The Federalist Blog

Summary: Freedom of Speech or the Press is the freedom from government officials making speech or writings they find too critical of their affairs a seditious crime. Under common law, people had to be careful of any criticism they wrote or said about government policy, laws or official conduct out of fear of being charged with a seditious crime where truth would be of no defense.

Before discussing the meaning of the words “freedom of speech, or of the press” as established under early American law, we should first understand why these words are found under the United States Constitution. Mr. Madison explained in 1799, “Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.” Alexander Hamilton argues in Federalist No. 84 why such an amendment does not belong under the federal constitution:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. (This argument lead to adopting the Ninth Amendment.)

Framer James Wilson before the Pennsylvania Convention to ratify the Constitution of the United States in 1787 said he would have no further remarks over the freedom of the press “until it is shown that Congress have any power whatsoever to interfere with it, by licensing it to declaring what shall be a libel.”

After Madison finished introducing his proposed bill of rights to the House of Representatives in 1789, Rep. James Jackson of GA stood up and remarked:

The gentleman (Madison) endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. … An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the constitution provides that a member shall not be questioned in any place for any speech or debate in the House?

One big modern error in interpreting freedom of speech and press comes from not treating it as freedom from government shielding itself against public examination of its affairs through use of criminal libel or license but as a right to be heard or seen. Newspapers were never under any obligation to publish whatever someone had to say no more than a university or town was viewed obligated to provide persons with a public soapbox. It is all about government and its agents subjectively determining what speech or publication it considers defamation against government and punishing such without truth being a defense.

Laws that regulate what shall be considered abusive speech or displays, what people wear, public conduct, etc., are not the same thing as government officials or judges of the court exercising authority to criminally punish anything they subjectively consider in speech or publication to be sedition against government or government established religion while ignoring truth as a valid defense.

Freedom of speech and of the press served one purpose in America: To remove the fear of the common law doctrine of seditious libel so citizens could freely speak or publish without license their grievances against public policy or conduct of public officials. One of the distasteful things found under the common law was the government practice of criminalizing or shielding itself through requiring license to publish of any criticism it felt made people dissatisfied with their government or government established religion.

Seditious libel (or criminal libel as it was sometimes called) was generally defined as “the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.” (Stephen, History of the Criminal Law)

In England, it could be dangerous to criticize government, or peaceably assemble or petition government for redress of grievances because anything one might speak or write could end up being used against them under the charge of seditious libel where truth would be of no defense.

In 1808 for example, the British newspaper publisher, John Drakard, was indicted over an article questioning military flogging, and the jury had been instructed that the military establishment had been injured and “it was not to be permitted to any man to make the people dissatisfied with the Government under which he lives.” Henry VIII once made it a high treason crime to suggest his marriage to Anne of Cleves was valid even though it was the truth.

Parliament’s famous licensing order of 1643 made clear it was the “defamation of religion and government” that was not to be tolerated. While one could still find themselves in a world of trouble for defamation of religion in the colonies and States, there was no license required for publication or laws of seditious libel against undesirable political speech.

How can we know for sure the freedom of speech means freedom from seditious libel? All early American laws over speech and the press dealt solely with breaches of the peace or public morality (blasphemy, obscenity, profanity, etc.), but never proceedings of seditious libel (NY might have been a brief exception) over any criticism of government or its agents. In other words, the common law doctrine of seditious libel was absent from American laws, while public abuses of the freedom outside of political speech was punishable.

The Sedition Act of 1798 would appear to be an exception, but Federalists argued correctly there was no freedom to utter or publish licentiousness, falsehoods or slander (however, they were incorrect with their assertion of being able to enforce the Act within States).

Benjamin Franklin, writing in The Pennsylvania Gazette, April 8, 1736, wrote of the American doctrine behind freedom of speech and of the press:

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

James Madison in 1799 wrote, “In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law.”

The Democratic-Republican caucus included the following in their 1800 platform: “An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents.”

Some incorrectly argue the freedom of the press extends beyond political matters, generally pointing to a 1774 Continental Congress letter to the Inhabitants of Quebec describing the freedom in broad terms:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.

At the time England had an Established Church whose teachings was protected by Parliament in the same rigor it protected government from what it subjectively considered seditious speech or publication. Under the Continental Congress and later Federal Congress there was no Government Established Church for which Congress might feel obligated to defend against advancements of science, i.e., discoveries of new truths. Remove the influence of Established Church of England, which was not applicable under the new American Federal Republic, and the freedom of the press was viewed strictly as protecting political examination of government affairs.

George F. Will once correctly described the First Amendment as “an instrument of government,” where it “concerns the democratic disposition of public power,” and hence, “its protections extend only to political speech.”

Generally speaking, all State constitutions stipulated along the lines that the “press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity,” and “in prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may he given in evidence.”

