An address delivered to the Libertarian Party of Florida on March 23, 2016 in Destin, Florida
Guest Post by Paul Craig Roberts
To answer the question that is the title, we have to know of what the US consists. Is it an ethnic group, a collection of buildings and resources, a land mass with boundaries, or is it the Constitution. Clearly what differentiates the US from other countries is the US Constitution. The Constitution defines us as a people. Without the Constitution we would be a different country. Therefore, to lose the Constitution is to lose the country.
Does the Constitution still exist? Let us examine the document and come to a conclusion.
The Constitution consists of a description of a republic with three independent branches, legislative, executive, and judicial, each with its own powers, and the Bill of Rights incorporated as constitutional amendments. The Bill of Rights describes the civil liberties of citizens that cannot be violated by the government.
Article I of the Constitution describes legislative powers. Article II describes executive powers, and Article III describes the power of the judiciary. For example, Article I, Section 1 gives all legislative powers to Congress. Article I, Section 8 gives Congress the power to declare war.
The Bill of Rights protects citizens from the government by making law a shield of the people rather than a weapon in the hands of the government.
The First Amendment protects the freedom of speech, the press, and assembly or public protest.
The Second Amendment gives the people the right “to keep and bear arms.”
The Third Amendment has to do with quartering of soldiers on civilians, a large complaint against King George III, but not a practice of present-day armies.
The Fourth Amendment grants “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and prevents the issue of warrants except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment prevents police and prosecutors from going on “fishing expeditions” in an effort to find some offense with which to charge a targeted individual.
The Fifth Amendment prohibits double jeopardy, self-incrimination, the taking of life, liberty, or property without due process and the prohibition of seizing property without just compensation.
The Sixth Amendment guarantees speedy and public trial, requires that a defendent be informed of the charge against him and to be confronted with the witnesses, to present witnesses in his favor, and to have the assistance of an attorney.
The Seventh Amendment gives the right of trial by jury to civil suits.
The Eighth Amendment prevents excessive bail and cruel and unusual punishments.
The Ninth Amendment says that the enumeration of certain rights in the Constitution does not deny or disparage others retained by the people. In other words, people have rights in addition to the those listed in the proscriptions against the government’s use of abusive power.
The Tenth Amendment reserves the rights not delegated to the federal government to the states.
The Tenth Amendment is a dead letter amendment. The Third Amendment protects against an abandoned abusive practice of government. The Seventh Amendment is still relevant as it allows damages in civil suits to be determined by a jury, once a protection against unfairness and today not always the case.
The other seven amendments comprise the major protections of civil liberty. I will examine them in turn, but first let’s look at Section 1 and Section 8 of Article I. These two articles describe the major powers of Congress, and both articles have been breached. The Constitution’s grant of “all legislative powers” to Congress has been overturned by executive orders and signing statements. The president can use executive orders to legislate, and he can use signing statements to render sections of laws passed by Congress and signed by the president into non-enforced status. Legislative authority has also been lost by delegating to executive branch officials the power to write the regulations that implement the laws that are passed. The right that Section 8 gives to Congress to declare war has been usurped by the executive branch. Thus, major powers given to Congress have been lost to the executive branch.
The First Amendment has been compromised by executive branch claims of “national security” and by extensive classification. Whistleblowers are relentlessly prosecuted despite federal laws protecting them. The right of assembly and public protest are overturned by arrests, tear gas, clubs, rubber bullets, water cannons, and jail terms. Free speech is also limited by political correctness and taboo topics. Dissent shows signs of gradually becoming criminalized.
The Fourth Amendment is a dead letter amendment. In its place we have warrantless searches, SWAT team home invasions, strip and cavity searches, warrantless seizures of computers and cell phones, and the loss of all privacy to warrantless universal spying.
The Fifth Amendment is a dead letter amendment. The criminal justice system relies on self-incrimination as plea bargains are self-incrimination produced by psychological torture, and plea bargains are the basis of conviction in 97% of all felony cases. Moreover, physical torture is a feature of the “war on terror” despite its illegality under both US statute and international law and is also experienced by inmates in the US prison system.
The Fifth Amendment’s protection against deprivation of life, liberty, and property without due process of law has been lost to indefinite detention, executive assassination, and property takings without compensation. The Racketer Influenced Corrupt Organizations Act (RICO) passed in 1970. The act permits asset freezes, which are takings. The Comprehensive Forfeiture Act passed in 1984 and permits police to confiscate property on “probable cause,” which often means merely the presence of cash.
