Invitation to sue Senate for filibustering

Open Memo to:

the ACLU, Mayor Bloomberg of NYC, and George Soros et al

I urge you to consider filing a lawsuit against the United States Senate, seeking a judicial order to cease and desist the practice of the filibuster and its partner-in-crime - the senatorial hold. The following argues against the Constitutionality of the filibuster, though similar logic could be used against the hold. In essence, the filibuster is nothing more than a tool used by a minority to thwart the will of a majority, thus being a gross denial of our cherished "one man, one vote" ideal.

Constitutionality

The practice of the filibuster is in direct violation of at least three different sections of the US Constitution:

Article V: "...no state, without its consent, shall be deprived of its equal suffrage in the Senate." If, for example, a state were (like all other states) allowed two senators but (unlike the others) only one could vote, that would be a clear deprivation of "equal suffrage." And yet, if a state's senator were to find his vote rendered meaningless by a minority threatening a filibuster, that is a comparably clear deprivation of "equal suffrage."

The Fifth Amendment: "No person...[shall] be deprived of life, liberty, or property, without due process of law..." When a citizen's senator finds the value of his vote diminished in Senate chambers, that citizen finds the value of his own vote similarly diminished. In other words, that citizen is being denied full and complete representation in the Senate, which in turn means he has been "deprived of...[his] property [that is, the full value of his vote], without due process of law."

The Seventeenth Amendment: "...each senator shall have one vote." That must mean, by any fair and sensible standard, that each senator's vote is to be considered equal to each other senator's vote. Allowing for filibusters denies this equality.

The Matter of Standing

If the merits of this lawsuit are to be considered by the US Supreme Court, the issue of standing must (obviously) be addressed. There are several possible parties you could recruit to be plantiffs:

1. A currently-sitting US Senator on record as having voted for cloture in a current filibuster session. Of course, it would help if this senator had not, earlier in his career, voted against cloture.

2. The parents of shooting victims at Sandy Hook Elementary School, who didn't have a chance in the Senate of having a gun control bill passed due to an implied filibuster threat.

3. A soldier who swore to defend the Constitution and chooses to do so by participating as a plaintiff in this suit.

4. A state with senators who have always voted for, and never against, cloture.

5. A homeless person - who is essentially a stateless person (in terms of the state he happens to live in) - who would love to have his voice heard for once in the lofty chambers of SCOTUS.

6. Any USA citizen who objects to, and is harmed by (who isn't?), the legislative gridlock caused by the Senate's insistence on supermajority rule.

7. Any combination of the above.

Sovereign Immunity

The Supreme Court might refuse to hear this case based on the long-assumed right of Sovereign Immunity possessed by the federal government. The idea that the government cannot be sued without its permission, however, is one that should be challenged. There are strong arguments to be made against the absolutism of this right and in favor of the sovereignty of the individual, as follows:


1)  From the Declaration of Independence: "...to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..." That is, without the consent of We-the-People (each of whom has Individual Sovereignty), the Sovereign government would not have its "just powers."

2)  The Tenth Amendment identifies three sovereign entities - the United States, the individual states, and the people.

3)  Nowhere in the Constitution does this concept appear: "The state can do no wrong and therefore cannot be sued without its permission." Since Article VI states, "This Constitution...shall be the supreme law of the land..," any other source promoting state Sovereign Immunity must be considered inferior. Article III, Section 2 argues against Sovereign Immunity when it states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution...to controversies to which the United States shall be a party..." It doesn't say, "...to controversies to which the United States shall be a party, but only if it grants permission to be sued."

4)  Since Congress has the power to impeach the Sovereign President, surely We-the-People have sufficient sovereignty to be heard by the Supreme Court when violations of our constitutional rights are claimed.

5) The First Amendment enumerates certain rights, limiting the power of Congress. Suppose, however, that Congress violates the First by creating a state religion, or by abridging the freedom of speech or of the press? Will the Supreme Court claim that a citizen has no access to the judicial system because the state cannot be sued without its permission?

But there's no mechanism...

The Supreme Court might claim, "There's no Constitutional mechanism by which a lawsuit against the United States - in this case, the US Senate - could proceed." Indeed, Article III, Section 2 seems to support this view:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

SCOTUS might point out, "Since this Court doesn't have original jurisdiction to hear a case brought by a citizen against the United States, and since it cannot be imagined which lower court could have such jurisdiction, it must be concluded that SCOTUS has no power to hear such a case under either form of jurisdiction."

However, I would argue there's an implied right for a citizen to have this case heard by the High Court. For Article III, Section 2 also states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." Any claim that the Senate is violating the Constitution must surely be encompassed by this "judicial power." Since the First Amendment disallows the Congress from making any laws "...abridging the...right of the people...to petition the government for a redress of grievances," that must mean Congress can't bar SCOTUS from hearing an anti-filibuster case. For what good does it do to have the right to petition the government - of which SCOTUS is a part - for a redress of grievances, if it can be claimed that there's no mechanism in place by which SCOTUS can even consider this petition?

The Supreme Court might claim, "Each House may determine the Rules of its Proceedings..," as stated in Article I, Section 5.  However, can it be claimed that this power is absolute, including the ability to determine rules which deny to citizens and their states their Constitutional rights? Section 5 also states that, "Each House may...punish its Members for disorderly Behaviour..." Surely that doesn't mean that such punishment could include drawing and quartering. Just how much power are we willing to grant to "each House?"

5)  The Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely one of these rights must include a reasonable expectation that We-the-People have a right to have our case heard by SCOTUS when our rights are being violated.

Closing Comment

In closing, we would all do well to remember these particular words of the Preamble to the US Constitution:  "We the people of the United States, in order to...establish justice...and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

If, by any stretch, our current Constitution won't allow a court case against the filibuster to proceed, it would be high time to seriously consider ordaining and establishing a replacement Constitution.

