Showing posts with label Divine Right of Kings. Show all posts
Showing posts with label Divine Right of Kings. Show all posts
Tuesday, April 5, 2016
"Divine Right" Judges - Death of Representative Government
With the death of Supreme Court Justice Antonin Scalia, the U.S. Constitution, as it was understood by the men who drafted and ratified it, is one vote away from being a dead letter.
In 2015, the U.S. Supreme Court decided Glossip v. Gross. The issue was whether the drug cocktail Oklahoma chose to effect a murderer’s execution, violated the 8th Amendment’s ban on cruel and unusual punishment.
Not content with deciding that issue, Justice Stephen Breyer, employing his “modern view,” wanted to declare the death penalty unconstitutional in all cases:
“Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.”
Justice Scalia relying on “original intent,” disagreed:
“Not once in the history of the American Republic has this Court ever suggested that the death penalty was impermissible. The reason is obvious. It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital ... crime, unless on ... indictment of a Grand Jury, and that no person shall be deprived of life ... without due process of law.”
“Nevertheless, today Justice Bryer takes on the role of the abolitionist ... arguing that the text of the Constitution and two centuries of history must yield to his ‘20 years of experience on this Court.’”
Justice Scalia has been called an “originalist” -- that is, someone who tries to construe the Constitution consistently with the intent of the founding fathers.
What is original intent?
Many Americans, including many who should know better, choose not to understand the meaning of original intent. By way of example, the 4th Amendment provides “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 ... particularly describing the place to be searched, and the persons or things to be seized.”
When the 4th Amendment was adopted in 1789, automobiles and airplanes didn’t exist. “Original intent” does not require that cars and planes be excluded from 4th Amendment protection; rather, it requires they be accorded protection comparable to that given to 18th century coaches.
Our Constitution was not a document drafted by philosophers. Almost every line included was designed to insure that the abuses of the English kings, who claimed to rule by divine right, did not come to America. America was to be ruled by law, not by royal whim. That is the meaning of Article VI supremacy clause, “This constitution, and the laws of the United States which shall be made in pursuance thereof; ... shall be the supreme law of the land; and the judges in every state shall be bound thereby.”
Constitution supreme law
Note that our constitution, and not the fiat of a king or president, is the “supreme law” of the land.
But if the “intent of the men who created the constitution” is to be abandoned for more “modern” or “progressive” constructions, then whose intent should be utilized? Barack Obama’s? Donald Trump’s? Jesse Jackson’s? David Duke’s?
There are nine Supreme Court justices. Does each have a right to construe the constitution according to his own lights? Did we eschew governance by the “divine right kings” only to replace it with the “divine right of judges?”
With Justice Scalia on the bench, Americans were assured of a judge who would attempt to follow the law as it was given him by the founders, rather than make it up or change it to comport with his more enlightened notions of what the law should be.
Presently there are four judges on the court who read the constitution in a way so that it comports with their more enlightened notions of what the law should be. If the Senate confirms a fifth, the constitution as the founders understood it, is a dead letter. It will be an era of “divine right” judges.
Posted: March 16, 2016, QCOline.com
Copyright 2016
John Donald O'Shea
Thursday, June 13, 2013
Sebelius' Fundraising Is Unconstitutional
When Congress refuses to appropriate funds, does the President have the power to fund Obamacare asking for gifts and loans?
Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.
Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.
Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."
The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."
According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.
When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.
At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.
For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"
But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.
To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.
The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."
In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.
To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.
Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.
When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.
31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.
The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.
I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.
Posted Online: June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.
Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.
Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."
The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."
According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.
When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.
At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.
For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"
But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.
To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.
The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."
In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.
To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.
Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.
When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.
31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.
The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.
I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.
Posted Online: June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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