The Sixth Amendment is a dead letter amendment. Prosecutors routinely withhold exculpatory evidence, and judges at prosecutors’ requests have limited attorneys’ ability to defend clients.The “war on terror” has introduced secret evidence and secret witnesses, making it impossible for a defendant and his attorney to defend against the evidence.
The Eighth Amendment’s prohibition of excessive bail and torture are routinely violated. It is another dead letter amendment.
It is paradoxical that every civil liberty in the Bill of Rights has been lost to a police state except for the Second Amendment, the gun rights of citizens. An armed citizenry is inconsistent with a police state, which the US now is.
Other aspects of our legal protections have been overturned, such as the long standing rule that crime requires intent. William Blackstone wrote: “An unwarrantable act without a vicious will is no crime at all.” But today we have crimes without intent. You can commit a crime and not even know it. See for example, Harvey Silverglate, Three Felonies A Day: How the Feds Target the Innocent.
Attorney-client privilege has been lost. The indictment, prosecution, and imprisonment of defense attorney Lynne Stewart is a good example. The DOJ prevailed on her to defend a blind Muslim regarded by the DOJ as a “terrorist.” She was informed that “special administrative measures” had been applied to her client. She received a letter from the federal prosecutor informing her that she and her client would not be permitted attorney-client privilege, and that she was required to permit the government to listen to her conversations with her client. She was told that she could not carry any communications from her client to the outside world. She regarded all this as illegal nonsense and proceeded to defend her client in accordance with attorney-client privilege. Lynne Stewart was convicted of violating a letter written by a prosecutor as if the prosecutor’s letter were a law passed by Congress and present in the US code. Based on a prosecutor’s letter, Lynne Stewart was sentenced to prison. No law exists that upholds her imprisonment.
Our civil liberties are often said to be “natural rights” to which we are entitled. However, in historical fact civil liberty is a human achievement that required centuries of struggle. The long struggle for accountable law that culminated in the Glorious Revolution in England in the late 17th century can be traced back to Alfred the Great’s codification of English common law in the 9th century and to the Magna Carta in the early 13th century. Instead of issuing kingly edicts, Alfred based law on the traditional customs and behavior of the people. The Glorious Revolution established the supremacy of the people over the law and held the king and government accountable to law. The United States and other former British colonies inherited this accomplishment, an accomplishment that makes law a shield of the people and not a weapon in the hands of the state.
Today law as a shield of the people has been lost. The loss was gradual over time and culminated in the George W. Bush and Obama regime assaults on habeas corpus and due process. Lawrence Stratton and I explain how the law was lost in our book, The Tyranny of Good Intentions. Beginning with Jeremy Bentham in the late 18th century, liberals saw the protective shield of law as a constraint on the government’s ability to do good. Bentham redefined liberty as the freedom of government from restraint, not the freedom of people from government. Bentham’s influence grew over time until in our own day, to use the words of Sir Thomas More in A man for All Seasons, the law was cut down so as to better chase after devils.
We cut down the law so that we could better chase after the Mafia.
We cut down the law so that we could better chase after drug users.
We cut down the law so that we could better chase after child abusers.
We cut down the law so that we could better chase after “terrorists.”
We cut down the law so that we could better chase after whistleblowers.
We cut down the law so that we could better cover up the government’s crimes.
Today the law is cut down. Any one of us can be arrested on bogus charges and be helpless to do anything about it.
There is very little concern in legal circles about this. The American Civil Liberties Union (ACLU) does attempt to defend civil liberty. However, just as often the ACLU is not defending the civil liberties in the Bill of Rights that protect us from the abuse of government power, but newly invented “civil rights” that are not in the Constitution, such as “abortion rights,” the right to homosexual marriage, and rights to preferential treatment for preferred minorities.
An attack on abortion rights, for example, produces a far greater outcry and resistance than the successful attack on habeas corpus and due process. President Obama was able to declare his power to execute citizens by executive branch decision alone without due process and conviction in court, and it produced barely audible protest.
Historically, a government that can, without due process, throw a citizen into a dungeon or summarily execute him is considered to be a tyranny, not a democracy. By any historical definition, the United States today is a tyranny.
The United States was incorporated in the 1870’s which put us and the country subject to corporate law. There are two constitutions, the original and the corporate version.
