Dr. Edwin Vieira Commentary – The Inter American Institute

Corporativism In Money And Banking Has Led America To Fascism – Part 1

[Address to the Annual Spring Meeting of the Committee for Monetary Research & Education Union League Club, New York City, 17 May 2012]

In his State of the Union Message to Congress of 11 January 1944, President Franklin D. Roosevelt warned that[w]e cannot be content, no matter how high th[e] general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of that fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation.
The right to earn enough to provide adequate food and clothing and recreation.
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.
The right of every family to a decent home.
The right to adequate medical care and the opportunity to achieve and enjoy good health.
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.
The right to a good education.[1]

In Roosevelt’s mind, all of these “rights” were to be secured by positive governmental programs, implemented through a vast New Deal bureaucratic welfare state. Actually, it would have been more accurate to call this apparatus a “permanent dependency state”, necessarily tending towards an economic totalitarian state, because everyone entitled to or desirous of such “rights” would look to public officials to fulfill them, and therefore would support an ever-more-powerful central government capable of performing whatever functions were necessary to that end.

And by promising an ever-increasing cornucopia of benefits, public officials would guarantee themselves a “permanent incumbency state” under the slogan “spend and spend, elect and elect”.

To accomplish that, however, the disposable income of the General Government would have continuously to increase.

Although to some degree this could be effected through taxation—Harry Hopkins’ version of the slogan being “tax and tax, spend and spend, elect and elect”—the inevitable resistance by taxpayers, or their economic destruction, would impose an upper limit on the ability to “spend and spend, elect and elect”.

In the final analysis, for the scheme to work, the General Government would have to commit to ever-increasing borrowing from the banks, and therefore to ever-increasing inflation, or to the emission of Treasury notes directly—the slogan becoming “tax and tax, borrow and borrow, inflate and inflate, spend and spend, elect and elect”.

The self-evident problem with this scheme, though, is that it is self-destructive. And not only must it destroy itself, but also it will inevitably drag down society as a whole with it.

As dark as this picture is, however, it takes only a little intelligence, insight, and imagination to visualize these “rights” in quite a different light. For every one of them would be recognized in a truly free society, too. Not, however, as “economic rights”, except derivatively. Rather, they would be “political rights”—as the Declaration of Independence described them, the “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness”.

They would be “rights” in the sense that no individual and no group either in private station or in public office would be allowed to interfere with anyone else’s otherwise legitimate attempts to secure these benefits for himself, by dint of his own efforts or in voluntary cooperation with others of like mind. The government’s only rôle would be to protect freedom of speech, private property, and freedom of contract, and to suppress every sort of tortious and criminal behavior that interfered with the effectuation and enjoyment of these “rights”, whether perpetrated by private parties or by public officials —especially monetary, banking, and other financial frauds, which interfere with every one of these “rights”. Under such circumstances, every one of these “rights” would be perfectly capable of achievement in a stable, prosperous, and free society.

But, in point of fact, under neither definition have these “rights” been attained in America.

They have not been, and could never be, secured as “economic rights” in Roosevelt’s sense of that term and by the means Roosevelt proposed, because the General Government is incompetent to provide them. And although they could have been guaranteed as “political rights” by the means the Constitution provides—primarily, its limitations on the powers of the General Government—they have not been achieved, because rogue public officials and private special-interest groups have proven sufficiently competent to interfere with the exercise of every one of them. What does the record show? Failure upon failure:

The promise: “The right to a useful and remunerative job in the industries or shops or farms or mines of the nation.”

The reality: A large proportion of the most “useful and remunerative job[s]” have been exported to far-away lands; and what is left of the national economy is beset with massive unemployment, underemployment, and downright wasted employment.

The promise: “The right to earn enough to provide adequate food and clothing and recreation.”

The reality: Instead of “earn[ing] enough”, or even “earn[ing anything]”, more and more Americans every day must fall back on welfare, food stamps, and other forms of public assistance, consume their meager life savings, or sink deeper and deeper into debt.

The promise: “The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.”

The reality: Families are being systematically driven off the land by oligopolistic corporate agribusinesses.

The promise: “The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.”

The reality: Domestic businessmen are confronted with ever-more-destructive unfair competition from foreign manufacturers who do not have to contend with America’s minimum wages, labor laws, environmental laws, health and safety laws, unemployment insurance, and so on.

The promise: “The right of every family to a decent home.”
The reality: The housing market has been Ponzified, riven with fraud, and thrown into chaos.
The promise: “The right to adequate medical care and the opportunity to achieve and enjoy good health.”

The reality: The proven unworkability of the General Government’s previous interventions in America’s health-care industry is now being employed by politicians and special-interest groups as an excuse to ram down the people’s throats a full-fledged fascistic system that both presents a clear and present danger to every common American’s physical and mental well being, and promises to be financially unsustainable to boot.

The promise: “The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.”

The reality: The jungle drums in the Disgrace of Columbia are beating out the message that Social Security must be gutted—and, with it, what little financial security most retirees have.

The promise: “The right to a good education.”

The reality: the biggest and cruelest hoax of all, because it affects the future more than everything else. America’s elementary and secondary schools cannot teach children to read, write, and figure, let alone to think critically—but they can fill their heads with every form of sexual perversion imaginable. Colleges and universities are the last bastions of unadulterated, unreconstructed, unapologetic Marxism, radical feminism (a variety of Marxism in which the gender struggle substitutes for the class struggle), apocalyptic environmentalism, blatant racism, Keynesianism, and every other socially destructive “ism” known to modern man. In any event, even graduates who have mastered some useful discipline cannot find jobs in their areas of specialization, but are saddled with tens of thousands of dollars of debt for student loans.

In his 1944 State of the Union Address, Franklin Roosevelt concluded that: “All of these rights spell security.” If he was correct then, what does the utter absence of these rights today spell?

Americans had better come to grips with that question, and soon—because, some sixty-eight years after Roosevelt made his pronouncement, America has a full-fledged Department of Homeland Security, yet common Americans find themselves in the worst state of economic, political, social, moral, and even physical insecurity this country has ever experienced.

Perhaps, though, we cannot rightfully blame Franklin Roosevelt for this mess, except as an accessory after the fact. The real blame must be laid at the doorstep of Woodrow Wilson’s Administration. And specifically at the doorstep of the Federal Reserve System, because the unworkable monetary and banking systems foisted on this country in 1913 lie at the root of all of these economic and political problems.

To conclude that this disgraceful state of affairs is the result of monetary, banking, and other allied financial fraud, facilitated at every step by legalistic sleights-of-hand and political chicanery, is not to oversimplify the problem, but instead to describe its genesis in the most focused fashion possible. For, in the final analysis, the effectuation of every one of these “rights” in their meaningful sense is tied to the existence of sound money, of a rational price structure, of protection for participants in the free market against financial fraud, and therefore of a monetary and banking system that:

(i) provides the people with a monetary unit the substance and supply of which is not subject to political manipulation;

(ii) absolutely separates bank and state; and therefore

(iii) strictly limits the powers of the General Government, so that it is impossible for public officials to employ the scheme of “tax and tax, borrow and borrow, inflate and inflate, spend and spend, elect and elect”.

Conversely, the frustration of these “rights” is assured by the emission of unsound “political money”, by a nonrational price structure, by immunity in law or simply in fact for the perpetrators of massive financial fraud, by integration of bank and state, and ultimately by a totalitarian central government working hand in glove with private bankers and other speculators. And this is true whether or not the “political money” purports to be redeemable in silver (as it was prior to 1968) or in gold (as it was prior to 1933 domestically and 1971 internationally), or is unabashedly fiat (as it is today).

To be sure, sometimes it is difficult to differentiate the chicken from the egg. Has America suffered economic failure because of political failure, or political failure because of economic failure? The answer is codetermination: Economic and political failure have marched in lockstep, because the same culprits have been responsible for both.

The Federal Reserve System and its clients and henchmen, both economic and political, constitute a classic, indeed a quintessential, “faction”. As defined by James Madison: “a faction” is “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”.[2]

Economically, the big banks and financial houses are, first and foremost, engines and agents of speculation, peculation, and economic predation. They are not concerned with “the general Welfare”,[3] only with their “bottom lines”.

Politically, they are engines and agents of subversion. They do not seek to aid the General Government in the general interest, but instead to coöpt, coerce, and control that government in order to maximize and protect the profits of their operations, while shifting the losses to whomever else can be made to bear them. The General Government has become a compliant component of their business plans. And, through the operations of that government, the American people have become unwilling servants of those plans, too—and necessarily so, because the government has no resources it does not take from the people.

The bankers and their allies have been at this game since the very birth of this country—with the Bank of North America, the first and second Banks of the United States, and the National Banking System of the Civil War. Throughout the Nineteenth Century, however, Americans failed to follow the prudential rule that, when dealing with factions, never listen to what they say about themselves, but always observe what they do for themselves and to everyone else.

This failure become critically important after 1913, because the Federal Reserve System goes far beyond mere factionalism.

The Federal Reserve System is specifically a corporative-state arrangement: basically a governmentally sponsored cartel of private bankers and speculators that exercises authority delegated under color of law supposedly to serve both public and private interests in the area of currency and credit. What has become obvious today, however, and should always have been self-evident from the nature of all such systems—particularly in the field of money and banking where the potential for redistribution of wealth is greatest—is that the private interests of the operators of the cartel and their political allies inevitably take precedence over the public interest in the general welfare of common Americans. For part two click below.

