Law and Justice

Archive for the ‘Constitutional Law’ Category

William Allan Kritsonis, PhD

Professor

PUBLIC SCHOOL LAW

 EDUCATIONAL LAWS & POLICIES

PARENT’S RIGHTS

 INTRODUCTION

             Parents are an essential partner in the education of their children.  While constitutional law does not necessarily outline parental rights regarding education, Texas statutory law does.  In fact, in 1995 the Texas Legislature amended the Texas Education Code to include parent rights and responsibilities.  According to Chapter 26 of the Texas Education Code §4.001, “Parents will be full partners with educators in the education of their children (Walsh, Kemerer, & Maniotis, 2007).  The state cannot require all students to attend public schools, thus enabling the parents to right to choose where their children will be educated.  Parents may send their children to public, private, or home schools. 

            For the purpose of this report, we will present the case that relates to granting parents the right to choose which institution of learning their children will attend.  The findings are intended to be informative and beneficial in understanding the precedent set forth for parent rights and responsibilities regarding the education of their wards.

Case One

United States Supreme Court

PIERCE

 v.

SOCIETY OF SISTERS

268 U.S. 510

LITIGANTS

Plaintiffs-Appellants: Walter Pierce, Governor of Oregon

                                    Isaac H. Van Winkle, Attorney General of Oregon

Defendant-Appellee: Society of Sisters of the Holy Names of Jesus and Mary

                                    Hill Military Academy

BACKGROUND

            On November 7, 1922, the voters in Oregon passed an initiative to amend the Compulsory Education Act.  The amendment was aimed at creating a common American culture by eliminating any dogmas that may negatively influence the established norms of American society.  All children between the ages of eight and sixteen were required to attend public school.  Children who were mentally disabled, lived three miles from the nearest road and had already completed the eighth grade were excluded from attending school.  To enforce the law parents who did not send their children to public school were fined and faced 30 days in jail.   The initiative also targeted parochial schools, specifically Catholic schools, because the thought was that such parochial schools hindered assimilation.  Since the Society of Sisters worked with mainly orphaned and disadvantaged children they challenged the fairness of the Act.

FACTS

            The Society of Sisters was an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. The Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.

DECISION

 JUSTICE McREYNOLDS delivered the opinion of the Court.

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides, and failure so to do is declared a misdemeanor. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

The Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

DICTA

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

IMPLICATIONS

            The Society’s suit against Pierce was successful in establishing that the parents and guardians of students had a right to choose their children’s educational setting.  The ruling set the precedent for parents’ right to choose privately run schools and relieved parents from being forced, through penalties, to have their children educated in public schools.

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The Constitution – Love It, or Leave

It’s not a secret! The President himself said it loud and clear on just about every media outlet – and he didn’t hold back. He said “if we don’t pass this health bill, America will be bankrupt”. In my view, the question is what has a health bill got to do with the solvency of our treasury?

Here is my ‘take’ on this deal:

• This administration has completely blown our national bank account, and with our creditors pounding on the door of the treasury for their interest payment, there is an urgent need for cash. That’s where you and I come in, because we are the only source of income to remedy this sorry situation, ergo…

• Create a ‘cash cow’ that will generate huge amounts of revenue, but disguise it as a desperately-needed service to the American people, something both valuable and necessary, such as health care. Ah, yes… health care – or to be more precise, socialized health care, the veritable ‘Holy Grail’ of the Democratic Party for nigh on a hundred years.

• Next, load up the ‘Cash Cow Bill’ with everything under the sun, making sure to get all the votes necessary to execute the scam, even to the point of buying off dissident members of the Congress with disgracefully blatant and specific bribes. Finally – and most important of all – delay the promised services for at least four years. That way, the Treasury will have income without having to provide the service, and – bingo! They’ve got cash-flow.

Upwards of 70% of us just plain and simply don’t want this ‘Health Care Reform’ bill, mainly because we can see right through it. The political tricks applied by Pelosi and Reed, the two main perpetrators of this fraud, have been shamelessly transparent – and that’s the only transparency that ‘We, The People’ have seen evidence of since Presidential Candidate Obama promised us total transparency in his Administration should he be elected. Well, he was elected, but we have yet to see any evidence of the transparency promised us. In fact, everything the President/his Administration have done on our supposed behalf has been largely partisan and done behind closed doors, and calls to investigate any/all irregularities have been stonewalled – which makes Congressman Joe Wilson (R) South Carolina’s accusation shouted out during the State of the Nation address “YOU LIE!” the stand-out understatement of this Congress.

