STOP & FRISK: It’s a Good Thing

STOP & FRISK (NYPD)

by Diane Rufino, February 27, 2020 (incorporating an article by Walter E. Williams in Townhall, Feb. 26, 2020, titled “Stop, Question, and Frisk”)

In 1968, the Supreme Court handed down a landmark ruling in the case of Terry v. Ohio, which gave an additional tool to law enforcement in fighting crime and limiting the number of people on the streets with guns NOT in furtherance of any constitutional right (for self-protection) but rather in furtherance of criminal activity and violence upon others. Terry v. Ohio gave us the STOP & FRISK policy, a policy that has helped save officers’ lives. As it turns out, it has also saved the lives of thousands in minority communities that have been hostile to this policy and hostile to police over the past 30-40 years.

The facts of the case are simple: A Cleveland detective named McFadden, who was patrolling a downtown beat that he had been patrolling for many years, observed two strangers on a street corner. who were acting “suspiciously.” He saw them walk back and forth in front of a particular store for about 24 minutes, pausing occasionally to look in the store window. Each time they appeared to scope out the store, they met with a third man on the nearby corner to converse. Suspecting the two men of having criminal intentions, of “casing a job,” the officer followed them. When they were joined by the third man, the officer approached and identified himself as a policeman, and asked their names. The men seemed evasive, and quickly, McFadden spun petitioner Terry around and patted down his outside clothing. There was clearly a pistol in his pocket. ,The men were arrested and brought to the police station for carrying an unauthorized concealed weapon.

Supporters of the Second Amendment know that firearms are allowed for self-protection and self-defense, but NOT to carry out violent crime or to harm another, innocent human being. But the Second Amendment was not at issue in the case. The Fourth Amendment was.

So let’s review the Fourth Amendment. It reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”

Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person within the meaning of the Fourth Amendment. Furthermore, a careful examination of the outer surfaces of a person’s clothing in an attempt to find weapons is a “search” under that Amendment.

The ruling in the case provides (established) this general rule:

The Fourth Amendment right against unreasonable searches and seizures, which is made applicable to the States by the Fourteenth Amendment, “protects PEOPLE, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere.

Where a reasonably prudent officer is justified in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.

(a) Though the police must, whenever practicable, secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required.

(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate.

(c) The officer McFadden was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. He was justified in believing that the petitioners (Terry and his buddies) who were engaging in suspicious behavior, were very likely armed and dangerous and therefore, he had the right to neutralize that threat of physical harm. Furthermore, he was justified in taking the necessary measures he took in order to determine whether those persons were carrying a weapon.

A search for weapons in the absence of probable cause to arrest, which has since become known in law enforcement as the “Stop & Frisk” or “Terry Stop,” must be strictly circumscribed by the exigencies of the situation.

In light of this review of the Fourth Amendment, conservative columnist Walter E. Williams recently wrote an article on the “Stop & Frisk” policy in Townhall. It is an excellent article which I’ve copied and pasted below:

STOP, QUESTION, & FRISK, by Walter E. Williams, February 26, 2020.

Before former New York City Mayor Michael Bloomberg threw his hat into the 2020 presidential race, he defended the New York Police Department’s use of “stop, question and frisk” policing. At a United States Naval Academy’s 2019 Leadership Conference, Bloomberg said, “We focused on keeping kids from going through the correctional system … kids who walked around looking like they might have a gun, remove the gun from their pockets and stop it.” He claimed that as a result of his policy, New York’s murder rate fell from 650 a year to 300 the year he left office.

In the cases of Terry v. Ohio, Sibron v. New York, and Peters v. New York, the U.S. Supreme Court, in 1968, granted limited approval to officers to stop, question and frisk, even though they lacked probable cause for an arrest, if the officer believed the subject to be dangerous. The Court’s decision made suspicion of danger to an officer grounds for a “reasonable search.”

The “Stop, Question and frisk” policy has taken on racial overtones because most of the people stopped are black men. Let’s look at the numbers. Last year, NYPD data showed that 93% of suspects arrested for murder were black or Hispanic. Ninety-six percent of those nabbed in shootings were also minorities.

Eighty-eight percent of New York City’s homicide victims were black or Hispanic as were 96% of shooting victims. While these percentages have been roughly the same for decades, New York police have brought the absolute number of crimes, including homicides, way down from its 1990 peak at 2,245 to 289 homicides in 2018. Since blacks and Hispanics are the major victims of homicide, as a result of the NYPD’s proactive response to crime, possibly tens of thousands of blacks are living today who would otherwise be dead.

For a law-abiding black person to be stopped, questioned and frisked — in a word or two, be racially profiled — is truly insulting. However, to analyze the policy, let’s look at the origins of racial profiling or any other kind of profiling. First of all, policemen are neither mind readers nor are they equipped with X-ray vision. That means good policing requires learning how to use an easily observed physical characteristic as a guess or proxy for some other difficult-to-observe characteristic. Thus, the reason people profile is that information is costly and they seek methods to economize on information costs. One way to do that is through profiling.