Other common expression of the freedom found were, “No law shall ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right.”

If freedom of speech or of the press alone was understood to mean the liberty to freely write or speak whatever one wishes then there can be no purpose for the additional declaration that says persons may also “freely speak, write, and publish his sentiments on all subjects.” It is too clear freedom of speech and of the press had specific meaning and that meaning could only have been freedom from seditious libel. Thomas Cooley hit the ball out of park when he wrote of the freedom found under American constitutions:

The mere exemption from previous restraints (Blackstonian theory) cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications, … Their purpose (of the free-speech clauses) has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. … The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.

Additionally, all State constitutional provisions guaranteeing the freedom of speech or press provided for the exception of abusing the freedom. What this means is people never had a constitutional right to ignore laws that defined those abuses such as introducing public indecency, vice, etc. While there was never any justification for prior restraint via licensing the discussion of public concerns, everything outside of this was open to public restrictions for purposes of preventing crime, breach of peace, enforcing public morality, etc.

Under the federal constitution there is no provision for making anyone responsible for the abuse for the simple reason no sovereignty was surrendered to the central government over domestic matters of the states. If one carefully reads the First Amendment, they will find it says nothing about what people can, or cannot do, but only what Congress cannot do.

It should be apparent now how States could prohibit “books or other publications of a sectarian infidel or immoral character” from being distributed in any common school, or prohibit public discussion of acts of sexual gratification, or even solicitation for donations on public property without permit. These restrictions are directed at public order or vice and not public discussion of government affairs or policies made libel.

A little know court ruling in 1891 did what many courts have struggled to do; correctly recite the historical meaning of the freedom in two simple sentences:

And so the history of the struggle for the establishment of the principle of freedom of speech and press shows that it was not ordinary talk and publication, which was to be disenthralled from censorship, suppression and punishment. It was in a large degree a species of talk and publication which had been found distasteful to governmental powers and agencies.

Trial of John Peter Zenger

The liberty of speech or of the press in this country can be said to have been born in the year 1735 in the colony of New York. The story begins on November 5, 1733 when John Peter Zenger published his first issue of the Weekly Journal that included this criticism:

[T]he sheriff was deaf to all that could be alleged on that (Quaker) side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty’s Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote….

Governor Crosby wanted Zenger charged with seditious libel but found it difficult to obtain a grand jury indictment against him. To get around this obstacle Crosby instructed his attorney general to file a formal accusation of a criminal offense before two justices. This in return led to a bench warrant and arrest of Zenger.

The trial opened on August 4, 1735 on the main floor of New York’s City Hall with Attorney General Bradley’s reading of the information filed against Zenger. Bradley told jurors that Zenger, “being a seditious person and a frequent printer and publisher of false news and seditious libels” had “wickedly and maliciously” devised to “traduce, scandalize, and vilify” Governor Cosby and his ministers. Bradley said that “Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled.” (Linder, The Trial of John Peter Zenger (2001))

Additionally, Bradley explained truth was of no defense for seditious libel under state law while Zenger’s attorney argued the law should not be interpreted to prohibit “the just complaints of a number of men who suffer under a bad administration.” The judge instructed the jury the “law is clear that you cannot justify a libel,” and the “jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

With law and precedent squarely against him, the jury nonetheless found Zenger not guilty and the beginning of public opposition to trials of seditious libel had been established. Gouverneur Morris (served on the committee of five responsible for the final drafting of the Constitution) would write a half-century later: “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

With this historical understanding of free speech, our first analysis of what might constitute a violation of the clause will always be whether government has assumed through law the common law power of subjectively defining what shall be a sedition against government or its members (shielding itself from public examination/criticism). If the answer is no then there is no infringement under the clause.

Additionally, it is rather absurd to argue a school can violate someone’s freedom of speech when no school has any municipal police authority to subjectively declare speech or publication seditious and criminally punish such.

Finally, opposition to speech or press restrictions for purpose of public decency or order is a political question and not a judicial one. By making it a judicial question serves only to uproot the great liberty of the people to govern themselves under their own chosen laws and sense of norms.

A reader would like to know what ideological differences there might had been between two influential individuals of constitutional law: Chief Justice John Marshall and John A. Bingham. While John Bingham spoke cordially of C.J. Marshall, the two sat at opposite poles of each other. Here is a quick illustration of their differences:

Mr. Bingham was a self-proclaimed “state rights” man; Marshall on the other hand was a Nationalist to the left of George Washington.

Mr. Bingham viewed the Alien and Sedition Act as unconstitutional while Marshall considered the Act constitutional under the latitudinarian position of “powers necessary for the attainment of all objects, which are general in their nature, which interest all America … would be naturally vested in the Government of the whole.”