This is not the CHANGE we were duped into believing would be our reward for putting Obama into office – this is business-as-usual, stinks-like-a-dead-fish, corrupt Chicago politics! Unfortunately, just enough of us bought the snake-oil that put into motion the ‘change’ that would lead us down the garden path to America’s ruin.

Make no mistake, we needed ‘change’ – but change for the better, not worse. The promise seen by the majority of the electorate in this charismatic Senator from Chicago turned out to be as disappointing as the revelation to the female fans of the movie star ‘hunk’ Rock Hudson that he was anything but what he seemed, and that he was, in fact, gay!

This president is not so much phony as incompetent. We, and most of the rest of the Free World, were sold the proverbial ‘bill of goods’. We bought a lemon, a charismatic community organizer, when what we needed was a Reaganesque statesman, not just another ordinary politician who cries ‘wine’ and sells vinegar… a truly non-partisan reconciler, not a profoundly ideological polarizer… a noble peacemaker, not a global appeaser… a President, not a pretender at the helm of our storm-tossed Ship of State.

Instead of action we are given reaction – and, on the world stage, that can be fatal, especially when partnered with inexperience. Lawyers aren’t the only sharks in the global seas – the ‘Great White’ varieties of certain world leaders have such small fry as lawyers for lunch! The world stage should not be perceived as nothing more than just a larger community to organize – the dynamics of an American inner-city community aren’t comparable to the dynamics of the world’s community of diverse nations.

In the game of football, leaders always want the ball because they see opportunity to move the team forward, but this stagnant three-and-out, leaving everything up to the punter is not the foundation of a winning team. Obama came onto the world stage as an unknown – a political rookie who seems to have lacked even the basic wisdom that you only get one chance to make a first impression. As the ‘new kid on the block’, he failed to impress his peers. His tele-prompter served him well on his home field, though his inordinate dependence on it soon began to be seen as a substitute for sincerity, a pre-programmed inability to speak from his heart. Abroad, under very close scrutiny, he was largely deemed ‘an empty suit’. He has failed to impress even the lowliest of the world leaders, and through that failure, he has embarrassed and degraded his country.

We are fast becoming a ranking member of the Third World-economy class, dependent on the forbearance and benevolence of others – China, for instance. A major problem for us is that this Administration steadfastly disavows any and all responsibility for our National state of affairs, repeatedly pointing the finger of blame at their predecessors, the dastardly Bush Administration. This puerile ‘pass the buck’ leadership style is wearing mighty thin, and no doubt has legendary Democrat President Harry ‘The Buck Stops Here’ Truman spinning in his grave.

While there may be enough meat left on that carcass to make a weak broth, it falls well short of making a hearty soup. For one thing – the main thing – didn’t the Democrats take command and control of the Congress in the 2006 elections? Didn’t that put the responsibility of government squarely in the laps of the Democrats a full two years before this Obama travesty?

Forgive me my confusion – and please correct me if I’m wrong – but I was of the belief that the President has no power over the National purse-strings without the majority consent of the Congress, due to the ‘checks and balances’ aspect of our government which was designed to keep us from falling into the clutches of a king or similar dictator. If that is, indeed, the case, I submit for consideration the argument that the Democratic Party, by dint of an independent majority, controlled both the Senate and the House of Representatives, rendering the Bush Presidency a so-called ‘lame duck’ Administration. Thus, how can we accept that the Bush Administration is entirely responsible for the entirety of this catastrophic mess we are currently experiencing? I would freely wager that a majority of Americans would count themselves fortunate if our current deficit was ‘only’ as much as it was when Bush left office!

In Obama’s case, I would paraphrase Presidential Candidate Bill Clinton’s campaign catch-phrase ‘It’s the economy, stupid!’ to ‘It’s the SPENDING, stupid!’ At this rate, we soon won’t even be able to afford the Poorhouse – what then, Dickensian debtors’ prisons? (Is that what the ‘concentration camps’ standing ready in numerous locations across the country are for? If not, then what is their intended purpose?) If Obama is so keen to redistribute the wealth, why doesn’t he mandate that ALL over-paid government employees share their wealth with the beleaguered taxpayer? Maybe he should launch an ‘adopt-a-taxpayer’ relief fund amongst the ‘fat cats’ he so reviles (with the exception of his pet ‘fat cat’ campaign contributors). Why did the already ridiculously well-paid government employees just receive a raise when seniors received NOTHING?

Cowards and charlatans blame others for their mistakes – leaders accept responsibility for any and all shortfalls, both their own and others under their control. At least, that was the standard during my military career. In my experience, those who embraced those responsibilities were the true and trusted leaders. I saluted them then, and I salute them now.

My conclusion is that we, as the citizens of this nation, are in serious trouble. Our government is rapidly growing out of control, ever expanding into a nationalized carbon-copy of Socialist Europe, financed against our will by our hard-earned tax dollars.

