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Thursday, February 22, 2018

Hypersensitivity Meets Gun Control

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

I have to give Trump a few props, when this morning at the White House he explained the importance of getting rid of "gun free zones."  He suggested what I have been suggesting . . . arming some of the personnel on school campuses.  The reality is, good guys with guns stop bad guys with guns.  As President Trump said, the average time it takes the police to arrive is eight minutes, and these shootings take about three minutes.  He said, "I want schools protected like banks."

I was glad to hear that, because I was getting very nervous during his discussion that included his approval for age restriction laws to be passed at the federal level for gun ownership.  If that's the case, they better propose an amendment for such a change, because federal legislation regarding our right to keep and bear arms is unconstitutional from an original intent point of view.

During the White House discussion, this morning, even though he talked tough on protecting the right to keep and bear arms, Trump also suggested raising the age of gun ownership to 21 (which, in many ways, is a change from his 2nd Amendment language prior to the shooting). 

In all honesty, a new law restricting gun sales to those who are 21 or older would not do anything to stop school shootings, or any other kind of mass shootings, and would have not stopped Nikolas Cruz in Florida last week.  In fact, raising the age to buy a firearm to 21 would not have stopped any of the previous school shootings we have experienced.  With a cursory glance at the list of the most recent school shootings, here's what we can determine - Every single person initiating these shootings were either 21 or older, or under 18, which means that 19 year old Nikolas Cruz would have been the only person an age restriction might have theoretically stopped.  But, that wouldn't have stopped him, anyways, because killers always find a way. . . just as the under-18 kids in the shootings on the list did.  They found a way to get a gun, because killers always find a way to kill.

Increasing the age to buy a firearm also creates a whole new host of inconsistencies.  If you push gun ownership to 21, how do you reconcile having kids under 21 in the military using those kinds of firearms to protect out country?  If you push gun ownership to 21, then the logical conclusion would be to push driver's licenses to 21, to push voting back to 21 (as it was originally), and pushing enlisting in the military to 21.  If you do one, you have to eventually do the others.

Pam Bondi, Florida's Attorney General, seated next to President Trump this morning, began to talk about The Florida Mental Health Act of 1971 (Florida Statute 394.451-394.47891 (2009 rev.)), commonly known as the "Baker Act," which allows the involuntary institutionalization and examination of an individual.  She called the new version the Gun Violence Restraining Order.

That, my friends, is very dangerous.  When you make government the definers of mental illness, or the guard over protecting the public by allowing them to arrest those they believe could be disruptive to the common good, you are opening up the opportunity for abuse, and ultimately, tyranny.  At what point does a governmental leader decide that conservatives are dangerous to the community and must be arrested and put away.  When does such a law get turned against Christians.  Jews.  Dissidents.  You.

The problem with shootings is not that we don't have enough government intrusion, the problem is societal.  Our culture has lost sight of God, virtue, and has gone down a path of hypersensitivity that demands government imposed utopia where nobody is sad, nobody is offended, and nobody can even have access to a variety of offensive things (guns, profit, possessions, money) because all of those things offends somebody, somewhere.

In short, the Democrats have created the ultimate weapon.  Together, with their socialist overlords, the younger generation has become strong in their hypersensitivity.

Aside from a few bumps in the road, such as the rise of the presidency of Donald Trump, who they are working to twist and mold in their leftist image little by little and crisis by crisis, everything is proceeding as they have foreseen.

The rise of Donald Trump as the Republican offering for President of the United States was seen by the liberal left as an attack against an establishment machine that should have been otherwise unstoppable, in their minds.  They were too powerful, and the inevitability of the election of Hillary Clinton was too great.

The Democrats thought that they had turned the corner, and that America was finally a one-party state.  Unfortunately, for them, the ability to destroy liberty and create a leftist utopia based on equality in misery turned out to be insignificant next to the power of the Trump movement.

They have rioted, screamed, cried, and threatened impeachment, and Trump's support and popularity has simply increased in the face of the attacks (especially since the tax reform law).  Their strategies have been failing.  What they needed was an ultimate crisis that allowed them to unleash the younger generation on him, to force Trump's hand, and force the Republicans to nudge in a direction the Democrats can take full advantage of . . . if not today, down the road.

Then, the Democrats got what they wanted.  A school shooting, and a major one with a lot of death.  The media ran with it, the students activated, and now the liberal left has the GOP right where they want them.  Sheriff David Clarke has gone so far as to suggest that it may have been planned by the left, saying that the shooting "has George Soros' fingerprints all over it."

The liberal left agenda is logically a failure.  The liberal agenda is also historically a failure.  Leftism, when taken to an extent beyond the reach of liberty, results in violence, starvation, and death.  Just look at Venezuela.

When emotions are kicked into high gear, anger, fear, and aggression come into play, and with each crisis the liberal left agenda makes all the sense in the world to the crying, whining, emotionally distraught individual.  All they know is they want the hurt to go away.  When we are emotionally exhausted from the pain of some kind of event, common sense is set aside and we are willing to agree with just about anything . . . to make the hurt go away.

The next move by the liberal left, where the youth are demanding gun control through the tears of pain they have rolling down their faces, has been in planning for a long time.

There is an old saying that too much of a good thing can be a bad thing. We were all taught to be considerate and reasonable to the people around us but at the same time what has happened is we've created a hypersensitive society.

It's an interesting construct because it has created a weird phenomenon of extremities.

For example, while on the road, I've noticed you either get a bunch of people so afraid to insist on the right of way that everyone is waiting for the next guy to go.  However, at the very next stop you may have two jerks practically running into each other and flipping each other off.

We have a society where everyone is easily offended by anyone who disagrees with them, or they are quick to offend you and don't give a crap what you think.  Disagreement in any discussion is considered rude.  We have the safe spaces that are popping up in colleges because of this ridiculousness.  Sounds like a whole new video series . . . "Political correctness Gone Wild."

Yeah, I get it.  We were taught to be reasonable.  If you don't have something nice to say don't say it at all.  But, at what point does that very good idea become a damaging part of society because it is taken too far?  We have taken human reasoning, and it has been morphed into a situation that is both overly aggressive and overly hypersensitive.  How do you combat something that is essentially at it's core good, but it became bad because it was essentially taken too far?  Aggression is seen as a bad thing, but those who see aggression as being bad are aggressive.  Disagreement is a bad thing, but those who disagree with you, and call you rude for disagreeing with them, consider themselves tolerant.

It's like an episode of the Twilight Zone.

These people must be ready to curl up in the corner in sheer terror when it comes to sales.  How can you expect these people to have a "can-do attitude" and sell in an aggressive manner if everyone is so touchy-feely that nobody's going to be aggressive enough to be the lead salesman?

Talk about a golden opportunity for the alpha male.  These people have become so wimpy that the alpha male has no competition whatsoever.  Problem is, the alpha males are taking full advantage and are becoming overly aggressive.  So, while we have metrosexuals who want to be more like a woman, and women who think they should be more like a man, and nobody is quite sure which bathroom they want to use, anymore, and everyone is so confused that they don't even know what bathroom to use, anymore . . .