The reality is that race and other behavioral characteristics are correlated, including criminal behavior. That fact does not dispel the insult, embarrassment, anger and hurt a law-abiding black person might feel when being stopped by police, being watched in stores, being passed by taxi drivers, standing at traffic lights and hearing car door locks activated or being refused delivery by merchants who fear for their safety in his neighborhood.

Former New York Mayor Michael Bloomberg is a politician in pursuit of his own agenda. President Donald Trump is also a politician in pursuit of his own agenda. Both will deny their support for and talk down the policy of stop, question and frisk in an effort to curry favor with black voters. Most Bloomberg and Trump supporters don’t live under the horrible conditions that so many blacks live under in high crime cities like Baltimore, St. Louis, Chicago and Detroit. Black people must ask what needs to be done to stop criminals from preying on them and making so many of their communities economic wastelands. If stop, question and frisk can contribute to that goal, so be it. They need not listen to politicians, academics, talking heads on the news and others.

 

References:

Terry v. Ohio, 392 U.S. 1 (1968), from the Cornell Law School library. Referenced at: https://www.law.cornell.edu/supremecourt/text/392/1

Walter E. Williams, “Stop, Question, & Frisk,” Townhall, February 26, 2020. Referenced at: https://townhall.com/columnists/walterewilliams/2020/02/26/stop-question-and-frisk-n2561809?utm_source=thdaily&utm_medium=email&utm_campaign=nl&newsletterad=02/26/2020&b

IMPEACHMENT DISTRACTION

 

(Photo courtesy of Times of Israel)

by Diane Rufino, February 9, 2020

For the past months, we have watched as President Donald J. Trump was impeached in the House by rabid partisan politicians, then tried in the Senate, and ultimately ACQUITTED. We have been utterly disgusted at the depths to which Democrats were willing to go to tarnish the name of this president, to somehow remove him from office, to undue the legitimate election of 2016, and at the very least, to smear his legacy and help derail his changes at re-election in November. We will never forget how the wicked witch of the House, Nancy Pelosi, said these words at the podium “He is impeached forever.”

Now we know that Trump’s popularity increased steadily and impressively during the entire process of impeachment and that his campaign took in record donations. We also now know that history will record Trump’s impeachment as nothing more than the desperate act of the most angry group of House Democrats in our country’s history. It was distinctly partisan, it was highly prejudicial to the Republicans and to Trump (they were all excluded from the testimony phase of the inquiry), and it was profoundly bitter and angry. History will record Rep. Adam Schiff as a conniving clown who fabricated charges, fabricated testimony, interpreted Trump’s conservation with Ukrainian president Volodymyr Zelensky using his own personal and political slant, and essentially fabricated the two articles of impeachment without any actual crime committed (not that it is absolutely necessary) and in the most ambiguous and undefined terms. It was truly a “Schiff Show.”

So let’s take a look at this most solemn and serious of government processes – Impeachment of a US President.

Impeachment is the process whereby we can attempt to remove a president of the United States, other civil officers, or federal judges because of some egregious conduct.

As we’ll see, the term egregious conduct is what is and MUST BE the standard and the basis to legally attack a sitting president of the United States, or the other officers and judges, and then to remove him (or her) from office. So rabid were the House Democrats in their quest to destroy President Trump that their articles included a provision that he not be eligible to hold any other official public office.

Article II, Section 4 of the US Constitution provides:

The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

First, we must notice which class of government officials the Constitution reserves the process of “Impeachment” for. The provision specifically identifies “the President, Vice President, and all civil officers of the United States.” LectLaw defines “all civil officers of the United States” this way: “All officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments of the government, with the exception of officers of the army and navy.” [See: https://www.lectlaw.com/def/c236.htm].

Clearly, members of Congress are not subject to the Impeachment process. Each house of Congress has its own set of rules to govern conduct, breach of conduct, and punishment.

Justia US Law explains even further what the drafters of the Constitution and our Founders envisioned with Impeachment:

“During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the government from his post, but Madison and others contended that this position was destructive of sound governmental practice, and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.” While the language of Section 4 covers any “civil officer” in the executive branch, and covers judges as well, it excludes military officers, and the precedent was early established that it does not apply to members of Congress. [See: https://law.justia.com/constitution/us/article-2/48-persons-subject-to-impeachment.html].

Also notice that the operative words in Article II, Section 4 are “shall be removed from office.” And that’s what it’s all about, right? It’s about removing such an officer (and here we are specifically referring to the President of the United States) because of some horrendous conduct that is so shocking and repulsive as to erode general confidence, on a bi-partisan basis, in his ability to continue as the Chief Executive of the United States.

