Redstate

By aceintx Posted in The Courts — Comments (27) / Email this page » / Leave a comment »

OK…I’ve heard much outrage of late about the recent Supreme Court Ruling giving Habeas Corpus rights to terrorists and enemy combatants at Gitmo and rightly so. I’ve been kind of flippant about it because I figured the outrage would die as the next big event came along to distract everyone which would result in the rage about the Supreme Court usurping powers specifically enumerated to the other two branches of government being forgotten. It seems I was right to be so cynical because it looks like everyone has moved on. And so it goes and has gone for decades. Our leadership commits one outrage after another and we the people get outraged and raise hell about it for a while, but nothing ever get’s done to fix the objects of our outrage because our leadership will inevitably do something else outrageous thus constantly refocusing our eye and keeping us from fixing it all.

Now, what does all this have to do with Burke? Burke wrote the phrase:

All that is necessary for evil to triumph is for good men to stand by and do nothing.

This is a phrase that is so often repeated by so many people that invariably “stand by and do nothing” that it’s become a cliché and lost all it’s original meaning. Well…I think it’s time we take this cliché to heart and restore its meaning!

For those of you that missed it, their Majesties on the SCOTUS followed the afore mentioned outrage on Habeas Corpus with another outrage allowing those who have overstayed their visas and have promised a court that they will leave the country the right to stay after all. And we MUST pay attention this week or next because we have the court taking up the meaning of the Second Amendment whith Kennedy no doubt as the deciding vote, (leaving me chewing my fingernails). I have no confidence that he will uphold the clear meaning of the Second Amendment as it has been understood since 1787 so vigilance this week of all weeks is essential!

Now to the meat of the issue and Burke’s warning to us all:

First we have the Bipartisan Campaign Reform Act of 2002 BCRA, McCain–Feingold Act, Pub.L. 107-155, 116 Stat. 81, enacted 2002-03-27 as championed by our esteemed Republican nominee for POTUS and passed into law largely at his insistence. As most everyone knows, this legislation was challenged as unconstitutional by a group of plaintiffs led by then-Senate Majority Whip Mitch McConnell McConnell v. FEC

As most everyone knows, this law contained several controversial prohibitions such as:

a) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or well-healed individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").

The basic questions for the Court to answer as laid out by Oyez are as follows:

1)Does the "soft money" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution and/or violate the First Amendment's protection of the freedom to speak?,

Now…I’m not an attorney, and I’m don’t read Latin, but I’ve got a brain, and I can read plain English which our founders spoke and used when they wrote the Constitution of the United States of America. What does Article 1, Section 4 of the United States Constitution say exactly?

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December unless they shall by Law appoint a different Day.

The Twentieth Amendment changed the requirement of Senators to meet on the first Monday in December but the rest of the Amendment remains unchanged. So, given the fact that the Constitution was written to enumerate the powers to be retained and exorcised by the Federal Government, leaving all other questions up to the States or to the people per the Tenth Amendment; does the "soft money" ban exceed Congress's authority to regulate elections under Article 1, Section 4 of the United States Constitution?

I don’t see anywhere in this article that authorizes the Congress to tell anyone how they can spend their own money, do you? And I darn sure don’t see anything allowing any agency of government the power to tell me what I can and can not say about any candidate within 60 days of an election. Yet the Court by some twisted reasoning decided otherwise.

Basically the Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections. How this applies to my being allowed to give a donation to a candidate of my choice is beyond me but there it is.

2) Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?

For those of you with a public education, who haven’t had the opportunity to read the First Amendment and discern the plain meaning of this founding principle in our Bill of Rights, please read on.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Hmm…” abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

First, let’s look at the right of the people to peaceably assemble. Many of the groups affected by this regulation were wide and varied and included groups such as the NRA, and the National Right to Life Committee on the right with the ACLU and NARAL on the left engaged in representing constituencies “of the people” to bring their issues to the “people’s Representatives” in government and advocating for their interests by supporting candidates for office who would represent these interests. In short, these groups by their activities were engaged in petitioning the Government for a redress of grievances.

Traditionally, starting with the founders themselves, individuals or groups would band together to address an injustice perpetrated on them by the Government by printing pamphlets, organizing in their communities, advocating for their issues with donations of time and money and visiting their elected representatives to seek “redress” as the Constitution calls it. This statute basically banned all or most of the activities of these groups thus robbing the people of the ability to assemble together on behalf of an issue and to petition their representatives for a redress of grievances.

So, that’s two out of three strikes against this legislation so far as a plain reading of the First Amendment is concerned.

As for the speech itself, pamphleteering and paying for advertising to advocate for or against a candidate or issue has long been recognized as speech beginning with our founders and as deemed so by prior Court Precedent.

How did the Court answer the question?

in a 5-to-4 decision written by Justices Sandra Day O'Connor and John Paul Stevens. Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing "both the actual corruption threatened by large financial contributions and... the appearance of corruption" that might result from those contributions.

In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that "money, like water, will always find an outlet" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits.

How does this apply to Burk and his oft quoted statement about evil triumphing when good men do nothing? Well, I ask you…what did you do and what have you done, since this ruling, to see it’s obvious twisted reasoning overturned? What have you done to urge the overturning of the Courts usurpation of rights granted to “We the People”?

Nothing? Yeah…me neither!

Then there’s Kelo which is even more cut and dry than McCain Fiengold where a clear reading of the Constitutions was thrown out by the court.