Holy crap.  You know what our society sounds like?  The split in humanity depicted as Morlocks and Eloi from H.G. Wells' "The Time Machine."  You know.  The Eloi have become so passive that the more aggressive Morlocks have gotten to the point that they simply provide for and feed the Eloi, to fatten them up, so that that Morlocks may eat them later.

To get back to the Florida Shooting, the politicization of the event by media and the Democrats, and what Trump plans to do, it sure doesn't help the Left's cause when we hear things like what Colton Haab, a JROTC enlistee, said regarding CNN, after the shooting.  He said he did not take part in a gun safety townhall with CNN at the helm on the grounds that CNN attempted to plant “scripted” questions for him to ask.

Trump said that the NRA was in his corner regarding the Age 21 legislation he is calling for.  I haven't heard the NRA say such a thing.  In fact, National Rifle Association (NRA) CEO Wayne LaPierre is warning us to be on our guard.  He says socialism (a.k.a. Democrats) are behind the anti-gun movement.  “Socialism is a movement that loves a smear. Racists, misogynists, sexists, xenophobe and more. These are the weapons and vitriol these character assassinations permanently hang on their targets because socialism feeds off manipulated victims,” LaPierre told the Conservative Political Action Conference (CPAC).

LaPierre claimed "European socialists” are taking over the Democratic Party. He also named the “Occupy” movement, Black Lives Matter and antifa as examples of social groups that he claimed promote “uncivil discourse” and aim to "eliminate due process."

“The elimination of due process is the very gold standard of the socialist state,” he said.

LaPierre, earlier in his speech at CPAC, called proposals to limit the amount of weapons available to Americans “completely ridiculous,” and said more security would help prevent future school shootings.

A church in Pennsylvania is doing what it can to defend the right to keep and bear arms by announcing they will be hosting a blessing ceremony for couples with an AR-15 assault rifle.

The World Peace and Unification Sanctuary in Newfoundland, Pennsylvania, an offshoot of the Unification Church, is inviting couples to bring their semi-automatic rifles to the church on Feb. 28 to “show their willingness to defend their families, communities and nation.”

According to the church’s website, the ceremony will focus on the “rod of iron” and each couples’ pledge to defend their home and the coming nation of Cheon Il Guk — the biblical kingdom of God referred to in Scripture.

The church describes the “rod of iron” as an “AR-15 semiautomatic rifle or equivalents such as an AK semiautomatic rifle.”

Meanwhile, on the other side of the issue, the hate against the NRA, and those who support the 2nd Amendment, is reaching a "witch-burning" level of craziness.

The townhall in Florida had, among its participants, NRA spokeswoman Dana Loesch.  Later at CPAC she told her conservative audience that escaping the CNN-hosted forum was an incredible experience.  She said she wouldn't have been able to exit the town hall if she didn't have a security detail.

"I want to make this super obvious point," Loesch said. "The government has proven that they cannot keep you safe. And yet, some people want all of us to disarm. You heard that town hall last night. They cheered the confiscation of firearms. And it was over 5,000 people."

"I had to have a security detail to get out," she said of the Sunrise, Florida event. "I wouldn't be able to exit that if I didn't have a private security detail. There were people rushing the stage and screaming burn her. And I came there to talk solutions and I still am going to continue that conversation on solutions as the NRA has been doing since before I was alive."

"The government can't keep you safe and some people want us to give up our firearms and rely solely upon the protection of the same government that's already failed us numerous times to keep us safe. And then they also call Trump a tyrant but they say they want the president to also confiscate our firearms? Try to figure that one out," Loesch said.

-- Political Pistachio Conservative News and Commentary

Temecula Constitution Class: Law and Order

Join us Thursday Night at 6:30 pm, Faith Armory, 41669 Winchester Road, Temecula, CA


Constitution Class Handout
Instructor: Douglas V. Gibbs

 
 
 
Lesson 15
 
The Legal Amendments
 
Amendment IV

Warrants, Searches, and Seizures

The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791.  It was written with the purpose of protecting people from the government searching their homes and private property without properly executed search warrants.
 
"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."
 
What this means is that the federal government, in order to search a person's home, business, papers, bank accounts, computer or other personal items, in most cases, must obtain a search warrant signed by the proper authority, which usually means by a judge.
 
The issuance of a warrant must accompany reasonable belief that a crime has been committed and that by searching the premises of a particular location, evidence will be found that will verify the crime.  The government officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone's private property will yield evidence of the crime.  The task of determining whether or not the officer's assumptions are a reasonable belief falls on the judge who is considering issuing the search warrant.
 
The concept that citizens must be protected from unreasonable searches and seizures goes back into English history.  The British Crown was known for performing searches and seizures that were unlawfully conducted.  Often, these searches were conducted by the king's representatives.
 
The British government saw the American Colonies as a source of revenue.  As a result, taxation against the American colonies was a continuous practice, in the hopes of generating as much money from the colonists as possible.  The colonists resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government.
 
The King responded to the Colonist's smuggling activities by using writs of assistance, which were search warrants that were very broad and general in their scope.  British agents, once obtaining these writs, could search any property they believed might contain contraband goods.  They could enter someone's property with no notice and without any reason given.  Tax collectors could interrogate anyone about their use of goods and require the cooperation of any citizen.  Searches and seizures of private property based on very general warrants became an epidemic in colonial America.
 
In 1756, the Massachusetts legislature passed search and seizure laws outlawing the use of general warrants.  The friction created between the Royal Governor and the people of Massachusetts grew with each passing moment.
 
In 1760 James Otis, a Boston lawyer, strongly objected to these arbitrary searches and seizures of private property and consequently resigned his position with the government, and then became the lawyer for a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust.
 
James Otis represented these merchants for free.  His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.
 
Twenty-five year old John Adams, who would become the second president of the United States some time later, was sitting in the courtroom and heard Otis' famous speech that served as a spark that led to igniting the American Revolution.
 
The 4th Amendment, a part of The Bill of Rights, became law on December 15, 1791.
 
The 4th Amendment applies only to the federal government.  State constitutions are written similarly, and States also have laws that are consistent with the intention of the 4th Amendment.  The 4th Amendment provides protection from illegal search and seizure by federal government officials, but not by private citizens.  So, if an employer unreasonably searched your possessions at work, the 4th Amendment would not have been violated, but local laws may have been.
 
In recent history The PATRIOT Act was seen as a breach of the 4th Amendment because it allowed the federal government to pursue a number of strategies in their search for terrorists that includes warrantless phone taps, access to phone logs, and monitoring of online communications such as email.  The debate still goes on regarding the constitutionality of The PATRIOT Act, with both sides presenting reasonable arguments, ranging from the constitutional necessity of the law for the purpose of "providing for the common defense," to the argument that the authorities offered by the law allows the federal government to unconstitutionally intrude on the right to privacy of all Americans.
 