Footnotes:

To be sure, these were not Roosevelt’s own, original ideas, but instead derived from his formative experiences in the Woodrow Wilson Administration. See Thomas Fleming, The New Dealer’s War: F.D.R. and the War within World War II (New York, New York: Basic Books, 2001), at 326 & note 39.
2. The Federalist No. 10.
3. U.S. Const. preamble.
4. Act of 16 June 1933, ch. 90, 48 Stat. 195.
5. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935).
6. Actually, this “Bush Doctrine” is nothing new. It is merely the logical expansion of old “Brezhnev Doctrine” now embossed with the Stars and Stripes rather than the Hammer and Sickle. Under “the Brezhnev Doctrine”, the Soviet Union claimed the right to invade any country among its satellites that deviated too far from the Communist Party line as enunciated in Moscow. Under “the Bush Doctrine”, the United States claims the right to impose crippling economic sanctions upon, to ring with military bases, and if those tactics do not work then to launch ersatz “wars of national liberation”, to bomb, and even to invade, any country, without distinction, that refuses to subordinate its economy to the dictates of the Financial Axis that runs from London, through New York City, to the District of Columbia.
7. Recorded on film by Leni Riefenstahl in “Triumph des Willens”.
8. 2009—DHS-ICE entered into a contract for 200,000,000 rounds of .40 S&W ammunition over the ensuing five years. 2011—FBI awarded a contract for up to 100,000,000 rounds of .40 S&W ammunition over the ensuing five years. 2012—DHS awarded a contract for 450,000,000 rounds of .40 S&W ammunition over the ensuing five years.
9. Declaration III (1899).
10. Part 2, Article 8, § 2(b)(xix).
11. This prohibition stems from the Declaration of St. Petersburg (1868).
12. See my demolition of Holder’s contentions in “Where is the Outrage?”
13. Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, 1966), at 72.
14. Observations on the Act of Parliament, commonly called the Boston Port-Bill; with Thoughts on Civil Society and Standing Armies (London, England: Edward and Charles Dilly, 1774), at 50.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published on July 2, 2012, on NewsWithViews.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Defeatism Insures Defeat

Conservatives must stop complaining about their weaknesses and start taking an inventory of their strengths.

If any combination of words sounds as a leitmotif throughout the political tone-poems being played in “the alternative media” today, it is that America is inevitably, inexorably, irretrievably, and even already “doomed”: “The Constitution is dead.” “Martial law and the confiscation of firearms is just around the corner.” “Surveillance cameras…”; “constant NSA, CIA, and FBI surveillance…”; “FEMA camps…”; “drone strikes…”; “blah, blah, blah…” ad nauseum. And worst of all: “There is nothing common Americans can do to stop it.”

This discordant theme is being performed with such overdone fortissimo in “the alternative media” that, on the subject of America’s imminent demise, “the alternative media” are no longer “alternative” at all, but merely a set of echo-chambers for the big “mainstream” media’s dirge that even those patriots who are not half-witted “extremists” and rustic buffoons are still helpless, hapless, and hopeless in their opposition to the fascistic police state now being erected at breakneck speed in the Disgrace of Columbia. It is not enough that the “mainstream” media are overrun with well-coiffed reincarnations of Josef Goebbels, in the viewers’ choice of sexes. The likes of Lord Haw-Haw, Axis Sally, and Tokyo Rose are over-represented in “the alternative media”, too.

This is just too much. But what can American patriots who refuse to resign themselves to unconditional surrender do about this situation? First and foremost, they can recall that “God helps those who help themselves”. They can stop complaining about their weaknesses and start taking an inventory of their strengths. They can stop whining that nothing can be done to save this country and what used to be called “the American way of life”, and instead figure out what they can accomplish with the moral, political, and especially legal resources at hand.

As regular readers of my commentaries at NewsWithViews.com are aware, for many years I have repetitively drawn Americans’ attention to the absolute and pressing need to revitalize the institutions which the Constitution itself declares to be “necessary to the security of a free State”: namely, “the Militia of the several States”. But apparently these many years of effort have not been enough, because the message is not sinking in—indeed, water off a duck’s back seems to have more chance of being soaked up. Some within “the patriot community” advocate electing better “representatives” to public office; others promote petitioning the government for a redress of grievances; still others champion free speech and a truly free press; many harp on the supposedly “individual” “right of the people to keep and bear Arms”, guaranteed by the Second Amendment; increasing numbers of them urge enforcement of the Tenth Amendment and “States’ rights”; and a few go so far as to call for a new constitutional convention, or even outright “secession”. But next to none of them says anything at all about the Militia. After a while, I have come to wonder whether these people are wearing the mental equivalent of tin-foil (or perhaps lead-foil) hats, through which ideas of this kind simply cannot penetrate; or whether they have had a probe implanted in their brains by a certain “poverty” law center, so that whenever a synapse threatens to fire over the concept “militia” they receive a warning shock that short-circuits their thinking.

Nonetheless, being a firm believer in the principle that “it is a poor workman who blames his tools”, I intend to persevere, as irksome as it may be to me and to my readers. To that end, in addition to the two books on the Militia which I have already contributed to “the marketplace of ideas”—namely, Constitutional “Homeland Security”, Volume One, The Nation in Arms (2007) and Constitutional “Homeland Security”, Volume Two, The Sword and Sovereignty (2012)—I am preparing a further series which includes:

• Thirteen Words (2013)—a study of the most important thirteen words in the Constitution.
• Three Rights (almost ready to go to press)—an exposition which examines the Declaration of Independence and the Constitution as a single, completely integrated and mutually coherent “Form of Government” based upon popular sovereignty, popular self-government, and the means to preserve them in the hands of WE THE PEOPLE themselves. And,
• The Bastardy of “Martial Law” (a work in progress)—a demolition of the current theory of “martial law” which is giving so many patriots sleepless nights.

As each of these books comes off the presses, it will be made available at Amazon (as well as whatever other outlets may choose to carry them).

These books are addressed to a general audience, and designed to render it impossible for anyone to contend with a straight face and even a soupçon of credibility that “the Militia of the several States” are not “necessary to the security of a free State”, today more than ever before.

One proof of this is to be found in what are probably the most glaring and palpable manifestations in common Americans’ lives of the national police state now being erected in this country: namely, the para-militarization of State and Local “law-enforcement agencies”.

Anyone who searches the Internet under the rubrics “police brutality”, “rogue cops”, and so on will find literally hundreds of videos documenting in the most graphic, disturbing, disgraceful, and disgusting fashion that the personnel in State and Local “law-enforcement agencies” are, both literally and legally, themselves out of control as well as out of WE THE PEOPLE’S control. The “law-enforcement offenders” (for that is a far more accurate description than “law-enforcement officers”) who appear as the villains in these videos expose themselves as thoroughly conscienceless barbarians.

As individuals, they are apparently constantly looking to set up situations of traumatic stress and disorder so that they can act out their personal pathologies on the claim that somehow “they feared for their safety”—as if their own safety, rather than the safety of the members of the community with whom they interact and whom they are sworn to protect even at the risk of their own lives, were the paramount consideration. They expect each and every citizen to comply without demur with whatever arbitrary commands they choose to give, simply because they have given them; and to non-compliance, even in the face of an obviously illegal order, they regularly respond with threats, violence, and false arrest on even falser charges. They demand “respect”, when what they deserve in every one of these cases is resistance on the ground, followed by at least a serious reprimand from their superiors, and in most of these incidents removal from the force sine die. Sometimes their arrogance extends even to claiming a right to be addressed as “Sir”, forgetting that, inasmuch as “[n]o State shall * * * grant any Title of Nobility” and “[n]o Title of Nobility shall be granted by the United States” [see U.S. Const. art. I, § 10, cl. 1 and § 9, cl. 8], no American could possibly labor under any such supposed duty towards any public official. (Actually, the appropriate “s” word descriptive of these individuals, or at least the one fit for public consumption, would be “savages”—and if a layman may venture a psychological diagnosis, “sociopaths”.)

Taken collectively, their misbehavior reflects an institutional culture—or perhaps “cult” is the more descriptive term—which has taken hold in “police forces” throughout this country, and which not only tolerates, but even encourages and rewards: (i) open defiance of and contempt for the law, public officials’ duties towards society, and the basic humanity of others; (ii) individual and collective violence, quite often gratuitously brutal and pitiless, and all too often carried to a homicidal conclusion; (iii) routine and systematic falsification of official documents and perjury, as if truth counted for nothing in comparison to a misbegotten “loyalty” to “the force”; and (iv) a stubborn refusal on the part of the offenders and their superiors to accept responsibility for their actions, or to show remorse, no matter how much utterly damning evidence is marshaled against them.

Apologists for “law-enforcement agencies” assure whomever they can cajole into listening to them that the uniformed barbarians these videos have caught red-handed are simply a few “bad apples”, and that “the good cops” doubtlessly outnumber them. However, the very notoriety of the video record, exposing as it does shocking and inexcusable incidents which have occurred all across this country, from rustic village to mighty city, proves the contrary: namely, that very, very few “good cops” actually exist, because “the good cops” would know even more about these events than the ordinary Americans who watch them on the Internet—“the good cops” would (or should) be even more incensed over these occurrences than the average American, inasmuch as such goings-on besmirch the honor of “law-enforcement agencies” everywhere—and therefore “the good cops” would demand that “the bad cops” be systematically and ruthlessly weeded out of their departments, would not stand by and watch “the bad cops” perpetrate their outrages, would not cover up for them, would not abide by the code of omertà and refuse to speak out, and would not persecute the few officers with consciences (such as Serpico and Schoolcraft) who at great cost to themselves sometimes do “blow the whistle” on criminality, corruption, careerism, and incompetence within the ranks of “law enforcement”.