Again, this is an infamous case where Constitutional Law is concerned so I won’t elaborate much on what the case was about beyond the general outline that it involved the use of the principle of “Immanent Domain” by the City of New London Connecticut to transfer land from one private owner to another in order to advance economic development. In other words…the government in essence took property from a private property owner in order to enrich the city and a well healed developer in the area.

Again, I’m not and attorney but I can read. Let’s take a look at the Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sounds pretty clear doesn’t it? No person….that means NO ONE doesn’t it? NO PERSON shall….be deprived of life, liberty, or property without due process of law? Surely the Court ruled the City of New London was out of line…right?

Well?…From Wikipedia:

The Court held in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.

On June 23, 2005, the Supreme Court, in a 5–4 decision, ruled in favor of the City of New London. Justice John Paul Stevens wrote the majority opinion; he was joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Kennedy penned a concurring opinion setting out more detailed standards for judicial review of economic development takings than that found in Stevens' majority opinion. In so doing, he contributed to the Court's trend of turning minimum scrutiny--the idea that government policy need only bear a rational relation to a legitimate government purpose--into a fact-based test.

Kennedy fleshed out this doctrine in his Kelo concurring opinion, in which he sets out a program of civil discovery in the context of a challenge to an assertion of government purpose in the eminent domain context. However, he does not explicitly limit these criteria to eminent domain, nor to minimum scrutiny, suggesting that they may be generalized to all health and welfare regulation in the scrutiny regime. Because Kennedy signed on to the Court's majority opinion, his concurrence is not binding on lower courts. He writes:

"A court confronted with a plausible accusation of impermissible favoritism to private parties should [conduct]….a careful and extensive inquiry into ‘whether, in fact, the development plan [chronology]

[1.] is of primary benefit to . . . the developer…, and private businesses which may eventually locate in the plan area…,

[2.] and in that regard, only of incidental benefit to the city…[.]’"
Kennedy is also interested in facts of the chronology which show, with respect to government,

[3.] awareness of…depressed economic condition and evidence corroborating the validity of this concern…,

[4.] the substantial commitment of public funds…before most of the private beneficiaries were known…,

[5.] evidence that [government] reviewed a variety of development plans…[,]

[6.] [government] chose a private developer from a group of applicants rather than picking out a particular transferee beforehand and…

[7.] other private beneficiaries of the project [were]…unknown [to government] because the…space proposed to be built [had] not yet been rented…."

As most of you know, I’m a commercial real estate agent, and I know from personal experience that real estate markets are funny things. You see…if you have a depressed real estate market and all of a sudden a commercial developer comes in and buys up some real estate and builds a business, there is this curious phenomena that occurs around that property…for some mysterious reason…the value of the adjoining properties inexplicably goes up, (for those of you in Oklahoma, I’m being sarcastic). Never mind a corrupt politician or a corrupt group of politicians can take property from individuals at pre development prices using the power of their offices and sell it to another private individual at a post development price benefiting the local government by the extra revenues generated; or make sure the developer can get the property for pennies on the dollar assuming of course that that developer either donates to the politician’s campaign or holds a well paying position open for them once he/she leaves office. Never mind the plain meaning and intent of the founders when writing the takings clause of the Fifth Amendment!

And what did good men do when this travesty was inflicted on a once again distracted and unengaged people? Did anyone stand up and demand that Kennedy and Stevens be impeached for their usurpation of rights granted to “We the People” by the Constitution of the United States? Was there a popular uprising and a march on Washington demanding the heads of these usurpers of our precious freedoms?

There was an uproar to be sure…but as time went on…State Governments passed legislation that made it clear that no local governments would be able to use this newly invented power of the Courts to steal the hard earned property of our citizens…Once again, our fears assuaged, we dutifully went back to sleep because the crisis had seemingly passed...but was that good enough? I would argue it was not…because the ruling still applies as it is written. Our constitution took a sword blow to the jugular with that ruling…and the states simply stopped the bleeding with a Band-Aid. The precedent is still on the table to be built upon by Kennedy and his crowd.

Now we have this ridiculous ruling on Gitmo and this new ruling allowing immigrants to overstay their visas…and the prospect that the Second Amendment could lose it’s meaning of over 221 years and I ask you…will you stand by now and do nothing?

I’m making a call as of right now…I’m challenging each of you to be complacent no more! Don’t let the shell game go on anymore. Don’t be diverted from your purpose by the next outrage set before you.

I’m asking each and every one of those that read this to fax, or email your Congressmen and demand that they make speeches from the floor of Congress telegraphing their intend to submit legislation to impeach Kennedy, Souter, Stevens, Ginsburg, and Breyer the next time they have the audacity to issue another opinion from the bench that usurps the prerogatives of the POTUS and the bicameral Congress, or ever strays again from the doctrine of checks and balances.

I challenge each of you to proclaim loudly and forcefully to the Congress and the POTUS to not only stand against these encroachments into their domain but demand they take steps to roll back McCain Fiengold and to overrule the Court on Kelo and this Gitmo Ruling.

It’s time to fight…It’s time to tell these idiots that “we’re mad as hell and we’re not gonna take it any more!” I’m committing to do so tomorrow and I ask my ilk to join me in taking our Constitution back from their Majesties on the Supreme Court.

Send a message that they’ve advanced this far…but they will advance no farther in depriving us of life liberty or property and they WILL, by God, recognize the rights of “we the people” as granted to us by the “laws of nature and of natures God”

The time for standing by and doing nothing has long since past, and this nation has paid a terrible price as a result of our inaction. Evil has indeed triumphed for a season but now it’s time to ACT NOW!