The National Defense Authorization Act (NDAA) of 2014 builds on the powers seized by the federal government through the PATRIOT Act, allowing unrestricted analysis and research of captured records pertaining to any organization or individual "now or once hostile to the United States."  The definition of "hostile to the United States" is broad, and can include political opposition.  Under NDAA 2014 Sec. 1061(g)(1), an overly vague definition of captured records enhances government power and guarantees indefinite surveillance.
 
The Internal Revenue Service is another arm of the federal government that routinely violates the 4th Amendment, doing so under the auspice of ensuring all taxes are paid.
 
Terms:

Search Warrant - The Search Warrant specifically requires that the government demonstrate to a judge the existence of probable cause of criminal activity on the   part of the person whose property the government wishes to search.  The Fourth Amendment commands that only a judge can authorize a search warrant.
 
Writs of Assistance - British search warrants that were very broad and general in their     scope.  British agents, once obtaining these writs, could search any property they believed might contain contraband goods.
 
Questions for Discussion:

1.  What actions by the British prior to the American Revolutionary War inspired the Founding Fathers to include this amendment in the Bill of Rights?
 
2.  How would our legal system act if Search Warrants were not considered necessary?
 
3.  How does the Fourth Amendment influence today's thinking regarding government actions, such as with The PATRIOT Act?
 
Resources:
 
How Congress Has Assaulted Our Freedoms in the Patriot Act by
Andrew P. Napolitano, Lew Rockwell.com: http://www.lewrockwell.com/orig6/napolitano2.html
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Paul A. Ibbetson, Living Under the PATRIOT Act: Educating a Society;
Bloomington, IN: Author House (2007)
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
 
 
Amendment V

Due Process and Eminent Domain
            Due Process
 
The majority of the Fifth Amendment provides additional reinforcement to the concept of due process.  The language of this Amendment was designed to assure those who feared the potential tyranny of a new centralized government created by the United States Constitution that the federal government would be restrained in such a way as to ensure that the government did not perpetrate bloodshed against its citizens.
 
The first part of the 5th Amendment reads: "No person shall be held to answer for a capital crime, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . ."
 
The 5th Amendment attests to the Founding Father's understanding that this is a nation of property owners.  As a republic of property owners, when in jeopardy of legal trouble, our rights and properties must be safeguarded.  Therefore, an American Citizen in the American legal system has a right to a jury, as well as a right to the presentation of evidence.  Conviction is not reached with a majority vote, either.  Conviction requires a unanimous agreement among all of the members of the jury.  These concepts reinforce the concept that one is innocent until proven guilty (A concept found in the Book of Deuteronomy, Chapter 19, Verse 15), and that the United States of America is a Republic.  Mob rule is not allowed, for as the amendment provides, a person cannot be held until given the opportunity of due process.
 
Not all persons, however, are awarded this opportunity.  The next part of the amendment reads: ". . . 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. . ."
 
The military does not fall under the U.S. Constitution.  Personnel serving in the armed forces are governed by the Uniform Code of Military Justice (UCMJ).  Instead of a civilian trial, a military service member is normally afforded a court martial.  If a civilian trial is deemed appropriate by the U.S. Military, a service member can still stand trial in a civilian court, but the military has the authority to decide whether or not the member shall stand such a trial.
 
Having a sense of independence, individuals must be protected, then, from the tyrannical trappings of a governmental system that may try to use the judiciary against them (as the King of England had done often).  The protective mechanism, or the rule of law, would be the U.S. Constitution and clauses like the 5th Amendment, which were designed to provide protection to the populace from unfair legal practices. 
 
One such protection is provided in the next part of this amendment: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb. . ."
 
Protection against Double Jeopardy enables us not to be continuously tried for the same offense, which was a technique often used in some parts of Europe during the eighteenth century.  The idea was that if a person was prosecuted enough, either they would weary of the process and break down, or the defendant would become unable to financially continue, hence unable to defend themselves.
 
The next part of the amendment serves as a large influence on today's Miranda Rights.  The section reads: ". . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property."
 
Miranda Rights are named after the U.S. Supreme Court case, Miranda v. Arizona (1966).  Miranda Rights are a warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation. From the 5th Amendment: ". . .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."  Miranda Rights exist to secure the 5th Amendment's privilege against self-incrimination, and to make the individual in custody aware not only of the privilege, but also of the consequences of forgoing it.  The judicial opinion from the Miranda v. Arizona case also indicated that in order to protect the person's life, liberty or property with the due process of law, the individual must have the right to an attorney.  With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court.  The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.
 
The words of the Founders continues to resonate today as the majority of the American people seem to firmly agree with the Founding Father's insistence that no one should be deprived of life, liberty, or property without due process of law.  We can take satisfaction that most of our fellow citizens in our republic still hold these truths to be self-evident.
 
            Eminent Domain
 
The provisions of the 5th Amendment are there to keep our courts honest, and the powers of the government constrained.  The last phrase of the 5th Amendment, however, is considered too general by many, and it has been used in a manner by the federal government that is extremely troublesome, because it gives the government the right to take property if there is just compensation.
 
How is just compensation determined?  Is it based on the market value of the property?  How does the government officials involved in eminent domain calculate the non-intrinsic value?  How do they compensate for the value on which nobody can put a price?
 
Just compensation was intended to be based on what the property owner deemed to be just.  If the property owner did not deem the offer to be just compensation, then the government, from a constitutional viewpoint, is out of luck.
 
 
Terms:

Capital Crime - A crime for which the punishment is death.  Punishment for a Capital Crime is called Capital Punishment.
 
Double Jeopardy - The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.
 
Due Process - The essential elements of due process of law are notice, an opportunity to be heard, the right to defend in an orderly proceed, and an impartial judge.  It is founded upon the basic principle that every man shall have his day in court, and the benefit of the general law which proceeds only upon notice and which hears and considers before judgment is rendered.  In short, due process means fundamental fairness and substantial justice.
 
Eminent Domain - The power to take private property for public use by a State, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.
 
Grand Jury - A group of citizens convened in a criminal case to consider the prosecutor's evidence and determine whether probable cause exists to prosecute a suspect for a felony.  At common law, a group of persons consisting of not less than twelve nor more than twenty-four who listen to evidence and determine whether or not they should charge the accused with the commission of a crime by returning an indictment.  The number of members on a grand jury varies in different States.
 
Infamous Crime - A crime which works infamy in the person who commits it.  Infamous crimes tend to be classified as treason, felonies, and any crime involving the element of deceit.
 
Just Compensation - The value of a property deemed to be just by the property owner.
 
Miranda Rights - A warning given advising the accused of their right to remain silent, their right to an attorney, and the right to an appointed attorney if they are unable to afford counsel - prior to conducting a custodial interrogation.
 
Mob-Rule - A government ruled by a mob or a mass of people; the intimidation of legitimate authorities; the tyranny of the majority; pure democracy without due process.
 
Republic - Form of government that uses the rule of law through a government system led by representatives and officials voted in by a democratic process.  The United States enjoys a Constitutional Republic.
 
Rule of Law - The restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws; Laws of Nature and of Nature's God; self-evident standard of conduct and law.
 
