Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Article I § 9  
 
 
"[T]he Great Awakening was actually a re-awakening of a deep national desire for the Covenant Way of life. This yearning did not die with the passing of the Puritan era, but only went dormant. It was a desire which would produce a new generation of clergymen who would help to prepare America to fight for her life." 1
 
 

Article I § 9 clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

If one doesn’t understand that this clause is about slaves, then it could be difficult to understand. After all, nobody imports free persons. Free persons migrate, but only property is imported. "There was an oblique reference to ‘persons’ to mollify sensitivities, but the meaning was slaves, not freemen." 2 This clause was a concession by the framers who chose to keep slavery legal, to the framers who wanted to abolish it. It says that after twenty years (in 1808), Congress might be able to prohibit the importation of slaves. Until such importation was prohibited, Congress might tax the importation of "such Persons". — As evidence that a vocal minority of the framers believed that slavery was institutionalized bloodshed, consider the excerpt from George Mason’s speech to the Constitutional Convention on August 22, 1787. 3

Article I § 9 clause 2:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

"The privilege of the Writ of Habeas Corpus" 4 is a mechanism in due process that vitiates bloodshed perpetrated in the form of imprisonment under color of law. In other words, it’s a safeguard against people being unjustly imprisoned, jailed, detained, confined, etc. As such, it’s an extremely important aspect of our due process of law, and it’s an important part of our general jural society. "The writ orders the person who is responsible for the detention–for example, the warden or jailer–to produce the petitioner (that is, the body, or corpus) quickly, in court, so that a judge may decide the lawfulness of the detention." 5 — There are several periods in American history when this writ has been suspended. "President Abraham Lincoln suspended habeas corpus at the beginning of the Civil War, but Chief Justice Roger B. Taney protested that only Congress may do so (Ex parte Merryman, 1861). Soon afterward, however, Congress validated the President’s suspension. Pursuant to statute, later presidents invoked limited suspensions in 1871 and 1905. A presidential suspension in Hawaii in 1941, however, which was performed without statutory authorization, was ruled illegal by the Supreme Court in Duncan v. Kahanamoku (1946)." 6 Since the terrorist attacks of September 11, 2001, many people are concerned that President George W. Bush has again unilaterally suspended the writ of habeas corpus with regard to numerous people presumably suspected of terrorist activities.

It should be obvious to all of us that this due process mechanism should not be suspended except under the direst circumstances. Some people believe that Lincoln did not have adequate cause to suspend the writ of habeas corpus during his presidency. 7 Some people believe that Bush doesn’t have adequate cause to suspend this writ now. Since it’s much easier to see clearly through hindsight, we’ll look at Lincoln’s case, but leave Bush’s for some other time and place.

In Article I § 8 clause 11, Congress was given the power to declare war. War by itself is apparently not adequate grounds for suspending the writ of habeas corpus. If it were, then why did the framers fail to list it in Article I § 9 clause 2, along with "Rebellion" and "Invasion"? It’s apparently only when war is taking place within the geographical jurisdiction of the general jural society, "in Cases of Rebellion or Invasion", when "the public Safety" requires it, that the general jural society is constitutionally justified in suspending this writ. — Wars and "national emergencies" are notorious vehicles for power usurpation by the general government. Some people claim that when wars are over, the country always returns to genuine constitutional government. But the fact is that this country has never returned to full-blown constitutional government since the War Between the States. Even though the Constitution was amended to eliminate slavery, much of the background information that supports our understanding of the Constitution was ignored after that War, and the door was therefore left wide open for constitutional misconstruction. 8

In wars, the normal rules regarding consent are largely ignored. When nations are at war, people feel compelled to do things that they ordinarily would not do. For example, people join the military when they would not ordinarily do so. When they are in the military, the overriding rule is "obey your commanding officer". In other words, in the military, people are contractually obligated from the instant of induction to acquiesce like slaves to whatever they are told to do. Then they go kill the enemy without regard to whether it’s bloodshed or not. But if the enemy is trying to kill us, then killing them first is not bloodshed, but self-defense. — When the officers of the general government feel compelled to coerce people into the military, all features of voluntary consent are eliminated. Induction into the military through voluntary recruitment is radically different from induction through conscription. Forced induction is obviously bloodshed, and it tends to beg the question: If the number of volunteer recruits is deemed inadequate by government officials, isn’t this a sign that either the war is not worth fighting, or the society is not worth defending, or the necessity of the war is not being communicated, or all of the above? "The constitutionality of conscription during the Civil War never reached the Supreme Court, in large measure because President Abraham Lincoln suspended the writ of habeas corpus, thus blocking state courts from the release of draft resisters and other protesters." 9 — War is a state of affairs in which people kill other people without regard to whether the people being killed are personally guilty of bloodshed or not. It is assumed that the entire enemy nation is guilty of bloodshed, and therefore deserves to be defeated. The enemy is a threat, and that threat is sufficient to induce us to kill whatever number of them is necessary to ensure their collective acquiescence to our collective will.

