The United States Constitution

[Donal]

No, that disclaimer simply frees Randi or the forum personnel of responsibility of the video. the poster him or herself is still accountable for it. Read it slowly next time.

 

[Quixote]

Originally Posted by fanboy

Badnarik says during the lecture that the "bar" bar examine stands for "British Accreditation Registry." And thus anyone who passes the bar gains the title of Esquire from England and is no longer an US Citizen and cannot be a congressman.

At least he's creative.

Not really. That bit of nonsense was circulating in anti-government circles long before Badnarik came along.

 

[Quixote]

Badnarik, I think, is one of those guys that has a reputation because he has a reputation--and in this case, he has a reputation for being a "Constitutional Scholar" because he has a reputation for being a "constitutional scholar".

Badnarik is a crank in various things, and in many ways, law. That does not mean that he is completely wrong on everything, or even wrong on most things. But he's not an expert to defer to and even if he was right he doesn't have a good reputation amongst people in general to make them care about what he says.

That works the other way--people see "Supreme Court Justice" making a decree and suddenly it's gospel. What was law of the land one day is something entirely different after a different configuration of judges came up with an ruling overturning precedent (probably another 5-4 decision)--and after that ruling, anything the court says is indisputable fact regardless of anything else. It's why I'm not often a fan of people citing the Supreme Court as evidence of what the constitution says--they've got the recognition as experts, but that doesn't mean they're medicine men to be unquestioned by the masses.

US Constitution, Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Judicial power includes, as it has always included, the power to interpret legislative acts, such as the U.S. constitution. The Supreme Court's interpretation of the constitution is not just evidence of what the constitution says, it is what the constitution says.

 

[Quixote]

Delete duplicate post

 

[Undesired Walrus]

Undesired:

Florida governor Jeb Bush instructed three psychiatrists to give Wuornos a fifteen-minute interview. All three judged her mentally fit to be executed. The test for competency requires the psychiatrist(s) be convinced that the condemned person both understands that he or she will die, and also understands for which crimes he or she is being executed.

( http://en.wikipedia.org/wiki/Aileen_Wuornos#Execution )

Yes, but a day after she had been talking about the police putting a radio wave inside her cell to break her down mentally.

 

[KingMerv00]

US Constitution, Article III, Section 1:



Judicial power includes, as it has always included, the power to interpret legislative acts, such as the U.S. constitution. The Supreme Court's interpretation of the constitution is not just evidence of what the constitution says, it is what the constitution says.

Bolding mine.

"Always" is debatable.

 

[marksman]

Well, according to the Wiki article you cited, the concept of judicial review dates back to 1610, and was only spottily applied in England because England has no written Constitution against which government acts could be measured.

But judicial review in America was fairly well established and had already been applied such that state courts could discern when the state government had violated the state constitution. And Congress in 1789 expressly gave the Court the power to issue writs and mandamuses (which authorizes a court to tell a member of the executive branch to enforce or not to enforce a law).

Since the 17th century, judicial review was a firm part of common law, which was not abrogated by the Constitution, and gave the courts authority to tell the executive when it had violated a written law. The Constitution is the main written law of American Jurisprudence. It would be absurd for the the Supreme Court not to have the power to discern when government power exceeded its constitutional scope, particularly when the Judiciary Act expressly authorized the courts to do that.

 

[KingMerv00]

Well, according to the Wiki article you cited, the concept of judicial review dates back to 1610, and was only spottily applied in England because England has no written Constitution against which government acts could be measured.

But judicial review in America was fairly well established and had already been applied such that state courts could discern when the state government had violated the state constitution. And Congress in 1789 expressly gave the Court the power to issue writs and mandamuses (which authorizes a court to tell a member of the executive branch to enforce or not to enforce a law).

I'm not disagreeing with you. I only meant to say that the decision in Marbury v. Madison solidified a power that was not expressly set forth in the Constitution. Before that, it was unwritten law.

I like the idea of judicial review though and I don't see the rules changing anytime soon.

 

[marksman]

I'm not disagreeing with you. I only meant to say that the decision in Marbury v. Madison solidified a power that was not expressly set forth in the Constitution.