Marshall denounced Madison’s Virginia resolutions as dangerous; Bingham embraced his resolutions. Bingham adored Thomas Jefferson; Marshall disliked him (which is probably why Adams selected him for the court – revenge for losing the war to Jefferson’s state rights platform).

Bingham believed national government could not exist without States; Marshall believed the States could not exist without a powerful national government.

Bingham believed the Constitution was more than words alone, it has a spirit born out of past events – and the Constitution can only be interpreted as a whole and not from isolated words. Marshall believed there is a spirit, but only words alone defined that spirit.

• “[T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.” –Antoin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)

The recent Supreme Court ruling in District of Columbia v. Heller caught me by surprise by how far the majority, lead by Justice Antoin Scalia, were willing to go to make a case for a broad individual right under the Second Amendment. While plaintiff prevailed under a starkly divided court, the majority failed to provide any clear and convincing evidence to support their claim for a protected individual right. Instead, Scalia presents strained, forced constructions that often were self-contradicting, and seemingly, served only to favor the majorities’ own prejudicial ideal of what keeping and bearing arms should mean.

For example, Scalia writes like the “First and Fourth Amendments, codified a pre-existing right,” and the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.'” Later, however, he declares “there seems to us no doubt” the Second Amendment “conferred an individual right to keep and bear arms.” Which is it, recognition of a pre-existing right or does it directly confer the right?

Clearly the majority subscribed to the view that yes, the right to keep and bear arms are words associated with military service, but these words can also be read to mean more than citizen soldiers keeping of arms to bear in the service of a militia.

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I do not think there is any other single Supreme Court case in which I am asked to comment on more than the case of Plyler v. Doe – especially now with more press attention being devoted to school overcrowding and the costs associated with teaching non-bona fide resident children belonging to citizens of other nations. I have not devoted any lengthy commentary on this case for the simple reason the four dissenting justices (O’Conner, Burger, Rehnquist and White) thoroughly highlighted the majorities injustice – though they didn’t go as far as I am about to.

For example, Chief Justice Burger writing for the minority pointed out:

The Court’s holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of “remedies” for the failures — or simply the laggard pace — of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.

Burger’s view that the majority abused the Fourteenth Amendment is an understatement. The majority rested their ruling on the Fourteenth Amendments Equal Protection Clause (EPC). According to the majority the “Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.” While on its face this sounds to be true, it is important to point out the clause reads “the equal protection of the laws,” not the equal enjoyment of any law.

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Following the steps of other third parties, Dianne Feinstein (D-Calif.), with Rep. Robert Brady (D-Pa.) and Zoe Lofgren (D-Calif.) have recently filed an amicus curiae brief with the U.S. Supreme Court over Indiana’s photo-identification requirements for federal elections.

The brief asserts Indiana State law is inconsistent with, and preempted by, the federal Help America Vote Act of 2002. The Federal statute mandates certain identification requirements only for first-time voters who register to vote by mail. The Federal identification requirements can be satisfied by a number of alternative documents enumerated in the law.

“The Indiana statute subjects voters to multiple and inconsistent requirements to exercise the right to vote,” Senator Feinstein said. “The federal law allows flexibility in establishing voter identification. Indiana’s statute improperly attempts to trump federal law by restricting that flexibility. As a result, some Indiana voters may be required to show multiple forms of identification in order to comply with the state laws.”

Rep. Brady fired off the catch-all code word “disenfranchise” as the basis for challenging the law.

I fail to see any supported constitutional issues involved with such arguments that could warrant a Supreme Court challenge over a proper exercise of State sovereignty – and where the U.S. Constitution gives Congress no authority to touch. In short, States can trump Dianne and the Federal government all they want when it comes to exercising reserved powers that are neither prohibited to them nor delegated to Congress to legislate on.

Requiring photo ID to vote is simply a voter qualification requirement to exercise the right to vote granted under State law. One will look in vain to find the slightest federal authority over State voter qualifications anywhere in the U.S Constitution. If Congress had magical powers to pass any law they please, under any pretense, then they could had easily passed a law banning “poll taxes” without the fuss of amending the Federal Constitution (Amendment XXIV – 1964).

John A. Bingham, primary author of the fourteenth amendments first section said, “The qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.” In other words, Congress power over the manner of holding or conducting federal elections has nothing to do with the manner of determining who may vote under what qualifications. The manner of conducting of a federal election is of course merely determining whether the election shall be by either voice or ballot.

The framers of the 15th amendment recognized Congress was powerless over such things as religious tests or property requirements when it came to voter qualifications. There was an attempt to remove State property and educational qualifications under the fifteenth amendment but failed to gain the needed support to pass.

