Ferguson Police Riots: An Occupation Army in Missouri

People seem confused by what the police are doing in Ferguson. Some people believe that the police are within their rights to arrest people for swearing or failing to move on when ordered to do so. Others believe the police resemble a paramilitary force. Police vary in different areas and react differently depending on whether they perceive someone as a threat. 

Look at the news reports. Try to get them from several different viewpoints, not just conservative sources like Fox News. You will see from the videos that the police in Ferguson are indeed equipped like a paramilitary force. They are also routinely violating the rights of Ferguson's citizens by assaulting them, arresting them for using obscene language or just for standing in one place. The police have been recorded threatening to kill journalists and they have arrested both journalists and humanitarian workers, like the National Lawyers Guild monitors who simply observe police behavior.

Some people claim the police are just protecting citizens from the demonstrators. We don't know what the police are trying to do, but we know what they are doing. They are quite clearly violating the law and the Constitution. They are using terror tactics against US Citizens who are within their rights of freedom of speech and assembly. They are also using weapons against innocent bystanders. Sound cannons affect everyone in the area. Tear gas can force people over a mile away to leave their homes to breathe fresh air. This is a major reason why tear gas (and other poison gases used by police) have been banned in warfare by the Geneva conventions, because they harm everyone nearby, not just armed combatants.

As far as the police protecting themselves from heavily-armed individuals, there has been a but single incident of a policeman wounded by gunshot in Ferguson. On the other hand, we have numerous pictures of police in riot gear aiming rifles or shotguns at demonstrators. It seems the armaments are much more prevalent on the police side. The police fire tear gas and other poison gases, as well as rubber bullets. They also arrest people by slamming them to the ground hard enough to injure them.

The demonstrations are a textbook example of what came to be called a "police riot" after the police attacked demonstrators at the 1968 Democratic Convention in Chicago. In a police riot, it is the police who are the instigators of violence, not the demonstrators. In many cases, the demonstrators are not armed, and certainly never to the extent that police are armed.

There are many other ways for the police to interact with demonstrators. The best way is to negotiate with them. All along, the demonstrators have been demanding that the police officer who killed Michael Brown be arrested and put on trial. This is a simple demand. There is nothing illegal about such a procedure, though it may violate police regulations. Even if it does, there should be a high priority placed on civilian safety. Complaints against police, who are hired to protect the people they are now assaulting, should be handled promptly and in an orderly manner.

The Ferguson Police Department has behaved throughout as if they are an occupying army. This must not be tolerated.

Our Decrepit Constitution: Remedies (Part Two)

6. Give the President More Domestic Power

The Founders persuaded the colonists to support the revolution by blaming a long list of problems on the King of England. They included this list in the Declaration of Independence. The Declaration also served—pehaps primarily—as a notice to the countries of Europe that the colonies wanted a new country, not reconciliation with the King. The colonists fought against the King and were not likely to accept a new monarch in his place.

The Articles of Confederation lacked a strong executive authority, which was seen as a major weakness. So the new Constitution had to describe a middle road. The office of the Presidency was a compromise between the power of a monarch and the limited authority of an administrator appointed by the Congress.

The President at first glance appears impressive. But the President does not propose a budget; only the House of Representatives can introduce spending measures. The President can appoint his cabinet, but they must be approved by the Senate. The President can negotiate and sign treaties with foreign nations, but the Senate must approve them before they go into effect. Likewise, the President appoints judges, but the Senate approves them.

This situation has lasted for two hundred years. At the beginning, when there was mutual respect between Congress and President, the system worked fairly well. As time went by, it worked less and less well. Today, Congress sees its approval as conditional on concessions from the executive branch, or simply as a way to attack the President.

It is absolutely impossible to imagine a corporation operating successfully under similar restrictions. The CEO appoints subordinate executives without any interference from the Board of Directors. The CEO proposes plans for the Board to approve, but once the plan is agreed upon, the CEO may implement the plan in any manner he or she sees fit. The President should have similar powers.

In line with their limited powers under the new system, the Senate may have veto power over presidential appointments, but only for 60 days. After that waiting period, the appointment becomes official.

7. Impeachment should be abolished

When it came time to establish procedures for removing a President from office, the Framers adopted a complex set of rules for impeachment, modeled after the British Parliament's impeachment procedures. In recent years, other procedures have been substituted for impeachment. The House or Senate may expel a member without any complex, quasi-judicial process. There is no reason to continue using this creaky, 18th century artifact, except that it can be used to completely stymie the political program of a president, as happened in President Clinton's second term. That alone is a reason to abandon the process, not to preserve it.

The last impeachment proceedings held in the Congress, against William Clinton, were entirely political in nature. The Republican House indicted Clinton with only five democratic representatives voting to impeach. The Republican Senate voted to convict Clinton with none of the democratic senators joining the Republicans.