While true, the Constitution very clearly did not abrogate the common law, in which the concept of judicial review was well-established.

Really, it was Hamilton's odd idea, for which he had no legal precedent, that judicial review would not apply to the Constitution. Until someone challenged a governmental action (as Marbury did), however, the Supreme Court did not have an opportunity to put the matter to rest.

Still, were the Congress to revoke the Judiciary Act of 1789 (and thus eliminate the writ of mandamus), there would be a good argument that the Supreme Court's ability to engage in judicial review would be destroyed

I like the idea of judicial review though and I don't see the rules changing anytime soon.

397 years of judicial review and counting!

 

[KingMerv00]

While true, the Constitution very clearly did not abrogate the common law, in which the concept of judicial review was well-established.

I'M not debating you. I'm saying it is debatABLE since the US Constitution established a new federal government and any rules could have applied. They were not technically bound to anything that came before.

I was only quibbling. Hardly worth your time.

 

[marksman]

I'M not debating you. I'm saying it is debatABLE

I'm conversing with you, Merv, not disagreeing. I never thought you and I were disagreeing or being disagreeable. Sorry if there was any confusion on that point.

 

[Suddenly]

Yes, but a day after she had been talking about the police putting a radio wave inside her cell to break her down mentally.

Well... we should have let her go then.

 

[Tailgater]

Well... we should have let her go then.

"You can't hardly tell at first, not till they get to the point of slobbering and staggering around. When you see a critter in that fix, you know for sure. But you want to watch for others that ain't that far along. Now, you take a bobcat or a fox. You know they'll run if you give 'em the chance. But when one don't run, or maybe makes fight at you, why, you shoot him and shoot him quick. After he's bitten you, it's too late. "

 

[fanboy]

Now I Understand...

So I watched the first video

First, I’m going to nitpick. I shouldn’t, I have plenty to criticize, but I’m going to. A republic is a form of democracy. Complaining that people call the US government a democracy is like complaining to someone for calling an apple a fruit.

Things get really bad about halfway into the first video. In this whole second half, the only times he mentions the Constitution is when he re-asserts that the Constitution doesn't grant us rights.

30 minutes: Rights flow from ownership of property. This is found nowhere in the constitution. He never cites any sources for this statement. He claims that rights aren’t granted by the constitution, (and later backs-up that claim) but doesn't cite any source for rights flowing from property.

This guy has a strange definition of ownership. I suppose that’s because he thinks that rights flow from ownership. He states that “if you pay property taxes then you do not own the land.” Again, such a statement is not supported by the Constitution. The constitution clearly gives congress the power to tax. State constitutions also grant their governments the power to tax. What provision of the Constitution says that owning land excepts you from property tax? There isn’t one. He claims that instead, you don’t really own the land if you pay property tax on it. Again with this strange idea of ownership.

37 min: “you only have the rights you fight for.” He quotes Thomas Jefferson. No argument from me there.

40 min: This guy has no clue what a tax is. He calls a car registration fee “rent.” No it’s a tax. I mean how clueless is this guy?

42 min: Ironically, he states “when we talk about property, most of us don’t really understand ownership.” No, you don’t understand ownership. Ownership means you have the rights, and responsibilities associated with ownership. Yep, responsibilities. And one of those responsibilities is taxes, licenses, and registration fees.

Where does he get his facts? Michael Badnarik cites no articles or amendments to the constitution for his odd notions of ownership and property rights. Nor does he cite any federal or state law to support it. Nor, even does he cite common law from England. Without supporting documentation, I can’t accept anything he says. At this point, I’d be happy if cited Doctor Doom.

What don’t get is, this is less than one hour into seven and he hasn’t even talked about constitution yet as it is written. I would think, perhaps, that a class on the Constitution would at least discusses the actual contents of the document. But he doesn't do that in the first video. At the beginning of the second, he talks about the Texas Constitution, and in the sixth video he talks about an-unratified amendment, but there is very little talk about the constitution itself. I can only conclude that he doesn't like the constitution and wants everything his way.