Sen. Jacob M. Howard made the following comments on the right of the States to exercise their full and complete authority over regulating suffrage:

The State of Virginia the moment she is admitted into the Union can by her Legislature, and in perfect consistence with her constitution, propose such an amendment to her local constitution as shall in effect disfranchise nine hundred and ninety-nine out of a thousand of the colored population of that State, by imposing a property qualification upon them, and it would be no violation of the Fifteenth Amendment…

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to the present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them.

Justice Story said, “It cannot be said with any correctness that Congress can in any way alter the rights or qualifications of voters.”

James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”

Indiana’s voter photo ID requirement cannot be said to be preempted by federal law because 1) there is no constitutional authority for Congress to pass such a law, and 2) there is no prohibition against the States in passing voter qualifications. In short, unless there is a specific State law involved that says only whites, or males, or folks over the age of 60 may cast a ballot, then there is no U.S. constitutional issue involved.

Lawyers for Patrick Kennedy, a Louisiana man who received a death sentence for raping a child has petitioned the U.S. Supreme Court to have his case heard before the justices. Kennedy’s legal team wants the court to declare Louisiana’s law allowing the death penalty for child rape unconstitutional.

The petition asks the court to consider whether the Eighth Amendment’s Cruel and Unusual Punishment clause permits a state to impose the death penalty for child rape – a punishment usually reserved for those convicted of murder. If this is the case, Kennedy’s attorneys ask a second question: Does Louisiana’s capital rape statute violates the Eighth Amendment because it does not set clear guidelines for juries as to who is eligible for the death penalty?

There has not been an execution for rape in the United States since 1964, and no one has been executed for such a crime since the death penalty was reinstated in 1976.

Lawyers have petitioned the Supreme Court before (1997) over Louisiana’s child rape death penalty law. The court declined to hear the case, resulting in three of the justices – John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer – releasing a statement that indicated they had reservations about the law.

During the twentieth century, there were at least 14 States found to have had death penalties for the crime of rape: Alabama, Arkansas, Delaware, Georgia, Kentucky (if under age of 12), Louisiana, Maryland, Mississippi, Missouri, South Carolina, Tennessee (if under age of 18), Texas, Virginia, and West Virginia. There were also a number of State statutes that called for life imprisonment in lieu of death.

Whatever reservations these three justices may care to drum up, they cannot argue such laws are “unusual” in regards to punishment by death for rape.

The issue is not strictly confined to Louisiana as Texas recently joined six other states (Florida, Louisiana, Montana, Georgia, South Carolina and Oklahoma) with statutes allowing for the death penalty for the rape of a child.

So what does the Eighth Amendment under the United States Constitution have to do with State guidelines of capital punishment or even methods of execution? Amazingly, nothing at all.

Why do we find the words “cruel and unusual punishment” under the Eighth Amendment? The answer is simply because Congress was empowered to declare punishment for acts of treason, leading to the desire to have a precaution against mimicking England’s own shocking punishments for treason.

Blackstone described England’s punishment for treason as “very solemn and terrible.” How terrible? The guilty could first be hanged, to then be disemboweled, even if still alive. The head was then cut off and body carved up in four parts for the king to dispose. In some cases, one could be burned alive.

It should be noted the Eighth Amendment has nothing to do with torture but only with post criminal conviction punishment. Torture was never used for punishment but for obtaining confessions (witness against oneself) or information. The Fifth Amendment’s no person “shall be compelled (tortured) in any criminal case to be a witness against himself” addresses the use of torture for obtaining confessions or other false or true statements.

Many States adopted their own form of the U.S. Constitution’s Eighth Amendment because they too had their own laws for treason against the State. State courts and legislatures had since the beginning voided many kinds of punishments as a violation under the States own Eighth Amendment, whether dealing with cruel punishments or excessive fines.

Following the adoption of the Fourteenth Amendment, the court in Kemmler (136 U.S. 436) unanimously held the Eighth Amendment under the United States Constitution in no way restrained the States. There is a very good reason why this is so.

The Fourteenth Amendment is not about federal meddling in the administration of justice within any State, nor is it about forcing federal limitations or norms of justice upon the States. The Fourteenth Amendment is all about redress for the “willful and corrupt” (Bingham’s words) denial or unequal application of State laws in the administration of justice for life, liberty, and property by organic acts of the legislature.

One might protest by pointing out the Fourteenth’s first section primary author, John Bingham, proclaimed three years after its adoption that the first eight amendments were never a limitation upon the States until made so by the Fourteenth Amendment. Many conveniently ignore the fact that he also made clear he was only speaking of the privileges and immunities of United States citizens as distinguished from citizens of a State.

He also made clear that if the first eight amendments were to be applicable against the States, it was through the privileges and immunities of United States citizens – not due process.