The impreachment of President Clinton was a direct result of a Supreme Court ruling that Paula Jones could bring a charge against him in a civil court because there was little likelihood that he would be hindered in his duties as president while answering the civil suit (Clinton v. Jones, 1997). The Supreme Court was unanimous in this decision and they were completely wrong. Clinton spent much of the rest of his term as president embroiled in the Paula Jones case and the impreachment that followed.

After the National Initiative Amendment is passed, the Constitution may substitute a much simpler procedure involving a recall election. The House may vote for a recall by a two-thirds majority to place the recall on a special election ballot. The election must be held within 30 days to avoid any undue delay. If the President loses the recall election, he is immediately removed from office and the Vice President assumes his duties.

8. Sign International Treaties and Remove Exceptions

American Exceptionalism is a theory that regards the U.S. as a special nation. The idea has become part of conservative dogma since the 1980s. Ronald Reagan introduced the concept, if not the name, in a speech delivered to the first Conservative Political Action Committee. Reagan claimed he had a mystical revelation that America was part of a divine plan that involved men who believed in freedom and had a special kind of courage. 

Reagan backed up his mystical belief in that speech with a number of examples drawn from history, particularly the history of the founding fathers. Most of his examples were entirely false, but Reagan connected with the conservative movement with his folksy charm and his Hollywood-inflected view of the world and world history. 

Since the 1980s, the U.S. has withdrawn more and more from the family of nations. It has failed to sign treaties that offered cooperation on war and peace, the climate crisis, and the law of the sea. While President George H. W. Bush conducted an attack on Iraq with a broad coalition of nations under the auspices of the United Nations, his son rejected the advice of the U.N., instead attacking Iraq with a small coalition of U.S. allies. This action violated the United Nations Charter by carrying out an aggressive war that did not respond to a threat against our nation. 

Bush appointed an ambassador to the U.N. who stated that there was no United Nations, that the U.S. was the only real power in the world and that sometimes the U.S. could persuade other countries to follow its lead. This is an expression of American exceptionalism that few countries in the world could accept.

As a result of this quasi-religious belief in American exceptionalism,

the U.S. Senate has repeatedly failed to ratify treaties intended to increase cooperation between the countries of the world. Instead of leading the rest of the world, the U.S. has pursued its own interests in despite of any other country's opinions.

The Supreme Court has fallen in line with this belief. Its conservative members refuse to consider any court rulings from outside the U.S. as persuasive. This position is insulting to jurists in other countries, especially those who have been working for world peace and cooperation. Rulings of the Supreme Court have also reduced the reach of the Alien Tort Statute, further eroding any possibility of legal remedies for victims of injustice overseas.

We the people must curtail the power of the Senate to block implementation of treaties which the executive branch has negotiated and agreed to. These treaties could be approved by initiative and referendum, but that process is time-consuming and unnecessary. The Senate should have the power to block treaties for one year only. After one year, if the Senate hasn't approved a treaty, it should go into effect automatically.

9. Incorporate the International Declaration of the Rights of Man into our Constitution

The U.S. helped form the United Nations after World War II. We were then the world leaders calling other nations to move toward a peaceful world. In recent years, due in part to the theory of American Exceptionalism, we have moved away from a vision of the world which was ours. We the People should reclaim this vision.

The Framers believed that the Bill of Rights guaranteed all the rights that government should be concerned with. Their vision of the world did not extend farther than that. At that moment in time, the Bill of Rights was a laudable achievement. But we no longer stand at that moment in time.

Americans believed in 1945 that they possessed all the virtues in the world, since their armies had just defeated the alliance that embodied all the evils in the world. Sixty years later, we know better. We have seen our own country commit unspeakable crimes, bomb defenseless civilian populations, torture captives, imprison captured enemy soldiers indefinitely without trial. We can have only two reactions to these crimes: We can embrace a theory that defines them as virtues, since the country that committed them is ordained by God to be the savior of the world; or we can atone for our errors by becoming the world leader for peace and prosperity that we once were and can be again.

Kiobel v. Shell: Supreme Court Gives Corporations A Break

In an important case, Kiobel v. Royal Dutch Shell, the U.S. Supreme Court has once again ruled in favor of corporations and against individual human rights. Court observers should have had no doubt about the resolution of this case. The U.S. Chamber of Commerce, a powerful lobbyist for corporate interests, has made its opinion known. Businesses around the globe, said a spokesman, are being punished in U.S. courts with costly, reputation-damaging litigation.

Neither the Chamber of Commerce nor the Court seem interested in the crimes committed by corporations in these cases. These crimes are the worst sort of human rights abuses.

Filartega v. Pena-Arala (1980) was brought by the sister and father of Joelito Filartiga who was tortured and killed by the Paraguayan government. In Kadic v. Karadzic (1995), muslims and Serbians charged Radovan Karadzic, president of Srpska, for acts of rape, torture, extrajudicial killing, and genocide committed by soldiers under his command.