Sincerely,



Steven Searle, former Candidate for U.S. President (2008 and 2012)
Founder of the Independent Contractors' Party

"I invite anyone reading this post to add their voices to mine by doing what I'm about to do - forward this post to the above-named parties as well as to whomever else you think might respond favorably."

Contact me at bpa_cinc@yahoo.com

The Constitution "vs" enemy combatants

Actually, the title of this article should be:

The Constitution vs All those Bullets* and

the Usurpers who would use concepts like "enemy combatant" to

deprive US citizens of their rights.

In the case of accused Boston Marathon bomber Dzhokhar Tsarnaev, the paramount fact to keep in mind is that he is a USA citizen and is therefore covered under the Bill of Rights. It should also be remembered that, nowhere in the US Constitution is the term or concept "enemy combatant" to be found.

There are several ways in which the authorities could proceed against Dzhokhar in court, ranging from Massachusetts charging him with multiple counts of murder to the feds charging him with (among other possibilities) treason. However, no matter how they proceed, it would serve no useful purpose to pretend, in the absence of proof, that this defendant is something other than a citizen of the USA. Such a pretense serves only as a thinly-veiled attempt to deprive this man of his rights.

What is an enemy combatant?

For your convenience, in the next paragraph I will broach the definition of "enemy combatant." However, this is my personal feeling: There are a lot of lawyers working for the US government who have nothing better to do than muddy the waters with definitions and self-serving memos which (for instance) justify torture.

QUOTE [Note my highlighted portion]:

Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war.[1][2]  Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an insurrection the term "enemy state' may be replaced by the more general term "Party to the conflict" (as described in the 1949 Geneva Conventions Article 3).[3]  In the United States the phrase "enemy combatant" was used after the September 11 attacks by the George W. Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. Thus, the term "enemy combatant" has to be read in context to determine whether it means any combatant belonging to an enemy state, whether lawful or unlawful, or if it means an alleged member of al Qaeda or of the Taliban being detained as an unlawful combatant by the United States. In the United States on March 13, 2009, the Obama administration announced its abandonment of the Bush administration's use of the term "enemy combatant."[4]

:UNQUOTE:  http://en.wikipedia.org/wiki/Enemy_combatant

As for my highlight above:  Since no proof has been presented that Dzhokhar is an "enemy combatant" or an "unlawful combatant" - and no charge to that effect has been made - then he must be treated as a USA citizen fully entitled to his rights. My reasons for so concluding, as well as my other comments, will be found within the following quote within brackets:


QUOTE:

...Dzhokhar Tsarnaev, will not be tried as an enemy combatant, the White House said today, rejecting calls from some lawmakers to do so.

"He will not be treated as an enemy combatant. We will prosecute this terrorist through our civilian system of justice, " White House Press Secretary Jay Carney told reporters today. "Under U.S. law, United States citizens cannot be tried in military commissions. And it is important to remember that since 9/11, we have used the federal court system to convict and incarcerate hundreds of terrorists."

[Jay Carney should have said, "We will prosecute the accused..." To call him a "terrorist" at this point is premature, even in light of recent comments he made. For a man to have committed a crime, intent has to be present. And that can't be if, as I strongly suspect, this man (as well as his brother) was under mind control and therefore not responsible for his actions when he detonated those explosives.]

Sen. Lindsey Graham, R-S.C., today blasted the decison as "premature."

[Memo to Sen. Graham: It would be premature to label the suspect as an "enemy combatant." I know how badly you want him to undergo intensive interrogation; but lacking proof that he fits the definition, that shouldn't happen.]

"It is impossible for us to gather the evidence in just a few days to determine whether or not this individual should be held for questioning under the law of war," Graham told reporters.

[Once you do gather the evidence, then you may question him under the law of war. Not before.]

In the wake of 9/11, Congress passed a joint resolution called the Authorization for Use of Military Force, which granted the president the power to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

[The President has determined, at least for the time being, that Dzhokhar isn't one of those persons or affiliated with one of those organizations or nations.]

A Supreme Court ruling three years later seemed to suggest that a U.S. citizen captured while fighting for al-Qaida could legally be held as an "enemy combatant," but left unanswered was how to proceed if the accused is nabbed on U.S. soil.

[SCOTUS "seemed to suggest?" Is our High Court so wishy-washy that they can't come right out and say so in clear, unambiguous language? Once a USA citizen is captured "while fighting for al-Qaida," and once it becomes known by his captors that he is a USA citizen, he should be arrested for treason. And that would make him eligible to be tried in a USA court (not a military tribunal) as indicated in the Constitution where it defines treason, and therefore he would have the full protection of the Bill of Rights. If we can't allow that much, then the glory of what it means to be a USA citizen is compromised.]

[As for SCOTUS leaving "unanswered {as to} how to proceed if the accused is nabbed on U.S. soil" - that's just cowardice on the part of our justices.]

Republican senators said this weekend that the enemy-combatant designation was [even in the absence of proof] appropriate in the case of Tsarnaev, the Kyrgyzstan-born naturalized U.S. citizen. He was charged today with using a weapon of mass destruction in connection with the blasts that killed three and wounded at least 176 last week.

"I think we should stay with enemy combatant until we find out for sure whether or not there was a link to foreign terrorist organizations," Sen. Dan Coats, R-Ind., told ABC's George Stephanopoulos on "This Week."

[Coats is putting the cart before the horse. Once "we find out for sure {that there is} a link to foreign terrorist organizations," then designate him as an enemy combatant.]

"Even though he's a citizen. There have been exceptions to this before with the public safety issue, of course, on Miranda rights. I think we ought to keep that option open until we find out whether or not there was a connection to a terrorist organization."

