Veritas, you dig up great stuff! Thanks.
On Tue, Dec 28, 2021 at 8:44 AM veritas ghost <guyettedamien8@xxxxxxxxx>
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Justice GRAY (Supreme Court of the United States) with whom concurred Mr.
Justice SHIRAS, dissenting:
Theophilus Parsons [chief justice] in the Massachusetts convention of
1788, answering the objection that the constitution of the United States,
as submitted to the people for adoption, contained no bill of rights, said:
'The people themselves have it in their power effectually to resist
usurpation, without being driven to an appeal to arms. An act of usurpation
is not obligatory; it is not law; and any man may be justified in his
resistance. Let him be considered as a criminal by the general government;
yet only his fellow-citizens can convict him. They are his jury, and, if
they pronounce him innocent, not all the powers of congress can hurt him;
and innocent they certainly will pronounce him if the supposed law he
resisted was an act of usurpation.' 2 Elliot, Deb. 94; 2 Bancroft, Hist.
Const. 267. SPARF v. UNITED STATES, 156 U.S. 51 (1895)
Justice FRANKFURTER (Supreme Court of the United States) concurring:
But the ultimate touchstone of constitutionality is the Constitution
itself and not what we have said about it. Neither Dobbins v. Commissioners
of Erie County, 16 Pet. 435, and its offspring, nor Collector v. Day,
supra, and its, can stand appeal to the Constitution and its historic
purposes. Since both are the starting points of an interdependent doctrine,
both should be, as I assume them to be, overruled this day. GRAVES v.
PEOPLE OF STATE OF NEW YORK, 306 U.S. 466 (1939). [Same in FELDMAN v.
UNITED STATES, 322 U.S. 487 (1943). ]
Justice Brewer (Supreme Court of the United States) delivered the opinion
of the court:
But that in the body of the Constitution does not include a petty offense
like the present. It must be read in the light of the common law. 'That,'
said Mr. Justice Bradley, in Moore v. United States, 91 U. S. 270, 274,
referring to the common law, 'is the system from which our judicial ideas
and legal definitions are derived. The language of the Constitution and of
many acts of Congress could not be understood without reference to the
common law.' Again, in Smith v. Alabama, 124 U. S. 465, 478, is this
declaration by Mr. Justice Matthews: 'The interpretation of the
Constitution of the United States is necessarily influenced by the fact
that its provisions are framed in the language of the English common law,
and are to be read in the light of its history.' In United States v. Wong
Kim Ark, 169 U. S. 649, 654, Mr. Justice Gray used this language: 'In
this, as in other respects, it must be interpreted in the light of the
common law, the principles and history of which were familiarly known to
the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex
parte Wilson, 114 U. S. 417, 422; Boyd v. United States, 116 U. S. 616,
624; Smith v. Alabama.' See also Kepner v. United States, 194 U. S. ----,
ante, 797; 1 Kent Com. 336.