43 min: He says “Property, rights and privileges if you don’t genuinely get it please ask questions because everything else we talk about is based on this principle.”

The US Constitution isn’t based on this principle. That isn’t it’s stated purpose. He’s basing a whole class about the Constitution around a principle that isn’t found in the constitution itself. And he calls this an introductory class, charges people money for it, and wanted everyone in congress to take this class and swear (or affirm) their oaths of office again after taking it. I wonder if he would have charged him.

45 min: He asks “Why would you try to comply with their laws?”

Background info: as explained in a pervious post, Badnarik has this odd idea that holding a car’s Manufacture’s Statement of Origin means you own the car. If the state has it, they own the car and you have to pay license and registration fees. If you have it, you own it and don’t have to pay license and registration fees.

So a woman asks, if you have the MOS and you take it to be registered, how are you going going to register it without letting them take it? He asks why would you do that? And she says it’s to comply with ‘their laws.’ He then asks the above question.

This guy is giving out bad legal advice.

Giving out bad legal advice, especially when the person is not a lawyer and has no knowledge of the law makes Fanboy mad. (Yes, I’ll stop referring to myself in the third person.)

He does, after this, talk about the nature of rights and where they come from. Mostly to just say that you have them and you don’t need a license to exercise. Fine words. I might be tempted to agree with them if, in the next video he hadn’t said that the government owns your children.

He also cites a Supreme Court case saying that the right to contract is unlimited. He then goes on to state that people have entered into contracts with the government that is what the government uses to curtail our rights.

I think that’s where his weirdness stems from. He has this odd reductionist view of law where rights stem from only holding property and contracts are agreements between people and entities and nothing else really exists. Well, if all that exists are property rights and contracts, I guess a very odd and complicated model of government would flow from that. It’d be about as accurate a model of the government as Aristotle's model of the solar system was an accurate model of the orbits of the planets.

 

[fanboy]

The Short Version

This is why nobody is talking about the US Constitution in this thread: because Michael Badnarik dosen't talk about the US Constitution in the videos.

 

[Suddenly]

He also cites a Supreme Court case saying that the right to contract is unlimited. He then goes on to state that people have entered into contracts with the government that is what the government uses to curtail our rights.

He miscites the case. From my book analysis.

Chapter III: Individual Rights.

Starts out with Badnarik being very clear that he is a natural rights proponent as opposed to a legal positivist.

Claim: Unlimited right to contract.

He starts out citing a passage from a United States Supreme Court case. Hale v. Henkel, 201 U.S. 43. (1905)

The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state... He owes nothing to the public so long as he does not trespass upon their rights.

This passage is used as evidence for an unlimited right to contract. Badnarik then claims that this means you can wind up being tricked as but still bound. This will become important later when he gets into his “Sovereign Citizen” material.

More importantly, Badnarik is just wrong about his claim. First, as the Hale case is about the fifth amendment right to remain silent, and does not address any issue about the nature of the right to contract, the “absolute right to contract” line is dicta. I’ll illustrate this below after addressing the second problem, that there is no unlimited right to contract.

The Supreme Court has made it clear there is no unlimited right to contract in cases before and after Hale. See Holden v. Hardy, 169 U.S. 366 (1898) (Holding state laws limiting employee ability to contract constitutional because “This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous or so far detrimental to the health of employés as to demand *392 special precautions for their well-being and protection, or the safety of adjacent property.”

See also West Coast Hotel Co.v. Parrish, 300 U.S. 379 (1937) (Affirming Holden v. Hardy as good law.)

We take from this that the very source Badnarik cites to prove the existence of an unlimited right has been very, very clear that there is no unlimited right, that the state can in fact regulate that right within certain bounds. One example is regulation of an employment contract to protect the health of a worker. This is part of a bigger concept known as a a contract of adhesion. This doctrine allows a court to invalidate a contract where the parties “have such unequal bargaining positions that little real negotiation takes place.”