[The public safety exception was an invention of the Supreme Court which, even if it were valid, doesn't apply in this case. The whole world knew well in advance of their actual capture who the authorities were looking for. And everyone knew when Dzhokhar was captured and that he was unable to talk immediately. Therefore, any member of a cell known to this suspect would have either changed or abandoned his own plans to do anything to threaten public safety. Therefore, the public safety exception wouldn't apply even if it were Constitutional.]

[We should carefully consider this exception, since it's not much of a leap to reach this point: "It's okay to torture a suspect if public safety demands it."]

Sen. Chuck Schumer disagreed.

"I think that the good news is we don't need enemy combatant to get all the information we need out of him," Schumer, D-N.Y., said on CNN's "State of the Union" Sunday. "The one court that has ruled has allowed a lot of flexibility in the public safety exception before you Mirandize somebody.

"But second, at any time, what's called a HIG, a high-value interrogation group composed of the FBI, CIA and anyone else, can question him without a lawyer in a secured situation and find out whatever they need."

[Suppose this suspect hadn't been Mirandized but he, knowing he was entitled to counsel, demanded a lawyer. Just because he wasn't read his rights doesn't mean that he doesn't have any. Schumer was wrong to say a HIG "can question him without a lawyer." And by "secured location," does Schumer mean "out of the prying eyes of any neutral third party?" If I was in Dzhokhar's shoes, I would definitely not want to be left alone with a HIG, since (if left to their own devices) they might be tempted to bend a few rules.]

Carney affirmed Monday that the White House sides with Schumer, deeming it unnecessary to call 19-year-old Tsarnaev an enemy combatant.

[Not only is it "unnecessary," it's not possible since (again) there's no evidence to support such a label.]

...

...

GOP Sen. Graham took issue with the idea that a lawyer might be present during questioning, wresting control of the interrogation away from U.S. intelligence gatherers.

["Wresting control?" In this country, power is shared with no single entity being allowed to completely control anything. Any defense lawyer present would be entitled to his input, to object, and to insist that any interrogation be videotaped. Of course, the prosecution could make a motion to a judge that such a taping be viewable only by the judge, who would have the power to decide if a jury should see the footage.]

"There's a disturbing pattern here, quite frankly, of not gathering intelligence when that opportunity exists," he said.

[You may gather your intelligence, but you have to follow certain rules in doing so. You can't do whatever you want. Sorry, it doesn't work that way.]

But Antonia Chayes, a professor at the Fletcher School of Law and Diplomacy at Tufts University in Medford, Mass., called the idea of holding Tsarnaev under that designation "hare-brained" and "ridiculous," saying it is generally reserved for those engaged in conflict on the battlefield who can't be extradited to the United States.

[What nonsense! Those engaged in conflict on the battlefield can eventually be extradited to the USA. What on earth does she mean by "can't be extradited?"]

Although Tsarnaev will not be questioned as an enemy combatant, he also will not be read his Miranda rights before being interrogated by the HIG group to which Schumer referred.

[But, again, suppose the accused had demanded that a lawyer representing him be present?]

Under an exception intended to preserve public safety, the Justice Department has decided that the surviving suspect will be questioned without first hearing that he has the right to a lawyer or to remain silent because of concerns of an imminent threat.

[Even though Justice decided he won't hear about his rights, are they saying he doesn't have them? Another thing: I hope Tsarnaev's attorney makes a motion that none of his comments made prior to being Mirandized be admissible in court. Since he was so badly wounded, even if he had been Mirandized, he was in such traumatic pain (undeniably so) he should have been judged temporarily incompetent to be subjected to questioning in the first place. The HIG team might have gleaned useful intel from an incapacitated man (fair? enough, but I doubt they did), but the prosecution shouldn't be allowed to use that impaired testimony in court.

...

...

A conviction could be put in jeopardy if DOJ waited an unreasonable amount of time to Mirandize the suspect, according to Chayes of Tufts University, but that would depend on the length of time, the judge and the facts of the case, many of which are unclear to the public.

"I think it really turns on the facts, and we don't know all the facts," she said. "Is there evidence of other participants of this that we have not been informed about? Are there rumors about it? Are there hints about it?

"If he's kept like that for, let's say, three weeks, you begin to wonder how in the world can they justify that. But if it's three days or even five days or something like that, then that sounds to me like reasonable."

[No, it is not "reasonable" to allow any amount of time. Once he's in custody, he has his rights and should be Mirandized immediately. The state seems to be saying, "By us not reading you your rights, you don't have those rights." I don't think we want to go down that slippery slope.]

...

:UNQUOTE: http://gma.yahoo.com/bombing-suspect-tried-civilian-201459223--abc-news-topstories.html

What about trying him for treason?

Article III, Section 3 of the US Constitution, defines treason as follows: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

The difficulty here lies in the last sentence. As for "two witnesses," did anybody actually see either of these brothers plant those bombs? Even if videotapes show them leaving backpacks at the scene, can those tapes be counted as "witnesses" since the concept of taping didn't even exist when the Constitution was written? Then of course there's the matter of "confession in open court." Even if the defendant confesses before the trial commences, he could refuse to confess in open court. Any prior confession would be irrelevant to the charge of treason.

I've never been comfortable with these words in the quote cited above: "adhering to their enemies, giving them aid and comfort." That sounds unconstitutionally vague. For instance, critics of the American Way such as myself could be accused of giving comfort to our enemies or even of aiding them by undermining public confidence in our system.

End Note:  All those Bullets*

What about all those bullets fired at the boat where Dzhokhar was hiding? There are reports from unnamed police sources saying the suspect was unarmed, which contradicts the official version that cops were being shot at. But even if Dzhokhar was armed and was shooting at the police, I don't see why they returned fire. They had him surrounded; he wasn't going anywhere. So shooting at him seems to contradict the claim that they wanted him alive for questioning. If the public safety exception was going to be invoked at his hospital bed - denying him the reading of his Miranda rights - then why wasn't the public safety consideration in operation in the field? That alone should have stopped the cops from shooting at what was basically a sitting duck.