In re South African Apartheid Litigation (2004) was brought by South African citizens against multi-national corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization. The corporations involved in these lawsuits were Daimler, Ford, General Motors, and IBM. This case has not yet been brought up on appeal. Its fate is doubtful, given the Court's decision in Kiobel. All these cases have been brought under the Alien Tort Statute of 1789 ("ATS"), which gives U.S. District courts the right to try cases that originate in foreign countries.

ATS has been invoked in law suits 154 times since 1995.

The Supreme Court tolerated ATS until victims began targeting corporations. One law journal article estimated that continued prosecution under the law might cost corportions $6 billion over the next few years and cause multi-national corporations to stop doing business in countries that are notorious violators of human rights, like China. The article called this a nightmare scenario, while admitting that it hasn't happened yet.

An alternate scenario could be that multi-national corporations begin to protest human rights violations in countries like China to protect their bottom line. Then human rights violators will stop denying rights to their citizens because they need foreign capital to survive. One advantage of ATS is that it allows victims to sue for damages, while other international human rights laws hand out criminal penalties. The cash awards permit human rights law firms to take the cases on contingency and continue to represent victims in other cases.

The chances of either scenario happening were diminished by the Supreme Court, which rejected the arguments of human rights victims in Kiobel. Cases filed under ATS had two characteristics that bother the conservative justices on the Court. First, the statute can be used against corporations, which the Court has shown an eagerness to protect. Second, the statute can be used for any violation of the law of nations, now known as international law, which the conservatives on the court hold in contempt.

Justice Scalia proudly boasts he does not cite the opinions of foreign judges in his analyses of Constitutional law. He cites a number of areas where European law differs from American law as the reason for this practice. European courts, he says, have declared homosexual sodomy legal; abolished the death penalty; banned political donations for periods of time before elections. ATS specifically mentions offenses under international law. Using ATS forces American District Courts to become interpreters of international law.

The differences Scalia cites between U.S. and European law do not represent instances where Europe is wrong and the U.S. is right. They are instances where Scalia personally disagrees with European law, but where millions of Americans would accept the European position.

In his opinion in Kiobel, Chief Justice Roberts used a concept, presumption against extraterritoriality, that has not been well-defined. Roberts rejects the petition of Kiobel for redress against Shell Oil Company because accepting the petition might result in discord between nations. This decision is a transparent effort to resolve the claim in favor of a multinational corporation, regardless of the merits of the case. Recall that Filartiga was brought by a Paraguayan citizen against another Paraguayan citizen for crimes committed in Paraguay. Kiobel was brought by a Nigerian citizen against a multinational corporation for crimes committed in Nigeria. If anything, there is a closer relationship to the U.S. in Kiobel than in Filartiga. It is hard to view the Court's decision in the current case as anything but a complete reversal of the earlier case.

Roberts decides that the U.S. Supreme Court cannot intercede because the acts of Shell are also illegal under international law and therefore should be tried in an international court. Roberts knows Kiobel won't be tried in an international court, however, because the attorney for the plaintiff informed him in oral argument that no other judicial body showed an interest in taking the case. Furthermore, international courts are familiar with conflicts between countries and have procedures in place to handle such conflicts. Therefore, U.S. entry into the case would offend no one.

The Court's minority also concurred with the majority, making this a unanimous decision. The minority refused to accept Roberts's opinion on extraterritoriality. Rather, they ruled against appellant because they viewed the case as too trivial for action. This is probably the reason why international courts would not take the case, because they are busy with cases involving thousands of victims. The Supreme Court's refusal to uphold Kiobel’s appeal probably means that individuals will have a hard time getting a hearing for human rights violations in the foreseeable future. The international courts are too busy and the U.S. courts don't care.

The legislative agenda of the conservative Court majority proceeds. The Court has chosen groups to favor and others to disappoint. In this case, they have taken an inconvenient law and emasculated it. The judicial tools they use differ, but the result is always the same. Conservatives prosper, progressive languish.

Somewhere in its world of parsed word derivations and historical usages, the Court should find room for justice and equality. They should care whether Kiobel's wife gets compensation for her husband's murder. They should care whether prisoners on death row are innocent or only guilty of being poor and black or brown. They should put on their robes and walk to the courtroom with the humble acknowledgment that they are empowered by the people to administer justice and they should do their duty.

Our Decrepit Constitution: Welcome to the Future

Our Decrepit Constitution: Welcome to the Future

The Framers were intelligent, perhaps even brilliant men. But they were not clairvoyant. They could not see into the future. They designed a government for the times they lived in, assuming that all future times would be similar.

The pace of change quickened abruptly after 1860. The Civil War accelerated the building of railroads, which in turn led to increased production from steam power. The industrial revolution brought great wealth but also brought poverty, dangerous working conditions, and child labor. The Framers could not imagine either the problems themselves, or their scale. European governments, where industry was well-established by 1860, created a safety net for victims of disclocation and unemployment. Germany passed the first unemployment and social security laws in 1889, 36 years before the U.S. passed theirs.