Moreover, to rebut in a decisive manner the “most-cops-are-good-cops” defense, Americans need only review the best-publicized of the mass deployments of “law-enforcement agencies” in recent years, during which numerous episodes of police brutality and similar Gestapo tactics occurred, without any significant number of “good cops” standing up for the public against the misbehavior of their co-workers. For example, almost everyone is familiar with how, in the aftermath of Hurricane Katrina, squads of storm troopers descended on the region to confiscate firearms from innocent citizens, in one horrific instance even invading a little old woman’s own kitchen, brutally assaulting her, and confiscating her small-caliber revolver. To be sure, in an excess of charity some observers might excuse or explain away this misbehavior as stimulated by the severe stresses the situation imposed on all public officials—although the hurricane had been expected, the extent of the damage it caused had been anticipated, the social dislocations in its aftermath had or should have been predicted, and “law-enforcement personnel” (including members of the National Guard) in particular were supposedly properly trained to deal with those conditions in conformity with constitutional requirements.

What occurred in the aftermath of the Boston Marathon bombing, however, cannot be so easily whitewashed. The immediate environs of Boston were put on “lockdown”. Thousands of para-military foot-soldiers, each better equipped than the infantry of both sides which fought the battle of Stalingrad, were deployed in the streets. Innocent and peaceful citizens were rousted from their residences at gunpoint, with their hands up, as if they were common criminals or prisoners of war. Houses were invaded without reasonable suspicion, let alone “Warrants * ** issue[d] * * * upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (as the Fourth Amendment requires). And, as far as the present author has been able to determine, no one among the ranks of “law enforcement” remonstrated, no one refused to participate, no one evidenced reluctance to lend his hand to these outrages, no one resigned after the fact, no one later recanted the propriety of his involvement, and no one even expressed remorse, let alone offered to make restitution, for his contribution to this gargantuan and grotesque affront to the Constitution. They all simply followed orders, in the manner of SS Sturmmänner.

In the light of this sorry parade of excesses by “law enforcement”, now what? What remedies can common Americans invoke against the repetition of these assaults on their freedoms? To be sure, with the advent of the Internet and the ubiquity of video-recording devices in the hands of common citizens, episodes of these kinds can be fully documented as they occur, and then exposed to a huge audience—which is surely a signal advantage, as years ago no foolproof way existed to secure evidence that could prove exactly what had transpired over the contrary assertions of the perpetrators. Nonetheless, even with the benefit of such technological tools, the question remains: “So what?” When these videos surface, what actually happens to the thugs depicted in them? A claim of police brutality may be filed with the department’s office of “internal affairs”—which investigates the charge while the offending officers relax on paid “administrative leave”; and which all too often then “finds” the episode to “fully justified” within the department’s “procedures” and “guidelines”. Local prosecutors refuse to bring the matter to the attention of a grand jury. And civil-rights lawsuits consume years to complete—and if they eventually succeed simply impose the cost of police misconduct on the innocent taxpayers, hardly ever applying the full weight of damages to the guilty parties and their protectors in public office.

This is why revitalization of the Militia is so important. Revitalization of the Militia will provide for: (i) direct control of State and Local “law-enforcement personnel” by WE THE PEOPLE themselves; and (ii) no control of such personnel by the national police-state apparatus abuilding in the Disgrace of Columbia. Specifically—

(i) When the Militia are fully revitalized, every able-bodied adult citizen, from (say) sixteen to sixty years of age, will be enrolled in a Militia Company in the locality in which he resides. Typically, these Companies will include somewhere between (say) fifty to one hundred individuals who live in immediate proximity to one another, so that they can easily be equipped, trained, and called forth in an emergency. A member of one of these Companies with particular skills could be transferred by higher authority to a specialized Company; or he could choose to join an Independent Company with its own peculiar duties; or he could opt for service in an “élite” Company, such as one delegated responsibilities for “law enforcement” or “emergency response”. (Upon revitalization of the Militia, all “police forces”, Sheriffs’ departments, and other “law-enforcement” and “emergency-response” agencies will become subsets of the Militia, akin to the Rangers, Minutemen, and like units during the pre-constitutional era.) In any such case, that individual would be granted an exemption from his duty to serve in the ordinary Militia Company to which he had been automatically assigned. So, for example, Bob Smith might originally have been enrolled in Militia Company No. 43 in Front Royal, Virginia. Smith might then volunteer for Militia Police Company No. 1 in that Town. If accepted, he might receive an exemption from MC-43 for as long as he fully and faithfully performed his duties in MPC-1. (Smith might also be denied an exemption, if his service were necessary in MC-43.) Performance of his duties in MPC-1 would be the condition sine qua non for Smith’s exemption from MC-43. If Smith resigned from MPC-1 for personal reasons, or was discharged (perhaps because some physical injury disqualified him for that service), or was expelled for misconduct, he would immediately revert to full membership in MC-43. And at all times MC-43 could monitor, and when necessary inquire into, Smith’s performance of duty in MPC-1, because his exemption from MC-43 would always depend upon his timely and proper performance that duty to the satisfaction of MC-43, which would always retain the original claim to his service (unless he moved out of the jurisdiction, at which point the original claim would be transferred to another ordinary Militia Company in his new area of residence).

Suppose, then, that Smith committed an alleged act of police brutality under color of his authority in MPC-1. Depending upon the procedures established by the Militia Code, the victim could file a charge with MPC-1, or with MC-43, the latter being the preferred venue if the victim believed that some “good old boy” network in MPC-1 were likely to cover up for Smith. Because of his exemption, Smith’s alleged misbehavior in MPC-1 would simultaneously constitute alleged misconduct with respect to MC-43. Not being members of MPC-1, the members of MC-43 would have no reason to whitewash Smith’s misconduct, and every incentive to investigate his alleged wrongdoing, as part of their supervision of the terms of his exemption from their own Company. Under these circumstances, THE PEOPLE themselves in MC-43, not a possibly tight-knit and corrupt group in MPC-1, would supervise MPC-1 (in the person of Smith), thus providing an independent “check and balance” against wrongdoing in that unit. And so for all of the other members of MPC-1 with respect to the several ordinary Militia Companies which had granted them exemptions. So, in Smith’s case, the alleged misconduct in MPC-1 would occur on Monday, the charge would be filed with MC-43 on Tuesday, the court-martial would be held on Wednesday, an appeal (if any) would be allowed on Thursday, and punishment would be inflicted on Friday. True enough, perhaps not that quickly—but surely more quickly, and with more certainty of a just result, than what typically transpires under present conditions.

(ii) A nationwide para-military police-state apparatus controlled from the District of Columbia can never be constructed unless State and Local “law-enforcement” and “emergency-response” agencies are somehow brought under the control of the Department of Homeland Security. To be brought under true control, however, the personnel in these agencies must come under the actual command of officials of the General Government who are authorized to give them orders which must be obeyed. Other than the President of the United States as “Commander in Chief * * * of the Militia of the several States”, and then only when the Militia are “call[ed] forth” “in the actual Service of the United States” “to execute the Laws of the Union, suppress Insurrections and repel Invasions”, though, no member of the Militia can come under the command of any official of the General Government, because “the Appointment of the Officers” in the Militia is constitutionally “reserv[ed] to the States respectively”. [See U.S. Const. art. I, § 8, cls. 15 and 16, and art. II, § 2, cl. 1.] No officials in the Department of Homeland Security, the Armed Forces, or any other Department, branch, agency, or bureau of the General Government can ever be appointed by the States to positions of command in their Militia, because to do so would effectively transfer control over the Militia from the States to the General Government, in direct contradiction of the States’ explicitly reserved constitutional authority in that particular, as well as making such appointees simultaneously officials of the States as well as of the General Government, which would contradict the first principle of the federal system, and inevitably lead to chaos if the States issued one set of directives to such officers while the General Government issued another. Note that no appeal to the Supremacy Clause [U.S. Const. art. VI, cl. 2] can preclude this result (because that clause does not override the specific reservation of State authority in the body of the Constitution), and that the Second and the Tenth Amendments need not be invoked in order to achieve that result (although, of course, their authority confirms and amplifies it). This is a matter neither of “nullification”, nor even of “interposition”, but simply of the constitutional irrelevance of the General Government to the Militia when the Militia are performing duties for their States, such as State and Local “police” functions, as opposed to one or more of the three specific duties which can be required of the Militia “in the actual Service of the United States”.

This is all so obvious—as a matter of American history, of constitutional law, and of the precepts and operating principles of popular sovereignty, popular self-government, and what the Second Amendment denotes as “a free State”—that to explain it again and again becomes tiresome in the extreme. The Constitution was not written in such abstruse terms that only graduates of Harvard Law School can parse and understand it. It does require, however, that Americans actually take the time to read it. The question then arises: “For what are WE THE PEOPLE waiting? Until it is too late to do anything effective? Be forewarned. That day will dawn only too soon.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute. This article was originally published on September 14, 2012, on NewsWithViews.

Where is the Outrage? Part 2.