Questions for Discussion:

1.  How is property rights affected by Due Process?
 
2.  Why do military members not fall under the protections of the U.S. Constitution?
 
3.  Why is protection against Double Jeopardy important?
 
4.  What was the inspiration for our Miranda Rights?
 
5.  Who determines if compensation for one's property is just?
 
6.  How is Eminent Domain being used for environmental reasons?
 
7.  Is Eminent Domain constitutionally in force if a property is rezoned for environmental conservation, forcing the value of the property to be reduced due to the fact that it can no longer be developed?
 
8.  Is it constitutional for government to use Eminent Domain for the use of the land by private development projects?
 
Resources:

Definition of Due Process, Family Rights Association:
http://www.familyrightsassociation.com/bin/definition_due_process_.htm
 
Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
U.S. Supreme Court case, Miranda v. Arizona, 384 US 436 (1966)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436
 

Amendment VI

Personal Legal Liberties

The 6th Amendment affords criminal defendants seven discrete personal liberties.  "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
 
Rights afforded in all criminal prosecutions are set forth in this amendment.  The word "all" at the beginning of this amendment establishes a special characteristic regarding this article of the Constitution.  The Constitution applies only to the federal government, unless it states otherwise.  The 6th Amendment, by providing the word "all" in the regard to cases, establishes that this amendment is not only to be applied to the federal courts, but to the State, and lower, courts as well.
 
As for the rights afforded to the accused:
 
            Speedy Trial
 
The concept of a speedy trial was an English concept of justice.  A speedy trial allows for conditions that disallow the powerful from abusing the court system, forcing defendants to languish in jail for an indefinite period while awaiting their trial.  Ensuring a speedy trial minimizes the time in which a defendant's life is disrupted and burdened by a criminal proceeding, and reduces the likelihood of a prolonged delay impairing the ability of the accused to prepare a defense.
 
Historically, when trials are postponed or drag out for long periods of time, witnesses disappear, and evidence is often lost or destroyed.  Memories of the incident in question are also not as reliable as time passes.
 
A person's right to a speedy trial arises after the arrest, indictment, or otherwise formal accusation of a crime. 
 
            Public Trial
 
The right to a public trial was inherited by the Americans from Anglo-Saxon jurisprudence.  Public criminal proceedings would operate as a natural check against malevolent prosecutions, corrupt judges, and perjurious witnesses.  A trial that is out in the open also aids the fact-finding mission of the judiciary by encouraging citizens to come forward with relevant information.
 
The right to a public trial is not absolute.  Persons who may disrupt proceedings may be banned from attending the trial because they present a substantial risk of hindering a trial.  A disallowance of the media attending falls under the concept of "potential disruptions," but otherwise, under normal circumstances, both the public and media have a qualified First Amendment right to attend criminal proceedings.  The right to a public trial does not require the presence of media, and because courtrooms have limited seating, judges may attempt to maintain decorum.  For media, with today's technology, the media does not have to be in the courtroom to see or hear the proceedings of the case. 
 
            Right to Trial by an Impartial Jury
 
A part of the effort in achieving an impartial jury is the process of determining who will serve on the jury through a series of questions and observations, in an effort to eliminate biased jurors.  The concept of protecting the defendant from a biased jury can be traced back to the Magna Carta in 1215.  In the United States, the requirement for a trial by an impartial jury does not apply to juvenile delinquency proceedings, or to petty criminal offenses, which consist of crimes punishable by imprisonment of six months or less.  In Great Britain, and Canada, a jury is not required for cases with potential penalties of two years or less, and the concept of an impartial jury is not entertained in the same way as in the United States.  Canada and Britain choose jurors randomly, and then in an open court the jurors for a specific case are selected from the jury panel by ballot.  A juror may be challenged once in the box for bias, but an extensive process to eliminate possible biased jurors before selection through a series of questions and observations is not normal practice.
 
The Sixth Amendment entitles defendants to a jury that represents "a jury of the defendant's peers," which means the jury should be a fair cross section of the community.  From the jury pool, the presiding judge, the prosecution, and attorneys for the defense are allowed to ask members of the jury pool a variety of questions intended to reveal any latent biases, prejudices, or other influences that might affect their impartiality.  The presence of even one biased juror is not permitted under the Sixth Amendment.
 
It is possible that the potential bias of a juror may be affected by sources outside the courtroom, so jurors are instructed to not consider newspaper, television, and radio coverage before or during trial, and are instructed not to discuss the trial with even family members, when evaluating the guilt or innocence of the defendant.
 
Jurors are not permitted to begin deliberations until all of the evidence has been offered.  Deliberations do not begin until after the attorneys have made their closing arguments, and the judge has read the instructions.  Premature deliberations have shown the potential, historically, to create early biases, or a juror may form a preconceived notion that they will then compare all evidence to, which they may have entertained as a result of premature deliberations.
 
            Notice of Pending Criminal Charges
 
The 6th Amendment guarantees defendants the right to be informed of the nature and cause of the accusation against them.  Defendants must receive notice of any criminal accusations that the government has lodged against them through an indictment, information, complaint, or other formal charge.  Defendants may not be tried, convicted, or sentenced for a crime that materially varies from the crime set forth in the formal charge.
 
The requirement by the 6th Amendment to inform a defendant of the nature and cause of the accusation is an attempt by the Founding Fathers to create fundamental fairness that was not necessarily present in civil and criminal proceedings in England and the American colonies under English common law.  Receiving notice of pending criminal charges in advance of trial permits defendants to prepare a defense in accordance with the specific nature of the accusation.  In tyrannies, defendants are all too often incarcerated without being apprised of pending charges until the trial begins.  Requiring notice of the nature and cause of the accusation against a defendant eliminates confusion regarding the basis of a particular verdict, which in turn decreases the chances that a defendant will be tried later for the same offense.
 
            Confrontation of Witnesses Against Him
 
The 6th Amendment requires that defendants have the right to be confronted by witnesses who offer testimony or evidence against them, as well as the opportunity to subject them to cross-examination. 
 
Today's courts have established rules that are enforced at the discretion of the judge who forbids questioning that pursues areas that are irrelevant, collateral, confusing, repetitive, or prejudicial.  Defendants are also forbidden to pursue a line of questioning solely for the purpose of harassment.
 
            Compulsory Process for Obtaining Witnesses In His Favor
 
The 6th Amendment recognizes a defendant's right to use the compulsory process of the judiciary to subpoena witnesses that may be favorable to the defense.  Courts may not take actions to undermine the testimony of a witness who has been subpoenaed by the defense.  Any law that attempts to establish particular persons as being incompetent to testify on behalf of a defendant is not allowed.
 
Defendants can also testify on their own behalf, a right not afforded in the American Colonies, or Great Britain, prior to the United States dissolving the political bands connecting them to the Crown.  Common law presumed all defendants to be incompetent to give reliable or credible testimony on their own behalf.  The vested interest in the outcome of the trial, it was believed, would taint the testimony of the defendant.  The 6th Amendment does not require, a defendant to testify on his own behalf, but does not prohibit it, either.
 