This is a blatant contravention of our Constitution and Bill of Rights.

If this Republic is to survive – and I submit to you that it must – We, the People are duty-bound to rescue it. If this Republic means anything to you, your children, their future progeny – and, most importantly, to the trust imposed on us by those who fought, bled and died for it throughout our history, and who, with their blood obliged us to do the same for those yet unborn – we must act, NOW!

Now is the time!

Already, this government has gone too far: they have shown contempt for our reasoned protests and admonitions. They have cast aside, with utter disdain, their oath of office, destroying any trust due them from us. They are, in effect, traitors to our core beliefs and to the principles of our Founding Fathers, by which we prefer to live.

Veterans are any country’s truest patriots, their hearts forged in the furnace of combat and sacrifice, and we stand firmly on the side of our country’s proud past, on the shoulders of those Heroes of the Revolution who so courageously took a stand against the tyranny of their time. Now, we must answer the call to stand against the tyranny of our time. We trust that our beloved military will stand with us, for they share their solemn oath of service and love of the country for which they still fight and bleed, prepared to give ‘the last full measure of devotion’ in order to protect and preserve our core beliefs and the principles of our Founding Fathers.

We must use the tools entrusted to us by the creators of this venerable Republic – the advice so carefully scripted for us as a legal means to remove these traitors from office.

It is an imperative to register all who wish to be members of The Militia of The Several States, so as to be ready to respond to any emergency – defined as ‘a serious, unexpected, and potentially dangerous situation requiring immediate action’.

An emergency can manifest itself in many forms or occasions, thus it is prudent to be prepared and willing to serve in whatever capacity the situation requires. We are all under oath to do no less. Each of us, at some point in our lives; have taken an oath to protect our flag, our county and our people, and our integrity demands that we live up to that promise.

It is time to fulfill our obligation to protect this Republic from its enemies, both foreign and domestic. It is time to reinvigorate the tenets of the American Constitution and Bill of Rights.

We have no stomach for confrontation for the sake of a difference of opinion. However, we do have a responsibility to invest whatever is necessary into removing from office all who perpetrate through the Congress’ unlawful practices, and make it answerable to the accusation of tyranny.

You are a militia – all able-bodied American over the age of seventeen years are. The only way a single voice can be heard is through a respectable membership who are all of one mind, and when they speak, it is with one, mighty voice.

Therefore, we must register our names in the same way that we would sign a petition expressing a strong opinion urging legislative redress, and when we achieve sufficient numbers we must ROAR our discontent – demanding that Congress either cease and desist its unlawful practices forthwith, or face physical removal from office by a lawful militia.

Please pursue this further by going to www.voluntarymilitia.com discover your commitment to a constitutional lawful government.

David Brown is the Publisher and Editor in Chief of The Veterans Journal, a ‘free’ on line weekly advocate for the veteran community. The veterans journal selects pertinent information that will educate and inform the veteran community in the support of the Constitution and Bill of Rights. The Veterans Journal originated in 1999, first as a printed news journal which evolved into an on line publication in 2002.

By David Brown

Courts make determinations in law and in equity. By ‘in law’ is meant following a specific law – constitutional law, state law, etc. By ‘in equity’ is meant determining what is ‘fair’ to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are ‘guiding truths’. Adhering to them helps judges make fairer decisions. They’re ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent ‘self-evident’ truth – as mentioned in our Declaration of Independence when it referred to ‘all men’ as being created equal.

* serve to guide judicial determinations in the same way that ‘axioms’ guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice – a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court’s wanton discretion in equity law determinations.

Examples of Maxims:

Let’s take a look at some examples to see the nature of maxims -as self-evidently fair. Here’s an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people’s rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he’s breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the ‘best interest of the child’ standard – used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can’t prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can’t prove that they don’t have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury – which is a felony (a serious crime) – if he can be found to be intentionally lying. No ‘swearing in’ means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity – so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man’s home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he’s an orphan – but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It’s natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place.

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Because our family courts are not setup to protect the rights of litigants but a so-called ‘higher good’, it’s ripe for distributing injustice and persecution – mostly to fathers and their children. This article explains why.

Thomas Jefferson stated that trial by such a jury is the only anchor yet known to man to hold the state to the principles of the constitution so as not to leave the protection of the individual solely up to the government or judicial elites.

It’s through the jury that ‘the people’ participate in the judicial process and rein in unconstitutional or unreasonable laws and judgments of the state. Without the protection of a jury trial, tyranny will surely reign.