Blackstone's Commentaries are accepted as the most satisfactory exposition
of the common law of England. At the time of the adoption of the Federal
Constitution, it had been published about twenty years, and it has been
said that more copies of the work had been sold in this country than in
England; so that undoubtedly, the framers of the Constitution were familiar
with it. In this treatise, vol. 4, p. 5. is given a definition of the word
'crimes:' SCHICK v. UNITED STATES, 195 U.S. 65 (1904)
Justice Bay, Court of Appeals of South Carolina) on hearing the case,
delivered the following judgment:
The natural right of rebellion against oppressive laws--the unalienable
"right to fight," would still be retained by the citizen, as a safeguard
against tyranny--or another convention might be called to annul the acts of
that which had abused its powers; but it appeared to him clear, that this
court had no authority whatever, to apply a remedy for the arbitrary
ordinances of a convention. Again--the right claimed for this court to
judge whether the ordinance of 1833 be valid, presupposes that there is a
higher law, to which the convention is subject, and with which its
enactments may be compared. Now what law is this, which is to controul the
powers and the acts of a convention of the people? Will it be said that
the act of the legislature, calling the convention, is this law--what! the
subject paramount to the sovereign--the creature controlling the action of
the creator--an act of the Legislature higher than the authority of the
people! It appeared to him that this was a solecism of the grossest
nature--that it was almost absurd to think of this court's annulling an
ordinance of the convention, because it contravened an act of the
legislature. Again--It is supposed that our state constitution is this
standard law, to regulate the authority of the convention. This notion
arises from a mistake of the true object and effect of constitutions. A
constitution is a law ordained by the sovereign for the regulation of the
Government. [***] It must be admitted that some support for the opinion he
was combatting is to be found in the provision of the 2d Sec. of the 6th
Art. of the federal constitution, viz: "that the constitution and laws of
the United States which shall be made in pursuance thereof, shall be the
supreme law of the land--and the judges in every state shall be bound
thereby, any thing in the Constitution or laws of any state to the contrary
notwithstanding." [***] And first, what is sovereignty? It is the supreme
and ultimate authority in a state. It is of the very essence of
sovereignty, to be highest legal power in the state, and to be subject to
no legal restraint but its own will. It is admitted that the sovereign, as
all human agents are, is subject to moral obligations, but only to such.
It is the essential characteristic of a sovereign state, to be responsible
only to the laws of God, and thus when it breaks through those restraints,
and violates its plighted faith, there is no other appeal but to the God of
battles. "This sovereignty," to use the language of a distinguished
patriot, "wherever it exists, is omnipotent--it is the same in one
independent community as another, and is unsusceptible of division,
increase or diminution.Constitutions and governments are emanations from
it, as light from the sun, which parts with it constantly, without itself
being impaired or wasted or weakened. Hence it is, that it makes and
unmakes at pleasure, and knows no superior but Divinity, and no law but the
universal law ordained by that Divinity, which is the law of right and
justice." This sovereignty ought also to be distinguished from the exercise
of certain visible attributes of sovereignty--such attributes may be vested
by the sovereign in an agent--in an ambassador--but this would not
constitute the ambassador the sovereign-- nothing, therefore, could be more
illogical and unsound, than to conclude that a government was a
sovereignty, because it was entrusted with the power of making war and
peace--of regulating foreign relations and the like. It was no less
evident that it was absolutely essential to sovereignty to be one and
indivisible. The contrary opinion led to the absurdity, that there may be
two different powers in the same state, each supreme, each the highest,
which was a contradiction in terms, or in the language of Burlamaqui, (2d
vol. 2d. part. 1st chap. 18th sect.) "is morally impossible." In
considering what would amount to a surrender of sovereignty, (supposing it
inalienable,) it was obvious that several sovereigns may unite together
under a compact, for certain purposes--may agree to exercise certain
powers, jointly, and to forbear from their exercise separately, and still
retain the character of perfect sovereigns. [***] Nothing is more clear
than that between the sovereign and the subject, there cannot be a matter
of legal right. As between them, the only standard of law, the only tenure
of right, is the will of the sovereign. [***] It has been shown to be of
the very essence of sovereignty--to be illimitable by any legal
restrictions--to be paramount to all laws, but the law of God. This
sovereignty, under despotic systems of government, was vested in the
Autocrat-- under our popular system, it resided in the people. How then
stands the case-- we have before us an Ordinance passed by "a Convention of
the people of South Carolina"--an act of the sovereignty of the State--and
this tribunal is gravely called upon to pronounce this act invalid. Can
this court assume such authority, is the question? What! a sovereign
subject to the supervisory jurisdiction of a court of law--of a court
created by itself? Assuredly a heresy so extravagant needs no formal
refutation. The State v. Hunt v. M. Meekin 20 S.C.L. 1, 2 Hill (SC) 1 (1834)
JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT (Court of Appeals of
Kentucky):
At the threshold of this mere frame-work of an argument, which we intend
to be as brief and condensed as the subject will allow, we premise that the
Constitution of the United States, in its declared and necessary supremacy,
is the same fundamental, paramount, and inviolable law of the sovereign
people, at all times and under all circumstances--that it is supreme over
all--the citizens, the States, and the national government in all its
departments and operations, military as well as civil--and that it is as
supreme in war as in peace.