I suppose they might claim they had to shoot in order to discourage him from shooting at them and maybe hitting innocent bystanders. But those very same bystanders could have just as easily been hit by friendly fire. And besides, the cops should have withheld fire in the name of the greater public safety issue which concerned questioning the suspect to learn the identities of other conspirators who might be ready to attack with more explosives.


* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

Steven Searle, former candidate for US President (in 2008 and 2012)
Founder of The Independent Contractors' Party

"All I can hope for is, the public continues to maintain interest in this case, which can teach us a lot about ourselves."

Contact me at bpa_cinc@yahoo.com

Once again, we get filibustered

Introduction

Once again, the American people* have been filibustered - that is, "screwed." The amendment to Senate Bill 649 failed to pass, even though 54 senators voted in favor. After quoting from the background story, as reported by CNN, I will reintroduce my claim that the Senate filibuster rule should be challenged in court, dealing primarily with the issue of who should initiate such a law suit. That is, I will challenge the concept of the standing required to sue.

Note carefully the part I highlight in yellow:


QUOTE:

Due to early opposition to the background check provision, Democratic Sen. Joe Manchin of West Virginia and Republican Sen. Pat Toomey of Pennsylvania worked out a compromise that was less comprehensive than what Obama wanted but still gained the president's support.

The Manchin-Toomey plan [an amendment] would have expanded background checks to include private sales at gun shows and all Internet sales, while continuing to exempt most sales between family members and friends.

Due to procedural steps agreed to by both sides, all the amendments considered Wednesday required 60 votes to pass in the 100-member chamber, meaning Democrats and their independent allies who hold 55 seats needed support from some GOP senators to push through the Manchin-Toomey proposal.

:UNQUOTE:
http://www.cnn.com/2013/04/17/politics/senate-guns-vote/index.html


This part is worth repeating:  "Due to procedural steps agreed to by both sides." What that means is, without that agreement, the GOP would have filibustered the entire package - not just any proposed amendments. So Democrats felt they had to agree to a "60 votes needed" rule to avoid that. Well, the GOP and the Democrats might have "agreed," but I didn't.  So now a question arises: "Who am I that my disagreement matters?" Translation: Even though I believe all filibusters to be grossly unconstitutional, would I have sufficient legal standing to challenge the matter in court? And if I don't, who would?

Before I get started on "standing," this quote from one of my previous posts lays out my argument against the filibuster - an argument I'd like to see ruled on by the Supreme Court:

QUOTE:

More importantly, the practice of filibuster is in direct violation of at least three different sections of the US Constitution:

Article V: "...no state, without its consent, shall be deprived of its equal suffrage in the Senate." If, for example, a state were (like all other states) allowed two senators but (unlike the others) only one could vote, that would be a clear deprivation of "equal suffrage." And yet, if a state's senators were to find their votes rendered meaningless by a minority threatening a filibuster, that is a comparably clear deprivation of "equal suffrage."

The Fifth Amendment: "No person...[shall] be deprived of life, liberty, or property, without due process of law..." When a citizen's senator finds the value of his vote diminished in Senate chambers, that citizen finds the value of his own vote similarly diminished. In other words, that citizen is being denied full and complete representation in the Senate, which in turn means that citizen has been "deprived of...[his] property [that is, the full value of his vote], without due process of law."

The Seventeenth Amendment: "...each Senator shall have one vote." That must mean, by any fair and sensible standard, that each Senator's vote is to be considered equal to each other Senator's vote. Allowing for filibusters denies this equality.

:UNQUOTE.

http://ind4prez2012.blogspot.com/2010/12/obamas-legacy-filibustered.html

"Standing" in the eyes of the law

I'll start with a example. If you are injured in an auto accident, you have the right to sue for damages. And you have the right to determine how much you should sue for - let's say, you and your lawyer decide on $200,000 as a just compensation. I, a total stranger, can't jump in and say, "That's not enough; I will sue instead of you and try to obtain $400,000." Even if I'm willing to share the settlement with you, the judge wouldn't allow me to proceed on your unauthorized behalf. That's the kind of standing-to-sue I understand.

What I don't understand is this (again, note my highlight):

QUOTE:

In 1984, the Supreme Court reviewed and further outlined the standing requirements in a major ruling concerning the meaning of the three standing requirements of injury, causation, and redressability.

In the suit, parents of black public school children alleged that the Internal Revenue Service was not enforcing standards and procedures that would deny tax-exempt status to racially discriminatory private schools. The Court found that the plaintiffs did not have the standing necessary to bring suit. Although the Court established a significant injury for one of the claims, it found the causation of the injury (the nexus between the defendant’s actions and the plaintiff’s injuries) to be too attenuated. "The injury alleged was not fairly traceable to the Government conduct respondents challenge as unlawful".

:UNQUOTE: http://en.wikipedia.org/wiki/Standing_(law)

If, as indicated in yellow, the IRS isn't "enforcing standards and procedures," any American* citizen should be able to sue. If the IRS isn't doing its job, that should concern any citizen whose taxes help support that monster. As far as "injury" is concerned, any citizen should be considered injured when a government agency isn't doing its job - even if that citizen can't demonstrate specifically how he is being injured.