July 27, 2012/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

So Mr. Holder was particularly foolish to claim that “the Constitution does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of an attack become clear”. Self-defense never applies to a putative assailant’s mere “planning”. That Jones may be thinking very hard about killing Smith does not allow Smith to kill Jones in purported “self-defense”. Rather, there must be hostile action by Jones, actually taking place, that is capable of causing death or severe bodily injury to Smith at that moment. Self-defense is justified only “when the precise time, place, and manner of an attack become clear” to the victim. Before “the precise time, place, and manner of an attack become clear”—that is, when one or more of those variables is not known—self-defense is premature, because the proof of its necessity is absent.

(b) By hypothesis, in any situation in which self-defense with deadly force is justifiable, capture of the assailant is not feasible. If it were, then the use of deadly force would be contra-indicated. But that the capture of some suspected “terrorist” is not feasible is, by itself, no justification for an “official homicide”. One wonders how very extraordinary the circumstances would have to be for the impossibility of capturing some suspected “terrorist” to be a plausible excuse for an “official homicide”. For instance, if capture of the “terrorist” were not feasible because no one knew where he was, he obviously could not be targeted for an “official homicide”. If his location were known, but so inaccessible that no one could get at him to effect his capture, how would he be able to mount an attack on the United States—by some form of remote control over a “weapon of mass destruction”? And would any “terrorist” sufficiently sophisticated to have devised, built, and planted such an infernal machine simply wait, hunched over the plunger of the firing-device in some squalid hut in Obscuristan (or Cleveland, Ohio, for that matter), long enough to be targeted for a “hit” by a sniper firing an Accuracy International rifle chambered in .338 Lapua Magnum, by a cruise missile, or by a death-dealing drone? Besides, if the “terrorist’s” location and plan were known—which information would be necessary in order to carry out an “official homicide”—would not the location of his infernal machine likely also be known, so that it could be disarmed? Plainly, Mr. Holder would have been more credible if he had provided some real-life examples—if any there be—of “terrorists” known to have posed actual “imminent” threats to the United States when their captures were not feasible.

(c) Contrary to Mr. Holder’s assertion, “official homicides” of Americans must comply, not “with * * * four fundamental law of war principles”, but with one. And that one absolutely excludes “official homicides”.

Recall Mr. Holder’s statement that “[w]e are a nation at war”. Assuming for the purposes of argument that this is true as a matter of fact, those rogue American citizens who (in Mr. Holder’s words) “have decided to commit violent attacks against their own country” are, in the Constitution’s words, as a matter of law committing “Treason” by “levying War against the[ United States], or * * * adhering to their Enemies, giving them Aid and Comfort”. U.S. Const. art. III, § 3, cl. 1. This is “the law of war”—and the only “law of war”—to which every American “terrorist” is subject. If an individual American is “levying War against the[ United States]”, the constitutional law of “Treason” applies. And because the constitutional law of “Treason” applies to such a situation, no other “law of war” (or “law” of any other kind) can apply, except insofar as it perfectly embodies, enforces, or is at least is consistent with the law of “Treason”.

Now, the law of “Treason” requires that “[n]o Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court”. U.S. Const. art. III, § 3, cl. 1. “No Person.” “Treason”, of course, is a “crime”. “The trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; and “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”. U.S. Const. art. III, § 2, cl. 3 and amend. VI. So, to be “convicted” of “Treason”, a “Person” must have “a speedy and public trial, by an impartial jury”, at which the evidence includes, at the minimum, “the Testimony of two Witnesses to the same overt Act, or * * * Confession in open Court”. Is it not self-evident that a “Person” who is killed on the mere suspicion of “Treason” is thereby effectively “convicted of Treason” in the most palpable and permanent manner possible? And, that being so, is it conceivable that, having set out an elaborate judicial procedure and strict evidentiary standards in explicit terms, the Constitution nonetheless left to implication a power in the President to circumvent and effectively negate the law of “Treason” by killing outright any and all “Person[s]” merely suspected of “Treason”, without trial or sufficient evidence (indeed, with perhaps no competent evidence at all)? But these questions answer themselves.

So, once again, one sees upon the very face of the Constitution the refutation of Mr. Holder’s position. Yes, “‘[d]ue process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security”. For “when it comes to national security” against “Treason”, the Constitution explicitly mandates “judicial process”, and only “judicial process”, not some bastardized “due process” that would have been far more familiar to Bugsy Siegal and Albert Anastasia than to James Madison and Thomas Jefferson.

At this point, one should hope, sufficient reason, authority, and common sense have been marshaled to put paid to Mr. Holder’s complaint that “the use of th[e] loaded term [‘assassination’] is misplaced”. Because no legal basis exists for killing out of hand American citizens who “levy[ ] War against the[ United States]”, “assassination” is a perfectly descriptive and justifiable term for what is going on.

5. To be sure, at one point in his address Mr. Holder seemed to limit the reach of the doctrine of “official assassinations”: to wit, “an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful”. But from everything else he said (discussed above), the permanent limitation of these “operation[s] using lethal force [to] a foreign country” cannot be expected. And certainly nothing in the doctrine of “official assassinations” itself, or in the pseudo-constitutional apologies Mr. Holder presented on its behalf, suggests that it can or will be so geographically confined. After all, “national security” surely applies in “the homeland”. And the President may exercise his powers as “Commander in Chief” as well within the United States as outside. If the President may order “official assassinations” of American citizens suspected of “terrorism” when they are found outside of the United States, why cannot he order such assassinations when the targets are inside of the country?

In addition, Mr. Holder denied that

the Executive Branch has—or should ever have—the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same procedure where lethal force is used against United States citizens.

The self-evident fallacy in this assurance is that no “checks and balances” could prove to be of any value to a target of an “official assassination” after his death. To be meaningful, a “check”—in the sense of a mechanism capable of causing “a sudden stoppage of a course of action”—would need to prevent the killing, until some further constitutional process might determine whether it were justified.

Beyond that, if the “checks and balances” operated only ex post facto, would the Executive Branch: (i) identify its victims; (ii) admit that their deaths resulted from “official homicides”; (iii) provide evidence establishing at least a prima facie case of “national self-defense” to justify those killings; and (iv) identify everyone who had ordered and committed the killings, and waive any “official immunity” they might claim, so that they could be prosecuted or sued for damages if the evidence of “self-defense” turned out to be insufficient? After all, if those who incited, ordered, and perpetrated these homicides honestly believed themselves to be satisfying the standards of “national self-defense” in doing so, what would they have to fear from full disclosure? One suspects that Hell will freeze over before Mr. Holder, or anyone else in the Administration, proposes any such requirements.

The major demerit in Mr. Holder’s promise of “robust oversight” is the one endemic to all forms of political “oversight” within the government: namely, quis custodes custodiet? Who will oversee the overseers, and impose penalties when the oversight is not conducted properly? Why should Americans trust some “oversight” committee of Congress any more than the rogue officials of the Executive Branch the committee is to “oversee”? Every relevant indicium should convince any observer of the General Government that, for as long as runs the memory of any living man, Congress has conducted little to no effective “oversight” of the Executive Branch, the Administrative State, the Military-Industrial Complex, or the Federal Reserve System’s banking cartel—even as this country has been led into economic collapse, as foreign military adventures have proliferated, and as the Executive Branch has claimed the power to kill without trial any American on whom it chooses to pin some opprobrious label. In the course of all of Congress’s “oversight” throughout the years, have the officials called upon to testify always told the truth, or been compelled to do so when they balked? When their lies or other abuses were exposed, were those officials impeached, convicted, and removed from their positions? Was the legislation under color of which they perpetrated their wrongdoing repealed or radically revised? Were the agencies or programs they misused terminated, defunded, or reorganized? No, no, and once again no!

And what if the Executive Branch were to “inform[ ] the appropriate members of Congress about * * * counterterrorism activities” by providing for Congressional “oversight” the names of American citizens who had been killed out of hand as suspected “terrorists”, “enemy combatants”, and so on? Congress’s approval of such a proscription list would amount to an ex post facto “Bill of Attainder”—which would be worse than a “Bill of Attainder” Congress itself unconstitutionally drew up in the first place, because in the latter case: (i) Congress would determine who should be included in the “Bill of Attainder”, and (ii) Congress could change its mind before the “Bill of Attainder” passed, or might repeal the “Bill of Attainder” before it was put into fatal effect.

And even with such information in hand, what could Congress do if it disapproved of the proscription list, in whole or in part? Ask the Messiah in the Whitened Sepulcher on Pennsylvania Avenue to resurrect the victims? Moreover, assuming for purposes of argument that strong disapproval from Congress would have some chastening effect upon officials in the Executive Branch, what if the Executive Branch “inform[ed] the appropriate members of Congress about * * * [American] counterterrorism activities” that were instigated by some foreign nation or some international or supra-national organization—in the manner that Secretary of Defense Panetta and JCS Chairman General Dempsey recently told Congress it might be informed when the President involves American Armed Forces in foreign military adventures on the say-so of some foreign interests? Would hot words from Congress faze bureaucrats in some foreign country, or in some international or supra-national organization, or simply provide further evidence of Congress’s impotence, irrelevance, and inanity?

6. Of course, at the end of the day, one does not need to be a constitutional scholar, but only to be possessed of common sense, to know that the very people who claim the power to kill their fellow citizens without trial, on the basis of mere suspicions, are the very last people who should ever be allowed to wrap their hands around the instruments through which such a power could be exercised. That is, such a claim of homicidal power, by itself, should be deemed sufficient to support a permanent disqualification from public office of any and every individual asserting it.