The provisions in the Constitution, which as we shall see, are written in simple and plain language, and without any detail, were designed to mirror the process of removal that was followed in Great Britain in the 14th century. Alexander Hamilton explains this in his essay, Federalist No. 65.

The purpose of Impeachment, therefore, is not to shame the president, insult him, demean him, tarnish his name or his legacy, diminish his likability with the American people, or to erode his chances of re-election. And it most certainly isn’t the process to use to undue a legitimate and constitutional election – to reverse the decision of the American people and the Electoral College at the ballot box, the sacred venue of the people to exert their voice in government. The purpose is to address a most serious and egregious violation (criminal or otherwise – “treason, bribery, or other high crime or misdemeanor”) and remove him from office because of it.

Democrats, as always, ignore the Constitution.

The Constitution gives the US House of Representatives the sole power to impeach the president (that is, to bring charges against him) and it makes the Senate the sole body to try him on those impeachment charges. That is, the Senate alone has the power to convict or acquit the President on the charges.

So what is the “process” of Impeachment? Clearly, and expressly, it is a 2-step process that takes place in the most powerful branch to counter the Executive – the Legislative branch.

Article I, Section 2 of the Constitution provides: “The House of Representatives shall have the sole power of impeachment.”

Article I, Section 3 provides: “The Senate shall have the sole power to TRY all impeachments.”

This latter provision necessarily implies something extremely important – it implies that Due Process is required in the Senate “trial.” In other words, the President, like any other civil officer of the United States who has impeachment charges brought against him (or her), has the right to address the charges, the right to address those who brought the charges against him, and in general, the right of Due Process.

Due Process is one of the essential cornerstones of our American society. It passes down from the British system which hails a sordid history where kings abused the rights of their subjects and in fact, targeted their political opponents to silence them. “Due Process” guarantees that before depriving a citizen of life, liberty or property, government must follow fair procedures. Citizens are entitled to have the government observe or offer fair procedures to secure said rights of life, liberty, or property (or other rights offered to citizens). Action denying the process that is “due” would be unconstitutional. Here is an example we can all appreciate: Suppose, for example, state law recognizes the right of every student to exercise the tenets of their religion (as long as it doesn’t interfere with or burden the learning environment). Before the state could deny, for example, a student from wearing a cross or using a backpack that displays an image of the crucifixion, it would have to provide fair procedures, i.e. “due process.”

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” And the Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law and provide fair procedures.

Regarding the recent impeachment of Donald Trump, he clearly had a right at stake. He campaigned for the office of the presidency (like no other candidate ever did, by the way) and he won. He was duly and constitutionally elected to the office by the American people and our Electoral College system.

In short, Trump had a right to the Presidency.

And House Democrats, out of hatred, political ambition, and extreme anger and desperate frustration, tried to deny him this right by passing two ridiculous Articles of Impeachment – (1) Abuse of Power, and (2) Obstruction of Congress.

According to the Impeachment process, according to the Constitution, the Senate was obligated to give President Trump his “day in court,” so to speak. And his legal team (including the esteemed attorneys Jay Sekulow, Pat Cippolone, Kenneth Starr, Alan Dershowitz, Pam Bondi, Pat Philbin, and Robert Ray) did an absolutey brilliant job.

I was lucky and honored to have been ale to sit in the Senate chambers to observe the proceedings. What an experience to observe such a historical event.

The Constitution doesn’t provide much detail or insight into what constitutes a “high crime or misdemeanor” sufficient to warrant removal from office, so we look to our nation’s history to see what past attempts at impeachment have taught us.

First, we should note that Impeachment was always intended as a process that was hardly ever to be used. It was to be reserved for the most egregious of behavior. Ken Starr addressed this in the remarks he delivered to the Senate. He explained that Impeachment was intended to be used, if ever, maybe every century. But something happened in the latter part of the 20th century to “weaponize” impeachment. He described it as “The Age of Impeachment.” It began, he explained, with Richard Nixon and the Watergate Scandal cover-up that he engaged so aggressively in.

President Richard Nixon was not impeached, as it turned out, but he was threatened with it. Congress was getting ready to bring articles of impeachment against him, including, of course, “Obstruction of Justice.” Nixon was convinced that too many representatives and senators, from both sides, were so disgusted and repulsed by how aggressively he obstructed justice during the Watergate investigation (obstructed the Starr investigation, as Independent Counsel), that they would have easily voted to impeach and then remove him. And so he decided to reign – to save face.

That would have been an actual and authentic exercise of the Impeachment process. Richard Nixon clearly used terrible judgement and used the full power of his office and the power of the federal government to cover up some illegality perpetrated by others (ultimately for his benefit in the upcoming presidential election).