I'll even expand my claim to cover citizens who don't even pay income taxes, even though a court might claim that since he isn't helping to fund the IRS, he shouldn't have any grounds for complaint due to IRS selective enforcement of its own rules. I would ask the court: "Applying your standard, such a non-taxpaying citizen should also be denied the right to vote since he isn't paying anything to help support the government." Even a non-taxpaying citizen has rights, which must include his right to expect government agencies supported and empowered by his elected representatives to do their jobs. I'll even extend this right in the case of a citizen whose Congressman votes consistently to abolish the IRS! In such a case, there's of course no way to know if the suing constituent himself agrees with his representative's negative votes or if he even voted for that lawmaker in the last election.

Or even if he voted at all!

As you can see, I have a very broad standard concerning who should have standing to sue. Especially when it comes to violations of the Constitution of which each of us should be empowered as guardian since it belongs to all of us.


The Obligation of SCOTUS to respond

The US Supreme Court should be expected to respond to my lawsuit. I start my defense of this claim by citing Article III, Section 2 of the US Constitution:

"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..."

I maintain that the Supreme Court not only has "the judicial power" cited above, but should be obligated to use it.  SCOTUS shouldn't be allowed to deny, without providing a reason, a citizen's right to be heard by that Court. As things stand now, a case will not be heard by SCOTUS unless at least four of its nine justices say it should be. That standard is fine with me, however I would not allow the Court to deny a hearing without providing a written reason or reasons, in the case of different justices wishing to deny for their own particular reasons. Though each reason should be publicly matched to its denying justice.

The reason for this is quite simple. Since justices are allowed to "hold their offices during good behaviour" - per Article III, Section 1 - we must have some way of knowing if each justice is behaving (that is, ruling) properly. Is he doing his job or is he being capricious in deciding which cases which should be heard by the whole Court. All I'm asking for is an accountability which even the US President must provide. Here I cite Article I, Section 7:

"Every bill...shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated..."

In other words, POTUS can't just refuse to sign a bill into law; he's got to say why he objects for the public record. In the case of SCOTUS, Congress could merely inform the High Court of this new standard - threatening impeachment for non-compliance as a form of bad "behaviour." Of course, our current Congress - lacking any independence and possessing only loyalty to the causes of party and reelection - will not do this. I present this lacking as part of a mountain of evidence concerning the need to replace all Dem/Pub lawmakers with true independents.


But SCOTUS might object

If the High Court were to be expected to issue reasons for not hearing cases presented to it, it might object saying, "This new requirement represents an increase in workload we are logistically incapable of handling."

Fair enough. After all, the Legislative and Executive branches are provided ample resources to do their jobs. So SCOTUS should be granted an increase as well. I propose - as merely one possibility - that Congress increase the size of the Court to ninety - that is, to ten groups of nine sitting justices. This would still be regarded as one Supreme Court, but would be - in a de facto sense - ten Supreme Courts each with its own Chief Justice. If workload is to be a concern - and it's already widely acknowledged that SCOTUS is overworked - then randomly assigning incoming cases to any of these ten should be regarded as assigning them to "the" Supreme Court.

Of course, then it would be possible for one such "supreme" court to issue a decision that contradicts a ruling from another such "supreme" court. That possibility of contradiction or self-reversal exists in the Court we currently have on hand, especially in view of the many five-to-four decisions which seem to indicate judicial uncertainty. This is one reason why I propose that judges be appointed by a President and confirmed by a Senate - both of which are independent rather than Republican or Democratic. Another reason: Our current Constitution is simply too vague and archaic to be reasonably interpreted in this modern age; therefore we need a new Constitution.

To deal with SCOTUS's contradictory rulings, I would leave it to Congress to be the final arbiter - but of course that would require a Constitutional amendment. Or that this be a provision in a replacement Constitution.

Who will answer?

I have nothing but contempt for the hypocrites on the right who have no problem with the unconstitutional filibuster once again thwarting the will of the people - as long as their Second Amendment rights (as they interpret them) aren't threatened. Never mind that a majority of our senators - who swore to uphold and defend the Constitution - didn't perceive any such threats.

I would love to personally answer the call regarding who should submit a lawsuit suing the United States Senate for its unconstitutional filibuster rule. However, I can't - especially since I am no longer a US citizen, having renounced that status a few years ago. Even I can agree that I wouldn't have standing to present such a lawsuit. There are two other reasons: I am too poor to pursue such a case in light of the filing fees involved, and I am too sick - currently battling Stage IV liver cancer. Since my life might be cut short (I'm only 61 years old now), I might not be around long enough to be screwed too many more times by the filibuster rule.

But most of you will outlive me and will, therefore, have many more opportunities to be screwed. Unless one of you decides to speak up and take a stand.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Steven Searle, former US presidential candidate (in 2008 and 2012)
Founder of The Independent Contractors' Party

"United we stand - unless the Supreme Court rules that we don't have sufficient standing."

Contact me at bpa_cinc@yahoo.com

* I wrote "the American people" meaning no disrespect to Americans who are citizens of the countries other than the USA. Rather, I wrote to be consistent with my efforts to rename the USA "America."

China is making a huge mistake

China is making a huge mistake by not reining in North Korea's Kim Jong-un. China is gambling that the US won't simply destroy, without fanfare or advance warning, a North Korean medium-to-long-range missile. I mean, destroy it on the launching pad as it's being fueled for its test flight or shortly after it lifts off. Or, even more daring, bomb a nuclear reactor after NK conducts another A-bomb test.

China says the US should talk with North Korea. I say, absolutely pointless since it would only allow Kim to boast about forcing a superpower to the bargaining table. Besides, Kim has already declared war on us and others, so as far as many observers are concerned, the war is on - all that remains is to see who fires the first shot.

Kim has threatened to turn Seoul into a sea of fire by means of massive artillery bombardment, so he might try to do just that should we give him a black eye as described above. But even in South Korea, there are practical leaders who think, "That's a price worth paying, for we can't afford to wait until Kim acquires more nukes which can really turn Seoul into a sea of fire."