            Right to Counsel
 
The 6th Amendment states that criminal defendants have a Right to Counsel.  A defendant's right to counsel does not become an issue until the government files formal charges.  However, in the 5th Amendment a person has the right not to be compelled to be a witness against himself, allowing him to remain silent until he has counsel present.
 
In many instances, defendants have the inability to obtain counsel be it because of financial or other reasons.  The 6th Amendment, by listing that assistance of counsel for his defense is a right, has compelled the government to institute a program where counsel can be assigned to a defendant if the person is unable to afford counsel, or obtain counsel for any other reason.  In the occurrence of a defendant unable to afford counsel, the trial judge appoints one on his behalf.  If it turns out that the defendant has financial resources previously unknown to the court, he may be required to reimburse the government for a portion of the fees paid to the court-appointed lawyer.
 
Defendants are not required to have counsel.  Defendants have a right to counsel.  Defendants also have the right to decline the representation of counsel and proceed on their own behalf.  Defendants who represent themselves must present a waiver of the 6th Amendment right to counsel before a court will allow them to do so.  The waiver must reveal that the defendant is knowingly making the decision, and understands the potential consequences.
 
Questions for Discussion:
 
1. Why is having a speedy trial so important in a free society?
 
2.  How does a public trial better enable the fact-finding mission of the trial?
 
3.  How is the concept of an impartial jury different in the United States than it is in other countries?
 
4.  Why is it important for a defendant to be able to confront the witnesses against him?
 
5.  How is a defendant's right to counsel enabled in today's court system?

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 

Amendment VII

Right of Trial by Jury in Civil Suits
 
"In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."
 
The 7th Amendment guarantees the right to a jury trial in most civil suits heard in federal court.  Remember, the Constitution, and the Bill of Rights, apply only to the federal government unless the document states otherwise.  The 7th Amendment serves to preserve the historic line separating the province of the jury from that of the judge in civil cases by separating cases that should have a jury in federal court, from those that are smaller cases, and may not require a jury.  During the time the amendment was ratified, a case requiring a jury was one where "the value in controversy" exceeded twenty dollars.  The cutoff in the court system today is $75,000.  Any disputes that involve amounts less than $75,000, in fact, will not even be handled in a federal court.
 
State courts don't have to honor this provision in the 7th Amendment, and often don't.  People bringing a suit do not have to have a jury trial.  Individuals can waive their right to a jury trial if they so choose.
 
The 7th Amendment also expressly forbids federal judges to re-examine any "fact tried by a jury" except as allowed by the common law.  This means that no court, trial or appellate, may overturn a jury verdict that is reasonably supported by the evidence.
 
Prior to the Declaration of Rights in 1689, English judges served the King of England.  These judges showed bias towards the King, resulting in unfair rulings.  Judges in the American colonies were also biased towards the king, and when King George III got rid of trials by juries in the Colonies, the colonists viewed the decision as more kindling for the fire of independence that had been blazing in the pubs, churches and meeting halls of the Colonies.  The Bill of Rights applied what the Framers learned under the rule of Britain to the American System.  In the American courts the Framers believed it was important to have a fair court system, so the right to have a trial by jury is mentioned a number of times, and is a fundamental part of the United States legal system.
 
Together with the due process clause of the 5th Amendment and the right to an impartial jury enumerated in the 6th Amendment, the 7th Amendment guarantees civil litigants the right to not just a jury, but to a jury who is not biased for any reason.

Terms:

Bill of Rights - The first ten amendments of the U.S. Constitution; a formal summary of those rights and liberties considered essential to a people or group of people.
 
Declaration of Rights - Enacted in 1689, the English Bill of Rights is one of the fundamental documents of English constitutional law, marking a fundamental milestone in the progression of English society from a nation of subjects to a nation of free citizens with God-given rights.  The evolution began with the Magna Carta in 1215.
 
Questions for Discussion:

1.  What historic line does the 7th Amendment preserve?
2.  Must the States abide by the 7th Amendment?
3.  Can a person bringing suit waive the right to a jury trial?
 

Amendment VIII

Excessive Bail, Cruel and Unusual Punishment
 
The 8th Amendment reads, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
 
As a nation founded on honorable Judeo-Christian principles, the United States legal system is expected to be fair and just.  This means that Americans should insist upon a due process that protects individuals from excesses and abuses by the judicial system.  Such expectations include that no individual should be singled out, or treated differently, in the eyes of the courts.  A fair and equitable judicial system includes no excessive bails or fines, or cruel and unusual punishment, for one person while others guilty of similar crimes do not receive similar treatment.
 
Today's definitions attempt to set a limit on where "excessive" or "unusual" lies.  When a harsh penalty is applied for a crime, even when it is similar to the punishment received by others for the same crime, challenges are launched regarding if the penalty matches the crime.  These challenges are fine, and an important part of the American judicial system seeking to adjust itself in regards to its fairness, but the debates during the Federal Convention and State ratification conventions did not focus so much on where the line between excessive and not excessive, or unusual as opposed to usual, exists as much as are the bails, fines and punishment consistent with the bails, fines and punishment consistent with others guilty of the same.

Questions for Discussion:

1.  In the context of the time period during which the 8th Amendment was written, what was meant by "cruel and unusual punishment?"
2.  How has the original definition of "cruel and unusual punishment" changed since the founding of the United States?
3.  How does the 8th Amendment apply the concept of uniformity to cases?
4.  Why would the Founding Fathers see the need to enumerate the right of an individual to be protected from cruel and unusual punishment?

Resources:

Joseph Andrews, A Guide for Learning and Teaching The Declaration of
Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
 
Philip B. Kurland and Ralph Lerner, The Founder's Constitution -
Volume Five - Amendments I-XII; Indianapolis: Liberty Fund (1987).
 
 
Copyright 2015 Douglas V. Gibbs

Wednesday, February 21, 2018

Gun Control Marching Students in Florida are Missing the Big Message

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The shooting at a high school in Florida that left 17 dead have left students in America emotionally drained.  They have witnessed the horror of gun violence, and they've been told by the public school system, media, and other outlets that the only way to end such situations is through more gun control; and ultimately, the full confiscation of every gun in the country.

After the shooting at Marjory Stoneman Douglas High School, in an attempt to show solidarity with their fellow students nearby, Florida students from a neighboring school walked out of class to participate in their own protest against gun violence.

The Walkout included almost 50 teens who were armed with signs begging politicians to take action against gun violence with stronger legislation regarding gun control.

The hand-painted signs read things like "Prayers and condolences are not enough! Our government officials need to TAKE ACTION or STEP DOWN," and "protect our kids not your guns."

Many questioned why civilians are even allowed to purchase assault rifles (which is actually a false term regarding guns like an AR-15, which was the firearm  used by Nikolas Cruz, the gunman of Marjory Stoneman Douglas High School shooting only days ago.

"Nobody needs an AR-15 rifle for hunting," 14-year-old Shane Dale told the Huffington Post. "We need to get rid of assault rifles overall."

Sara Rodriguez, a 16-year-old student among the protesters also told the Huffington Post: "I want to end gun violence. They don’t pay attention to our voice and we’re really tired of staying silent. We are the future. We’re trying to make it but we can’t do it if they’re not listening."