Impeachment of a President has occurred in our nation’s history only three times – with Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2019). None of them were removed from office, even though impeachment charges were brought against them by the House. Johnson came the closest to being impeached, and we’ll look more closely into how that happened.

First, let’s look at the impeachment of President Bill Clinton to see what it teaches us about the kinds of crimes that warrant removal from office. As mentioned earlier, Kenneth Starr, a brilliant and respected attorney, was appointed as the Special Counsel to investigate the charges that stemmed from Clinton’s sexual conduct (that is, misconduct) and especially from the sexual harassment lawsuit brought against him by Paula Jones, a former Arkansas state employee who was sexually assaulted by then Arkansas Governor Clinton. Ken Starr found eleven felony charges that Clinton was guilty of and, as he summed up in his famous Starr Report: “The President has pursued a strategy of (i) deceiving the American people and Congress in January 1998, (ii) delaying and impeding the criminal investigation for seven months, and (iii) deceiving the American people and Congress again in August 1998.” His repeated false statements to the American people about his relationship with Ms. Lewinsky “represents substantial and credible information that may constitute grounds for an impeachment.”

The House of Representatives took up Starr’s Report and compiled the felony charges into four Articles of Impeachment. The House only approved of two of them: (1) Lying Under Oath (“perjury”), and (2) Obstruction of Justice. The charges stemmed from the sexual harassment suit filed by Paula Jones, and specifically, arose out of Clinton’s testimony before a grand jury. The testimony addressed his harassment of Ms. Jones and his relationship with Ms. Monica Lewinsky. Clinton was impeached by the House by bi-partisan support: He was impeached on the “Perjury” charge (228-206) and on the “Obstruction of Justice” charge (221-212). His presidency was saved in the Senate. All 45 Democrats in the Senate voted “not guilty” on both charges, and were joined by Republicans as well. He was acquitted by the Senate.

I didn’t agree with the Senate’s vote regarding President Clinton’s conduct. I saw him perverting his obligation to the Office of the Presidency and subjugating it in order to hide his sexual misconduct and to hopefully continue it. I interpreted the results of the Senate’s vote either of two ways: (1) First, I assumed the Senators didn’t believe Clinton’s conduct – as bad and derelict as it was – was serious enough and of the type to warrant removing him from office. Sure, it was bad conduct… very bad. It evidenced a lifetime of poor judgement and sexual predation, but it was of a personal nature and the Senate should understand that and excuse it. I didn’t buy that. It was of a serial nature. He simply had no will power or any other power to decline his sexual urges, even when it touched on his work in the White House Oval Office. (2) Second, I assumed the Senators were simply voting along partisan lines, which clearly the Democrats did. As I mentioned above, none of the Senate Democrats voted to convict.

But Clinton did face some degree of justice. Being a notable attorney, a state Governor, a US president, a Rhodes scholar, he proved his skills were more adept at lying. He was immediately disbarred and his license to practice before the Supreme Court was taken away.

So, whether it was politically partisan or not, it appears that Democrats didn’t believe that conduct as willfully deceptive and sexually predacious as Clinton’s was of a nature sufficient to remove a president from office.

Next, let’s look to see where Impeachment was first used as a “weapon” for strictly political reasons. That would be the impeachment of President Andrew Johnson in 1686.

In 1864, Abraham Lincoln won re-election. He had run as the Republican Party’s first presidential candidate in 1860, but he was looking to expand his base in 1864. Adding Andrew Johnson to the ticket was just the way he would do so.

Johnson proved to be a sharp and independent thinker. This was most evident following the 1860 election of Abraham Lincoln when Southern states began to secede. While the secession convention met in Charleston, South Carolina in December 1869, Johnson addressed the Senate and proclaimed his allegiance to the Union. He was born in North Carolina to a poor family but when he was still young, he and his family moved to Tennessee. Johnson was a Democrat and didn’t necessarily see eye-to-eye with Lincoln.

Tennessee seceded in 1861, but Johnson decided to remain in Washington.. In March of 1862, President Lincoln rewarded Johnson’s loyalty with an appointment as military governor of Tennessee. When Lincoln sought a second presidential term in 1864 and needed the support of “Union Democrats” (as opposed to “Southern Democrats”), he chose Johnson as his running mate. He chose a Democrat as a running mate. Johnson became Vice-President on March 4, 1865, and just forty-two days later, after Lincoln was assassinated by John Wilkes Booth, he was sworn in as President of the United States.