Yet, as grotesque as are the claims of the Executive Branch to the power to perpetrate “official assassinations”, perhaps even more disquieting is the utter lack of outrage on the part of the general public. True enough, if sixty years ago someone had predicted with perfect accuracy the actual sequence of steps by which the General Government would degenerate into the homicidal para-military police state that confronts this country today, would such an individual not have been considered a fit candidate for sedation in a mental institution? Nonetheless, actual events have validated such a prediction, in spades. Where, though, are the mass protests? Where are the marches in Washington, D.C., and in the States’ capitals? Nowhere. And why? Is it because, over the last sixty years, ordinary Americans have become inured to “official assassinations”? For example, could any thinking person be found today who would deny that Lee Harvey Oswald—just the most famous of the many individuals who ended up prematurely and violently dead because of their connections with the events surrounding the assassination of President John F. Kennedy—was the victim of an “official assassination”? What about the atrocity at Waco? Would any thinking person describe that as other than an “official assassination” en masse—and of women and children who could not possibly have been guilty of any crime deserving of any punishment, let alone death? Were not these killings perpetrated within the United States? Were not the paw prints of rogue officials of the General Government all over the crime scenes? So perhaps “more of the same” today is, as the wag said, just “déjà vue all over again”.[1]

Well, it may in fact be “déjà vue”, but in a most perverse sense. The old saying, “those who refuse to learn from history are condemned to repeat it”, does not apply only to ancient history. Not that long ago—in 1934 to be precise—Adolf Hitler first openly asserted his supposed personal authority as Führer to order executions of Germans without trials, licensing himself to preempt and overrule the courts under the style of “the supreme judge of the German people”. The German Army’s General Staff imprudently supported him in these murderous pretensions, because his first “official assassinations” eliminated the dangerously radical and corrupt leadership of the Sturmabteilung (“the Storm Troopers” or “SA”), which threatened the Army’s martial supremacy. See John W. Wheeler-Bennett, The Nemesis of Power: The German Army in Politics 1918-1945 (London, England: Macmillan and Company Limited, 1964), at 304-332. And every thinking person in the entire world knows where that seemingly isolated incident led. Yet, nonetheless, Americans are well on their way to repeating it, once again verifying the cynical wisdom of the old adage that “the only thing one learns from history is that no one ever learns anything from history”.

Sadly, Americans have proven to be a race of political Rip van Winkles. Intoxicated with materialism, they dozed off in the 1950s, and now that the kick of jackboots has rudely awakened them, they find themselves in 1984. But this situation, although dire, is not beyond correction. The Constitution prescribes what is “necessary to the security of a free State”—namely, “well regulated Militia”.

If “necessary to the security of a free State”, they must be even more necessary to the existence of “a free State”; for “a free State” must exist before it can be made secure. Self-evidently, too, the existence of “a free State” depends upon the existence its people. “[A] free State” cannot exist when some purportedly superior authority claims to exercise a power to commit “official assassinations” of anyone and everyone whom it declares to be an “enemy”. So the very first purpose of the Militia must be to preserve the lives of the people against “official assassinations”, as well as all other potentially fatal dangers—which, of course, makes perfect sense, inasmuch as the Militia are the people. But for the Militia to perform this vital function, they must exist—that is, they must be organized, armed, disciplined, and trained in the several States, whose institutions they are. Which will never happen until We the People demand it of their State legislators.

So far, however, even the threat of being “officially assassinated” has not stirred Americans to such action in their own legal, political, and physical self-defense. Let us hope that the reason is not to be found in the adage, “whom the gods wish to destroy they first make mad”. For part one click below.

1. The examples of Oswald and Waco further expose the flaw in Mr. Holder’s contention that the government’s supposed inability to capture a suspected “terrorist” somehow justifies an “official assassination”. In Oswald’s case, he was in custody when he was assassinated. Indeed, it was because of his capture that he was killed. He had already announced to the press that he was nothing but a “patsy”, and was sure to spill the beans on his intelligence-agency connections rather than take the fall as “the lone gunman”. So he had to be silenced. In the case of Waco, the Branch Davidians were as good as in custody—totally surrounded in their complex, isolated from outside assistance, with no means of escape. No attack on them was necessary. Rather, they could simply have been left confined there, until they ran out of food and were compelled by hunger to give themselves up. So, the mass “official assassination” was set in motion in spite of their capture. Apparently, once again, rogue public officials felt the need to eliminate embarrassing witnesses to their own wrongdoing. One could also add the assassination of “Osama” (whoever the victim actually was) to this list. Under the circumstances as they have been described, any competent team of kidnappers could have taken that individual alive, strongly sedated him, and delivered him—just as they supposedly delivered his dead body—to a waiting ship. But no one was eager for “Osama” (whoever he might have been) to start talking where the public could hear. Thus, on the basis of these notorious precedents, no suspected “terrorist” could ever presume that, even if captured, he would not be assassinated anyway.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published on April 9, 2012, on NewsWithViews.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Where is the Outrage? Part 1.

July 12, 2012/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

On 5 March 2012, Attorney General of the United States Eric Holder presented an address at the Northwestern University School of Law (Chicago, Illinois), in which he defended the Obama Administration’s claim—and, if the truth be told, the Bush and Clinton Administrations’ claims, too—that the President of the United States, in his capacity of “Commander in Chief”, may order, approve, or condone “official assassinations” of American citizens, simply because someone in the military or civilian bureaucracy deems those individuals to be “terrorists”, “enemy combatants”, “enemy belligerents”, or somehow “associated forces” of various “terrorist” groups. Mr. Holder objected to “call[ing] such operations ‘assassinations’”, because “[a]ssassinations are unlawful killings”, whereas (according to him) “the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful”. Unfortunately—or, in light of the impossibility of the task he set himself, predictably—Mr. Holder failed to present a plausible defense of this position. Quite the contrary: He provided compelling evidence for the opposite conclusion.

1. The premise of Mr. Holder’s address is that “[w]e are a nation at war”. Who “we” might be he did not specify. Perhaps by “we” he referred to himself and his cronies in the Administration. Certainly “we” cannot be equated with WE THE PEOPLE. For Congress has not “declare[d] War” on any foreign nation since World War II, as the Constitution requires. See U.S. Const. art. I, § 8, cl. 11. And Congress could not “declare War” on international “terrorists”, who are “non-state actors” (to use the fashionable jargon)—let alone on “terrorism”, which is a tactic, not a country, a person, or even a thing. Indeed, Mr. Holder himself conceded that “[w]e are at war with a stateless enemy”. That being true, constitutionally speaking the so-called “war on terrorism” makes about as much sense as a “War” as does “the war on crime”, “the war on drugs”, or “the war on obesity” (in none of which, at least so far, has any Administration claimed the power to kill suspected “stateless enem[ies]” out of hand). But, for purposes of argument, one may accept Mr. Holder’s contention, and agree that some rogue Americans are, in fact, “waging war”—or, to use the proper constitutional phrase, “levying War”—against the United States. See U.S. Const. art. III, § 3, cl. 1. As will become apparent, however, this fact does not help Mr. Holder at all.

2. Mr. Holder did make clear, though, that the Administration’s policy of “official homicides” (rather than “official assassinations”, in deference to his sensitivity on the matter of nomenclature) is aimed at Americans in America. At one point in his address, he asserted generally that “[o]ur legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.” So apparently “the battlefields” are everywhere. At other points, he asserted more specifically that “there are people currently plotting to murder Americans, who reside in distant countries, as well as within our own borders”; that “it is an unfortunate but undeniable fact that some of the threats we face come from a small number of American citizens who have decided to commit violent acts against their own country from abroad; and that “it’s clear that United States citizenship alone does not make such individuals immune from being targeted”. Well, if some of these rogue Americans “reside * * * within our own borders”, and “are currently plotting to murder Americans”, and their “current[ ] plotting” justifies their “being targeted” for “official homicide”, then one must presume that they will be “targeted” right here, where they are, in “the land of free and the home of the brave”, rather than somewhere else where they are not and may never be. Surely the heroes and heroines within the “national-security” bureaucracy will not allow this “plotting” to come to bloody fruition simply because the perpetrators “reside * * * within our own borders”. Indeed, that they do “reside * * * within our own borders” should make their neutralization that much more urgent. After all, as Mr. Holder himself maintained, although “[i]t is preferable to capture suspected terrorists and to bring captured terrorists to justice”, “we must also recognize that there are instances where our government has the clear authority—and * * * the responsibility—to defend the United States through the appropriate and lawful use of lethal force”. And where should this “authority” and “responsibility” be exercised, if not in “the homeland” itself?

3. Mr. Holder did concede that, although “United States citizenship alone does not make such individuals immune from being targeted”, “it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens—even those who are leading efforts to kill innocent Americans”. Nonetheless, having appealed to “all relevant constitutional considerations”, he then focused on only one: “Of these [constitutional considerations], the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law”. Perhaps it is overly pedantic to expect the Attorney General of the United States, while addressing an audience at a major law school, to have recalled that the Fifth Amendment’s Due Process Clause is not limited to “a citizen”, but extends instead to every “person”, alien as well as citizen, without distinction.

If so, then surely it risks asking too much to expect that he would also have noticed the clause in the Fifth Amendment which precedes the Due Process Clause at the very head of the Amendment, and provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. Although some cases of alleged “terrorism” may “aris[e] in the land or naval forces, or in the Militia”, to simplify analysis they may be set to one side. In all other—purely civilian—cases, “terrorism” and kindred “plot[s] to murder Americans” or “to commit violent acts” are “capital, or otherwise infamous crime[s]” for which “[n]o person shall be held to answer * * * unless on a presentment or indictment of a Grand Jury”. Self-evidently, a “person” who is killed by government agents on the mere suspicion of actually having committed, let alone simply plotting to commit, “a capital, or otherwise infamous crime” is “held to answer for * * * [that] crime” in the most decisive manner imaginable—yet without “a presentment or indictment of a Grand Jury”, let alone the trial by jury to which such “a presentment or indictment” would entitle him. See U.S. Const. art. III, § 2, cl. 3 and amend. VI.