These statements echo those made by the survivors of the shooting, who are urging politicians to put gun control laws in place.

The cries of emotion are based, unfortunately, on false information.  For example, the kid who claimed you don't need an AR-15 for hunting probably thinks the rifle is fully-automatic (pull the trigger, and a spray of bullets comes out), and that's just not true.  Fully automatic rifles, which are closer to the definition of what an "assault rifle" is, are already illegal.  As for not needing it for hunting, the only difference between an AR-15 and a common hunting rifle are cosmetic accessories that make it look more military.  The AR-15 essentially performs in the exact same manner as any other hunting rifle.

Locally, the students are not getting what they are calling for.  State legislators in Tallahassee, Florida, after being called upon to change the State's gun laws by protesting students, voted down a motion to take up a ban on "assault weapons" such as the AR-15 with a final motion vote of 36-71.

Democratic Representative Kionne McGhee asked for a procedural move that would have allowed the legislative body to consider the bill to ban assault rifles and large capacity magazines.

I get it.  The young people were overwhelmed with emotion.  We all have been.  I have nothing but sympathy and prayers for the dead, wounded, and frustrated.  And, I know they are claiming that thoughts and prayers are not enough.  They want action.

Rage, I think, is likely the word that best fits the feelings of the students, and those who have experienced gun violence through mass shootings.

The rage, however, is misplaced.  Guns did not cause the evil that took place on that high school campus in Florida.  The guns are no more the cause than cars are in cases of drunk driving.  If we begin banning big and scary cars and trucks that have a military look to them, it wouldn't even make a dent in the occurrence of drunk driving.

The cause of the shooting was not the tool used in the act of carrying out the violence.  The cause of the shooting is the reality that people are capable of evil, and what Nikolas Cruz did in Florida was evil.

He planned it out.  He carried it out.  He did something very evil, and we are angry that it happened.  We keep asking ourselves if it could have been stopped.  Is there a way that we can avoid such evil from happening in the first place.  The FBI has been criticized because they had information about Cruz that told them Cruz might be the kind of guy to carry out such madness.  Everyone knew that Cruz was capable of it, and people are saying that he should have been apprehended before he had the chance to carry out his fiendish plans.

Do we really wish to create scenarios where we arrest people before they do something unlawful?  Do we really wish to give government that kind of power?

My psychologist wife says that environment may have played a role in what happened. Family turmoil, and deaths in his family, may have led him to his moment of evil.  Then, there is the possible impact of violence in video games, violence in movies and on television, violent music lyrics, the influence of medications, social media, or perhaps he was indeed a victim of some kind of mental illness.  Could any of those things pose as a possible influence in someone doing something evil?

Absolutely.

But, let's also understand that millions of people are influenced by access to guns, turmoil in their private lives, exposure to violence in games or by the entertainment industry, are medicated for various reasons, and have been influenced by social media and even mental illness.  But, those people have not decided to pick up a firearm and kill 17 people.

To say that those things, or the presence of guns in our society, is totally and only at fault for what happened would be like having a study in a prison, finding out that most prisoners like broccoli, and then concluding that the consumption of broccoli will somehow send someone into a life of crime.  It's a ridiculous argument, as is every argument the liberal left keeps using regarding guns.

Guns, like bullying or violent messages in our daily lives, are not the root cause of what happened.  They may be influences, but nothing more.  Every influence in the entire life of Mr. Cruz may have been something that helped send him into a school setting to kill people, but we all have similar influences in our lives.  There was something, a thing that is different from the rest of us, that caused this young man to do what he did.

The reality is, good background, or bad background, guns, or not, in the end, none of those things matter as much as the fact that Nikolas Cruz, on his own, as an individual, made the decision to do what he did.

What makes us do the things we do?

A National Self-Defense Survey found that there are approximately 2.5 million defensive gun uses per year in the United States.

That, my friend, is a huge number.

Conclusion?

The way to stop bad guys with guns is to have more good guys with guns ready to do their thing in places where the mass shootings are happening.

Where are the mass shootings happening?

Ninety-eight percent of public mass shootings in this country occur in gun-free zones — the Florida school being one of them.  In other words, these shootings happen in places where the odds are against a good guy with a gun being present.

We don't need to outlaw guns, or tighten restrictions on guns.  We need more good guys with guns in our society, and we need to outlaw gun-free zone policies.

In other words, what's killing our students is not a lack of gun control measures, it's the presence of gun control measures.  The protesting students are literally calling for policies that will increase their chance of dying - but the reality is, they've been trained by the indoctrinating policies of public schools to demand exactly that.  They have been coached into believing that their safety can only occur if government is given the authority to increase its ruling fist over society.

-- Political Pistachio Conservative News and Commentary

Billy Graham Leaves Us, Age 99

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

I grew up attending Calvary Baptist Church in Bellflower, California, until my folks moved to the Inland Empire upon my approach to my teenage years.  When we landed in Corona, my parents found Harvest Christian Fellowship, Greg Laurie's church, in Riverside.  In both churches, and throughout my life, Billy Graham was an important influence.  Some people called him "America's pastor".  He was an evangelist like no other, and I would likely be safe in saying that in addition to people like Jerry Falwell and Chuck Smith (Calvary Chapel), Billy Graham has been the most influential voice of Christianity over the last century.

People talk about "Evangelicals," as if that is a Christian denomination.  Evangelicals are Christians who do not belong to a denomination.  It's the independents, the churches and Christians who are not fond of organized religion in the sense of what it has become through mega religiosity, and ritualistic hierarchies.  Evangelicals are the Bible believing Christians who follow original text and basic biblical teachings.  They are the children who grew up listening to Pastor Billy Graham.

Rev. Billy Graham died today at the age of 99.  He was a reluctant leader who gave all of the Glory to God.  He remembered his roots . . . the young man of 16 years who found Christ at a tent revival.  With the message of Jesus' Love he became a warrior for Christ who ultimately became an internationally recognized figure.

Graham died at his home in Montreat, North Carolina.  It's a mountainous rural setting.  God's country.  A fitting place for Graham to say his final farewell to the land of the living.

He retired in 2005 after a lifetime of carrying Christ's message at churches, crusades, and on the road to events and before congregations.  He traveled nationwide, and worldwide.  He carried Bibles to those who didn't have them, and took the message of Christ to those who had never heard it.  He was a counselor to a number of Presidents, and a voice in the darkness to a number of foreign countries.

Graham was down-to-earth, genuine, and a charismatic phenomenon who spread the Gospel for no reason other than because he believed God had called him to do exactly that.  He impacted lives, and made the message of Jesus Christ newsworthy.

A man of God, Graham was never haunted by scandals.  He never created a megachurch.  He never set up massive humanitarian projects.  He never ran for political office.  He simply preached God's Word.

Graham emphasized the joy that could be found in the belief in Jesus.  If he did take a political stance on something, the stance was based on biblical principles.  He was humorous and effective.  He reached out through radio and television, and visited thousands of churhes.