The distinction between citizens of the United States, and citizens of a State was well known and understood in 1866, yet Mr. Bingham settled upon the language “citizens of the United States.” He later declared in January of 1871 (House Report No. 22) that the Fourteenth Amendment neither changed nor modified the relationship between citizens of a State, and citizens of the United States.

In other words, citizens of the States under the Fourteenth Amendment were left exclusively under the protection and laws of the States, and no jurisdiction over matters of administering State laws were surrendered. If this were to be the purpose of the amendment, then all the coercion in the world by radical Republicans would have lead to no more than four States at best ratifying such an amendment.

All Bingham did, as he explained in March of 1871, was imitate Article I, Section 10. Did Congress or the court ever use anything under Article I, Section 10 as a pretext for new expansive federal powers over the States? No because like the Fourteenth’s first section, merely imposed a limitation upon the States directly, that is, “a law unto itself.” It gave the federal judiciary no direct jurisdiction or legislative powers over State enactments that did not clearly touch upon any of the provisions prohibited to the States.

After all, Bingham did state over and over that the Fourteenth Amendment did not change anything in regards to existing rights belonging to the States or the citizens of a State. Citizens have an inviolable right to enact whatever laws they deem fit for their security, and to punish offenders of their laws.

What might constitute cruel and unusual punishment in the ordinary course of imprisoning convicts, or in executing them, only the political societies of the States can judge. The only thing that can be said the Fourteenth Amendment does indeed prohibit in regards to capital punishment – and indeed, any punishments for that matter – is whatever punishments that may be authorized, they must be equally applicable to all, i.e., no caste laws of punishment.

Whatever one might think in regards to the death penalty for rape under State statutes, one thing is certain: The Fourteenth Amendment does not give the federal judiciary any jurisdiction under any pretense to sit in judgment over the validity of any State enacted statute any more than Article I, Section 10 had. The only remote jurisdiction the court could claim under the Fourteenth Amendment is in the event of a “willful and corrupt disregard” for the States own laws of due process – or when some State court decides white defendants will be spared execution while blacks will face death (unequal administration of laws).

Until the Fourteenth Amendment is amended to allow for federal review of all State laws in terms of whether they are just and proper, meet federal judicial standards, or whether the law promotes some substantial state interest, the court is just kidding itself in unlawfully extending its jurisdiction where it has long been prohibited.

Because the purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all United States citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue, make contracts, due process, purchase property, etc. in any State they ventured into. Therefore, the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.

Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution. The reason for this is because the authority remained with each State to make rules that distinguished alien from citizen.

Madison made it clear rules of who is a citizen or alien properly belonged with each State when addressing a contested South Carolina Election of Rep. William Smith in the House of Representatives in 1794. Madison said the question of whether Rep. Smith had been a citizen of the United States for seven years at the time of the declaration of independence rested entirely with the Constitution of South Carolina:

From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. Smith was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case . . . It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.

After the Revolution, States retained only those portions of common law that were applicable to their local circumstances. In England at the time, the general rule – not a hard rule since could be suspended when required by the King – every person born within the Kings allegiance and within any of the King’s realms or dominions was considered a natural born subject under the maxim every man owes natural allegiance to the King whom may have been born in any of his realms or dominions. This natural allegiance was perpetual and difficult to severe or alter (Once a English subject, always a English subject) and was found odious in this country (America went to war against this “natural allegiance” in 1812).

In early America, the common law rule of “natural allegiance” was discarded as well as the rule of automatic citizenship to children born to aliens regardless of their condition. Other differences that differed from the common law were the general rule children born to transient aliens or temporary sojourners remained alien. Early states also required aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled alien parents was “born within the allegiance” of the State even if the parents had not yet been naturalized would be considered a citizen of the State and a United States citizen.

Moreover, when an issue of aliens and citizenship went before the courts it meant some State had neglected to enact laws on the subject, thereby forcing the courts to adjudicate citizenship under common law rules of place of birth. This is exactly what happened with the State of New York in 1844, forcing the State to later withhold automatic citizenship of children born to “transient aliens” by statute. *

Conceivably, Congress could had from the beginning attempted to include a defined local birthright rule – whether due to place of birth or parentage – but would have found, just as the Thirty-Ninth Congress had discovered, to be no simple matter as individual States had differing opinions over who should, or should not, be their citizens.

As a rule, the nation considered only those patriotic immigrants who came here for the exclusive purpose to settling amongst us, bringing with them wealth, like habits and customs as those worthies to become part of our society. And more importantly, those willing to renounce all prior allegiances to their country of origin and swear exclusive fidelity to this one.

Paupers, vagabonds and imperialist were universally despised.