These we consider axiomatic truths; and we believe that none of them,
except, perhaps, the last, will be denied by any statesman or jurist. But
there seem to be a few of that denomination who assume that, in war, the
Constitution is either totally or essentially suspended or paralyzed; and
these alone practically deny its coequal supremacy in peace and in war. But
this assumed exception from its vital operation at all times appears to us
a self-evident heresy, as indefensible in principle as it would be despotic
in practice.
The people, in adopting the Constitution, made no such nullifying
exception, and they were too wise to contemplate its suspension in war
further than they then provided for it. And, therefore, to silence all
doubt as to either its rightful supremacy or the universal and incessant
prevalence of it until changed in the mode they therein prescribed, they
labeled its bosom with the precautionary and unqualified stereotype--"THIS
CONSTITUTION SHALL BE THE SUPREME LAW OF THE LAND." Supreme law, when?
Always. Where? Everywhere in the Union. It neither imports nor allows any
exception. As the Constitution was made to secure liberty and property
against arbitrary and ambitious power, its guarantees are most needful when
there is most danger of the assumption of any such power; and when,
therefore, the safety of the people needs their only protection most. Can
this be denied or doubted? Surely not. Then the Constitution was made even
more for the turbulence of war than the calm of peace. And, prudently
contemplating seasons of war, it gave to the general government all the
powers deemed necessary or safe for upholding its own supremacy, preventing
usurpation, and maintaining the Union in war as well as in peace. But as
belligerent exigencies are, to some extent, peculiar, the Constitution, as
far as deemed proper or safe, made some express exceptions providing for
them and corresponding with them. And if, as thus moulded and finished, its
powers are insufficient for the ordeal of war in any of its forms, it is an
abortion, and should be remoulded and made, if possible, more adaptable to
all emergencies and times. This, however, is the work, not of the
government nor of its armies, in whose hands it would be a revolutionary
job of usurpation, but it is the rightful task of their sovereigns, the
constituent and peaceful people. And we can not doubt that, even in war,
the faithful observance of the Constitution, in all its normal vitality,
would be much more auspicious to success than a reckless breach of it by
the official sentinels sworn to guard it. Corbin v. Marsh, 63 Ky. 193
(1865)
National Emergency: A state of national crisis; a situation demanding
immediate and extraordinary national or federal action. Congress has made
little or no distinction between a "state of national emergency" and a
"state of war." Brown v. Bernstein, D.C.Pa., 49 F.Supp. 728, 732.
Separate opinion by Mr. JUSTICE BREESE (Supreme Court of Illinois): I
cordially concur in the sentiment, that the Constitution of the United
States was designed by its framers, and has been hitherto so understood by
the people, to be the same protecting instrument in war as in peace; that a
state of war does not enlarge the powers of any one department of the
government established by it, nor has any one of these defendants any right
to urge "necessity," or "extraordinary emergencies," as a plea for the
usurpation of powers not granted. The first is the tyrant's plea, and the
other places the dearest rights of the citizen at the mercy of a dominant
party, who have only to declare "the emergency," which they can readily
create, pretexts for which, bad men are keen to find and eager to act upon.
There can be, and there should be, no higher law for the conduct of the
government in its relations to the citizen, than the Constitution of the
United States. JOHNSON v. JONES, 44 Ill. 142 (1867)
VAN ANTWERPEN, District Judge (U.S. District Court, E.D. Pennsylvania):
On February 29, 1933, following the rise to power of Adolf Hitler and the
Nazi Party in Germany, a state of emergency was declared in Germany and all
constitutional guarantees of individual liberty and civil rights were
suspended. Pursuant to decree [Presidential Proclamation. ] the SS
(Schutzstaffel or protection squads) was authorized to arrest, without
warrant and without judicial recourse, persons who were suspected of being
enemies of Hitler and the Nazi Party and hold them in "protective
custody." This decree was in effect until May 7, 1945. (Sydnor, March 16,
1993, pp. 53-55, 57-58, 89, 90, 102; P-71.) The SS implemented the aims
and objectives of Nazi Germany. All police power was centralized into the
hands of the SS. [FEDS. ] The SS was responsible for the administration of
the concentration camps. [all over America. ] (Sydnor, March 16, 1993, pp.