In order to get a solid grip on how unconstitutional our social compact has become, we need to ask whether Lincoln and Congress were justified in suspending habeas corpus. There are essentially three issues that we’re addressing in this whole examination of the Constitution: (1)whether the Constitution conforms to the global covenant; (2)whether the social compact that we have at the beginning of the 21st century conforms to the Constitution; and (3)whether the social compact we have at the beginning of the 21st century conforms to the global covenant. Obviously, our primary concern is with conformity to the global covenant. But we’ll make a short detour here regarding the conformity to the Constitution, because it relates.

Lincoln, and the nation as a whole, were perfectly justified in executing war on the slave States because slavery is by definition institutionalized bloodshed. But this was not Lincoln’s professed reason for executing the war. His professed motive for executing the war was to preserve the "union". 10 Was he justified in executing the war to force the southern states not to secede? — There is ample evidence to show that the framers of the Constitution assumed that secession was a State’s right. 11 So Lincoln was wrong in using force to keep the southern States from seceding. But on the other hand, the Genesis 9:6 mandate says, "Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man." (KJV). Southerners were as a collection of social compacts perpetrating institutionalized bloodshed. All people who were witness to this bloodshed were called to bring retribution against it. So Lincoln and the North were justified. — Lincoln and the North did the right thing, for the wrong reason. None of us should have a problem with the fact that they did the right thing. All of us should be extremely skeptical of all the rationales and moralizations expounded in courts and government since the War Between the States, that attempt to excuse what they did on the grounds of preserving the "union". 12 Essentially, the concept of State’s rights – which is absolutely a legal concept that was supported by most of the framers – went into hibernation for over a hundred years. During that period, a monolithic general government arose to instill militaristic fear into all who hold consent and conscience to be higher values than blind obedience to the mega-state.

As a small sample of how far-reaching this misunderstanding of the War Between the States is, consider the case of Texas v. White (1869): "Following the Civil War, the presidentially reconstructed government of Texas brought suit to recover state-owned securities that had been sold by the state’s Confederate government. Defendants argued that Texas, which had seceded and had not yet been restored to the Union, was not a state and therefore could not sue in federal courts. Hence the case presented fundamental questions concerning secession, Reconstruction, and the nature of the Union. Asserting that the Constitution created ‘an indestructible Union, composed of indestructible States’ (p. 725), Chief Justice Salmon P. Chase held that secession was illegal and that Texas had never left the Union. . . .  Chase ruled that the state’s Confederate government had been unlawful, that its acts in support of the rebellion were null and void, and that the state was entitled to recover the securities. The decision endorsed the Republican position that the Union was perpetual and that Reconstruction was a political problem that lay within the scope of congressional power.". 13 — There’s a big problem with believing that the Union is "perpetual" in the sense that no State, once in the Union, is allowed to opt out of it. The problem is that consent is totally ignored. The consent of my grandfather is not the same as MY consent. The fact – according to both the global covenant and the Declaration of Independence – that "Governments are instituted among Men, deriving their just Powers from the consent of the governed", is totally ignored. 14

All the governments in the united States have a deeply held belief in majority rule. Majority rule is the republican alternative to rule by a monarch. Given that a person is not guilty of bloodshed, this majority has no more right to ignore the consent of this person than a monarch does. Nevertheless, majority rule is expedient in assuring the survival of the social compact, as long as the majority avoids perpetrating bloodshed. If a majority in a State votes to secede, a given minority citizen of the State may not like it, but this majority, by seceding, is not perpetrating bloodshed against this person, or against anyone else. But when the supreme Court, in Texas v. White, ruled that a State does not have the right to secede, it thereby ruled that the consent of the majority, the consent of the minority, and the consent of everyone else, is totally negligible. The only consent from a State that’s necessary to make that State into one of the States of the Union, is a one-time vote by the majority of the voters in that State, declaring that the majority consents to statehood. The consent of all subsequent generations is totally negligible. All subsequent generations are forced to acquiesce to statehood.

This ruling had huge ramifications in American jurisprudence. From that ruling forward, consent has been threatened with being treated as negligible in all cases. This shows an extremely serious problem with the American system of government. The problem revolves around two things.