American thinkers have played important roles in the establishment of human rights and international institutions. Woodrow Wilson helped establish the League of Nations in 1919. The United Nations based its human rights proclamations on a speech by Franklin Delano Roosevelt, wherein he defined the four freedoms: freedom of speech, freedom of worship, freedom from want, freedom from fear. The Framers recognized the importance of the first two freedoms. They did not mention the others in their Constitution.

The United Nations wrote treaties guaranteeing the four freedoms after World War II. These treaties are known to many Americans as the Geneva Accords. The United States Congress refused to ratify many of these treaties. The current Senate refuses to ratify the Law of the Sea, a treaty that formalizes traditional laws concerning the use of the oceans and their protection. The Supreme Court does not accept many international treaties as binding on the U.S. court system. U.S. Presidents have ignored the Geneva Convention on prisoners of war and torture.

The U.S. Bill of Rights needs to be extended to protect foreign nationals from ill-conceived and dangerous military adventurism, like the wars in Iraq and Afghanistan and interventions in Nicaragua, Honduras, and Chile. The Constitution should incorporate the International Bill of Rights, so there is no question whether U.S. Courts should recognize the rights of women, children, and the poor.

Justice Scalia claims that the Supreme Court cannot ask whether a person is guilty of a crime, only whether his trial met the bare minimum standards of due process. Likewise, Scalia claims that the Court cannot look at the reality of discrimination and voter suppression, it can only consider whether Constitutional standards are being met. Scalia challenges his critics to find a right to privacy in the Bill of Rights, although the Tenth Amendment reserves any rights not mentioned in the Constitution to the States or the People. Scalia accepts the concept of implied powers because it suits him but refuses to accept the concept of implied rights because it does not.

This ability to pick and choose which concepts to accept and which to reject is exactly what the Framers had in mind when writing the Constitution. They wanted the privileged minority to make choices for the people as a whole. The Framers assumed that these gentlemen would make better decisions than the majority of the people. After two hundred years of experiments, we now know that this opinion is false. Democracy works.

Our Decrepit Constitution: 1. Bill of Rights

The framers of the U.S. Constitution cobbled together a document that described a possible government for the thirteen original colonies. All of the framers who signed the constitution understood that it is not a perfect document. It is a compromise. The Senate is composed of two delegates from each state as a compromise to appease the smaller states. This principle, adopted by the California State Constitution for its State Senate, was struck down by the U.S. Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964), when Earl Warren wrote that legislatures represent people, not trees or acres. The U.S. Constitution, 48 years later, still supports the notion that U. S. Senators represent trees, not people.

The Constitution limited eligible voters to white male property owners. The property owners could also cast votes on behalf of their slaves, each of which was set equal to 3 fifths of a white man. Seventy-six years later, the Fourteenth Amendment gave to African-Americans the right to vote. Fifty-five years after that, the Nineteenth Amendment extended the franchise to women. Yet modern textualist jurists insist that we should interpret the words of the Constitution exactly as the framers meant them. This is nonsense. The framers were parochial thinkers in a backward country, still threatened by larger neighbors and Native American tribes. They were hardly the repositories of all wisdom that modern conservatives imagine them to be, nor did they believe that of themselves. Their experience did not include much of what today informs our thinking about human rights, science, and philosophy.

Some of the framers might be included in the group of thinkers who epitomize world wisdom on the subjects of politics and government, but not all. Madison, Hamilton, and Jay authored the Federalist Papers. Other signers of the Constitution are less well known as thinkers. Later thinkers would also be included in the prestigious group, like Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Franklin Delano Roosevelt, Susan B. Anthony, Eleanor Roosevelt, and Martin Luther King, to name only a few Americans. The international list would be much longer and would include a number of non-Americans who influenced the framers, including Locke and Montesquieu.

Americans in general, not just conservatives, believe that the Constitution is a semi-divine document. It gives us foolproof rules for governance. It protects our rights. We believe this despite the numerous constitutional crises that have occurred over the years.

Constitutional Crises

The first constitutional crisis involved the manner prescribed by the Constitution for the election of the president. This crisis occurred in 1800, when opponents of Thomas Jefferson tried to have Aaron Burr declared president. Burr was the vice presidential candidate, but the Constitution failed to recognize that the Vice President and the President would usually have the same number of electoral votes and that this fact could be exploited by politicians. The election of 1800, only the third presidential election held under rules established by the Constitution, was decided by the House of Representatives instead of the electors.

The nation has a severe problem. The Republicans have kept their promise never to raise taxes, but they lowered taxes and made vast appropriations for two wars without raising the funds to pay for them. No one likes high taxes, but the government needs money to pay for the programs that voters have approved and that business and the poor may rely on. The Constitution, which makes it impossible to pass laws without compromise, compounds the problem. The Republicans will not compromise on their political positions. They have made a constitutional crisis into a government crisis for which no one has found an answer.