61, 63-64, 100, 111.) Enemies of Hitler and the Nazi Party included
political opponents, such as members of dissenting political parties or
moderate parties who criticized the regime; (Sydnor, March 16, 1993, pp.
92, 95, 97, 116-117; P-70; P-95.) Between 1933 and 1945 the policy of
protective custody was broadened and enabled the SS and police to arrest
anyone for any reason and put that person in a concentration camp
indefinitely. (Sydnor, March 16, 1993, pp. 92, 93.) The Waffen -SS ("Armed
SS"), formed in 1939, was an elite guard within the SS. (Sydnor, March 16,
1993, pp. 136, 151; P-137.) Estimates for the total number of persons
killed in Nazi concentration camps range between seven and nine million
persons. (Sydnor, March 19, 1993, pp. 69-70.) Guards administered the
looting and confiscating of effects of the people who were murdered in the
camps. (Sydnor, March 16, 1993, p. 111-112.) Concentration camp guards
received continuous ideological training including the history of the SS,
the purpose of concentration camps, the reasons that people were imprisoned
in camps, and the claim that the camps housed the most dangerous enemies of
the state. (Sydnor, March 16, 1993, pp. 103-104, 140, 141, 145, 156;
P-97; P-82.) Guards were not punished for committing acts of brutality
against prisoners. (Sydnor, March 16, 1993, pp. 170-171.) Because of the
atrocities that had occurred in the concentration camps, a new category,
"crimes against humanity," was added to international law. (Ziemke, pp.
17- 18.) In 1946 the International Military Tribunal at Nuremburg declared
crimes against humanity to be a war crime. The Nuremburg Tribunal adjudged
the SS and the Waffen -SS to be criminal organizations. Anyone who was a
member of these organizations was automatically a war crimes suspect and
subject to automatic arrest. (Ziemke, pp. 19-20.) Persons who had served in
concentration camps were aggressively sought as suspects because status as
a concentration camp guard automatically gave rise to the possibility of a
charge of murder, or mass murder. (Ziemke, pp. 33-34.) UNITED STATES of
America v. SCHIFFER, 831 F.Supp. 1166 (1993)
Justice BURTON (Supreme Court of the United States) delivered the opinion
of the Court:
While explaining a proposed reference to military commissions in Article
of War 15, Judge Advocate General Crowder, in 1916, said, 'A military
commission is our common-law war court. It has no statutory existence,
though it is recognized by statute law.' S.Rep.No.130, 64th Cong., 1st
Sess. 40. ***. Such as Military Commission, Council of War, Military
Tribunal, Military Government Court, Provisional Court, Provost Court,
Court of Conciliation, Arbitrator, Superior Court, and Appellate Court. See
Winthrop, op.cit. 803--804.
In the absence of attempts by Congress to limit the President's power,
it appears that, as Commander-in-Chief of the Army and Navy of the United
States, he may, in time of war, establish and prescribe the jurisdiction
and procedure of military commissions, and of tribunals in the nature of
such commissions, in territory occupied by Armed Forces of the United
States. His authority to do this sometimes survives cessation of
hostilities. MADSEN v. KINSELLA, 343 U.S. 341 (1952)
GRAY, J. (Supreme Court of the United States):
Each of the other two cases was a writ of habeas corpus; and any person,
whether a citizen or not, unlawfully restrained of his liberty, is entitled
to that writ. Case of the Hottentot Venus, 13 East, 195; Case of Dos
Santos, 2 Brock. 493; In re Kaine, 14 How. 103. In Kenyon's Case, judge
PARKER held that the court in which the prisoner had been convicted had no
jurisdiction of the subject-matter, because the place of the commission of
the act was beyond the territorial limits of its jurisdiction, and, as was
truly said, 'this alone would be conclusive of this case.' 5 Dill. 390.