(1)Government officials are no more morally free to perpetrate bloodshed with impunity than ordinary people are. But when mass bloodshed is perpetrated in such a way that each abused person only feels slight annoyance, at most, the bloodshed may appear to virtually everyone to be negligible. But our system is based on precedent. When bad precedent is set, it may seem negligible, but it will expand exponentially into the future until the population either corrects the problem or becomes enslaved.

(2)Stare decisis is the "Policy of courts to stand by precedent and not to disturb settled point.". 15 Once a bad decision becomes positive law, judges become timid to overturn it. They therefore rely upon precedents, claiming that the decision is already settled. This is a form of passing the buck, and refusing to take responsibility for thinking every decision through to solid ground. Our judicial system in our day is choking on it. Reliance upon precedents to justify suspension of the "privilege of the Writ of Habeas Corpus" is leaning on a reed. — The legal congestion in which the general government of the united States is now consumed is by no means unique. In the same way that Rabbinical Judaism claimed that its traditions existed on a par with the Tanakh; and Roman Catholicism claimed that its traditions were on a par with the Christian Bible; the executive, legislative, judicial, and administrative branches of the State and general governments are claiming that their precedents are on a par with the Constitution. Each of these three belief systems claims its traditions are at least as good as the source of such traditions. Each tradition has an inherent need to provide reliable interpretations to the source of their traditions. But in each tradition, interpreters spend more time and energy following each other than following the source of the tradition. We can call this conformity-creep. It’s obvious to any objective observer that when conformity-creep becomes prevalent, the tradition is in crisis or decline. Rabbinical Jews desperately need to read the Tanakh with eyes fixed on a more holistic understanding of the roots of their religion. Roman Catholics, and all Christians, desperately need to reexamine the Christian Scriptures with the same eye on a more holistic comprehension of their religious roots. All citizens and government officials in the united States desperately need to study the Constitution and the system of jurisprudence – and the morality – that produced it, for the sake of reclaiming the path that God gave to us at the beginning. 16

Article I § 9 clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

A bill of attainder is an act of a legislature 17 – in this case, Congress – that is in fact a judicial decree. In it Congress would usurp the function of the judicial branch by acting as judge and jury over a case that may demand adjudication, but not legislation. This is essentially a due process mechanism that ensures that the jural society will do justice, rather than injustice. As a fictional example of a bill of attainder, imagine that when Judge Bork was being questioned by Congress – while it was considering whether or not to approve him for a seat on the supreme Court – Congress passed a law throwing Judge Bork in jail for having an undesirable judicial philosophy. As another example, suppose someone refuses to testify before Congress, and Congress manufactures a bill of attainder to throw that person in jail for contempt of Congress.

An ex post facto law is an act of a legislature 18 – in this case, Congress – that (1)makes something illegal that was not illegal, then punishes someone for doing this illegal act while it was still legal; or (2)applies a new punishment to someone who did something prior to the time the new punishment became positive law. As a fictional example of an ex post facto law, imagine that when LSD was still legal, say, in 1963, the government started taking names of people it suspected of using LSD. Then in 1966, Congress passes an ex post facto law, mandating that all those people who used LSD while it was still legal be tried for possession of a controlled substance. According to the Constitution, this is illegal. But according to the maniacal anti-drug phobia generated by government propaganda, those damn hippies all deserved to be thrown in jail, and should not be allowed to hide behind something as flimsy as the ex post facto clause.

Both of these prohibitions are aimed at protecting the property rights of private citizens. As such, they are perfectly valid features of the American jural compact.

Article I § 9 clauses 4-8:

Article I § 9 cl 4-7 are terms that pertain to taxes and spending. Article I § 9 clause 8 is a term that is insurance against the united States backsliding into monarchy or some other form of despotism. Because this is merely a brief, cursory examination of the Constitution, we’ll say no more about these clauses, except to say that if they are strictly construed, no fault should be found in them by way of the global covenant.

Footnotes

1The Light and the Glory, p. 240.

2Principles of Confederacy, page. 123.

3URL: ./0_2_0_Art_I_Sec_1-7.htm​#Gmason.

4def.: habeas corpus — "Lat. (You have the body.) The name given to a variety of writs (of which these were anciently the emphatic words.), having for their object to bring a party before a court or judge. In common usage, and whenever these words are used alone, they are usually understood to mean the habeas corpus ad subjiciendum" (Black’s 5th, p. 638).

def.: habeas corpus ad subjiciendum — "A writ directed to the person detaining another, and commanding him to produce the body of the prisoner, or person detained. This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent. . . .  This is the well-known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ in all manner of illegal confinement. 3 Bl.Comm. 129. The ‘great writ of liberty,’ issuing at common law out of courts of Chancery, King’s Bench, Common Pleas, and Exchequer." (Black’s 5th, p. 638-639).