Despite evidence to the contrary, many people, including members of the courts, consider that the Constitution is perfect or nearly so. All we need to do is tweak it from time to time. But the document itself forbids change. The Constitution is 224 years old this year. It is a creaking vessel taking in water at every joint. It was designed to slow the pace of change. Recently it has succeeded so well that it seems to be turning time backward to a time when only property owners had rights, minorities were enslaved, women had no vote, and only one culture was accepted and protected by the government.

The Supreme Court determined the outcome of the presidential election of 2000. The election in Florida was indecisive. Both sides claimed victory. A series of actions by the Florida state legislature and courts were appealed to the Supreme Court, which made its decision along strict party lines. Nothing in the Constitution gives the authority to decide elections to the Supreme Court, but nothing in the document prevents them from doing so.

Our leaders and thinkers spend a great deal of time thinking about how to make the Constitution work, just as medieval thinkers exhausted their energies trying to imagine God and his plan. The thinkers who followed medieval times created a government ruled by a document, just as the Church was ruled by the Bible. The study of the Constitution has become as sterile and fruitless as the theological studies of the Middle Ages. We need to stop wasting time fantasizing about what the framers intended and start thinking about how to put our country back on track.

First Amendment

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.

The first amendment was intended to guarantee the rights of individuals to speak out against the abuses of government. From the very beginning, these rights were challenged by the government, which passed the Alien and Sedition Acts in 1798. The Supreme Court never invalidated the Alien and Sedition Acts, although the Acts specifically banned freedom to criticize the government. The government used the Acts to imprison a Congressman, John Lyon, for writing a letter critical of President Adams and other similar acts. The Constitution did not protect Lyon's rights.

More recently, the supreme court has ruled that people with large sums of money have a right to drown out the voices of the majority. A small group of plutocrats spent hundreds of millions of dollars in 2012 to elect candidates to office. They did not succeed in getting the presidency, but they did succeed in many other races and they retained control of the House of Representatives. The framers envisioned a representative democracy. The Supreme Court has interpreted the First Amendment as giving inordinate power to a small group of wealthy people. The government has almost ceased to be a democratic republic and is close to becoming a plutocracy.

The plutocrats have taken advantage of the Supreme Court's ruling by financing propaganda. They use vast fortunes to buy advertisements on television, radio, and in print. They buy their own newspapers, radio stations, and television networks. The newspapers and networks created numerous scandals that were damaging to their political opponents.

The First Amendment protects people's right to tell lies, but it does nothing to protect people from the damage done by lying, legally called defamation. The laws against defamation in the U.S. are too weak to prevent elections being altered by lies. In 2004, a group of wealthy Republicans spent millions of dollars to convince the public that John Kerry had lied about his war record. The Kerry campaign had no way to stop the lies being broadcast continuously for weeks. The First Amendment protected the defamers and engineered Kerry's defeat.

Rupert Murdoch has subverted the press by buying Fox News Channel and turning it into a non-stop propaganda networkfor the Republican party. The wealthy publishers, Disney and Warner and their peers, still have this freedom. The rest of us do not. The copyright law makes an exception for fair use, meaning that you or I can use copyrighted material without paying for it under circumstances. The Digital Millennium Copyright Act (DMCA) took the right of fair use away from anyone posting to social network sites on the internet. The DMCA determines that a copyright holder can demand that a publisher, such as Facebook or YouTube, must immediately remove any material from its website or face severe fines. This removes the concept of fair use from copyright law, since Facebook or YouTube will not protect your fair use right and risk large fines. The Congress has taken away your right to due process, since the material must be removed immediately. You can appeal, and may win, but lawyers cost money and trials take time. If fair use must be won it court it is not safe to publish anything that may be contested.

It may appear contradictory that laws against defamation are too weak to prevent intentional lying but copyright laws are not strong enough to protect the right to fair use of copyrighted materials. The parties favored by the two laws have a great deal in common, however. They have plenty of money to defend themselves from charges of defamation or to attack people they accuse of violating copyrights.

The First Amendment forbids the congress making any law respecting the establishment of any religion. Congress passed and President Clinton signed the Defense of Marriage Act in 1996. This law, by defining marriage exclusively as a right of heterosexuals, adopted the religious views of part of the population and incorporated those views into federal law. The First Amendment did not prevent this from happening and could not help people who suffered from its effects. In 2012 the Supreme Court appears ready to annul the law, only sixteen years after its passage. The constitutional system appears to work, but only after time and money have been expended to fight this law. Justice delayed is justice denied.

Second Amendment

Its supporters, including members of the supreme court, ardently believe that the second amendment guarantees every U.S. Citizen the right to own a gun. The actual wording of the amendment does not appear to support this belief:

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.