At first things went well. It appeared, from the Radical Republicans, that President Johnson was a god-send. Relations between he and the Republicans was quite well. However, soon Johnson’s views on mending the Union and on Reconstruction became clear and they were not in line at all with the Republican plan. Johnson opposed political rights for freedmen and called for a lenient reconstruction policy, including pardoning former Confederate leaders. The president looked for every opportunity to block action by the Radical Republicans and freely used his veto power.. It became obvious that had no interest in compromise. When Johnson vetoed the Civil Rights Act of 1866 and then vetoed the Freedmen’s Bureau bill in February of 1866, he officially broke any final ties with his Republican opponents in Congress. They responded with the Fourteenth and Fifteenth Amendments to the Constitution, promising civil rights to freed slaves and then guaranteeing them the right to vote. In March of 1867 Radical Republicans also passed, over Johnson’s presidential veto, the Tenure of Office Act which was designed to limit the president’s ability to shape his cabinet by requiring that both appointments and dismissals be approved by the Senate. The bill was a clear unconstitutional exercise of legislative power – as violative of the Separation of Powers doctrine.

Johnson’s biggest point of contention was with a particularly nasty hold-over from Lincoln’s cabinet – Edwin Stanton, Secretary of War. Stanton was a bad guy – a very bad guy. He supported total war against the South, supported General Sherman’s devastating treatment of the southern states, supported his “scorched Earth policy (as Lincoln did), and supported his “March to the Sea” (an overt act of supremacy and over-kill). Stanton supported strong punishment of the former Confederate States and demanded total control of the those vanquished states. According to Stanton, they would not be permitted a seamless transition back into the Union.

When Johnson tried repeatedly to remove Stanton, Congress responded quickly by passing the Tenure of Office Act. Stanton, a Radical Republican, was critical to the Republican plan to re-make the Union after the Civil War.

By mid-1867, Johnson’s enemies in Congress were repeatedly promoting impeachment. Johnson would have to go. The precipitant event that resulted in a third and successful impeachment action was the firing Stanton. Stanton was not aligned with the President and persisted in opposing his Reconstruction policies. Johnson hoped to replace him with Ulysses S. Grant, whom Johnson believed to be more in line with his own political thinking. In August of 1867, while Congress was in recess, Johnson suspended Stanton and appointed Grant as secretary of war ad interim. When the Senate opposed Johnson’s actions and reinstated Stanton in the fall, Grant resigned, fearing punitive action and possible consequences for his own presidential ambitions. Furious with his congressional opponents, Johnson fired Stanton and informed Congress of this action, then named Major General Lorenzo Thomas, a long-time foe of Stanton, as interim secretary. Stanton promptly had Thomas arrested for illegally seizing his office.

Johnson believed the Tenure of Office Act to be unconstitutional [and Congress must have ultimately agreed. It repealed the law in 1887 and the US Supreme Court, while evaluating the constitutionality of a similar law in the case Myers v. United States (1926), stated that the Tenure of Office Act was likely unconstitutional] and so he didn’t take it seriously as a bar to him getting rid of the pesky Stanton.

And that’s all Congress needed to finally bring, in their minds, a solid case of impeachment against Johnson. In 1868, Congress brought eleven articles of impeachment against him, most of them stemming from his suspension of Stanton – his alleged violation of the Tenure of Office Act. Article 1 stated that Johnson ordered Stanton removed with the intent to violate the act. Articles 2, 3 and 8 alleged that the appointment of Thomas, to replace Stanton, without the advice and consent of the Senate was a further violation of the Constitution. And so their political assassination of Johnson proceeded.

In the Senate, the vote fell short by one. The votes of all Senators was carefully noted and it was clear that Johnson would have been convicted. But at the last minute, Senator Edmund Gibson Ross of Kansas, decided not to vote to convict but rather to acquit. And thus, Johnson was acquitted and allowed to remain in office by one vote. The reason given by those who voted to acquit was that they “could not agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable President.”

In other words, to convict Johnson on the specious charges brought by the rabid Radical Republicans in the House would be to plunge the country in a constitutional crisis.

That was 1868.

History repeated itself these past two months. As it was done with Andrew Johnson, angry and desperate political opponents weaponized the impeachment option for purely partisan political purposes.

In our history, twenty government officials have been impeached – including the three presidents I mentioned. Eight of them have been found guilty and have been removed from office – ALL FEDERAL JUDGES.

 

References:

“Civil Officer,” in Lectlaw. Referenced at: https://www.lectlaw.com/def/c236.htm

“Persons Subject to Impeachment,” in Justia US Law. Referenced at: https://law.justia.com/constitution/us/article-2/48-persons-subject-to-impeachment.html

“Due Process,” in Cornell Law School. Referenced at: https://www.law.cornell.edu/wex/due_process

The Starr Report (Full report submitted to the House of Representatives by Special Counsel Kenneth Starr on September 9, 1998 – https://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/srprintable.htm

The Impeachment of Andrew Johnson (1868),” United States Senate. Referenced at: https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm

The Federal Judiciary is Most Responsible for the Government Tyranny that so Clearly Threatens Our Liberty

JUDICIAL TYRANNY - mean old judge

by Diane Rufino, January 13, 2020

This article comes from a few remarks I made to introduce my last TEA Party meeting. The ultimate topic, to be discussed by a few candidates running for state office, was the problem they see (if any) with our state court system and our federal court system. I wanted to provide an introduction, making sure our members were clear as to the power the courts have managed to assume and exert over the many years.