*Our most fundamental rights are in jeopardy in family court for doing no wrong:

At stake are your right to parent your child, to control and choose your income and profession, your right to maintain your professional and driver’s licenses, your right to have or maintain your passport and travel as you see fit. These rights are guaranteed by the constitution.

*What about the ‘best interest of the child’ – isn’t that ‘a greater good’?

Greater goods are part of dictatorships and tyrannies. The greatest goods of republics are peoples’ constitutional rights which includes the protection of ‘due process’. Supreme Court case laws states that the ‘best interest of the child’ resides in a ‘fit’ parent – not the state.

*How are fundamental rights at stake?

Because if the family court judge assigns you to be the noncustodial parent, you lose your parenting rights to your children (i.e. to support them directly, live with them, and direct their lives) and then you’re forced by the court to pay the mother whatever the judge says – amounts that will impoverish most fathers. If you don’t pay regularly and pay it all, you’ll go to jail without a trial.

*What do you have to do wrong to be assigned the noncustodial status?

Nothing! Fit parents – overwhelmingly fathers – have their constitutional rights denied by judges assigning them as noncustodial parents.

The judge – as representative of the state – invokes his ‘illegal’ right to take away constitutional rights of fit fathers for the ‘best interests’ of the children. Best interest determinations are only to be invoked when there are no fit parents.

*The family court setup prevents protection of father’s constitutional rights:

The family court doesn’t allow a trial with a jury. It only permits ‘bench’ trial which means that the judge is both judge and jury for you. So you’re denied the protection of the people from the legal elites and special interest groups that feed off the injustice that the family courts produce.

*Why doesn’t the family court protect a father’s constitutional rights?

Because when you eliminate the natural protections – like a jury – you leave judicial elites in power. More power means a more corruptible system. That’s human nature.

The family court and its affiliates have seized on a ‘greater good’ excuse such as ‘best interest of the children’ and ‘safety of women’ to forego constitutional law and protections for fathers.

*Special interest groups influence on the family court setup and actions:

A host of legal and court-assisting persons and organizations have a strong financial interest in keeping the family court set-up as it is. They together can be called the Divorce and Domestic Violence Industry (the DDVI).

The DDVI is made up of the judges, lawyers, GALs, mothers/women, probation/family service officers, psychiatrists, sociologists, visitation centers, battered women’s shelters, the abuse industry, women’s advocates, the state’s department of revenue (DOR), the federal government’s child support enforcement division…and more! Let’s consider where some of these entities find their financial interest in the family court setup.

The DDVI have interest in:

* Setting larger child support orders.

Both the court and DOR/CSE(child support enforcement (agency)) receive federal incentive payments. Court-DOR (Department of Revenue) agreements send some DOR money to the Court systems. County jails make money by more inmates – who are court-created deadbeat dads.

* Making abuse allegations more easily allowed.

Visitation centers and lawyers benefit by this as well as do Battered Women shelters and Batterers Groups. Incidentally, battering is relatively rare; accusations are very common.

* Aggravating parental exchanges and unequal allotment of rights – as the court imposes.

This makes lots of money and job security for lawyers, family services officers, psychologists, GALS, parenting class coordinators, women’s groups, and affiliated VAWA organizations who receive some $5 Billion over 5 years.

The DDVI, taken together, is a powerful lobby and participant in the rule-making process. They’re not about to favor any change – however fair – that will undermine their positions, benefits, or money and power they’ve accumulated.

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AD 890 The Anglo Saxon Chronicles.

Originally compiled on the orders of King Alfred the Great, approximately A.D. 890, and subsequently maintained and added to by generations of anonymous scribes until the middle of the 12th Century. The original language is Anglo-Saxon (Old English), but later entries are essentially Middle English in tone.

AD 1086: The Domesday Book

Domesday is Englands most famous and earliest surviving public record. It is a highly detailed survey and valuation of all the land held by the King and his chief tenants, along with all the resources that went with the land in late 11th century England. The survey was a massive enterprise, and the record of that survey, Domesday Book, was a remarkable achievement. There is nothing like it in England until the censuses of the 19th century.

1215: Magna Carta

The ‘great charter’ is most famous for consolidating judicial rights, notably habeas corpus, the right not to be unlawfully imprisoned. However, it was also an important first step in removing power from the central authority – King John – and spreading it wider.

Its 61st clause, known as the Security Clause, declared that a council of 25 barons be created with the power to overrule the will of the King, by force if necessary.