Of course, it also remains to be seen what North Korea or China decide to do after we strike. And that's where it gets interesting. There are a lot of war planners on all sides who do nothing all day but dream up scenarios, including a wide variety of this type: "if we do A, then they might respond with B, to which we'll escalate with C..." However, those professional planners can't take into account how their leaders (or their adversaries' leaders) might really respond.

Here's a bit of free advice from me - a person who was a natural-born citizen of the United States who renounced his citizenship a few years ago:

QUOTE:

Don't be too sure the United States will be afraid of militarily engaging you [China], up to and including by means of a nuclear exchange. The US owes you a great deal of money, which they will refuse to pay back after the war starts. Which is a nifty way to get out of debt. You are not yet in a position where you can go toe-to-toe with the US militarily. Perhaps at some point in the near future you might be, but that day hasn't arrived yet. And maybe the US might decide it's now or never to strike a devastating blow.

Your best strategy is to continue doing what you're doing in terms of expanding your economic clout. Right now, that clout is impressive but it's not anywhere near decisive. You would do well to take into account a cynical and desperate US leadership that's perfectly willing to absorb a few nuclear blows from you.

Beating war drums won't help you and in fact will invite a pre-emptive strike. So I fail to see how allowing Kim Jong-un to be your proxy will help your cause in even the short run. Kim has talked himself into such a corner that your neighbors will be more than happy to see him smacked down - and you with him should you decide to retaliate.

:UNQUOTE.

About Major General Zhu Chenghu

The following two quoted sources refer to the same interview:

QUOTE:

Saturday, July 16, 2005

A general in the Chinese People's Liberation Army (PLA) and dean at the National Defense University in China commented to visiting Hong Kong reporters on Friday that the PLA might use nuclear weapons against the U.S., in a conflict over the Taiwan Strait. "If the Americans draw their missiles and position-guided ammunition onto the target zone on China's territory, I think we will have to respond with nuclear weapons," Maj. Gen Zhu Chenghu said to the reporters of the Asian Wall Street Journal and the Financial Times. "We Chinese will prepare ourselves for the destruction of all of the cities east of Xian [in central China]. Of course the Americans will have to be prepared that hundreds...of [their] cities will be destroyed by the Chinese."

[and]

Echoing the official Xinhua News Agency, the People's Republic of China's Foreign Ministry officials said the Zhu was expressing personal views, and had warned the reporters accordingly, but states that China would never tolerate "Taiwan independence."

:UNQUOTE: http://en.wikinews.org/wiki/Chinese_General_threatens_U.S._with_nuclear_weapons_over_possible_Taiwan_Strait_conflict,_Beijing_downplays_comment

QUOTE:

Gittings later wrote, "Almost too stunned to respond, I offered Gen. Zhu a chance to back down—or at least qualify the circumstances under which China would unleash its nuclear missiles against 'hundreds of, or two hundreds' of American cities. Presumably, I suggested, he was only talking about the unlikely scenario of a U.S. attack on mainland Chinese soil. No, the general replied, a nuclear response would be justified even if it was just a conventional attack on a Chinese aircraft or warship—something very likely if Washington honored its commitment to help defend Taiwan against an invasion by Beijing. A fellow correspondent offered Gen. Zhu another escape route, reminding him that China had a longstanding policy of no first use of nuclear weapons. But the general brushed that aside as well, saying the policy could be changed and was only really intended to apply to conflicts with nonnuclear states in any case.

:UNQUOTE: http://en.wikipedia.org/wiki/Zhu_Chenghu


Zhu is now - as he was then - a Major General working at the Chinese equivalent of our West Point. He is not, as has been touted in some media sources, any kind of a highly-placed military man. Even though Zhu's comments were made eight years ago, US military planners took due note, sincerely believing China will do exactly as Zhu claimed they would once they acquire the means.

However, there's a better than even chance that China has since changed its mind about Zhu's stated strategy: "We Chinese will prepare ourselves for the destruction of all of the cities east of Xian [in central China]." That would mean abandoning the areas which have proven so pivotal to China's economic growth. And the 100 billionaires living in China (as of 2011) many of whom undoubtedly have connections to the Communist rulers (or are among those rulers), aren't prepared to see the source of their wealth be vaporized.

And they might not want to flee west of Xian since that's where a lot of China's very poor and resentful masses live.

US planners know the priorities of these 100 billionaires, but they might choose to believe China means nuclear harm to the US - causing them to act accordingly.

Happy Chinese New Year

This quote is in regard to an amazing movie I saw a few years ago - Last Train Home (2009):

QUOTE:

Every spring, China's cities are plunged into chaos as 130 million migrant workers journey to their home villages for the New Year's holiday.

:UNQUOTE:  http://www.rottentomatoes.com/m/last_train_home-2009/

This awesome movie came to mind recently when I was thinking about what US military planners might have in mind should push come to shove in China. A lot of people assume we'll do something drastic, such as nuking the Three Gorges dam. But there are other, far more effective options. For instance, when those 130 million migrant workers are away from their sweatshop jobs in the big cities, precision-target ordnance could destroy the rail links needed for them to return to their jobs. The US could then congratulate itself on its restraint, while sparing 130 million people who might be tempted to overthrow the Communist Party. After all, these poor masses are painfully aware of how the New Mandarins treat and feel about them. And their grievances are many and go largely ignored.

Patriotism is one thing, but a sense of fair play could prove more powerful. This quote makes clear the source of grievance among China's poor:

QUOTE: [from article by Damian Grammaticas (Nov. 1, 2012)]:

Lu Dayi is one of over 150 million Chinese in the countryside still living below the poverty line - officially set at around $1.5 a day. China's economic growth has been deeply uneven. Most have seen their lives improve in the past two decades, and 400 million Chinese have lifted themselves out of poverty [NOTE: But only the poverty described by $1.5 a day]. But those in the right places with the right connections, usually in the cities, have gained incredible riches. So China today is among the most unequal countries in the world.