Back to the first point, that Badnarik is misusing the caselaw. One basic principle of analyzing a court decision is that the decision is only useful precedent when the court is addressing the issue put before it. If the court is to decide a particular issue regarding the Fifth Amendment right against self-incrimination, any language not addressing that particular right has no value as precedent. Such language is considered obiter dictum, usually refered to as “dicta.” This is a Latin term meaning “said by the way.” This has no force in law as a court’s jurisdiction is limited to deciding issues placed before it.

This concept is important when dealing with crank legal claims, as a high percentage of the caselaw cited will be dicta. Most of these arguments use the simple technique of lifting passages out of context to prove a point. Often this is not a product of malicious deceit, rather that the author simply does not understand the concept. It is also a very common feature of “jailhouse lawyer” arguments.

The context of the passage Badnarik cites from Hale does not concern contract. This part of the decision is deciding the application of the right to remain silent. Here is the larger passage, with Badnarik’s selection in bold:

If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness he could refuse to produce the books and documents of such corporation, upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of corporation with respect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.
Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter.

It is clear from this that the “power to contract is unlimited” is a throwaway line, “said by the way,” and does not relate to the larger issue, that an individual has greater rights than a corporation. This also is a great illustration of the purpose behind the whole concept of dicta. Here, a justice, in passing, uses a phrase that is taken alone is not consistent with the overwhelming weight of precedent. If this were held to somehow overrule reams of caselaw in which a court was actually charged with deciding the issue in question, the whole idea of court precedent would devolve into chaos.

The larger point is that Badnarik's factual basis for his contract analysis is simply wrong. Down the road this will be one problem when he attempts to synthesize his larger concept of the “Sovereign Citizen.”

 

[marksman]

WTF are those three doing in the SCOTUS?

The three dissenters agreed that the inasane should not be executed. They disagreed with the majority only on the following grounds.
1) They felt that the defendant failed to raise this argument in a timely manner. The defendant didn't raise the idea that he was insane until his second habeas corpus petition (which was basically his third set of appeals). Essentially, this was a dispute over the meaning of the habeas corpus statute the defendant used in pursuing his third set of appeals, not a dispute over the meaning of the Constitution.

2) They also felt that there is no evidence that the State failed to follow proper procedure in determining the defendant was sufficiently sane to be executed. Generally the federal government defers to the State absent clear evidence of wrongdoing. The majority felt the State erred. The dissenters didn't. (This is also a dispute over the meaning of the habeas corpus statute, which only allows review of State Court decisions on this third round of appeals with "a substantial threshold showing of insanity")

3) They disagreed with the majority that the evidence showed that the defendant was insane in the manner needed to prevent his execution.

At no point did even the dissenters claim that killing the insane was constitutional. On that Constitutional point there was unanimity. They disagreed on whether the defendant was abusing the appellate procedures and whether the defendant had raised sufficient evidence to demonstrate the insanity required to prevent his execution.

I don't agree with the minority decision (but then again I don't think anybody should be executed), but I understand how reasonable minds can disagree, which is why the Supreme Court has a nine-person panel, not a one-person panel.

Here's a link to the decision

 

[The Central Scrutinizer]

I mean how clueless is this guy?

We're still trying to build a meter large enough to measure that.

 

[KingMerv00]

We're still trying to build a meter large enough to measure that.

Nigel Tufnel: The numbers all go to eleven. Look, right across the board, eleven, eleven, eleven and...

Marty DiBergi: Oh, I see. And most amps go up to ten?

Nigel Tufnel: Exactly.

Marty DiBergi: Does that mean it's louder? Is it any louder?

Nigel Tufnel: Well, it's one louder, isn't it? It's not ten. You see, most blokes, you know, will be playing at ten. You're on ten here, all the way up, all the way up, all the way up, you're on ten on your guitar. Where can you go from there? Where?

Marty DiBergi: I don't know.

Nigel Tufnel: Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do?

Marty DiBergi: Put it up to eleven.

Nigel Tufnel: Eleven. Exactly. One louder.

Marty DiBergi: Why don't you just make ten louder and make ten be the top number and make that a little louder?

Nigel Tufnel: [pause] These go to eleven.

 

[marksman]

I note that, now that people are actually discussing specifically the ways Badnarik is consistently wrong about the Constitution, Oliver appears to have fled the field.