Even more “relevant constitutional considerations”, though, are to be found in the provisions of the Constitution that ban “Bills of Attainder”. U.S. Const. art. I, § 9, cl. 3 and § 10, cl. 1. As I have already touched on this subject in my NewsWithViews commentary “Death Squads”, I shall refer the reader there for the details.

That Mr. Holder said nothing about “a presentment or indictment of a Grand Jury” or about “Bills of Attainder” perhaps betrayed merely a light and careless approach to his duties. For the first rule of analysis where “due process of law” is concerned is that “[w]e must examine the Constitution itself to see whether th[e] process [at issue] be in conflict with any of its provisions”. Murray’s Lessee v. Hoboken Land and Improvement Company, 59 U.S. (18 Howard) 272, 277 (1856) (emphasis supplied). The real reason for Mr. Holder’s apparently slipshod legal scholarship, one suspects, was neither ignorance nor insouciance, but instead art. By focusing solely on the Due Process Clause of the Fifth Amendment, he was able to appeal to the notion that

[t]he Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause—including a case involving a U.S. citizen captured in the conflict against al Qaeda—the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.

Unfortunately for Mr. Holder, especially as applied to the case of “official homicide”, the Supreme Court’s theory that “procedural safeguards * * * depend on specific circumstances” is basically nonsense.

Actually, in any case, invocation of “a balancing approach” is gibberish unless one can specify what sort of laboratory scale, calibrated against what standard of measure, is to be employed. Similarly, to talk of “weighing the private interest * * * against the interest the government is trying to protect” is senseless unless one can specify the units of measure to be employed. In the Supreme Court’s system, no one knows what the point of “balance” is, or with what units of measure “interests” are to be “weighed”, until one reads the Court’s opinion, in which the ad hoc result of the “balancing” is announced. There being no fixed point of “balance” and no fixed units of “weight”, in no case is the result either verifiable or falsifiable—and therefore the entire system must be condemned as utterly unscientific. It is not constitutional, either, because rather than being based upon fixed standards and objective methods that yield reproducible results, it is unpredictable, subjective, and arbitrary. And meant to be so. The purpose of “balancing” and “weighing” “interests” is to enable the Justices to make up “due process of law” as they go along.

They even call this rigamarole the “gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require”. Davidson v. City of New Orleans, 96 U.S. 97, 104 (1878). A process that allows for both “inclusion and exclusion”, though, enables the Justices to circumvent constitutional restraints in the guise of enforcing them. Every student of law knows that changes in procedures (“due process”) can have extremely deleterious effects on the substantive rights those procedures are supposed to protect. “A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” United States ex rel. Von Hoffman v. City of Quincy, 71 U.S. (4 Wallace) 535, 554 (1867). Accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1885); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). The requirement of a “presentment or indictment of a Grand Jury” mandates two particular judicial procedures; and the prohibition of “Bills of Attainder” prohibits a specific legislative procedure. Obviously, this requirement and this prohibition are not subject to “a balancing approach”, to “weighing”, or to “inclusion and exclusion”. The constitutional language “[n]o person shall be held to answer” and “[n]o Bill of Attainder * * * shall be passed” leaves nothing to “balance”, nothing to “weigh”, and certainly nothing to exclude. It is categorical and absolute. Which, one suspects, is why Mr. Holder chose to say absolutely nothing about it.

The short answer to quibbles about “due process”, however, is that, despite Mr. Holder, where “official homicides” are concerned “procedural safeguards [do not] depend on specific circumstances”. When the Fifth Amendment declares that “[n]o person shall * * * be deprived of life * * * without due process of law” it incorporates into “due process of law” every requirement of “due process” to be found elsewhere in the Constitution. So, “due process of law” includes “[n]o person[’s] * * * be[ing] held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”, and no person’s being the subject of a “Bill of Attainder”. One could go further, and point out that the Fourth Amendment provides that “[t]he right of the people”—that is, of all Americans—“to be secure in their persons * * * against unreasonable * * * seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons * * * to be seized”. Self-evidently, if no “persons” may even be “seized” without judicial “Warrants * * * upon probable cause, supported by Oath or affirmation”, how may any “persons” be simply killed out of hand, with no prior judicial involvement at all? Is homicide not the most extreme form of “seizure[ ]” of a “person[ ]” imaginable? Or one could also ask whether an “official homicide” of some individual, with no prior judicial determination of guilt, does not constitute “cruel and unusual punishment”, in violation of the Eighth Amendment. For death is certainly a “punishment”. And that is it imposed on the basis of mere suspicion should make it both “cruel and unusual” as a matter of law, in light of the many times the Constitution mandates some sort of judicial process before any supposed “Crime” may be investigated, charged, or tried, let alone actually punished. See U.S. Const. art. III, § 2, cl. 3; amends. IV, V, and VI. Or one might ask, if “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States”, how can a régime of “official assassinations” without trial, let alone conviction, be allowed to “exist within the United States”? See U.S. Const. amend XIII (emphasis supplied). Those condemned to “slavery [ ]or involuntary servitude”, after all, at least remain alive. But stressing these additional points would merely bring owls to Athens.

4. Mr. Holder contended that

the President is [not] required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. * * * “Due Process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

Of course, this sort of argument begs the question. The truism “not all cows are Jersey cows, but all Jersey cows are cows” does not, by itself, tell us what kind of a cow is standing before us (or what kind of bull, either). So, too, with “due process”. That there may be forms of “due process” which are not “judicial process” does not tell us whether “official homicides” require “judicial process”, some other sort of “due process”, or perhaps no “process” at all.

On the other hand, Mr. Holder was accidentally correct in his statement that “the President is [not] required to get permission from a federal court before” engaging in an “official homicide”—for “federal court[s]” have no authority whatsoever to give permission, or absolution, for an “official homicide”. One can search Article III of the Constitution until his eyes go blind without finding the slightest suggestion that the Supreme Court can authorize “official homicides”. The Constitution does invest “[t]he judicial Power * * * in such inferior Courts as the Congress may from time to time ordain and establish”. U.S. Const. art. III, § 1. And it delegates to Congress the corresponding power “[t]o constitute Tribunals inferior to the supreme Court”. U.S. Const. art. I, § 8, cl. 9. But, in “constitut[ing such] Tribunals” (as in the exercise of all of its other powers), Congress may not disregard the Constitution’s absolute prohibition of “Bills of Attainder” by purporting to delegate a power it does not have to make anyone the subject of an “Attainder”. (Except in one situation: Congress may make “Attainder of Treason” a “Punishment [for] Treason”; but that “Punishment” may be imposed only after a “Person * * * shall be convicted of Treason”. U.S. Const. art. III, § 3, cls. 2 and 1.)

As his key argument, Mr. Holder contended that

an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles. For part two click below.

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. * * * [T]he Constitution does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of an attack become clear. * * * Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack[.] * * *

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.

(a) In using the term “imminent threat”, Mr. Holder was attempting to bring “official homicides” within the ambit of the privilege of self-defense. In this, he failed. A true “imminent threat” does not provide the victim of an attack with time for “a thorough and careful review” of the situation. If time for any “review”—especially “a thorough and careful” one—is available, the threat is not “imminent”; and a plea of self-defense cannot be sustained. Similarly for “considerations of the relevant window of opportunity to act”. If the threat is “imminent”, the victim cannot, and need not, bother himself with such “considerations”. He must act then and there, immediately, or suffer the consequences of the attack. If he can stop to weigh such “considerations”, a plea of self-defense cannot be sustained. Self-defense, after all, is born of urgent necessity, not lucubration. Most importantly, self-defense never involves a determination of “the likelihood of heading off future disastrous attacks”. Self-defense always arises in the present, aimed at “heading off [a] disastrous attack[ ]” taking place at that very moment. If “future disastrous attacks” are at issue, the matter is one of “preemptive homicide” or “preventive homicide”, not self-defense.

(End of Part 1)

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published on April 9, 2012, on NewsWithViews.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

The Road Not Taken

November 11, 2011/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

We all are familiar with Robert Frost’s poem, “The Road Not Taken”:

“Two roads diverged in a yellow wood…” it begins. And it ends with the bittersweet and equivocal observation,

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

The peregrinations of individual men and of whole nations are not dissimilar.

On every occasion of political and economic crisis but one in her history, America has come to the point where “two monetary roads diverged in a yellow wood”—and has taken the wrong road.

That unique occasion was the ratification of the Constitution in 1788. For—

• The Constitution adopted a scientific monetary unit—the “dollar”, a coin containing 371.25 grains of pure silver; and a companion coinage, denominated “eagles”, containing gold valued at the free-market exchange rate with silver.

• The Constitution withheld from the General Government the power to “emit bills”—which was the term of art at that time for paper currency. Any kind of “bills”, whether redeemable or irredeemable in precious metals; or whether or not designated “legal tender”.

• The Constitution prohibited the States from “emit[ing] Bills”. Again, any and every kind of “Bills”. And,

• The Constitution prohibited the States from “mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts”—thereby reserving to the States the power to “make gold and silver Coin a Tender in Payment of Debts”.