:UNQUOTE: http://www.bbc.co.uk/news/world-asia-china-20165283

The Joke that is Chinese Communism

Nobody among China's leadership wears Mao suits anymore or really believes in the Communist ideology. I wonder how Communism is taught these days in Chinese schools. Do young children learn at an early age not to go "huh?" when their teachers describe those old faded doctrines? Or is Communism simply explained to them as being what we call "our system" - with details being withheld?

This link demonstrates the hypocrisy of China's top leader, Xi Jinping, of whom the link's headline proclaims:  China's incoming president Xi Jinping's family 'has wealth of hundreds of millions":

http://www.telegraph.co.uk/news/worldnews/asia/china/9365099/Chinas-incoming-president-Xi-Jinpings-family-has-wealth-of-hundreds-of-millions.html

Apparently, Xi doesn't personally have great wealth - at least not in the form of traceable assets. And this allows him to pontificate to other leaders about the evils of greed. But Xi's older sister(!) - who has much of the family's wealth - is quite another story. You don't suppose she got rich without help from her well-politically-connected brother, do you? Even though Chinese state censors blocked the above link, the impoverished masses of China have more than a passing awareness of the truth. That's something you won't hear Xi Jinping speak about - the masses. That's so passé.

If China were to ever become serious about realizing the Communist ideal, which was born of a desire to overthrow oppression, I heartily recommend that they stop pretending that they're any kind of Communists and, instead, adopt Cross-Sectional Representation (CSR) as their governance model. Even though I had invented this system back in 1976 as the basis for a replacement to the US Constitution, I feel it would be as well-suited to China as well.

Of course, under CRS the New Mandarins would no longer have any kind of special monopoly on power. But we all have to make sacrifices.

Here's a brief description of CSR:

The 435 Congressional Districts now in existence share a fatal flaw: they are distinct physical locations. Each district should be replaced with a new unit: the Cross-Section. Every eligible voter in the country should be randomly assigned to one of 435 numerically-equal Cross-Sections. A Congressman would still be elected, but his constituency would consist of voters who, as members of a Cross-Section, are literally scattered all over the country. This way, we avoid having Congressmen trying to please local constituencies at the expense of our broader, national interests.

My proposal includes:

• Abolishing the U.S. Senate, thereby making the House our sole national legislative body, members of which will serve six-year terms.

• Abolishing the US Presidency in its current form: A President would still be elected - but only by members of House, with only those members being eligible for that office. This President would be mostly a figurehead serving at the pleasure of the House as a spokesman for that body.

More detail is provided here:
http://ind4prez2012.blogspot.com/2011/05/alternatives-to-fourth-reich.html

Cross-Sectional Representation is a vast improvement over Communism, at least as lip-servicingly practiced in China. I suggest China's leaders go for it, since the path they're on won't end well.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

Steven Searle, Founder of the Independent Contractors' Party

Candidate for US President in 2008 and 2012

"There's a clock ticking and we're rushing headlong into the agenda it's timing out for us. But...it's still not too late.

Contact me at bpa_cinc@yahoo.com

Deconstructing the Second Amendment

Order of Comments

First, I offer a eulogy, followed by a section defining rights and giving examples of their denial. Then I attempt a deconstruction of the Second Amendment itself.


First, I offer a eulogy

QUOTE:

A eulogy, a praise of merits, is offered at the funeral of a good person who died. Today, I eulogize - not a person but an entity, namely, the faith untold millions of USA citizens once had in their government. That faith died (RIP), though diehards will insist their faith in our form of government is as strong as ever; what died was faith in our elected representatives. But the diehards are spitting in the wind on this one - for what good does it do to have system that looks great on paper but which can't manage to assure election of the good, decent, honorable lawmakers and judges needed to bring that system to life?

I understand the pain of members of the NRA and the Tea Party et al, who have been traumatized by the death of that which I eulogize. Their faith has been replaced by fear that a too-strong central government will enslave all of us. And for this reason, millions of them want guns or at least the chance to obtain them without difficulty. Their fear is so strong that it has given rise to illogical defenses of the Second Amendment which border on the fanatic.

In closing, I will remind the assembled mourners that we are not little, powerless people. Even though states' rights no longer exist, We-the-People do have practical, tactical options at our disposal [see Footnote 1].

:UNQUOTE.

Let the Deconstruction Begin

Exactly what is a right?

USA's citizens have certain rights, the first group of which are known as the Bill of Rights. The United Nations has a list called the Universal Declaration of Human Rights on its website. Then there are the kinds of "rights" assumed by large numbers of people - such as the expectation of benefits from certain entitlement programs.

Then of course there's the whole debate about rights vs. privileges. I believe that we only have rights to the extent that they are enforced. For instance, you have the right to remain silent once your Miranda rights are read to you. But that right vanishes as soon as some cop decides to beat a confession out of you. BTW, if you "confess" hoping to later explain to the judge that you were coerced, too often the judge will ignore you.

Then there's an example afforded by your so-called rights under the Seventh Amendment, which states:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law."

About that twenty dollars stipulation:

QUOTE:

No power was defined to index or adjust the twenty dollar threshold, defined in the amendment, for inflation. ... If inflation were considered, however, the value cited would have amounted to several hundred U.S. dollars, as of 2011. Congress has never extended federal diversity jurisdiction to amounts that small ... Under the current Federal Rules of Civil Procedure (28 U.S.C. §1332), the amount in dispute in diversity cases must exceed $75,000 USD in order for the case to be heard in federal court.

:UNQUOTE:  http://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution

Translation? Even though the 7th Amendment specifies a $20.00 minimum (which, if adjusted for inflation becomes several hundred dollars), you can't access a federal court unless your case involves at least $75,000. So much for your right to a trial by jury.