This was repealed angrily by the King shortly afterwards, and mediaeval rulers largely ignored the document altogether, but it became an early foundation of England’s – and later the United Kingdom’s – unwritten constitution.Please click here for the full translated edition of the Magna Carta:

1376: The first Speaker of the House of Commons is appointed
An English Parliament had existed since late in the 13th century, and had been divided into two houses since 1341, with knights and burgesses sitting in what became known as the House of Commons while clergy and nobility sat in the House of Lords. However, its duties largely consisted of ratifying taxes for the Crown. In 1376, Thomas de la Mare was appointed to go to the King with complaints about taxation, and the Commons for the first time impeached some of the King’s ministers. While de la Mare was imprisoned for his actions, the House created the position of Speaker to represent the Commons permanently. Above is Betty Boothroyd, the Speaker from 1992 to 2000.

English Petition of Right in 1628 Parliament passed the Petition of Right in 1628 in response to a number of perceived violations of the law by Charles I in the first years of his reign. In 1626, Charles had convened Parliament in an effort to obtain desperately needed funds for the continuation of his unsuccessful war with Spain. Unhappy with the prosecution of the war, however, Parliament swiftly began impeachment proceedings against Charles’ favorite and principal counselor, the Duke of Buckingham. In order to protect Buckingham, Charles was forced to dissolve Parliament before it had voted any subsidies. Left without recourse to parliamentary taxation, Charles resorted to two forms of extra-parliamentary taxation to raise the funds he needed – a benevolence and a Forced Loan – that were of doubtful legality at best. He also began to billet soldiers in civilian homes, both as a cost-saving measure and as a means of punishing his political opponents.

Citing the Forced Loan’s illegality, a number of gentlemen refused to pay, and many of them were imprisoned as a result. Ultimately, five of the imprisoned gentlemen – the so-called “Five Knights” (since they were all knights) petitioned the Court of Kings Bench for writs of habeas corpus to force the government to specify the reason for their imprisonment. Seeking to avoid a direct challenge of the legality of the Loan, Charles refused to charge the prisoners with a specific crime, instead declaring on the return to the writs that the knights were detained “per speciale mandatum domini regis” (“by special command of our lord the king”). In the resulting hearings before the King’s Bench – the famous Five Knights case – counsel for the Knights argued that imprisonment by “special command” amounted to a fundamental violation of the principle of due process established by chapter twenty-nine of Magna Carta, which declared that imprisonment could only occur in accordance with the law of the land. The Five Knights’ counsel claimed, therefore, that the king, upon receipt of a writ of habeas corpus, must return a specific cause of detention, the legality of which could be assessed by the courts. In contrast,Robert heath, the Attorney General, claimed that the king had a prerogative right to imprison by royal command for reasons of state, and these detentions could not be challenged by habeas corpus.

Faced with conflicting precedents, and, undoubtedly, political pressure, the Court decided to remit the Knights to prison while taking the case under advisement. Although equivocal, this decision was taken as a major victory for the king, and a significant blow to the opponents of his extra-legal policies. It was largely a desire to overturn immediately this ruling that would provide the primary impetus for the House of Commons decision to create the Petition of Right in the subsequent Parliament.

The Habeas Corpus Act 1679 is an Act of the Parliament of England passed during the reign of King Charles 11 to define and strengthen the ancient prerogative writ of habeas corpus, whereby persons unlawfully detained cannot be ordered to be prosecuted before a court of law.

The Act is often wrongly described as the origin of the writ of habeas corpus, which had existed for at least three centuries before. The Act of 1679 followed an earlier act of 1640 which established that the command of the King or the Privvy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816 and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.

The Act came about because the Earl of Shaftsbury encouraged his friends in the Commons to introduce the Bill where it passed and was then sent up the Lords. Shaftesbury was the leading Exclusionist—those who wanted to exclude Charles II’s brother James, Duke of York from the succession—and the Bill was a part of that struggle as they believed James would rule arbitrarily. The Lords decided to add many wrecking amendments to the Bill in an attempt to kill it; the Commons had no choice but to pass the Bill with the Lords’ amendments because they learned that the King would soon end the current parliamentary session.

The Bill went back and forth between the two house, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each side—those voting for and against—appointed a teller who stood on each side of the door through which those Lords who had voted “aye” re-entered the House (the “nays” remained seated). One teller would count them aloud whilst the other teller listened and kept watch in order to know if the other teller was telling the truth. Shaftesbury’s faction had voted for the motion, so they went out and re-entered the House. Gilbert Burnet, one of Shaftesbury’s friends, recorded what then happened:

Lord Grey and Lord Norris were named to be the tellers: Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so, a very fat lord coming in, Lord Grey counted him as ten, as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported that they that were for the Bill were in the majority, though indeed it went for the other side: and by this means the Bill passed.

The clerk recorded in the minutes of the Lords that the “ayes” had fifty-seven and the “nays” had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.