This was (and remains) a system legally just, politically astute, economically sound, and socially responsible, because it tends especially to benefit the common man, who typically holds much of his real wealth in money or the simplest claims payable in money (such as bank deposits).

Yet every other time since 1788, America has stumbled down the wrong monetary road. Not, however, “the road less traveled by”—for that would have been the road laid out according to constitutional principles—but instead “the road most traveled by”, the road that essentially every modern nation has taken. The road which has “diverged” from monetary units actually composed of silver and gold, honestly weighed. The road which has settled instead upon monetary units consisting of debt and administered through fraud: The first false step, to redeemable paper currency; then to redeemable paper currency declared to be legal tender; then to irredeemable paper currency declared to be legal tender; and even, as from 1933 to 1974, to the prohibition of the private ownership of gold altogether. And to make matters worse, now the central bank and the government treasury responsible for emitting the latest of these “bills of credit”—which have turned out to be “bills of discredit”, because of the Ponzi nature of their emission—have demanded, and will continue to demand, serial “bail outs” from common Americans, in order to keep the paper pyramids from collapsing.

Today, America finds herself once again lost in “the yellow wood” of monetary chaos, at a point where “two roads diverge[ ]”—

One road leads to “more of the same”—“monkey business as usual”, as it were, both politically and economically—aimed at propping up domestic as well as foreign zombie banks; subordinating the United States Treasury to the cabals of private financial power-brokers in New York and London; and, one may be assured, expanding the fraud of irredeemable legal-tender paper currency to the supra-national level, with a new “global currency” which will surely strip America of her economic sovereignty, and likely will attenuate if not eliminate her political sovereignty, too.

We must not be enticed down that wrong road by the illusion that we can convince Congress to reinstitute some kind of traditional “gold standard” that pulls the Federal Reserve System from the pit of its own incompetence, profligacy, and criminality, by somehow returning Federal Reserve Notes to redeemability in gold

My “Cross of Gold” address to this audience in October of 2010 said all that needs to be said against the substance of proposals of that kind. Of course, I shall be the first to commend the proponents of such plans for their patriotism, imagination, courage, and optimism. But, as General Sosobowski reputedly said when General Browning reviewed the plan for the ultimately disastrous Operation Market Garden: “I am thrilled that your great Field Marshall Montgomery has devised such a plan. I promise you that I shall be properly ecstatic if it works.”

Operation Market Garden failed because it was directed along the wrong road. I doubt that any plan to return Federal Reserve Notes to redeemability in gold will work, either—in any sense of the word “work” that will serve the American people’s interests. Even if such a plan could be put into practice, it would merely bring this country back to 1932—and those who have studied monetary history will recall that 1932 was followed by 1933.

That brings us to the other road. “The road not taken” yet, but which must be taken soon. The road that leads to

• honest, fully constitutional, and economically sound monetary units tied directly and inextricably to the free market;

• political “checks and balances”, in the form of decentralization of monetary authority, and control of their own money by the people themselves; and

• the retention and even strengthening of America’s national sovereignty and independence.

This is the road leading, not to salvaging the Federal Reserve System, but instead to walking away from it, through the adoption by each State of an alternative so-called “electronic currency” consisting of gold and silver, in which definite and fixed weights of precious metals are the only monetary units.

This can be done, because

(1) The present economic crisis has made some such action absolutely imperative.

(2) The present political crisis excludes any such action being taken by Congress.

(3) The States enjoy the constitutional authority to act.

(4) The people and public officials in the States are, slowly but surely, becoming aware that, if anything is to be done in their interests, they must do it themselves.

(5) The plan for an alternative “electronic currency” is fully workable—arguably, it is the only plan that can be made to work in time—

• Adoption of an alternative “electronic currency” by the States does not depend upon agreement or assistance from—or, indeed, any involvement whatsoever on the part of—Congress, the Treasury, the Federal Reserve System or other central banks, the major commercial banks either domestic or foreign, the big Wall-Street financial houses and speculators, or any of the other usual suspects in the political-cum-economic fraud that passes for national and international “monetary policy” today.

• Adoption of an alternative “electronic currency” establishes constitutional and scientific monetary units of gold and silver, immediately interchangeable with each other on the basis of the exchange rate between the precious metals in the free market.

• An alternative “electronic currency” avoids all of the problems that inhere in the use of coinage: namely, that

(i) Neither the United States nor any other country provides “free coinage” of gold or silver; and none is likely to do so in the foreseeable future.

(ii) The United States and foreign coins that are available are insufficient to make a coinage scheme work, particularly in that there are not enough different, especially low, denominations for use in average day-to-day commerce.

(iii) A State cannot safely rely on private mints to generate new coinage. For private mints will not be able to partake of any governmental immunity, by being made parts or agents of State government, because the States cannot themselves coin money—i.e., if the private mints could claim the immunity, then the prohibition would come into play. And without such immunity, the private mints would be exposed to “Bernard von Nothausing”, so none will start up without some previous judicial protection—which means a lengthy period of litigation, the outcome of which is likely to be negative in the decidedly unfriendly “federal courts”.

(iv) There exist no “gold and silver coinage banks” available to handle coinage on deposit, for transfers by checks, and so on; and banks in the Federal Reserve System cannot be expected to set up special gold and silver accounts. So businesses especially, as well as average citizens, will find the use of coinage very inconvenient.

(v) Bullion is perfectly assimilable on a constitutional basis to coin if the government provides or adopts some certification of amount and purity at least equivalent to the certification of amount and purity that inheres in official coinage. And, in any event, as to all “Payment[s] of Debts” that come within a State’s reserved power under Article I, Section 10, Clause 1 of the Constitution, a State can make actual “gold and silver Coin” the only final “Tender”, but can arrange that creditors can be paid with “electronic currency” at an appropriate premium, so that very few would ever opt for coins.

• An alternative “electronic currency” can be installed in at most 30, 60, or 90 days from passage of the enabling legislation, by using “off the shelf” technology that has already been thoroughly proven in the marketplace.

(6) A proper plan for an alternative “electronic currency” adopted and proven in one State can be taken up in short order in every other State. Indeed, once adopted in one State, it will be adopted in others, because the full force of the market will be behind it.

(7) An alternative “electronic currency” is satisfactory not only for intrastate and interstate commerce, but also for international trade. So its adoption will occasion the least possible disruption in the markets for real goods and services.

(8) This plan does not disperse our relatively meager forces, because the selfsame proposal can be promoted in each State—yet it also does not put all of our eggs into one basket, because there are 50 different baskets, in at least one of which the plan will likely prove successful.

(9) An objection frequently offered to this plan is that rogue officials in the General Government will attempt to enforce some statute of Congress—whether now on the books or to be specially enacted for the purpose—that prohibits or inhibits the States from adopting an alternative currency. Under the circumstances of accelerating economic crisis and civil unrest that will form the context in which an alternative currency will be adopted, however, the General Government will prove to be a paper tiger.

• First, if the General Government threatens or attempts to enforce some such statute against a State, the State can bring the case into the original jurisdiction of the Supreme Court, under Article III, Section 2, Clause 2 of the Constitution. In that event, it is most unlikely that the Justices would dare to take upon themselves the responsibility for interfering with a rearrangement of America’s monetary affairs that could save the people from a crushing economic collapse. They could, of course, correctly rule that the Court has already decided that the States retain the governmental authority to adopt their own currencies, whether of gold or silver coin or of bullion. See Lane County v. Oregon, 74 U.S. (7 Wallace) 71 (1869). Perhaps more likely is that—in the manner of Pontius Pilate that has always best suited them—the Justices will wash their hands of the matter entirely by ruling that the case presents a so-called “political question”: namely,

(i) The General Government has its monetary powers—to coin and to borrow money—and through the exercise of these powers the power to create a monetary and banking system. And it has done so.

(ii) The States enjoy an explicitly reserved power to “make gold and silver Coin a Tender in Payment of Debts”, and through the exercise of that power can create their own alternative monetary system. And they have done so.

(iii) These two systems serve as “checks and balances”, one against the other—limiting the States in what they can do, but preserving for them the ability to protect their people against an incompetent and imprudent Congress.

(iv) The ultimate “check and balance” is the people themselves, who can choose, in the market, which monetary system they want to use. And, therefore,

(v) The Judiciary cannot tell the people which level of government to support in this matter. Case dismissed.

Were the Justices to rule that the people cannot protect themselves against economic catastrophe by choosing their own form of currency, issued by their own State governments under a power constitutionally reserved to the States, their blunder would signal the end of the Judiciary’s authority in this country. The American people will not sit down resignedly to eat cat food in cold and squalor because five political appointees in black robes tell them they must do so, in order to enable the banks and Wall Street speculators to continue to loot this country. Rather, the people will adopt President Andrew Jackson’s view: “Justice Marshal has made his decision; now let him enforce it!”

• Second, concerns are often raised about the General Government’s employment of onerous tax regulations to inhibit the use of gold and silver as alternative currency. Because any tax-enforcement process must go through the courts, however, it will ultimately collapse on the grounds just stated. Long before that happens, however, any tax problems will be obviated by a political accommodation: namely,

(i) The States will agree to have their people keep two sets of books: one in Federal Reserve Note values, the other in the alternative gold and silver “electronic currency”.

(ii) The General Government will agree to create a system of dual tax returns, consisting of a “paper return” for transactions conducted in paper, bank-deposits, and base-metallic coinage; and a “specie return” for transactions conducted in gold and silver. And

(iii) Taxpayers will then pay their taxes on their paper transactions in paper, and on their specie transactions in specie.

