-federalists, knew that each State had to independently decide if a law passed by Congress (i.e. Federal legislators), or decided at the level of the Supreme Court (i.e. Federal judiciary) or order at the Presidential/Cabinet level (i.e. Federal executive) conformed to the State's interpretation of the Constitution.  This was expounded in the Virginia and Kentucky Resolutions of 1798.  This concept was invoked by northern and southern states before and after the War for Southern Independence, and is a resurgent concept today.

A State was a party to the compact known as the Constitution;  the federal agency was not.  Each State was equal in legal stature to each other State.  No one state could decide whether a law was Constitutional for another State;  each retained it's Sovereignty by the Tenth Amendment.  The Federal Supremacy clause in the Constitution could only logically apply to Constitutional Laws related to the Enumerated Powers of Article I Section 8.  Any question of constitutionality was therefore decided by a State legislature or judiciary, not by the Federal government.

To a certain extent, he is compelled to do this, in the very act of exercising them, but always in subordination to the authority by whom his powers were conferred.

The Federal government has to make its laws within the confines of its delegated powers.  Only in this can the Federal government stay within it's delegated mandate from the States which created it.

If this were not so, the result would be, that the agent would possess every power which the agent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason.

If the Federal executive, judiciary, or legislature could decide what it's own limits were, what would you get?  A gigantic central power that continually grows in leaps and bounds outside its original intent.  

You get the monstrosity that we have today.  You have a government teetering on the brink of a totalitarian shift.  We are the frog put in the pot when the water was lukewarm, but now it is approaching a boiling point.  The people are starting to get uncomfortable...

 If such a rule would prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people.

Kinda like what we got now???

If then the Federal Government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay. It is said that this department may not only judge for itself, but for the other departments also.
This is an absurdity as pernicious as it is gross and palpable.

Isn't it though?  Judge Upshur saw our future from 1840!  Imagine that!  Why do you think the court historians that glorify Supreme Federal power bury this viewpoint?  It completely undermines the federal stance about the extent of its own powers.

If the [Federal] judiciary may determine the powers of the Federal Government, it may pronounce them either less or more than they really are.

Try more, and more, and more, until you get the most nonsensical garbage, like invoking the Interstate Commerce clause to control what a farmer grows on his own land for his own personal consumption (Wickard vs. Filburn), or forcing (call it mandating if you want) you to buy health insurance, or controlling what you eat, or controlling a private business like GM, or propping up a private bank that deserved to fail, all with your money.  

A = A.  Tyranny plain and simple.  Cruel unjust use of power.

Etymology of Tyranny:
tyranny Look up tyranny at
late 14c., "cruel or unjust use of power," from O.Fr. tyrannie (13c.), from L.L. tyrannia "tyranny," from Gk. tyrannia "rule of a tyrant," from tyrannos "master

20 December 2010

Stop Global Warming!

Welcome to England

Son of Union veterans defends secession and nullification

...while a Son of Confederate veterans condemns secession and tows the party line in the New York Times.

Charles Burris' Defense of Secession.

Shame on Edward Ball.  Focusing on the war being caused over the morality of slavery is a post war Marxist distortion (classist and racist analysis), and while individuals who fought for the Union may have felt that way, it was not the contemporary view.  His 12 ancestors who fought for the confederacy might take issue with him, if they were able.

University Prof calls UVA honors student a traitor after she calls US government a tyranny

Anti-Nullification Professor to Student: You’re a Traitor

The Intercollegiate Studies Institute recently held a very interesting debate at the University of Virginia on state nullification, between Allen Guelzo of Eastern University and Donald Livingston of Emory University.  You can watch it or listen to it.  Unfortunately, you won’t be able to see the question period, when things got very interesting.  A person in attendance wrote to tell me what happened:
Eventually a female student raised a question: the American colonists said they were defending the rights of Englishmen against usurpations of Parliament. She asked couldn’t it happen that the central government could become oppressive in the same way and that the States could step forth as the colonial governments had done to check the tyranny? Guelzo paused for a long time and asked whether she thought the central government was a tyranny. She rephrased the question. He persisted twice, and demanded that she answer. She did, and said she thought it was a tyranny. The audience clapped! After which a long silence. Guelzo said, after some other words, that she was a “traitor.” [Another person whose recollection was sent to me recalls that he said, before calling her a traitor, "There was a man not too long ago with a similar response and his name was Benedict Arnold."] One of her teachers, the Dean of Honors Students, jumped up to protest, and was physically restrained. A gentleman in the audience said, “Professor, that was a cheap shot.” Others protested. The moderator, a professor of international law, had to call for order.
This was a confirming instance of my darkest thoughts about nationalist ideologues. Guelzo was a Lincolnian Jacobin who would have had no problem leading war against civilians, including the honors student at UVA.'
 From today's blog at

Commemorate the South Carolina Ordinance of Secession

December 20, 1860.