The form of this amendment is a logical inference, meaning that if and only if the first part of the sentence is true, then the second part will also be true. Therefore, if a well regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms may be infringed by federal law. In some cases, where firearms cause danger to the people, then arms must be regulated to protect the public safety.

Justices of the Supreme Court who wish to return the country to the supposed golden age of the 18th century have ceased to analyze the actual meaning of the Constitution. They instead have developed complicated systems to infer that the framers, or at least the society of the late eighteenth century, believed that the right to bear arms should exist independent of any militia. This is hardly plausible, since the framers showed themselves to be fearful of the masses in numerous aspects of the Constitution.

The Second Amendment is obsolete. It guarantees citizens the right to bear arms because a well-regulated militia is essential to the security of a free state. This amendment passed before the U.S. had a standing army. Many of the framers, including Thomas Jefferson, opposed a standing army or navy. They intended to defend the country from England or France, then world superpowers, with a volunteer army whose soldiers kept their own guns.

During the Civil War militias were called out by the governors of the southern states to serve as the nucleus for an army of rebellion. In response to this abuse by the states, the Militia Act of 1903 established the National Guard under the dual control of the states and the federal government. The Militia Act gave the President the authority to place the state militia under the authority of the Army, thus effectively preventing their use for purposes of insurrection. Yet second amendment supporters continue to threaten rebellion.

The Second Amendment continues in force long after it has outlived its original purpose. Today it causes more harm than good by providing a legal excuse for the sale of deadly weapons to civilians. Twelve thousand people die from gunshot wounds in the U.S. every year. The Second Amendment, intended to protect the United States against invading armies, now contributes to needless slaughter of our citizens.

The politicized Supreme Court ruled in 2008 (District of Columbia v. Heller, 554 U.S. 570) that the Second Amendment guaranteed an individual's right to own a firearm, regardless of his membership in a militia. In this ruling, the majority of the Court continued its identification with the Republican Party by ignoring the legislative history of militias after 1789. Their ruling would have been correct in 1789, in a frontier country where everyone was required to bring a musket with them when they were called up.

A musket is a single-shot weapon that takes up to a minute to reload. The bullet must be inserted into the barrel of the musket, then tamped into place with a steel rod. A person must practice long hours to reload quickly and aim the gun properly. He will find great difficulty hitting a moving target, especially one that tries to get away. Most minutemen were not great marksmen, nor were they capable of coordinating their shot

It is not 1789 any longer. Our hand-held weapons can fire 50 or 100 shots in minutes without reloading. Gun sales advocates frequently argue that murderers will find other weapons if guns are not available. These advocates cite the genocide in Rwanda where 500,000 people were killed with machetes. The massacres there occurred over 100 days and involved up to 500,000 attackers. By contrast, a single individual with an automatic rifle killed 20 children, along with the 6 adults that tried to protect them, in less than an hour. Had the shooter been armed with a knife, it is likely that no children would have died, as there were adults on site who tried to disarm the shooter.

President Obama has recently announced several initiatives on gun control. He announced, as do all other politicians making public statements in support of gun control, that he is a firm supporter of the second amendment. Gun control laws protect the American people from the dire consequences of the second amendment. Its repeal would save thousands of lives annually.

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

The Patriot Act was the first law that subverted the terms of the fourth amendment. Section 215 of the Act made it possible for investigators to demand that a suspect turn over tangible things so long as these things are needed for an authorized investigation. The investigators no longer need to show probable cause, or even reasonable grounds, that the person under investigation is engaged in criminal activity.

In 2002 President Bush signed an executive order authorizing the National Security Agency (NSA) to conduct warrantless wiretapping of thousands of American citizens without a court order. At about the same time, the NSA began working on a top-secret project called Stellar Wind, that would collect millions of documents, phone calls, and digital transactions and store them in a massive facility in Bluffdale, Utah. These digital records were collected from law-abiding American citizens without warrants.

The Fourth Amendment did not stop the President from authorizing warrantless searches, nor did it stop the Congress from passing legislation that apparently violates the constitutional provision against unlawful search.

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.

The framers put their faith in independent, reasonable jurors. A grand jury today seldom decides cases against the advice of the prosecutor who convened the jury. The prop of an independent grand jury has been removed, although the independence of jurors may always have been illusory.

Supreme Court Justice Antonin Scalia has held that the Constitution does not prevent the execution of a defendant who has been convicted by a full and fair trial and later convinces a habeas court that he is innocent. This is true. The Fifth Amendment states that a person may not be deprived of life without due process of law. It does not prevent a state from manufacturing evidence against a defendant. The Supreme Court, following Scalia, considers only the careful observance of procedure, not flaws in the process itself, or the prejudice of the people. Troy Davis, whose case Scalia was commenting on, was executed by the state of Georgia despite efforts of numerous individuals and organizations to secure a review on the basis on recanted testimony..