In U. S. v. Crook, the Ponca Indians were discharged by Judge DUNDY because
the military officers who held them were taking them to the Indian
Territory by force and without any lawful authority, (5 Dill. 468;) and in
the case at bar, as the record before us shows, that learned judge
concurred in the judgment below for the defendant. ELK v. WILKINS, 112 U.S.
94 (1884). ['Captured' by military without a Warrant of an established
Judicial Court. Unlawful territorial jurisdiction without boundaries
prescribed by law under military occupation. ]
JUSTICE ALITO (Sup. Ct. of the U.S.) announced the judgment of the Court
and delivered the opinion of the Court:
We have previously held that most of the provisions of the Bill of Rights
apply with full force to both the Federal Government and the States.
Applying the standard that is well established in our case law, we hold
that the Second Amendment right is fully applicable to the States. [***]
The Court held that other fundamental rights-rights that predated the
creation of the Federal Government and that “the State governments were
created to establish and secure”- were not protected by the Clause. Id., 16
Wall. 36, 76. [***]
The Privileges and Immunities Clause of Article IV provides that “[t]he
Citizens of each State shall be entitled to all Privileges and Immunities
of Citizens in the several States.” (Emphasis added.) [***]
The Court wrote that the right of bearing arms for a lawful purpose “is
not a right granted by the Constitution” and is not “in any manner
dependent upon that instrument for its existence.” Id., 92 U. S., at 553.
[***]
A Our decision in Heller points unmistakably to the answer. Self-defense
is a basic right, recognized by many legal systems from ancient times to
the present day, and in Heller, we held that individual self-defense is
“the central component” of the Second Amendment right. 554. [***] Citing
Jewish, Greek, and Roman law, Blackstone wrote that if a person killed an
attacker, “the slayer is in no kind of fault whatsoever, not even in the
minutest degree; and is therefore to be totally acquitted and discharged,
with commendation rather than blame.” 4 W. Blackstone, Commentaries on the
Laws of England 182 (reprint 1992). [***]
St. George Tucker, for example, described the right to keep and bear arms
as “the true palladium of liberty” and explained that prohibitions on the
right would place liberty “on the brink of destruction.” 1 Blackstone’s
Commentaries, Editor’s App. 300 (S. Tuckered. 1803); see also W. Rawle, A
View of the Constitution of the United States of America, 125–126 (2d ed.
1829) (reprint 2009); 3 J. Story, Commentaries on the Constitution of the
United States §1890, p. 746 (1833) (“The right of the citizens to keep and
bear arms has justly been considered, as the palladium of the liberties of
a republic; since it offers a strong moral check against the usurpation and
arbitrary power of rulers; and will generally, even if these are successful
in the first instance, enable the people to resist and triumph over them”).
[***] The Apologies for the Crime: The True Remedy, Speech of Hon. Charles
Sumner in the Senate of the United States 64–65 (1856). Indeed, the 1856
Republican Party Platform protested that in Kansas the constitutional
rights of the people had been “fraudulently and violently taken from them”
and the “right of the people to keep and bear arms” had been “infringed.”
National Party Platforms 1840–1972, p. 27 (5th ed. 1973). [***]
Cramer, “This Right is Not Allowed by Governments That Are Afraid of The
People”. MCDONALD v. CITY OF CHICAGO, 561 U. S. __ (2010).
Chief Justice REHNQUIST (Supreme Court of the United States) delivered the
opinion of the Court:
Before the turn of the century, this Court observed that "[n]o right is
held more sacred, or is more carefully guarded, by the common law, than the
right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and
unquestionable authority of law." Union Pacific R. Co. v. Botsford, 141
U.S. 250, 251 (1891). CRUZAN v. DIRECTOR MO. DEPT. OF HEALTH, 497 U.S. 261
(1989)