What about our rights under the one man, one vote doctrine? I direct you to this link which contains this sentence:

http://ind4prez2012.blogspot.com/2010/12/obamas-legacy-filibustered.html  :

"More importantly, the practice of filibuster is in direct violation of at least three different sections of the US Constitution [as follows]:"


What about your right to free speech? If you, like many of us, are "at will" employees, your boss can fire you if he overhears you expressing an opinion he doesn't like - even if you're not on the job and are (say) in a public park talking to friends. And it won't do you any good to cite the First (at the national level) and the Fourteenth (at the state level) amendment protections of free speech, since your boss doesn't operate at either level.

However, I object since the US Declaration of Independence includes this statement: "...all men...are endowed...with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Since one of our "unalienable Rights" includes "Liberty," I have to ask: "How can a citizen claim to possess Liberty if he can't speak freely from fear of his boss?" And were I to lose my job because my boss didn't like what I had to say, then I will also be denied a reasonable "pursuit of Happiness."

I am not impressed by arguments to the effect: This "unalienable Rights" sentence is in the Declaration of Independence and not the Constitution. As far as I'm concerned, especially since many of the same crew that wrote the Declaration also wrote the Constitution, the Declaration's words have constitutional force. Especially in light of the Ninth Amendment's protection of non-enumerated rights.

For the record, here's a definition of an "At Will employee," who the Justice Department believes doesn't have a Constitutionally-protected right to free speech:

QUOTE: 

[TITLE of article]: Employment At Will: What Does It Mean?

[Appearing in bold under the article's title]: If you are employed at will, your employer does not need good cause to fire you.

An at-will employee can be fired at any time, for any reason (except for a few illegal reasons, spelled out below). If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination.

:UNQUOTE: http://www.nolo.com/legal-encyclopedia/employment-at-will-definition-30022.html

On to the Second Amendment itself

The 2nd Amendment states:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

I believe the Founding Fathers made a profound mistake by not simply having stated the Second as follows:

"The right of the people to keep and bear arms shall not be infringed."

There! That covers our militia needs as well as our right to self-defense - a right, strangely enough, not mentioned anywhere in the Constitution. In fact, as stated, it's not possible to see the Second as covering self-defense though, by yet another famous 5-4 decision [District of Columbia v. Heller (2008)], SCOTUS managed to conjure up that coverage.

The following link, containing the following quote, shows the folly of having stated the Second as the Founding Fathers did:

http://ind4prez2012.blogspot.com/2012/07/how-i-killed-second-amendment.html

"The Second is the only amendment that gives a reason for its being; if that reason ceases to be reasonable, then the Amendment dies. In effect, it commits suicide by means of a built-in kill mechanism."


"well regulated Militia" indeed

As you read the next quote, ask yourself, "How can well regulated Militia possibly refer to those available for conscription but have not yet even trained for their mission?


QUOTE:

Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription.

:UNQUOTE: http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2

The Founding Fathers were counting on the people-at-large being sufficiently armed to act as a counterbalance to the possibility of central government tyranny. In order for that to work, however, we'd need something above and beyond the state militias which can be pressed into the service of the President. A militia focused only on weapons training and tactics - specifically barred as an organization from participating in any missions - would have to be created by the 50 states and exclude the federal government from participating.

I specified "barred as an organization," since that would make it easier for individuals in that organization to resist being pressed into unwilling service by a tyrannical central government.

The Court's decision on sawed-off-shotguns

QUOTE:

In [the 1939 case] United States v. Miller,4 the Court sustained a statute requiring registration under the National Firearms Act of sawed–off-shotguns.... “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well– regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

:UNQUOTE: http://www.law.cornell.edu/anncon/html/amdt2_user.html#amdt2_hd2

SCOTUS was concerned about a "reasonable relationship" between sawed-off-shotguns and the "preservation or efficiency of a well-regulated militia." However, weapons like machine guns and RPGs are, in the words of the last sentence quoted above, "part of the ordinary military equipment [which] could contribute to the common defense" as well as provide a greater deterrence against the possibility of our central government ever seeking to tyrannize us. So why won't SCOTUS include these modern weapons as part of our arsenal protected by the Second?

Final Comments

As each day passes, We-the-People are becoming nothing more than cogs in a well-oiled machine. Worse? We have become divided against ourselves, becoming so afraid and polarized that we can't even think straight. We have become so thoroughly programmed that we buy into the arguments about why felons can't own guns. I say "felons," since there is no such thing as an ex-felon - at least, not in the eyes of the law. Once a felon pays his debt to society by serving his time and paying his fines, he will always remain a felon and continue being denied his Second Amendment rights for the rest of his life. We buy into that, since we assume all felons (note: among whom are non-violent offenders) will always pose a risk to the rest of us.

So much for the rights of these ex-offenders...but nobody seems to care.

However, we might reach a point someday where the ex-felon, one who has had a greater than normal chance of suffering society's repressions up close, would be a welcome addition to our virtual militia. The government, on the other hand (realizing this), seeks to disenfranchise this sizable group which would be more than willing and able to offer the resistance necessary to settle old scores.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

Steven Searle, Founder of the Independent Contractors' Party

Candidate for US President in 2008 and 2012

"A strong central government isn't your friend; it's not even a necessary evil. In fact, it's downright inefficient."

Footnote 1:  http://ind4prez2012.blogspot.com/2011/05/general-strike-declared-by-steven.html and http://ind4prez2012.blogspot.com/2011/05/alternatives-to-fourth-reich.html . The last link describes a system I invented which could serve as the basis of a new US Constitution - a system I call Cross-Sectional Representation.

Contact me at bpa_cinc@yahoo.com