The Billy Graham Evangelistic Association he founded, now led by his son, Franklin, used every communications innovation possible to carry the Gospel to any willing heart on Earth. More than 214 million people in 195 cities and territories heard God's call in Graham's voice and witnessed him deliver the Gospel in person or by satellite links. His projects included founding Christianity Today magazine in 1956 and writing more than 30 books.

In 1996, Graham and his Wife, Ruth, received The Congressional Gold Medal.  The Presidential Medal of Freedom was awarded to him in 1983.  He was given the Templeton Foundation Prize for Progress in Religion in 1982.  He even has a star on the Hollywood Walk of Fame.

As Graham got older, health became an issue.  He was diagnosed with Parkinson's disease in 1989.  He battled broken bones, bouts of hydrocephalus and rounds of pneumonia on occasion.

He struggled, but still managed to give his sermons, though they were shorter . . . about 20-minutes at the end.

Graham's last crusade was in June 2005 in New York City.  It drew 242,000 people to Flushing Meadows; 8,786 made a new commitment to Christ and thousands more renewed or rejoiced in their faith.

During retirement he continued to study the Bible, have devotions with his wife, and watch with her an endless recycling of the movie musicals she loved to watch.  She became bedridden, and passed away in 2007.  At her funeral in June 2007, Graham called Ruth the finest Christian he ever knew.

While his son, Franklin, continues to spread the message of God's Love, he has been accused of not being as unifying as his father. 

Nonetheless, the reality is, Billy is finally with Our Lord; and surely the message to him now from the Throne of Heaven is, "Well done, thou good and faithful servant: thou hast been faithful...enter thou into the joy of thy Lord."  (Matthew 25:21)

-- Political Pistachio Conservative News and Commentary

Tuesday, February 20, 2018

Corona Constitution Class: Judicial Branch Continued


6:00 PM
Tuesday Night
AllStar Collision
522 Railroad St.
Corona, CA


Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
 
 
 
Lesson 08
 
Judicial Branch
 
Establish Justice
 
The United States Constitution was written to establish a federal government for the United States of America. Article III establishes the federal court system.  Article I, Section 8 gives the Congress the power to "constitute tribunals inferior to the supreme Court."  Given the power to establish these courts, Congress also has the authority to do away with any of these inferior courts.  This power of Congress is repeated in Article III, Section 1 during the first sentence.
 
When reading Article III, one must keep in mind the fact that the article was specifically written to affect the federal court system, not the state courts. The authorities contained within this article, and the restrictions thereof, are to be applied to the federal courts, not the state courts. One must also bear in mind, as one reads this article, the additional limits placed on the federal courts by the 11th Amendment. No case against a state by citizens of another state, or by the citizens or subjects of a foreign state, shall be heard by a federal court.
 
In other words if citizens of a State sues a State, or foreign government sues a State, the case can't go to the federal courts.  The highest that case can go is the State Supreme Court.  These limitations placed upon the court system by the 11th Amendment were proposed by the people (House of Representatives) and the States (Senate), and finally ratified by the States, in order to better control a federal court system that was attempting to compromise State Sovereignty.  Judges, the lesson of the 11th Amendment shows us, are not the wielders of the rule of law.  They are not the powerful men of honor when it comes to the law.  The guardians of the rule of law are the people, and the States.  The courts had proven that they can become an enemy of the law, proclaiming that their rulings are the rule of law, but as the 11th Amendment reminds us, the judges are merely men, and their system is the rule of man attempting to manipulate the law through their rulings.  For their bad behavior, the people and the States judged them, and further limited them with a new constitutional amendment.
 
 
Good Behavior
 
The conventional understanding of the terms of federal judges is that they receive lifetime appointments because no time restriction is placed upon them in the Constitution.  The only limitation on term placed upon the judges can be found in Article III, Section 1 where the Constitution states that judges, both of the supreme and inferior courts, "shall hold their offices during good behavior."  Conventional wisdom dictates that bad behavior is defined as unlawful activities.
 
The definition of bad behavior is not limited to only illegal activities.  Judges take an oath to preserve, protect, and defend the United States Constitution, which is the Law of the Land.  Bad behavior, then, from the point of view of the Founding Fathers, may also include unconstitutional actions, or failure to preserve, protect, and defend the Constitution.
 
Impeachment by Congress may be used if a judge acts in bad behavior.  If a judge refuses to attend the hearing at the behest of the United States Senate, the federal marshall may be used to retrieve the judge, and compel them to stand before Congress to answer for their bad behavior.  Congress is the check and balance against the courts, not the other way around.
 
 
 
 
 
Limits
 
The powers of the federal courts "shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority."
 
The federal courts, in other words, may hear all cases that fall within their authority.  These cases are regarding those in which the federal government has authority, be it by laws passed within the authorities granted to the federal government by the Constitution, or regarding issues related to treaties made that have been signed by the President and ratified by the U.S. Senate.  The courts may not hear cases that are regarding issues not within the authorities of the federal government.
 
A recent example would be the flurry of federal court rulings against State laws defining marriage as between a man and a woman.  In California, the State's attempt to protect the government definition of marriage was with Proposition 8.  The proposition changed the State Constitution to read that marriage is between a man and a woman.  Marriage is not an issue that falls under the authorities of the federal government as expressly granted by the Constitution, nor is the issue of marriage prohibited to the States.  Therefore, as per the authorities granted, and not granted, in line with the 10th Amendment, the government authority over marriage is reserved to the States.  Since the issue of marriage is a State issue, the case should not have gone beyond the State Supreme Court.  The federal courts hearing the case regarding Proposition 8, or any of the State laws regarding marriage, are acting unconstitutionally.  The governors of these States, whose marriage laws were overturned by an activist federal court system, have the right to disregard all rulings by the federal courts on this issue.  The action of ignoring the rulings is a type of nullification, and States have the right to nullify unconstitutional laws or actions by the federal government..
 
Other limitations have been placed upon the federal courts as well.  The 11th Amendment changed the intent of Article III.  As limited as the courts were supposed to be, the Founding Fathers realized the courts weren't limited enough, and as a result, the 11th Amendment wound up being ratified in 1795.  The 11th Amendment was encouraged by a federal case called Chisolm v. Georgia (1793).
 
 
Chisolm v. Georgia (1793)
 
An increasing problem with federal intrusion on the States via the federal court system culminated in the case of Chisholm v. Georgia in 1793, which eventually led to the proposal, and ratification, of the 11th Amendment.  A citizen of South Carolina sued the State of Georgia for the value of clothing supplied by a merchant during the Revolutionary War. After Georgia refused to appear, claiming immunity as a sovereign state, as per the Constitution (Article III, Section 2) the federal courts took the case.  The judges in the court system tended to embrace a nationalist view of the federal government, and their nationalist point of view encouraged the judges to deem that in the Chisolm v. Georgia case, Georgia was not a sovereign state, therefore the Supreme Court entered a default judgment against Georgia.  What ensued was a conflict between federal jurisdiction and state sovereignty that reminded the anti-federalists of their fears of a centralized federal government consolidating the states, and destroying their right to individual sovereignty.
 