The world is a business, this country is a business so I”m not sure how to answer this question. The first constitution was suspended in favor of the Vatican.
Vatican “Crown” Corporation of 1871
I never hear politicians refer to the country as the “United States of” America anymore. They simply refer to the nation as “America” and the citizens (legal or illegal) as the “American people.” The terms sicken me. It’s as if states are mere window dressing. The pendulum has swung so far toward federalism that to claim yourself as a Virginian for instance is looked upon rather strangely. The “America” in the aftermath of Lincoln is not the United States of America the founders envisioned.
Ain’t it the truth John Angelo, ain’t it the truth.
Tenth Amendment…There was one?
BTW, My son is a Hoo grad…felt ya’lls pain Sunday. I was pulling for you.
I got into a discussion with a neighbor a few months ago. He has a large flag pole with the Stars and Stripes and the S.C. flag flying underneath . I told him that the State Flag should fly first. Why he asked . Well because the states created the Federal Gooberment etc . The Federal Gooberment should be subservient to the States….not the other way around . I told him that we were on the grounds of a free and independent ( South Carolina ) not on Federal Soil and as thus the State Flag should fly first .
I told him he was a citizen of the state of South Carolina first and a citizen of the USA second . When I had flags flying at my former house the state flag was higher than the USA flag .
The ‘true’ US doesn’t exist any more.
One used to be proud of being from a state (me, Pennsylvania). I remember a friend who was similarly proud of being from NY. That was a time when people worked, and contributed.
It might have been ‘tough’ in Philly, but it wasn’t a sewer of a ghetto.
Now all these states have growing debt, high taxes, growing public pension liabilities, no jobs – who would want to live there?
What’s left of the US are three factions:
FSA which is more than 50% of the population: the true needy, followed by the ghetto entitlement class, the SSDI scammers, drug addicts / alcoholics, millennials, Bernie and Hillary voters.
Then we have the immigrants legal and illegal that we have allowed to flood our country. They take as much advantage of entitlements as possible. Without ever contributing in taxes. Where this is going, I don’t know.
The smallest group are the workers / contributorsTthat are being ass raped to pay for it all. But we are a shrinking class. Us workers are going to be gone / greatly diminished in size.
What will happen, I see a couple of scenarios:
First scenario: Some sort of separation – I can’t call it a civil war, but maybe a group of producer states that band together and refuse to send money to DC, enforce their own laws, cut entitlements, jettison illegal immigrants, insist that immigrants assmilate. Donald Trump represents these people.
Second scenario: The FSA wins the election, and wrecks what’s left of the US. Everyone loses, and we just continue to sink with the standard of living going down and down. The Fed prints more and more money to finance the debt for all the ‘give aways.’ Bernie and Hillary voters.
Third scenario: The producers pass-away. The new producers are not trained / motivated to produce as before. This incites the FSA, the gravy train has ended, a big shortage of goods and services. Being more than 50% of the population, chaos ensues.
Constitutionalism is the white man’s ghost dance, sad to say. Yes, the US of A is dead.
Loyalty to what was is pointless. Better to admit its dead, autopsy the corpse, figure out how the disease killed it, and use that knowledge to build something better when the dust finally settles.
It may take a long time, but the Gods of the Copybook Headings will eventually have their day.
Thanks, nkit. To relate UVA’s tournament game against Syracuse to the article, UVA (USA) played a proven winning style and it resulted in a big lead, all the way until 10 minutes left, that is. Then they fell into the trap of playing someone else’s style (let’s call it federalism or socialism) and lost to an inferior team.
What It Looks Like When The Feds Make Their Ham Sandwich
In Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.
The question presented was not whether assets can be frozen before trial — it’s old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury’s probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:
A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not “baseless,” as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.
As Scott Greenfield puts it:
Indictment = Probable Cause
Forfeiture = Probable Cause
Indictment = Forfeiture
Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.
Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I’d like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a “historical role of protecting individuals from unjust persecution” — is not a polite fiction. A polite fiction would have some grounding in reality. It’s an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.
What Grand Jury Practice Is Like
Most federal prosecutors use two types of grand juries — accusatory and investigative. Some small districts may have only one that serves as both; large districts like Los Angeles have multiple grand juries in each category.
