Tuesday, May 26, 2009

What's a little extortion among friends

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

While the other 9 Amendments are generally disregarded, the 10th amendment is completely ignored. As the Federal system has grown it has taken prohibited power justifying it in bizarre arguments that have, amazingly survived court review.

We are familiar with Federal maximum speed limits and DUI limits. Colorado waited until the list minute to lower it’s DUI limit to .08 from .10 at the risk of loosing federal funding for the highway system. In the end, the state folded. Although the statute doesn’t exactly fit, I think the spirit of the criminal extortion law, CRS 18-3-207, could apply.

The person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person CRS 18-3-207.

This is just the hazard of taking and becoming dependant on Federal money, at some time, there may be strings attached.

The other way the Federal government has elbowed it’s way into the powers of the States and the people is declaring the commerce clause to apply to apply endlessly. The constitution lists one of the powers of the federal government to “Regulate interstate commerce.” The landmark court case was the 1942 case of Wickard v. Filburn. Then as now, the Federal government was regulating farm production. The farmer grew more than allowed, not for sale but for personal use. The courts reasoned that by growing his own wheat, he would not be purchasing from the market therefore, it caused an impact and subject to Federal regulation.

This has been expanded into the Federal war on drugs. In 2005 Gonzales v. Raich hit the Supreme Court. The State of California, voted to legalize medical marijuana. Federal agents raided the home of a party growing marijuana for personal use and following the state guidelines. The crop was seized and destroyed. In the decision, although there was no evidence presented that the marijuana was for anything other than personal use, the “marijuana could enter the stream of interstate commerce, even if it clearly wasn't grown for that purpose and it was unlikely ever to happen. It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.”

So in conclusion, the 10th Amendment to the US constitution is ignored with the full support of the courts. Not to make this any longer than necessary, but perhaps, following the 10th amendment may be a large part o the solution to chronic government overspending and the Federal deficit.

Tuesday, March 31, 2009

9th Amendment

Sorry for the extended absence. Sometimes life just gets in the way.

I have started to work on the 9th amendment a few times but this is a hard one to write. The first eight amendments, which are fairly clearly written, have been subject to so much debate, the 9th makes them pale in comparison.

The amendment reads “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

At the convention attempting to form the Bill of Rights, Alexander Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Oh if he could see the mess we have made.

James Madison stated, “It has been objected also against aBill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

To simplify,Randy Barnett, explained that the Ninth Amendment requires what he calls a "presumption of liberty."

A presumption of liberty. That is a phrase I can support. That may sound strange coming from a cop. A large part of my job specifically entails depriving people of their liberty. When I go to trial, the scales are not in balance. Everything is weighted in favor of the defense, he has the presumption of innocence and I much overcome that presumption with enough evidence to prove guilt. On the same logic, when the government decides it must take an action, the presumption of liberty will stand until the government can prove otherwise.