The Fourteenth Amendment’s citizenship clause differed from the common law rule in that it required owing complete allegiance only to the United States in advance rather than automatically bestowed by place of birth, i.e., only children born to parents who owed no foreign allegiance were to be citizens of the United States – that is to say – not only must a child be born but born within the complete allegiance of the United States politically and not merely within its limits. Under the common law rule it did not matter if one was born within the allegiance of another nation.

Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.

Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”

Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth, then the condition of the parents would be entirely irrelevant.

During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country – an issue he would not have raised if Congress were merely reaffirming the common law doctrine – and of course, the question of Indians.

A common mischaracterization of the debates says Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the Fourteenth Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the condition of the parents. However, this is an erroneous conclusion because they were discussing concerns over whether “race” of the parents could play a role. They were not suggesting locality of birth alone was to be the sole requirement of citizenship under the Fourteenth Amendment. Additionally, this discussion appeared before the chief authors, Senators Lyman and Howard, provided the proper intended operation of the language.

Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.

In Steel Co. v. Citizens for a Better Environment (1998) the court said, “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather than assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provide the answer, with Trumbull declaring:

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

In other words, it isn’t local jurisdiction the Fourteenth Amendment recognizes but only the lack of owing allegiance to some other nation because the United States only recognizes those who are ‘true and faithful’ alone to the nation. As will be explained shortly, only acts under the laws of naturalization can remove an alien’s allegiance to some other country under United States law.

Additionally, Trumbull argued Indians could not be subject to the jurisdiction for the reason the United States deals with them through treaties. This is also exactly how the United States deals with aliens from other nations as well; they enter into treaties with other countries to define legal rights of their citizens while within the limits of the United States and vice versa. Example: A treaty with China prohibited the United States from naturalizing Chinese citizens.

Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.'” Sen. Trumbull further restates the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” Note that Trumbull does not say temporarily within our jurisdiction, but “completely within our jurisdiction”.

He of course is talking about the laws of naturalization and consent to expatriation by the immigrant for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States – just as the United States is known to do on behalf of U.S. citizens within other countries.

Sen. Howard introduced the clause as excluding “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

Many mistakes Howard’s above commentary as suggesting he was speaking only of persons who may have been foreigners or alien who belonged to “families of ambassadors or foreign ministers accredited to the Government of the United States.” For one thing, members of families of ambassadors or foreign ministers where never referred to as foreigners or aliens, so these remarks must be read as persons who are foreigners or alien and persons who belong to families of ambassadors or foreign ministers, i.e., he is speaking of three distinct persons rather than making a single distinction centered around ambassadors or foreign ministers.

Sen. Jacob Howard goes on to reinforce this conclusion by telling us the class of persons that falls under the jurisdiction:

[I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

Any citizen owes the same quality of allegiance to their nation of origin as does their country’s ambassador or foreign ministers while within the limits of another nation unless they freely decide to renounce their allegiance in accordance to law. In other words, it would be preposterous to consider under the meaning given to “subject to the jurisdiction thereof” that a French subject visiting the United States was not a subject of France, but a complete subject (politically) of the United States while within the limits of the nation without first consenting to expatriation.

The United States has always, as a matter of law, considered new arrivals subjects of the country from which they owed their allegiance. As a matter of law, new arrivals were recognized as bearing the allegiance of the country of their origin, and the only way that could change is through the voluntary act of expatriation. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:

James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.

Those who were not qualified under naturalization laws of the United States to become citizens of the United States would be unable to renounce their prior allegiances and consent to the full jurisdiction of the United States as needed to become a citizen. This is how children born to Indian’s and Asians were prevented from becoming citizens themselves under the language chosen.

What changed after the adoption of the Fourteenth Amendment? Not much really. States adopted laws that excluded either “transient aliens” or those not bona fide residents of the State. New York by 1857 had already a code that read, “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls, etc.” This code overturned the court ruling in Lynch v. Clarke (1844) where the court was forced to consider the English common law rule in regard to children born of aliens because New York had no laws on the subject at the time.

Additionally, the District of Columbia, California, Montana and South Dakota adopted identical language as New York. States could enact such laws because “transient aliens” could not be considered “subject to the jurisdiction” of the United States. The State of Connecticut adopted a law that read, “All persons born in this State . . . except aliens, paupers, and fugitives from justice or service, are and shall be deemed to be citizens of this State, owing it allegiance and entitled to receive its protection, until they shall have voluntarily withdrawn from its limits and become incorporated into some other State or sovereignty as members thereof.”

Such State laws were not contrary to the Fourteenth Amendment for the simple reason they merely deny citizenship to those born whom another sovereign claims as its own, i.e., denial of citizenship to those born owing allegiance to another sovereign conforms with the constitutional definition given to “subject to the jurisdiction thereof.”