Accusatory grand juries tend to hear quick, reactive cases that must be indicted immediately: cases where the defendant has already been arrested and must be indicted before a deadline, bank robberies, drug dealers and immigrant smugglers and other low-level defendants “caught in the act,” and other simpler cases that do not involve the slow and steady assembly of a complex case. Even in federal practice — which is often more meticulous and formal than state practice — accusatory grand juries are an assembly line. On grand jury duty it was routine for me to present a dozen accusatory cases in a morning to the panel. I’d read the proposed indictment to the grand jury (which another federal prosecutor has drafted), offer to read them the relevant statutes and the elements of the offenses, and call a federal agent to summarize the evidence by hearsay, which is permitted. I probably presented between 200 and 300 cases this way over the course of my career as a federal prosecutor.
The grand jurors typically sat slumped in their wobbly government chairs, often openly reading the paper (Nowdays I’m sure they read their smartphones) or staring glassy-eyed out the window. They rarely asked for the statutes or elements to be read. A few would ask questions, but 90% of the questions were more matters of curiosity than anything resembling a probing of the sufficiency of the evidence or the justice of the prosecution. The other 10% of the time, when selected grand jurors probed the sufficiency of the evidence, more often than not they probed odd tangents or diversions that had little to do with the issues at hand. Many times grand jurors expressed irritation at the case even being presented to them if the evidence seemed abundantly clear. Why, I was asked several times, were they there if the defendant had confessed? Why couldn’t the criminal be sent straight to jail? (The answer, of course, is that a confession is just a piece of evidence like any other, subject to being challenged for admissibility or for whether it happened at all.)
Having presented the case — the longest part of which was generally reading the indictment — the agent and court reporter and I would step out of the grand jury room and let the heavy wooden door close. I quickly learned to take several steps away from the door; if you didn’t step away, when the door flew open moments later it would startle you and you would look foolish. The court reporter and I would file back into the room to put on the record that the grand jury had returned a true bill. The wait was very rarely more than five minutes, it was usually less than two, and not infrequently measured in seconds. I only heard of one cases being declined by the accusatory grand jury in my years as a federal prosecutor: the case of a mother who let a dog out of its pen when INS agents arrived to arrest her son. The INS shot the dog dead and then sought her indictment for assault on a federal agent. The grand jury, to their credit, didn’t buy it. During that five year period, my office probably secured around three or four thousand other indictments from accusatory grand juries.
Investigatory grand juries are different. They hear cases that federal prosecutors are assembling bit by bit, and return indictments at the end, often months or years later. But the name is a misnomer: the investigatory grand juries do not themselves investigate, or direct the investigation in any meaningful sense. It’s better to understand the investigatory grand jury as part tool and part container into which federal prosecutors drop evidence to use later.
The investigatory grand jury is a tool in the sense that it can be used to issue subpoenas for documents and other physical evidence. But federal prosecutors and federal agents decide what subpoenas to issue, for what evidence, and to whom; the “return” generally involves the agent stepping in front of the grand jury and testifying for a few moments that subpoenas have been issued on behalf of the grand jury, that documents have been received, and that the agent will keep the documents. The investigatory grand jury is also used as a tool in the sense that witnesses are subpoenaed to testify before it. This lets the government find out what people will say when compelled to testify, preserve their testimony, and lock them in to one story. But it is often done over long periods of time, with the investigatory grand jury given no realistic way to connect the dots. Investigatory grand juries might meet a couple of times a month, and on any given day a few federal prosecutors in unrelated cases might be calling witnesses before them, and the grand jurors might not hear from witnesses in the same investigation again for weeks or months or even longer, with only a cursory reminder at the beginning about what the case is about.
The fiction is that investigatory grand juries remember the witnesses they heard months or even years before. Once again, this is not even a polite fiction. Sometimes a grand jury’s term expires and a new one begins and the prosecutors give the new grand jury a set of the transcripts from the old grand jury and invite them to read the transcripts to “get up to speed.” Eventually, if the investigation goes anywhere, the federal prosecutors will ask the investigatory grand jury to return an indictment. At this point the process looks much like the indictment-mill before the accusatory grand jury: the prosecutor has drafted the indictment and the grand jury either votes on it or not. The grand jury has no role, practically speaking, in what is charged or how it is charged. It has no role in deciding why — as in the Kaley case — the prosecutors seek asset forfeiture in one case but not another, or why the prosecutors bring aggressive charges (say, money laundering) in one case but not another. In very nearly all cases they vote to indict exactly as requested. I never had any grand jury ask that any indictment be adjusted or that particular accusations or language in it be changed or removed on the grounds they were not supported by the evidence. The questions I got from investigatory grand jurors, like those from accusatory grand jurors, were most often odd diversions or expressions or curiosity or slightly nutty crankery that had little to do with skepticism of government power and more to do with wanting to sound like they knew what they were talking about, like a gadfly at a council meeting.