For those who live in North Carolina, both tracts of the court system have done great damage to the conservative values that we hold dear in this state and have terribly and recklessly undermined and eroded the notions of “democracy” that we are not only entitled to but which rely on. To many who live here, the courts are seen as progressive rogue elements who operate outside the constitution, outside any sense of oath or loyalty to the country, absent any sense of duty, and for the sole purpose of using their positions to make the types of changes that THEY, in their personal and political views, think it necessary to make. In other words, we see the courts as independent agents who are more self-interested than anything else. Just as law schools have morphed into centers of “Social Justice’ (teaching its students to find social justice and racial justice issues everywhere, including where there are none), the judges they turn out are on a quest to seek and effect changes to further social justice. If they can find an explanation that can be interpreted as “racist” or “discriminatory,” that is what they will hang their ruling on. If they alone see such an interpretation, again that will be the basis of their ruling. The discrimination (which was bad, I’m not denying it) of African-Americans in North Carolina post-Civil War and during the Jim Crow era, and the inhumane treatment of them in the 50’s and early 60’s when they dared to protest for voting rights is long gone. That era is clearly gone. But certain social justice warriors (ie, judges) seem to want to make sure that it lives on.

The North Carolina state constitution outlines the powers of our state government and in Article I (“Declaration of Rights”) lists the rights that government must respect for each individual (plus a few that are clearly unconstitutional but remain as a result of the coercion of the victorious northern invaders after the Civil War via the Reconstruction Acts). Article IV of the US Constitution reads: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Wow, that Article IV is powerful. And it sort of shows rather clearly how deranged President Abraham Lincoln was and how overly ambitious he was to keep the money flowing from the agricultural southern states to the northern businessmen.

A “republican form of government” is defined as one in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated. Each southern state seceded from the Union after first calling a convention (just as they did to consider and debate the proposed US Constitution) and selecting delegates from among the people themselves to consider that sole issue, and then issuing a Declaration of Secession. They followed up by writing new state constitutions, if necessary, and then meeting to decide the question of whether to form into a new union (The Confederate States of America), which they agreed to, and finally wrote up a new national constitution. Most legal and constitutional scholars will comment that the Constitution of the Confederate States of America was a better constitution than our US Constitution (and that opinion has nothing to do with slavery). So, we see that Lincoln violated Article IV by making sure that the United States government did NOT guarantee a republican form of government to the 11 southern states that chose to secede. Next, Article IV guarantees that the federal government will protect them against invasion. But again, Lincoln ignored that promise as well. The only invasion that the South suffered was from the federal government itself. If Lincoln thought the Southern states were merely victims of domestic violence and insurrection, there was nothing to support such an assertion. There was no application by the legislatures of the states to the federal government for protection. Lincoln simply promoted a fake view of southern secession, characterizing it in terms that inflamed the passions of those in the north into taking the action he alone deemed absolutely necessary. (Well, there were others who agreed with him, such as his Secretary of War, Edwin Stanton – an evil and ambitious man).

It’s important – very important – to remember that Lincoln never accepted the fact that the southern states willfully and thoughtfully left the Union, exercising a natural right RESERVED to every sovereign, a right articulated in our Declaration of Independence, and a right correctly characterized as an “extra-constitutional right” (reserved to every state under the Tenth Amendment). In fact, they did everything exactly as the original 13 colonies did when they separated (ie, seceded) from Great Britain and organized into a union of states for mutual protection, strength, and bargaining power with the countries of Europe and Asia. Lincoln characterized the action of the 11 southern states as a collective act of rebellion – of domestic upheaval. Of course, nothing could have been farther from the truth. Those states took the calculated steps they took because they chose NOT to act in rebellion against their fellow northern states but rather to simply leave, peacefully, and to re-form a Union based on a government that serves their interests far better (and without open hostility).

The cornerstone of the united States of America is the US Constitution. It is the cornerstone, along with state constitutions, of our Rule of Law. Each constitution memorializes what the People expect from government – the powers delegated to it, the powers denied to it, and the essential individual rights that it is obligated to respect and forbidden to violate or burden. The equal application of the Rule of Law and the memorialization of individual rights guarantees persons in our country that they can live freely. It is this understanding that she reinforce to all of us the immeasurable importance of the US Constitution (and then the individual state constitution). The Constitution is OUR document. It was written for us and continues to provide as best as possible a shield to keep government at bay and out of our lives as much as possible. It is one of enumerated powers only, and therefore any additional power the government assumes or has assumed over the years has been done by abusing power, “usurping” powers during times of national emergencies, and most commonly, with the blessing of the federal judiciary. Since government has grown abusive and tyrannical over the years, the Constitution protects us far less than it did in the years post Founding and pre-Civil War. Yet, it continues to be all we have to keep the government within certain boundaries in our lives, with our liberties, and relating to our property.