In the year 1873 the United States Attorney General – who was a Senator during the Fourteenth Amendment’s citizenship clause debates – ruled the word “jurisdiction” under the Fourteenth Amendment to mean:

The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)

House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful’ alone to our government.” There is no way in the world anyone can claim “subject to the jurisdiction thereof” affirms the feudal common law doctrine of birth citizenship to aliens because such doctrine by operation creates a “double allegiance” between separate nations.

Aaron Sargent, a Representative from California during the Naturalization Act of 1870 debates said the Fourteenth Amendment’s citizenship clause was not a de-facto right for aliens to obtain citizenship. No one came forward to dispute this conclusion.

Perhaps because he was absolutely correct.

* The phrase “transient aliens” was generally used to refer to aliens other than “domiciled aliens” who had taken their oath of allegiance and other requirements who were citizens or subjects of another country who could be in the country for any number of reasons, such as a stopover on an international trip, school, work, etc., who had no intent of becoming citizens or were unable to by law or treaty.

Note: I cannot believe I neglected finishing this post until now (9/13/07).

A California woman whose doctor says marijuana is the only medicine keeping her alive can face federal prosecution on drug charges, a federal appeals court ruled. The ruling Wednesday was the latest legal defeat for Angel Raich, a mother of two from Oakland suffering from scoliosis, a brain tumor, chronic nausea and other ailments who sued the federal government pre-emptively to avoid being arrested for using the drug. On her doctor’s advice, Raich eats or smokes marijuana every couple of hours to ease her pain and bolster her appetite.

How can any federal court exert such power and control over private individuals while they exercise a privilege granted under an independent and sovereign State? Quick answer is they cannot – which makes such federal rulings even more repugnant.

So far, Congress has been allowed to get away with their Controlled Substances Act under the false pretense the Commerce Clause empowers them to criminalize any activity they deem inappropriate. However, is the Commerce Clause really a power bestowed upon Congress to criminalize private activity?

Read the full article →

I was reading today about a federal case (Morse v. Frederick, aka “Bong Hits 4 Jesus” case) winding its way through the courts, and was thinking how bizarre current federal jurisprudence has really become. On March 19, the United States Supreme Court will hear oral arguments over the limits of freedom of speech in public schools.

“I wanted to know more precisely the boundaries of my freedom,” Joe Frederick said when reporters asked why he’d raised the “Bong Hits 4 Jesus” banner. “I feel that if you don’t use your rights you lose them.”

It is all about rights, isn’t it? But where exactly are those rights citizens of a State can claim under the U.S. Constitution, for which in return they can seek federal intervention? Up to 1925, the Supreme Court had said, “neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ . . .” (Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922))

Read the full article →

Updated 3/1/07

Just when I thought I had seen and heard it all, comes the case Scott v. Harris. The case involves Coweta County Deputy Sheriff Timothy Scott’s decision in 2001 to end a wild, high-speed chase over dark and wet Georgia highways by finally ramming the back of Victor Harris’ Cadillac, sending him down an embankment and flipping his car. Harris, then 19, was left a quadriplegic and has sued, claiming it was a violation of his constitutional rights for Scott to take such drastic action.

His constitutional what?

Here is the question’s presented to the court, for which the love of me cannot understand why such lousy and demonstrable false precedent is still adhered to justify hearing such a case:

• 1. Whether a law enforcement officer’s conduct is “objectively reasonable” under the Fourth Amendment when the officer make a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death.

• 2. Whether, at the time of the incident, the law was “clearly established” when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight.

There is literally no Fourth Amendment issue under the federal Constitution because it had been strongly established by the court and the framers of the fourteenth amendment to not apply to anyone other than the Federal Government. It might under GA Constitution or local laws, but no way under any stretch of federal jurisdiction.

The framer of the Fourteenth Amendment’s first section, John Bingham, was clear and dead serious when he said over and over that those privileges and immunities are only those found under article 4, section 2 as they had always existed, and not the bill of rights. He officially stated in January of 1871 that the privileges and immunities incorporated nothing other than they had before the fourteenth.

The Fifth Amendment’s due process was incorporated, nothing else. Only courts administer due process through the administration of justice, not law enforcement agencies or officers, and further, search and seizures under the Fourth is not a function of the court in administering justice. In other words, you cannot use due process to impose a duty on anyone where that duty was never imposed upon them by the Constitution.

For search and seizures to be considered “unreasonable” under the concept of the terms under the Fourth Amendment, the search and seizure must had been conducted outside of the sanction of law. In other words, the act of search and seizure under any manner is not itself an issue, but whether existing law sanctions such acts.

Moreover, the court is attempting to cross a line into the police affairs of local government for which no such right had ever been surrendered to them to cross. Let us consider what the framers of the Fourteenth Amendment felt about the Federal Government disturbing local police powers.