Realizing that the clause in Article III gave the federal courts too much power over state sovereignty, Congress immediately proposed the 11th Amendment in order to take away federal court jurisdiction in suits commenced against a State by citizens of another State or of a foreign state. This is the first instance in which a Supreme Court decision was superseded by a constitutional amendment, and evidence that the founders saw the legislative branch, and the States, as being a more powerful part of government over the federal judiciary.
Authorities
 
The 10th Amendment to the Constitution of the United States of America states that the powers not delegated to the United States by the Constitution, or prohibited by it to the States, are reserved to the States respectively, or to the people.  The federal courts are included in that, as being a part of the United States federal government.  As a result of the nature of how federal authorities are granted, the federal court system can only hear cases that fall within the constitutional authorities for the federal government.
 
When one understands the importance of protecting state sovereignty, and that the courts are supposed to be very limited in their scope and power, Article III becomes much simpler to understand.
 
As stated earlier in this section, the first sentence of Article III, Section 2, reads: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States (which are only supposed to be passed if they are within the authorities granted by the Constitution), and Treaties made . . .
 
Notice the phrase, "arising under this Constitution."  If the case is not involving the federal government as one of the parties, or is not regarding an issue that falls under the authorities of the U.S. Constitution, the federal courts can simply not take the case. The State Supreme Court, in those cases, is the highest court the case can go to.
 
 
Judicial Review
 
Federal judges maintain that the federal courts have the power of judicial review, or the power to determine the constitutionality of laws.  In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important concept of the separation of powers, and other much-touted limits on power.  The final arbiters of the Constitution are not the courts, argued the Founding Fathers who supported the foundation of limiting principles of the U.S. Constitution.  The power of the federal government must be checked by State governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.
 
In today's society it is commonly accepted that one of the roles of the federal court system is to interpret the Constitution, and issue rulings determining the constitutionality of laws.  The Constitution does not grant this authority.  The power of Judicial Review was given to the courts by themselves.
 
The first attempt to establish "Judicial Review" as an authority to the federal court system was through the Judiciary act of 1789, but the authority allowing the United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party, was limited to only the United States Supreme Court.  The lower federal courts, at this point, were not allowed hear cases questioning the federal government's "federal question jurisdiction."  Anti-federalists, and Jefferson Republicans immediately railed against the legislation, arguing that legislation cannot determine authorities granted.
 
The Federalists, in an attempt to allow the lower courts to wield the power of judicial review, briefly created such jurisdiction in the Judiciary Act of 1801, but it was repealed the following year.  Unable to establish the federal court system as the final arbiters of the United States Constitution through legislative means, the Federalists turned to the courts themselves to drive into place the controversial authority.
 
During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.
 
Thomas Jefferson's Democratic-Republicans were appalled by the appointment of the Midnight Judges, recognizing the stacking of the courts as a desperate attempt by the Federalists to try and continue Federalist influence despite their election loss.  In Jefferson's view, the Federalists "retired into the judiciary as a stronghold . . . and from that battery all the works of Republicanism are to be beaten down and destroyed."
 
While Adams was still in office, most of the commissions for these newly appointed judges were delivered.  However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison.  Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams.  In Jefferson's opinion, the undelivered commissions were void.
 
One of those appointed judges was a man named William Marbury.  He sued, and the case worked its way up to the Supreme Court.  After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission.  Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review.  Rather than simply applying the law to the cases, Marshall decided, based on case law and precedent, that the courts have the authority to determine the validity of the law as well.  This opinion, however, went against all of the limitations placed on the courts by the Constitution.
 
One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government.  The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to.  The powers are granted by the States, and any additional authorities must also be approved by the States through the ratification of any proposed amendments.  It takes 3/4 of the States to ratify an amendment.  The congressional proposal of an amendment, with the ratification of that amendment, in the simplest terms, is the federal government asking the States for permission to a particular authority.
 
The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution.  The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.
 
The federal courts are a part of the federal government.  The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers.  Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional.  In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are.
 
The idea that the federal court system has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional, and is simply an attempt by those that believe in big government to gain power, and work towards a more centralized big federal governmental system.
 
 
Original Jurisdiction
 
In Article III, Section 2, Clause 2 the Constitution reads: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction."
 
What this means is that in all of those above listed cases, the federal appellate courts cannot take the case.  Such cases must bypass the federal appellate system, and go straight to the Supreme Court.  Since one of those stipulations is in regards to cases "in which a State shall be a Party," that means that the case "U.S. v. Arizona" where the federal government sued Arizona to block the State's immigration law, was unconstitutional.  It was unconstitutional for the inferior federal courts to hear the case.  The Supreme Court had original jurisdiction.  Therefore, when the district court ruled in July of 2010 on the case, and struck down parts of the Arizona immigration law, not only did that court not have jurisdiction to hear the case in the first place, but the very act of striking down portions of the law was unconstitutional. After all, Article I, Section 1 grants the legislative branch all legislative powers, and those powers would include the ability to strike down law.  The courts were not vested with any legislative powers, and therefore cannot strike down laws, or portions of laws.
 
 
Trial by Jury
 
Article III, Section II, Clause 3 sets up the right to a trial by jury, except in the cases of impeachment.
 
This clause also requires that a trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress.
 
 
 
Treason
 
Article III, Section 3 defines treason, as well as the granting of the power by the Congress to declare the punishment.  When the Constitution says that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained," it means that the punishment cannot be inherited or passed down (corruption of blood), nor shall the person be denied due process (attainder).
 
Corruption of blood also means that all inheritable qualities are destroyed, and the Founding Fathers did not believe this English practice should be an American one.
 
No forfeiture meant that despite treason, the properties of the person could not be forfeited to the government.  The property would remain as property of the individual, or remain with family.  Even when it came to the despicable act of treason, the founders believed that the individual should be able to retain certain rights.
 
 
Terms:
 
Corruption of Blood: Punishment inherited or passed down, all inheritable qualities are destroyed.
 
Judicial Review: The unconstitutional authority of the federal courts to review law, interpret the Constitution regarding laws, and then determine the constitutionality of laws.
 
Original Jurisdiction: In the Constitution the Supreme Court has original jurisdiction on some cases, which means the case must proceed directly to the Supreme Court, and the high court must make a determination on whether or not to accept the case.
 
Treason:Levying war against the States, or adhering to the enemies of the States, giving aid and comfort to the enemy.
 
Questions for Discussion:
 
1.  How would life in the United States be different if there was no federal court system?
 
2.  Why did the Founding Fathers limit the authorities of the federal courts?
 
3.  How has Judicial Review changed our system of government?
 
4.  Why do you think the Supreme Court has Original Jurisdiction over some cases?
 
5.  In what ways is the presence of a Judicial Branch important?
 
Resources:
 
Draft of the Kentucky Resolutions (Jefferson's Draft), Avalon Project, Yale University: http://avalon.law.yale.edu/18th_century/jeffken.asp
 
Madison's Notes Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
 
Virginia Resolution - Alien and Sedition Acts, Avalon Project, Yale University:
Copyright: Douglas V. Gibbs, 2015