The King arrived shortly thereafter and gave Royal Assent before proroguing Parliament. The Act is now stored in the Parliamentary Archives.

1688: The Great Revolution
The Civil War a few years before had removed the monarchy, and then reinstated it in a weakened form, setting the stage for the attenuated ‘constitutional monarchy’ that we have today. But it was the arrival of William of Orange from Holland to take the throne from James II which led to the creation of the Bill of Rights, constitutionally preventing absolute rule by the Kings and Queens of Great Britain to this day, and leaving Parliament as the true seat of power in the country.

The English Bill of Rights 1689 The Bill of Rights was passed by Parliament in December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1688, inviting them to become joint sovereigns of England. It enumerates certain rights to which subjects and permanent residents of a constitutional monarchy were thought to be entitled in the late 17th century, asserting subjects’ right to petition the monarch, as well as to have arms in defence. It also sets out—or, in the view of its drafters, restates—certain constitutional requirements of the Crown to seek the consent of the people, as represented in parliament.

Along with the 1701 Act of Settlement the Bill of Rights is still in effect, one of the main constitutional laws governing the succession to the throne of the United kingdom and—followingBritish Colonialism, the resultant doctrine of reception, and independence—to the thrones of those other Commonwealth realms, by willing deference to the act as a British statute or as a patriated part of the particular realm’s constitution. Since the implementation of the statute of Statute of westminister in each of the Commonwealth realms (on successive dates from 1931 onwards) the Bill of Rights cannot be altered in any realm except by that realm’s own parliament, and then, by convention and as it touches on the succession to the shared throne, only with the consent of all the other realms.

In the United Kingdom, the Bill of Rights is further accompanied by the Magna Carta, Habeas Corpus Act 1679 and Parliament Acts of 1911 and 1949 as some of the basic documents of the uncodified British Constitution. A separate but similar document, the Claim of Right Act applies in Scotland. The English Bill of Rights 1689 inspired in large part the United States Bill of Rights.

4 July 1776 American Declaration of Independence The American Congress formally declares the separation of the thirteen colonies from Great Britain through the Declaration of Independence.
17 September 1787 Constitution of the United States The Constitution of the United States is signed and then ratified the following year. It establishes the system of federal government that begins to operate from 1789.
15 December 1791 American Bill of Rights Based on the English Bill of Rights – The American Bill of Rights is added to the U.S. Constitution as the first ten amendments.

1832: The Reform Act
Democracy of sorts had existed in England for centuries – as far back as 1432, Henry VI passed statues declaring who was eligible to vote (male owners of land worth at least 40 shillings, or a freehold property – perhaps half a million people nationwide). However, the counties and boroughs that sent Members to Parliament were of wildly differing size. The county of Yorkshire had more than 20,000 people, and the borough of Westminster had around 12,000, but they only sent one representative to the Commons – as did, for example, Dunwich, which had 32 voters, or Gatton, which had seven.

The Reform Act increased enfranchisement to over a million, or about one in six of all adult males, by allowing men who rented property above a certain value to vote too. It also tore up the mediaeval boundaries of counties and boroughs, giving more equitable representation for the cities that had sprung up since the Industrial Revolution. A second Act, in 1837, enfranchised all male householders, regardless of value.

1913: Emily Davison’s death
Campaigns for women’s suffrage go as far back as 1817, when the utilitarian philosopher Jeremy Bentham wrote Plan of Parliamentary Reform in the form of a Catechism. William Thompson and Anna Wheeler also published a pamphlet in 1825 on the subject. However, despite these green shoots of support, the 1832 Act for the first time explicitly limited suffrage to “male persons”. It was not until 1861, when John Stuart Mill published The Subjection of Women, that the movement began to gain momentum.

In 1893, New Zealand became the first self-governing country to allow women to vote. In Britain, progress was slower, and in the early 20th century women took to direct and sometimes violent action; chaining themselves to railings, arson attacks, and even bombings. Many were imprisoned, and some went on hunger strike. Emily Davison died at the Epsom Derby in 1913, when she ran out in front of the King’s horse, Anmer, clutching the banner of the Women’s Social and Political Union. It was around this time that the originally derogatory word ‘suffragette’ was coined, in a Daily Mail article.

1918: The Representation of the People Act
World War I could not be said to have had many silver linings, but it gave British women – who had spent the last four years, in a country shorn of young men, keeping the war effort running in munition factories and farms – a newfound political confidence. The 1918 Act recognised that not only these women, but many soldiers who had supposedly fought for British democracy, were still unable to vote. It removed all property restrictions from male voters, and allowed women to vote for the first time – although not those under 30, and with property restrictions – and to stand for election. The first woman, Nancy Astor, was elected to Parliament just 18 months later, in Plymouth Sutton. Ten years later, the restrictions on women were lifted, allowing them to vote at 21 whether or not they held property.