The framers erroneously assumed that state governments would take care not to convict innocent persons. Instead, according to the NAACP and Amnesty International, states have shown a propensity to convict African-Americans for crimes regardless of their guilt or innocence. Since 1973 over 140 persons have been released from death row where they had been confined as a result of due process. The defendants were not protected by the Fifth Amendement, but because of a post-trial actions, such as the discovery of DNA evidence.

An unjustly convicted person should not expect a reprieve from the Supreme Court, where Scalia refused to consider Davis's case, calling it a fool's errand and a sure loser.

Due process starts with the presumption of innocence. Without that presumption, the accused is presumed guilty until he clears himself. The reasonable doubt is then given to the prosecution. Without that coin to throw onto the scales of justice, a defendant has little chance to escape punishment.

The Fifth amendment explicitly prevents the state from forcing a defendant to testify against himself. This clause was intended to prevent the use of torture in criminal trials, where it was still used in the eighteenth century. The Bush Administration, wishing to use torture against captured terrorists, simply disregarded the Fifth Amendment. John Woo, a lawyer appointed by the president, wrote an opinion that justified the use of torture. His opinion was used by the CIA to justify their treatment of enemy combatants.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment bans cruel and unusual punishment. The state of Alabama impressed prisoners into chain gangs and forced them to toil in the hot sun without concern for their health or safety. Chain gang members who became angry at their treatment vented their anger on the men who were chained next to them and could not escape their attacks. Prison wardens rounded up African Americans on fictitious charges to supply their customers, who profited from this form of slave labor. The institution of the chain gang was outlawed by the U.S. Supreme Court as cruel and unusual in 1910. Despite this ruling, Alabama and Arizona once again began using chain gangs in the 1990s until the Supreme Court outlawed the practice again in 1996.

As a form of discipline, Alabama prison authorities chained prisoners to a high railing and forced them to stand for hours, a practice decried as torture by the United Nations. The Federal Court indicated (Gates v. Collier 501 F.2d 1291 (1974)) that this practice in Mississippi constituted cruel and unusual punishment as early as 1974. The prison system of the state of Alabama was still using this form of punishment in 1995. The Supreme Court definitively declared this practice unconstitutional in 2002 (Hope v. Pelzer 536 U.S. 730 (2002)). This indicates the prisons in Alabama continued inflicting cruel and unusual punishments on inmates for at least 21 years after the courts ruled such practices unconstitutional.

Justice Thomas (Hudson v. McMillian (1992)) argued that such treatment did not constitute cruel and unusual punishment because it was not part of a judgment. Thomas apparently believes that the treatment of prisoners, once they are sentenced and incarcerated, is of no concern to the Supreme Court. This opinion comports with the views of eighteenth century politicians, who did not intend the eighth amendment to apply to prisoners; it has no place in the present day, more than 50 years after the Universal Declaration of Human Rights (UDHR) (1948) declared that no one shall be subjected to cruel or inhuman punishment.

In 2009, Attorney General Eric Holder ordered independent prosecutor John Durham to investigate whether the CIA had used any unauthorized.interrogation tactics in the years following 9/11. Durham discovered that the CIA had destroyed 92 video recordings of interrogations, but Holder concluded that most of the subjects had never been in CIA custody. Holder thereupon closed the remaining two investigations in 2012. If these were not interrogations by the CIA, then they may have been interrogations conducted by extraordinary renditions.

Holder's opinion, hence the Obama administration's opinion, is thus that whatever happens to a prisoner of war once he is handed over to a third party cannot be blamed on the American CIA officer who handed him into hostile hands.This reluctance to prosecute Americans under the terms of the Geneva Conventions may explain why the Obama administration has not sought indictments against the politicians who planned and executed the Iraq War. The laws of the United States do not apply to non-citizens; the Eighth Amendment is not broad enough to provide protection to foreign prisoners of war. The Geneva Conventions apply equally to all nationalities, but these rules are not recognized as law in American courts, partly because of reservations made by the Americans when the accords were adopted, and partly because American courts do not recognize international law as binding.

The Constitution is Dead

Our statutes don’t morph. They don’t change meaning from age to age to comport with whatever the zeitgeist thinks appropriate. When you read Chaucer, you try to figure out what the words meant when they were put down on paper. It’s the same thing with the law. --Justice Antonin Scalia

Scalia is correct when he says the Constitution is dead. Abraham Lincoln, who loved the Constitution well, declared in his inaugural address that

no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.

But the Supreme Court under the leadership of Justice Scalia is currently engaged in a project to change all our laws to comport with what the framers of our Constitution believed. When he is asked whether a new law is constitutional, Scalia goes directly to the text of the document. If he finds that the Constitution agrees with this new law, he approves the law. If he finds otherwise, he declares the law unconstitutional and throws it out.

Scalia is an expert interpreter of laws, but he is no literary critic. Otherwise, he would understand that every critic reads Chaucer differently. There is no absolute meaning in a work of literature. Each generation finds something different in Chaucer or Shakespeare. The new discoveries make these works of literature relevant again.