Sen. John Sherman (OH) proposed an amendment (known as the Sherman Amendment) to enforce the Fourteenth Amendment in the year 1871. What Sherman proposed was to punish and bring private conduct within counties and cities of a State, under federal jurisdiction. The same House who adopted the Fourteenth Amendment overwhelmingly rejected it by 140 to 30.

Austin Blair (MI), a strong Fourteenth Amendment defender, and human rights activist, had this to say about the proposal on April 19, 1871:

They [States] create these municipalities; they say what their powers shall be. If the Government of the United States can step in and add to those obligations, may it destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, I ask gentlemen to tell me where its power will stop and what obligations it might not lay upon a municipality.

If gentlemen say that the powers of the General and State governments for the protection of life, liberty, and property are concurrent and that we can go everywhere throughout the United States and do by the General Government everything that can be done by any State government, then I grant this power might exist; but until I am shown that, I am unable to see it. As I have said, I have always supposed that there were certain powers and certain rights that belong to the States that the General Government has no right to interfere with. This right of local self-government, as I supposed, it was not the intention of the Constitution of the United States in any case to take away from the States, and I cannot see how it is possible that this power could exist without taking it away.

Sen. Frederick T. Frelinghuysen, said: “I submit that the police regulations of towns and counties are exclusively with the towns and counties, and they have in no manner forfeited to the Federal Government to make those police regulations.”

Sen. Lyman Trumbull, chairman of the Senate Judiciary said: “I am not willing to undertake to enter the States for the purpose of punishing individual offenses against their authority committed by one citizen against the other. We, in my judgment, have no constitutional authority to do that. When this government was formed, the general rights of person and property were left to be protected by the States, and there they are left today.”

Trumbull further added: “I do not know where in the Government of the United States gets the constitutional authority to go into the States and establish police regulations.” Bingham, under limited floor time, quickly questioned how the Federal Government could guarantee to the States a republican form of government while at the same time denying local government the right to govern themselves:

Mr. Speaker, how can States exist, how can you enforce the provisions of the Constitution of the United States as to States, if you will not maintain the corporate organizations of the several States? There can no more be a State under the Constitution and laws of the several States of this Union without the corporate organizations of counties or parishes therein than can be a United States under the Constitution of the United States without organized States; because the counties in the several States are integral parts of the States, just as the States of the Union are integral parts of the nation. If you destroy either you, destroy the whole fabric.

George Hoar added: “I do not favor interference in any degree by the national government with the local administration.” Luke Poland (former VT Supreme Court Justice) continues the assault on the notion the Federal Government is empowered to interfere with the local administration of justice:

[I] cannot agree with several gentlemen upon my (Republican) side of the House who insists that if the State authorities fail to punish crime committed in the State therefore the United States may step in and by a law of Congress provide for punishing that offense; I do not agree with those gentlemen.

James Garfield joined the chorus attacking the Sherman Amendment:

These systems of local government by counties and cities are adopted by the States as instrumentalities to aid them in the wise and judicious regulation and protection of the local and domestic interests of their citizens. It will never do to say that they may be tampered with, impeded, or arrested in the discharge of their duties, as this bill proposes. It would be fatal to the success and very existence of local self-government. It has many times been solemnly decided by the Supreme Court that these agencies adopted by the States to aid in local administration are above the touch or control of any power, are subject only to the exclusive regulation of the States.

John Farnsworth attacked the amendment this way:

The Supreme Court of the United States has decided repeatedly that the Congress can impose no duty on a State officer. We can impose no duty on a sheriff or any other officer of a county or city. We cannot require the sheriff to read the riot act or call out the posse comitatus (sic) or perform any other act or duty. Nor can Congress confer any power or impose any duty upon the county or city. Can we then impose on a county or other State municipality liability where we cannot require a duty? I think not.

Jefferson wrote from Monticello on June 12, 1823: “Can it be believed that under the jealousies prevailing against the General Government at the adoption of the Constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties, and restraining vice, within their own territory?”

The court in The City of New York v. Miln, 11 Peters, 102, perhaps sums up the principle involved best: “All those powers which relate to merely municipal legislation, or which may be properly called internal police, are not surrendered (by the States) or restrained, and consequently in relation to those the authority of a State is complete, unqualified, and exclusive.“

The truth is nothing had been surrendered by the States to the Federal Government over local police matters. Both Congress and the Federal courts have been given no authority to legislate or oversight into the affairs of persons within State jurisdiction except under two very narrow conditions that no law enforcement officer could possibly violate.

The Supreme Court is well aware of these facts, but they continue holding onto their bogus precedent in order to invade a domain they cannot justify invading any other way. To say that today’s federal judiciary is in severe crisis would be an understatement. Let us hope they can find their way back into the light to restore dignity to the federal judiciary.