10 December 1948 Universal Declaration of Human Rights. The United Nations adopts the Universal Declaration of Human Rights.

1969: The Representation of the People Act
After one final loophole was closed in 1948 – weirdly, up until that point, some seven per cent of the electorate had two votes per person – voting in the United Kingdom reached essentially its modern state in 1969, when Harold Wilson’s government dropped the voting age for all citizens from 21 to 18. Further acts in 1983, 1985 and 2000 changed the laws on prisoners and overseas voters (essentially, convicted criminals may not vote while in prison; expatriates can still vote in their last constituency for 15 years after they left the country, and holidaymakers can vote by postal ballot or proxy). In 2000, a hoary constitutional prejudice against “lunatics” was weakened when psychiatric hospitals were allowed to be designated as registration addresses.

2 October 2000 British Human Rights Act  The British Human Rights Act 1998 came into force. This makes the European Convention on Human Rights enforceable in UK courts. ( As an Englishman this is one of the worst drafted Acts in the history of the British Constitution.)

George Orwell, British author of the satirical novels “1984,” and “Animal Farm,” once quipped in political commentary, “What, at first, is absolutely strange, if forcibly fed to a population of human beings in small digestible bites, through the clever medium of government sponsored propaganda, will, over time, become accepted tradition and commonplace, even if sorely corrupted and evil.” What this basically means is that a government, any government, may spend hundreds-of-thousands of taxpayer dollars to legislate a law of great benefit for the people of a nation, the majority of which may eagerly support its passage, and, over time, gradually and duplicitously, for spurious reasons, de-emphasize the importance of the law’s enforcement, incrementally decreasing the means of enforcing it, until very few concerned citizens actually question why such an important law has gone un-enforced. During the interim time, however, as the law has regularly gone un-enforced, the very evil thing that the law was originally intended to proscribe has become a tolerated practice to a great percentage of the population and, moreover, the electorate. This evil will continue to be tolerated by a duped populace until its deleterious effect on the nation is much too great to be ignored.

Almost identical to the above scenario, U.S. immigration laws, under Title 8 of the U.S.C, were originally legislated by the U.S. Senate and House of Representatives with overwhelming, if not total, support from both Democrats and Republicans during the first four decades of the 20th Century. As with any federal law, the legislative mandate of the U.S. Code directly addressing illegal immigration, 8 U.S.C. § 1325, 1326 (which propelled the legislation through Congress) was placed into the hands of the President of the United States, or the Executive Branch of the U.S. Government, to faithfully enforce.

The due proper enforcement of the U.S. Immigration Code proceeded along pretty well until around 1960, when the passage of U.S. Civil Rights legislation and the strict enforcement of illegal Hispanic immigration collided head-on in the political arena. Subsequently, the legislative mandate of the laws, which was to keep illegal (especially Hispanic) aliens from entering the nation from across the Southern border, was unfortunately subjugated, at that time in history, to political whims and sympathies emanating from, primarily, Democratic U.S. senators and representatives. These legislators cared more about scratching the backs of their wealthy farmer constituents during their seasonal picking times (ensuring that they had ample illegal alien fruit and vegetable pickers) than making sure that immigration laws were faithfully enforced. Consequently, enforcement of immigration law became inanely geared much more to political favoritisms and special interests than to the rule of law. This placed the U.S. Border Patrol in the ambiguous posture of enforcing illegal immigration not according to prescribed federal law, but, rather, according to the whims of powerful men and women in high political offices. I know this to be true because, in 1985, a senior U.S. Border Patrol agent told me that he was extremely frustrated with the differing orders coming from Washington, D.C. telling him and his officers to substantially reduce the number of raids made on known employers of hundreds of illegal aliens in San Diego County. At the time, I was a San Diego County deputy sheriff working at the Vista San Diego County Jail.

Currently, there are millions of parasitic undocumented illegal Hispanic aliens at large throughout the United States, especially in California, Arizona, New Mexico, and Texas due to the U.S. Executive Branch’s refusal to properly enforce the current immigration laws that are an integral part of the U.S. Code. Many of these illegal aliens are crooks and felons, who are going about with false identifications, bogus driver’s licenses, and fraudulent Social Security numbers for the express purpose of ripping-off American citizen taxpayers, obtaining food stamps, medical care, and other public services at taxpayer expense. Of the 15-to-20 million illegal aliens presently here, more than 20 percent of them are violent felons, burglars, robbers, thieves, and gang members. Over 20,000 of them are presently serving federal and state prison sentences for felonies they have committed. But all of these undocumented aliens have one felonious thing in common. They are all guilty of violating federal law by illegal entry into the United States.