When Scalia argues that the Constitution is dead, he is arguing that we need a new document to take its place, or at least one that is completely altered. The Constitution is a fossilized relic of a bygone age. We should study it for its ideas, but we should not try to preserve them intact.

We should reform the Constitution so that it is easier to change. The framework that Justice Scalia praises so highly has broken down utterly. The Congress is so feeble that it can hardly pass a bill. The President is so powerful that he can violated the Bill of Rights with impunity, merely by declaring a war on some tiny group of people in a far corner of the globe.

The people have passed laws to repair flaws in the Constitution. Justice Scalia and his brethren strike them down. Their decision in Citizens United tells the people that they cannot decide what kind of government they want, but must accept the kind of government described by the framers. All power in the state arises from the people. If the Constitution prevents the people from making decisions based on new information, then it is the Constitution that must yield, not the people.

Nothing lasts forever. Everything eventually outlives its usefulness. The time has come to retire the Constitution and seek a replacement more suited to today.

Bush Trials: What lawyers can and can't get away with

Many lawyers believe that their knowledge of the law places them beyond its reach. After all, they spend their lives inventing elaborate means for their clients to circumvent justice.

But there are some things a lawyer just can't do. The Justice Trial, one of the trials at Nuremburg after World War II, set the limits. According to Douglas O. Linder,

"prosecutors had to show that the defendant consciously furthered...human rights abuses."

Among those on trial were judges who sentenced Jews and other Nazi victims to death. Eventually, again according to Linder,

“the police were given carte blanche to punish all 'criminal' acts committed by Jews without any employment of the judicial process.”

Those accused were not only judges, but also members of the Ministry of Justice who wrote decisions that made such treatment legal under German law. They were not necessarily members of the Nazi party. Instead, they were frequently

“ultraconservative nationalists who were largely sympathetic to Nazi goals.”

The men on trial had not participated in the worst excesses of the Nazi regime. In comparison with others who were more directly involved, they were minor figures. Some had sentenced hundreds to death, some had only facilitated the transfer of prisoners to the SS. But the court at the Nuremburg trials concluded that their crimes were just as great, because

The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.

Crimes against humanity are defined in the War Crimes Act of 1996 to be violations of the Geneva Conventions, that is, crimes

...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health.

Among those specifically protected by the Conventions are prisoners of war. Notice that the Convention doesn't get bogged down defining torture. It could be inhuman treatment or willfully causing great suffering. It is clear the delegates to the convention forsaw the likelihood that someone might try to define torture narrowly in order to avoid prosecution. It is just as clear that they made the definition very broad so that there was no room to weasel out.

John C. Yoo, in his capacity as Deputy Assistant Attorney General in the Office of Legal Council(OLC), gave the opinion that members of the US government, including soldiers, need not regard the War Crimes Act as binding because the President was given the sole responsibility for waging war by the constitution and later court rulings. He failed to acknowledge that the responsibility for treatment of prisoners of war was given to the Congress, both by the Constitution and subsequent court rulings. Therefore, his opinion, submitted as a memo to the Attorney General, could be considered to consciously further human rights abuses, which the Nuremburg Justice Trial set as the standard for determining guilt.

Jack Goldsmith took over the OLC in 2003. He withdrew the memos written by Yoo, writing that he was

“astonished by the deeply flawed and sloppily reasoned legal analysis”

But its ideas informed Bush administration policy for 2 years, while an unknown number of prisoners were tortured in accordance with its faulty legal reasoning, an unknown number of innocents locked up without a trial, and an unknown number of people killed. Yoo performed exactly the same function for the Bush administration that those jurists had provided to the Third Reich: He gave their crimes the color of law.

Furthermore, Yoo's action sullies the reputation of the United States. It turns us from a 'City on the Hill', whose existence inspires the world, into a pariah, the butt of insults from our friends as well as our enemies. Instead of using our strength to help the weak, we torment helpless individuals already in our power and deny hold them indefinitelyl. How can we boast of our liberties and rights when we have so clearly abandoned them?

So what should be done? Should we, as many suggest, investigate the Bush administration to find the truth? Or should we punish the wrongdoers and set an example for future apparatchiks of what happens when someone robs another of their rights and dignity as human beings?

Look at it this way. John Yoo is currently enjoying the rights and privileges of a successful party hack. He is a tenured professor at one of the country's most prestigious law schools. His case was referred by the OPR to the Bar Association for possible disciplinary action. But he won't even need to give up teaching if he is disbarred. So what penalty will he suffer?

The jurists on trial at Nuremburg committed similar crimes, some worse, some not so bad. Some served life sentences, some were acquitted. But the important thing is, they were brought to trial. The people whose rights they violated had their day in court.

Just as we should never forget the Jews and gentiles who died in the holocaust, we should not forget the people who suffered torture because someone thought it was a good idea and John Yoo was a willing stooge.