With very few exceptions — usually involving touchy cultural issues — the grand jury is a rubber-stamp. When it’s accusatory it’s a very minor speed bump, a speed bump like the one your neighbor’s 17-year-old son races over in his truck at 2 in the morning. When it’s investigatory it’s a tool and container to assist in prosecutions with a rubber-stamp on the end. The courts, as reflected in Kaley, tell us that it serves to protect rights. Perhaps with lightning-strike rarity it does. But in the overwhelming majority of cases the grand jury — and the courts’ confidence in it — reflects the view that the purpose of the criminal justice system is to convict the people the government sees fit to accuse.
That’s why the Kaley Court’s conclusion — that the grand jury is reliable, and a defendant ought not be able to challenge the grand jury’s conclusion that property is forfeitable and thus not available to fund a criminal defense — is preposterous and grotesque.
https://popehat.com/2014/02/27/the-kaley-forfeiture-decision-what-it-looks-like-when-the-feds-make-their-ham-sandwich/
“Those who do not understand the American system, who are not mentally prepared for its cruelty and violence, are largely helpless before authorities intoxicated with the god-like power to destroy lives. These authorities advance themselves or their agendas — Joe Biden when he was in the Senate and Bill Clinton when he was president did this — by being “tough” concerning law and order and national security. Those who administer the legal system wield power largely in secret. They are accountable to no one.
“Every once in a while — this happened even under the Nazis and Stalin — someone will be exonerated to maintain the fiction that the state is capable of rectifying its “mistakes.” But the longer the system remains in place, the longer the legal process is shrouded from public view, the more the crime by the state accelerates.
“The power elites — our corporate rulers and the security and surveillance apparatus — rewrite laws to make their criminal behavior “legal.” It is a two-tiered system. One set of laws for us. Another set of laws for them.
“Wall Street’s fraud and looting of the U.S. Treasury, the obliteration of our privacy, the ability of the government to assassinate U.S. citizens, the revoking of habeas corpus, the neutralizing of our Fourth Amendment right against unreasonable searches and seizures, the murder of unarmed people in the streets of our cities by militarized police, the use of torture, the criminalizing of dissent, the collapse of our court system, the waging of pre-emptive war are rendered “legal.”
“Politicians, legislators, lawyers and law enforcement officials, who understand that leniency and justice are damaging to their careers, and whom Karl Marx called the “leeches on the capitalist structure,” have constructed for their corporate masters our system of inverted totalitarianism. They serve this system. They seek to advance within it. They do not blink at the victims destroyed by it. And most of them know it is a sham.”
http://www.opednews.com/articles/The-Mirage-of-Justice-by-Chris-Hedges-Corruption_Crime_Cruelty_Justice-Denied-160117-75.html
“A grand jury has already found probable cause to think that the Kaleys committed the offenses charged;”
That’s a stretch. The grand jury found doodley squat. The prosecutor dragged the reeking shitball labeled “probable cause” into the room and shoved it down the grand jury’s throat.
“That’s why the Kaley Court’s conclusion — that the grand jury is reliable, and a defendant ought not be able to challenge the grand jury’s conclusion that property is forfeitable and thus not available to fund a criminal defense — is preposterous and grotesque.”
Agreed. The court took the ridiculous position, proposed by the prosecution, that merely expressing a suspicion that the money might be the fruit of some alleged crime gives the government the authority to seize (freeze) the money before any conviction has been obtained.
Nonsense.
What Dutch said.
That depends on whether you mean UNITED STATES OF AMERICA or United States of America. Big difference. Bea, in his first comment above is on the right track.
I know it is a little “out there” but I read a few years ago about two totally separate groups that were put into a very deep state of hypnosis. They were asked “what will the United States look like in 30 + years?”. Both groups in totally different parts of the country more than 75% of respondents stated that the U.S. would be split into three or four new “countries” and would no longer exist as it exists today. It really struck me. That was around 2007. Now I see the reality of this “seeing of the future” with where we are at today. The USA as we know it is falling apart before our eyes. It is only a matter of time. The Federal Govt is not a representative government and people are waking up to this more and more every day.