This is why conservatives fight so hard to make sure the Constitution is understood and upheld. This was one of the main reasons why the TEA Party was formed back in 2009.

The TEA Party movement was founded for absolutely all the right reasons. I hear people mock the TEA Party movement, mock TEA Party principles, mock TEA Party folks as loonies, call TEA Partiers “racists,” and, chide groups into changing their name so as “not to offend” folks. I don’t fall for this. Anyone who has a bad opinion of the TEA Party and of the movement in general needs to submit to an intense course on American history and an intense course on US Government and Civics (not the progressive-type course that indoctrinates liberals). The origins of the TEA Party go back to an appreciation for the Constitution given to us by our Founding Fathers and its framers. All of a sudden, people all over the country realized that the Constitution had been framed with great genius and wisdom. And they also realized that all of the country’s problems stemmed from the all-too-obvious fact that the federal government had perverted our republic by unilaterally expanding its powers beyond the boundaries and limitations specified in the Constitution, and including the Bill of Rights, and adding usurped powers to its list of legitimate powers.

Every time the federal government ignores the Tenth Amendment (“the powers not delegated to the federal government by the Constitution nor prohibited by it to the states, are reserved to the State or to the People””) and the Ninth Amendment (“the enumeration of certain rights in the Constitution shall not be construed to deny others retained by the People”) and assumes powers NOT specifically delegated to it by the Constitution, it USURPS or TAKES those powers away from the one they rightfully belong to. For example, the federal government (thru the Supreme Court, a federal court) took control of marriage in the Obergefell v. Hodges case, claiming it alone had the power to declare gay marriage equivalent to heterosexual marriage. In doing so, it usurped the power to regulate marriage from the States, where it belonged and had belonged for ages. When the federal courts continue to strike down our legitimate Voter ID laws, as they have been doing (continually crying “racism,” “racism,” “racism”), they USURP the rightful power of the state to regulate elections for a rightful purpose. They continue to substitute their personal opinions and views for those of our elected state legislators and they continue to ignore how the issue of voter and election fraud permeated the 2010 election and was almost single-handedly responsible for ushering in the historic Republican majority (first since Reconstruction).

Remember the story of Ben Franklin leaving the Philadelphia Convention back in September 1787… A woman asked him: “What type of government have you given us?” And he responded: “A republic ma’am, if you can keep it.” When we look at how far out of control the federal government has gotten, we must go back to that afternoon and back to that comment and ask if we are doing what we need to do to keep our republic. We know that everything the Democrats are doing, everything they stand for, is designed to transform our republic from one based on individual freedom to one based, at least in good part, on socialist principles.

What is a REPUBLIC? Do we really know what is meant when our Founders gave us a form of government known as a Republic?

A Republic is essentially a government system whereby supreme power is held by the people and they exercise their influence and their interests and views through their elected representatives. In other words, a republic has a democratic element but that element is exercised at the ballot box. It is also exercised by citizens attending public meetings and legislative sessions, taking notes and publishing them to inform the community and by making their voices heard through comments at the session and through peaceful protests. Demonstrations, protests, acts of civil disobedience… these are further ways to exercise democratic influence in our republic system.

The TEA Party movement was started for concerned citizens to get active and to get involved in the government. Reminding government that it belongs to the people, to serve them and their interests is what we must do. After all, if we want “a government of the people, by the people, and for the people,” we must be vigilante – especially when it comes to the selection of our representatives.

The word “republic” derives from the Latin phrase res publica, or “the people’s concern.” It suggests a measure of popular involvement in government. And the authors of the Constitution were radically republican and believed that the only legitimate form of government was one in which public authority derived entirely from the people. We saw this very language in the Declaration of Independence.

And so we look at some of the ways our republic has lost its original character and how our government system has been transformed from one of limited power to one of concentrated power, and almost all of them involve recklessness, disloyalty, and complicity by the federal judiciary. Yes, what I am saying is that our government has become tyrannical and it has become so, to a great extent, because the federal courts have sanctioned such abusive powers.