5The Oxford Companion to the Supreme Court of the United States, p. 357, "Habeas Corpus", by David Fellman.

6The Oxford Companion to the Supreme Court of the United States, p. 358, "Habeas Corpus", by David Fellman.

7See Article II on presidential emergency powers, URL: ./0_3_Art_II.htm​#PresEmergPowers.

8In fact, the majority of the framers of the Constitution believed in a version of the compact theory of government that was similar to John Locke’s version. The compact theory leaves secession and nullification viable underlying features of the Constitution. In fact, the War for Independence was fought to enforce American nullification of British laws, and secession from the British empire. For anyone, including Andrew Jackson and Abraham Lincoln, to claim that nullification and secession are no longer foundational aspects of the Constitution is equivalent to claiming that the compact theory no longer pertains. To claim that the compact theory no longer pertains is to claim that the government is no longer built on consent. This is because any true compact theory of government is an attempt at defining how governments develop out of consent. Any system of government that is not built on such consent is prone to ignoring such consent, and is therefore prone to abusing rights.

9The Oxford Companion to the Supreme Court of the United States, p. 179, "Conscription", by Jonathan Lurie. — "The decision of President Woodrow Wilson to rely primarily on conscription rather than volunteers in 1917 for military service during World War I made a legal challenge to the draft necessary if only to ensure that it received judicial sanction from the Supreme Court. This it did when Chief Justice Edward White, on behalf of a unanimous bench, upheld the Draft Act (Arver et al. v. United States, 1918) and relegated state authority over the militias to a very limited level, subordinate to the federal government. Effectively raising military forces for both World War II and the Korean Conflict, by 1968 the draft reflected the collapse of consensus that accompanied the Vietnam War. In 1973, it was eliminated, and replaced with an all volunteer armed force–a decision resulting from political rather than military consideration. Registration for a national draft continues, however, and conscription remains readily available, now causing ambivalence rather than the antagonism of an earlier era."

10"My paramount object in this struggle is to save the Union. . . If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. . . I have here stated my purpose according to my views of official duty and I intend no modification of my oft-expressed personal wish that all men everywhere could be free." — Letter from Abraham Lincoln to Horace Greeley, 22 Aug. 1862. (Oxford Dictionary of Quotations, 3rd Edition, p. 314. Verify at Library of Congress, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​mal&​fileName=​mal2/​423/​4233400/​malpage.db.) — See Article II § 2, URL: ./0_3_Art_II.htm​#Article2Sec2Cl1.

11After all, they had seceded from England, hadn’t they?

12Because secession was perfectly legal, it was constitutionally incorrect for Lincoln and Congress to view the seceding States as being in "Rebellion", and these seceding States were definitely not "Cases of . . .  Invasion" of the North, at least not until the war was well under way. A civil war is by definition "any internal armed conflict between persons of same country." (Black’s 5th, p. 224). By seceding, the southern States were declaring that they were no longer of the same country. This was therefore not a civil war. Rather, it was a just war executed by the North against a foreign confederation of social compacts that were practicing institutionalized bloodshed. The correct nomenclature for this war is therefore the "War Between the States".

13The Oxford Companion to the Supreme Court of the United States, p. 869, "Texas v. White", by Donald G. Nieman. — See also Amendment X, URL: ./0_7_Am_X.htm​#TexasVWhite, for more about Texas v. White.

14It may be true that the Articles of Confederation claimed to define a "Perpetual Union", but such claim also fails to acknowledge the fact that without their consent, people are not bound by ecclesiastical compacts or social compacts.

15Black’s 5th, p. 1261.

16There is a clear mandate in Scripture encouraging us to be extremely cautious in following stare decisis: "You shall not follow a multitude in doing evil" (Exodus 23:2a; NASB). The application to jurisprudence is obvious. If judges are incompetent to think things through for themselves – instead of blindly following bad decisions in earlier cases – then they are too incompetent to be judges. The mandate to think decisions through to solid ground appears not only in the Tanakh, but also in Rabbinical literature. For example, in the 613 mitzvot according to Maimonides, negative commandment #283 is a commandment against "A Judge relying on the opinion of a fellow judge" (The Commandments: Sefer Ha-Mitzvoth of Maimonides, vol. 2.). No doubt there are similar mandates in Roman Catholicism, as well as in Reformed Theology.

17def.: bill of attainder — "Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." (Black’s 5th, p. 150).

18def.: ex post facto law — "A law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed." (Black’s 5th, p. 520).

 
 
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