Recently, Barack Obama had the unmitigated gall to call, misguided, Governor Jan Brewer’s signing into law a new Arizona legislation giving state and local law enforcement officers the authority to detain, and arrest, suspected illegal aliens. How dare Obama say such a thing! When he (and the eight Presidents before him) have blatantly refused to honor their oaths of office, to faithfully execute the (immigration) laws of the United States, it is utterly reprehensible for him to criticize a responsible state governor for honoring the legislative mandate of a vital federal law when its lack of federal enforcement has critically upbraided the peace and security of her state.

Quite ironic it is that the Executive Branch of the federal government can build and staff what they regard as secure top-secret installations for military weapons research, intelligence gathering, or for what they want to consider important in the amorphous name of national security, and thoroughly protect the sites from illegal entry with all sorts of armaments, aircraft, and high-tech gadgetry, while at the same time insisting that protecting the Southern U.S. against illegal entry is almost impossible. Case in point, Area 51, comprising thousands of acres of desert, mountains, and forested land, which is guarded day and night against illegal entry. Take, for instance, an ordinary American citizen who merely wants a job working inside Area 51, and obtains false identification in order to gain entry. Let’s say that that citizen gets a job working at one of the government-run restaurants on the installation with his false identification. Two weeks later, Joe Blow is hard at work serving food when government agents harshly arrest him for illegal entry onto U.S. Government property. The poor fellow is charged with a dozen federal crimes, put on trial in a federal court, and subsequently convicted and sentenced to 30 years in a federal prison. Yet, most U.S. citizens will read about the person’s conviction and strongly agree that the intruder had it coming when he illegally entered a restricted federal area. So, why isn’t prevailing U.S. public opinion against men, women, and families who conspire to illegally cross the U.S.-Mexican border? Such an act is as much a crime as illegal entry onto Area 51. Perhaps it is as George Orwell said, that through deliberate government inaction, and the effective dispersal of government sponsored propaganda, a law vital to a nation can, over time, be de-emphasized to a point where the average citizen does not consider its enforcement as essential.

I sincerely believe that our second President, the late great John Adams, who coined the expression, “We are a nation of laws and not of men,” would be completely devastated by how the American republic has become a nation of men and not of laws. Mr. Obama obviously wants to see the U.S. Constitution pragmatically changed to give the federal government total control over every matter the Framers considered state concerns. In essence, Obama wants revise the Bill of Rights and to remake the American republic to resemble the Federal Republic of Germany, which has no bill of rights guaranteeing freedom of speech, freedom of religion, the right to keep and bear arms, and the right to be free of unwarranted invasions of privacy. But, most of all, he wants to see the evisceration of the 10th Amendment, which currently reads, “The powers not delegated to the United States (the federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It seems to be sad, but true, that if a standing President does not like the laws that pervious congresses legislated, and that previous Presidents signed into force, that President will not make an effort to enforce them. This refusal to faithfully execute “all” standing federal laws is, in my opinion, an impeachable offense constituting a high crime. Nonetheless, a President who has a majority of a U.S. Congress rubber-stamping every thing he does, and wants to do, is in no fear of impeachment. A candidate for President, who is not a natural born citizen of the United States, can even be elected and sustained with impunity with a Speaker of the House of Representatives and a Senate Majority Leader supporting him. What was true about “Dubya” and his rubber-stamping Republican Congress is equally true, if not more so, with Barack Obama and his rubber-stamping Democratic Congress. The Obama administration is saying, in effect, that President John Adams, his historical regard for the application of law, and every other salient precedent illustrating the importance of following law instead of human whim, can all go to hell.

Perhaps, during the November 2, 2010 mid-term congressional elections, indignant American citizens, the majority of the voting electorate seeking the rule of law, will go to the polls to cast out of the U.S. Senate and the House those representatives who voted for a legislation to deprive the American public of their freedom of choice, which will force them, by federal mandate, to, either, buy into federally controlled health care, or be penalized for not doing so. The Obama administration is systematically working with the Democratic controlled Congress against the interests of American citizen taxpayers by seeking a federally controlled, essentially totalitarian, regime that will only increase national debt, tax burdens on individuals and families, control over a citizen’s daily life, and do away with the type of federalism established in the U.S. Constitution. I sincerely pray to Nature’s God that a great majority of American citizens, registered voters seeking the rule of constitutional law, regardless of political party affiliation, will converge on the voting places this coming November to elect new U.S. Representatives and Senators who will abide by the U.S. Constitution instead of the whims of an aberrant, power-hungry President.

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