Glenn Greenwald is starting to sound like Alex Jones

One of the hallmarks of an authoritarian government is its fixation on hiding everything it does behind a wall of secrecy while simultaneously monitoring, invading and collecting files on everything its citizenry does.  Based on the Francis Bacon aphorism that "knowledge is power," this is the extreme imbalance that renders the ruling class omnipotent and citizens powerless.
In The Washington Post today, Dana Priest and William Arkin continue their "Top Secret America" series by describing how America's vast and growing Surveillance State now encompasses state and local law enforcement agencies, collecting and storing always-growing amounts of information about even the most innocuous activities undertaken by citizens suspected of no wrongdoing.

Read the rest here.  

The Left and the Right are waking up to the fact that we are experiencing a transition into a totalitarian government.

Iceland recovery supports Austrian School Economic Theory

The government did not bail out it's failing banks.  The recovery was painful but relatively quick.  The people of Iceland did not bear the brunt of the debts incurred by private institutions, as the Keynesians and Socialists have insisted upon in Europe and the United States.

Here is Daniel Hannan, blogging in The Telegraph.

Imprudent granting of credit is bound to prove just as ruinous to a bank as to any other merchant.

Ludwig von Mises.

Tool kit of resistance


The Tenth Amendment Center’s numerous national, state and local web sites have written voluminously about the principles of ’98, when the Kentucky and Virginia Resolutions laid down a framework for nullification and interposition by the states. Additionally, we have often referenced Thomas Woods’ Nullification: How to Resist Federal Tyranny in the 21st Century. Barrels upon barrels of physical and virtual ink have been spent justifying the idea that was, once upon a time, common knowledge. Augustine of Hippo said,

an unjust law is no law at all”.

And John Locke said,

“”Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience

Quote of the Day 12/20

V: Good evening, London. Allow me first to apologize for this interruption. I do, like many of you, appreciate the comforts of the everyday routine, the security of the familiar, the tranquility of repetition. I enjoy them as much as any bloke. But in the spirit of commemoration - whereby those important events of the past, usually associated with someone's death or the end of some awful bloody struggle, are celebrated with a nice holiday - I thought we could mark this November the fifth, a day that is sadly no longer remembered, by taking some time out of our daily lives to sit down and have a little chat.
There are, of course, those who do not want us to speak. I suspect even now orders are being shouted into telephones and men with guns will soon be on their way. Why? Because while the truncheon may be used in lieu of conversation, words will always retain their power. Words offer the means to meaning and for those who will listen, the enunciation of truth. And the truth is, there is something terribly wrong with this country, isn't there?

Cruelty and injustice...intolerance and oppression. And where once you had the freedom to object, to think and speak as you saw fit, you now have censors and systems of surveillance, coercing your conformity and soliciting your submission. How did this happen? Who's to blame? Well certainly there are those who are more responsible than others, and they will be held accountable. But again, truth be told...if you're looking for the guilty, you need only look into a mirror.

I know why you did it. I know you were afraid. Who wouldn't be? War. Terror. Disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you and in your panic, you turned to the now High Chancellor Adam Sutler. He promised you order. He promised you peace. And all he demanded in return was your silent, obedient consent.

Last night, I sought to end that silence. Last night, I destroyed the Old Bailey to remind this country of what it has forgotten. More than four hundred years ago, a great citizen wished to embed the fifth of November forever in our memory. His hope was to remind the world that fairness, justice and freedom are more than words - they are perspectives. So if you've seen nothing, if the crimes of this government remain unknown to you, then I would suggest that you allow the fifth of November to pass unmarked. But if you see what I see, if you feel as I feel, and if you would seek as I seek...then I ask you to stand beside me, one year from tonight, outside the gates of Parliament. And together, we shall give them a fifth of November that shall never, ever, be forgot!

V for Vendetta

19 December 2010

American-style conservative rhetoric in Brussels

The uber-eloquent Daniel Hannan, Member of European Parliament, UK Conservative Party:

What worked for our country in 1776 will work in 2010, anywhere in the world as long as men are free to reason.