A government is tyrannical when it passes and enforces laws without proper constitutional authority. It is tyrannical when it imposes mandatory duties upon its citizens without legal authority or when it treats groups of citizens unequally. It has become tyrannical because the federal courts have re-interpreted language in the Constitution, ignored other language, or inserted new language unilaterally into it. (This is what the “living, breathing document” justices have done over the years). It has become tyrannical after years and years of illicit changes to the Constitution sanctioned by progressive courts not wanting to faithfully interpret the Constitution as much as they wanted to bring about social change in our country. It has become tyrannical each time the federal government wished to assume new powers or to claim “preemption” over an area belonging to the States and the federal courts provided support by using fancy sophistry (or as Scalia used to call it – “legal gymnastics – lacking any foundation in law”) in its rulings to make it so. We saw a prime example of this in Chief Justice John Roberts’ opinion in the Obamacare ruling. It was the most horrific and tortuous example of legal reasoning. It has become tyrannical when it uses its branches not effect the powers articulated in the Constitution but rather to make sweeping social change in the country, even when it goes against the very fabric of society in the individual states. We saw this when the Supreme Court ignored the entire history of abortion laws and policies to find a right in the Constitution for a woman to murder her unborn child. This ruling, Roe v. Wade, ushered in a new age of Women’s Rights – the right of a woman to rid her body of a growing child for any reason at all, including because the pregnancy is causing her stress, giving her a headache or causing her to lose sleep, or because it is giving her anxiety. The government has become tyrannical because the one body constitutionally tasked with passing laws (the US Congress) has been allowed to outsource certain legislative powers to unelected, un-accountable agencies, and the courts have sanctioned them. It has become tyrannical because the courts have asserted a power they were not intended to have – the power to compel, or force compliance with their rulings. We saw this in the court orders forcing the South to establish school districts and to show that such districts have been drawn to establish acceptable racial quotas. Some such court orders are still in effect today – approximately 65 years after the Brown v. Board of Education ruling. The government has become tyrannical because judges have the ability to force or compel individuals to do something that they themselves think should be done. The Constitution does not empower courts to fashion remedies, yet they do it all the time. We saw this with the infamous “school bussing” ruling in 1971, where school districts would be required to bus students around to actively and affirmatively achieve court-required racial quotas. Another example – a school official can be forced to admit certain students or to retain certain students even though they may pose a risk to the safety of other students. In other words, judges know better. And finally, the government is tyrannical because judges and justices have now become legislators from the bench, thus blurring the separation of powers, and allowing unelected, un-accountable men in black robes to make law, make policy, and to dictate what the other branches can do (depending on how it affects their political beliefs). We call this Judicial Activism.

What’s worse is that the federal judiciary follows the policy of “stare decisis” which means that once the Supreme Court has ruled on an issue, the Court must continue to follow it. Essentially what this policy says is that the objective of the federal judiciary is to defend its own past decisions – including ones that are illegal, unconstitutional. abusive, outside the scope of judicial power, ridiculous, have no basis in constitutional interpretation, or amount to Judicial Activism.

In explaining the powers articulated in the Constitution, in such a way that the ratifying conventions in each state could understand and rely upon in their debates, Alexander Hamilton and James Madison wrote a series of essays titled the Federalist Papers. In one of the most famous of these essays, Federalist No. 78, Hamilton wrote that the people would have nothing to fear from the federal judiciary. He wrote that it would always be the weakest branch, tasked with only an opinion, as opposed to the legislature which the power to enact laws and the executive which has the explicit power to enforce laws. Others have echoed the same general theme and have warned that we would have nothing to fear from a federal judiciary that acts on its own – as an independent branch. However, if the judiciary sets out to support the legislative branch or sets out to support the executive branch, then the judiciary should be feared. In such instances, the courts have already decided what the outcome will be, or should be.

Yet, we see the federal courts, acting on their own, have become the most powerful of the three branches, able to bring down both the president and the Congress – with no authority above it to check any abuse.

Why do I bring this up? Because if we ever hope to hold onto our republic – the one our Founders gave us; the one that Benjamin Franklin praised to the woman outside the state house in Philadelphia – we must be willing to recognize that the judiciary is the branch that has been most responsible for the large, bloated, tyrannical government that we have now and the one that has been too timid and reckless to keep it confined within the confines of the Constitution. We must be willing to speak out truthfully and boldly against every bad court ruling. We must expose the abuse. And we must take the action necessary to make sure such rulings are corrected by other branches of government, corrected by judicial impeachment charges, and otherwise not enforced upon We the Free People of the United States.

After all, the government of the United States is still a government “of the people, by the people, for the people.” We lost hope of this for many years but for the past 4 years, we have been feeling a bit more encouraged. It started when Donald J. Trump said these words in his inaugural address:

Today’s ceremony has very special meaning. Because today we are not merely transferring power from one Administration to another, or from one party to another – but we are transferring power from Washington, D.C. and giving it back to you, the American People…….

What truly matters is not which party controls our government, but whether our government is controlled by the people. January 20th 2017 will be remembered as the day the people became the rulers of this nation again. The forgotten men and women of our country will be forgotten no longer.

As long as we continue to remain active and we continue to stand for the Constitution and for the rightful role of government, as long as we remain vigilante and critical of judicial rulings, and as long as we fight for the man who fights every day for all of us, we can never be forgotten. We will be remembered for helping to take our country back.