The General Government will accept this arrangement, because, if it refuses, it will find itself bereft of any real tax revenues when the Federal Reserve System collapses. Only by cooperating with the States in the adoption and use of an alternative currency of gold and silver will the General Government financially survive. (And, of course, if it does not survive financially it will not survive politically, either.)

In sum, the plan for adopting an alternative “electronic currency” is workable constitutionally, technically, and politically. That being so, as America approaches the point at which “[t]wo roads diverge[ ] in a yellow wood”, the moment of her greatest opportunity arrives.

But so, too, approaches the moment of her greatest danger.

The plan of the Powers That Be is, by hook or by crook, to maintain the terminally ill Federal Reserve System on life-support until a new “global currency” can be introduced. So any proposal for returning Federal Reserve Notes to apparent redeemability in gold could play right into their hands.

As turmoil in the markets and in the streets intensifies, the Powers That Be may very well agree with reformers that something must be done to stabilize the monetary and banking systems. They could very well offer what appears to be a compromise, in the form of a new internationally controlled currency, to be stabilized with some kind of gold “backing”. After all their years of effort, heretofore rewarded only by failure, reformers will be desperate for something than can be labeled “success”—and might therefore accept such a proposal, imagining that they have finally won the battle for sound money. In fact, they will have been led, as little children, down the wrong road once again.

For, when the new “global” financial institutions and currency are firmly in place, with sufficient supra-national political and economic authority, the Powers That Be will remove any gold “backing” from the “global currency”, just as they did with Federal Reserve Notes. Once again, 1933 will follow 1932, and with a vengeance.

The plan for a State alternative “electronic currency” promises the best, if not the only, means by America can avoid this pitfall. An alternative “electronic currency” can be set up in each State throughout the United States without any involvement of, let alone support for, the Federal Reserve System. And an alternative “electronic currency” cannot possibly be diverted or converted into a scheme for a “global currency”—unless the Powers That Be agree to adopt fixed weights of gold and silver as the only “global” monetary units, and to treat everything else, not as money, but only as mere debt. Which, one can be assured, they will never voluntarily do.

So, in the endeavor to secure sound money, we must remain unequivocal, uncompromising, adamantine—“extreme” in the manner that truth and justice are always and necessarily “extreme”:

• We must demand real money, not a bastard currency consisting of debt.

• We must demand scientific money, the composition of which can be verified or falsified anywhere in the world according to the selfsame standards—not political money, the composition of which depends upon the whims of politicians, bankers, and speculators whom the average American would not trust to take his automobile to Jiffy Lube for an oil change.

• We must demand economically sound money, consisting of fixed weights of gold and silver, the quantity of which the free market determines through “free coinage”—not paper chits only “redeemable in” or “backed by” gold or silver. As soon as we hear the words “currency redeemable in gold” or “currency backed by gold” we should recognize that we are exposing ourselves, if not to fraud, then certainly to the fallibility and faithlessness of politicians, bankers, and speculators. And therefore,

• We must demand constitutional money. Even if redeemable in gold, the Federal Reserve Note is not constitutional money. It is not a “dollar”. It is not even “lawful money”, because according to the very statute defining it, it is to be “redeemed in lawful money”. Self-evidently, the thing to be redeemed and the thing that redeems it cannot be the very same thing.

Finally, what America faces where these “[t]wo roads diverge[ ]” is not, at base, a monetary problem. It is not even an economic problem. It is a political problem. After all, the free market is a governance mechanism, controlled by the people. Sound money is a governance mechanism, controlled by the people. And the Federal Reserve System is most assuredly a governance mechanism—but one designed to manipulate money and thereby skew the workings of the free market, for the benefit of special-interest groups antagonistic to the people.

America suffers from the disease of unsound money—and all its increasingly serious sequelae—because all too many among her people have largely abdicated self-government. The alternatives are not, as ultra-libertarians profess to believe, “government” (presumably bad) and some species of “liberty” largely divorced from “government” (presumably good). Within society, sovereignty is never is abeyance. If Americans do not govern themselves, they will not enjoy “liberty”, but surely will be governed by others—and in a manner not at all to their liking.

The establishment of an alternative currency is the first step down that road “less traveled by” towards America’s recovery of monetary, then economic, then political self-government. Let us not stumble at the turning-point.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This is the complete text of an address presented in part to the Committee for Monetary Research and Education, Fall Meeting, 20 October 2011, at the Union League Club, New York City]. It was address was originally published originally at NewsWithViews.comon November 8, 2011.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Fables Of The Fourteenth Amendment

September 28, 2011/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

The more I peruse the current public discourse about the application of the Fourteenth Amendment to the present quandary of public debt that confronts this country, the more I am convinced of the wisdom of the observation of the ancients that “Against human stupidity even the immortal gods contend in vain!”

The gist of the argument in favor of the Fourteenth Amendment’s positive application rests on the first sentence of Section 4 of the Amendment: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” Supposedly, this sentence grants a power to the President to borrow money in order to pay outstanding “public debt of the United States” as it comes due, even though Congress has not authorized such additional borrowing. Apparently the theory is that, if the President could not exercise this power, some of the debt would be unpaid at maturity, and therefore its “validity” would “be questioned”, in violation of the Amendment.

Now, the first suspicious peculiarity of this theory is its open-endedness. For public debt can be paid in ways other than by borrowing money (that is, Ponzi finance). It can also be paid through the collection and expenditure of taxes (real public finance). The Constitution delegates to Congress two relevant powers here: One is the power “[t]o borrow Money on the credit of the United States”. Article I, Section 8, Clause 2. Another is the power “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”. Article I, Section 8, Clause 1. The Constitution delegates no power “[t]o borrow Money” or “[t]o lay and collect Taxes” to the President. So, if Section 4 of the Fourteenth Amendment implicitly empowers the President to borrow so that “[t]he validity of the public debt of the United States * * * shall not be questioned”, it also implicitly empowers him to tax for that purpose! And, with a greater degree of apparent constitutional approval, too—because, unlike the power “[t]o borrow”, which says nothing about the use of borrowed funds to pay public debts, the power “[t]o lay and collect taxes” is explicitly tied “to pay[ing] the Debts * * * of the United States”.

The Supreme Court has also invented a third power for Congress that can be used to pay public debts: the power to emit irredeemable, legal-tender paper currency (fiat currency). See Knox v. Lee, 79 U.S. (12 Wallace) 457 (1871), and Juilliard v. Greenman, 110 U.S. 421 (1884). Indeed, armed with this power, it is impossible for the United States ever to default on their debts, because every debt can be paid “dollar for dollar” with newly issued fiat currency at essentially no cost to the Treasury, and without the economic and political inconveniences associated with borrowing money or laying and collecting taxes. Yet (to my knowledge) no one up to now has ever claimed that this imaginary power can be exercised by the President on his own initiative. But if Section 4 of the Fourteenth Amendment empowers the President to pay public debts by borrowing money without the specific authorization of Congress—and, by logical extension, to tax in order “to pay the Debts * * * of the United States”—then why does it not also license him to emit whatever amount of fiat currency he deems necessary for that purpose? One could accompany Alice even farther into the depths of the Washington Wonderland and posit a license for the President to exercise the power of eminent domain, in conjunction with the power to emit fiat currency, for the purpose of paying pubic debts. Under this addendum to the basic theory, the President would simply seize valuable private property, turn it over to the holders of the public debt (say, the Red Chinese government) in payment thereof, and compensate the dispossessed former owners with rapidly depreciating fiat currency.

Those who pooh-pooh these possibilities should ponder on what reasoning Section 4 of the Fourteenth Amendment could be held to grant to the President the power “[t]o borrow Money” in order to pay public debts, without the prior authorization of Congress, but also held not to grant him whatever other powers might possibly be used to pay public debts, also without the prior authorization of Congress? Surely, if the sentence “[t]he validity of the public debt of the United States, authorized by law, * * * shall not be questioned” is a grant of power, on its face it is a grant without limitations, exceptions, or qualifications. Ergo, under this (mis)reading of the Fourteenth Amendment, the national motto should be amended to read: Hail, Caesar! We who are about to be fleeced salute you!

The deficiency from which the proponents of the foregoing theory of Section 4 of the Fourteenth Amendment suffer is that they cannot read. Section 4 does not grant anyone a power. It imposes what lawyers call a disability, an absence of power. The sentence “[t]he validity of the public debt * * * shall not be questioned” strips the United States and the States (and every official thereof) of any right, privilege, or power to “question[ ]” any portion of “the public debt” through the exercise of any power that otherwise could “[in]valid[ate]” that portion—that is, that would legally nullify it. Section 4 says nothing at all, however, about what could or should be done, by whom, and under what circumstances in the event that some public official actually attempted to “question[ ]” “[t]he validity of the public debt”.

A power to deal with a violation of Section 4 does exist. But it appears in Section 5 of the Fourteenth Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Observe: The Fourteenth Amendment, which so many deep thinkers among the legal intelligentsiia assert implicitly empowers the President to enforce Section 4, explicitly empowers Congress, and only Congress, to do so! Congress. C-O-N-G-R-E-S-S. Congress. See Dick! See Jane! See Section 5! See whom it empowers! See Congress! Not the President!

To be sure, under the aegis of Section 5 Congress could enact “appropriate legislation” that directed and authorized the President to take certain strictly executive actions to secure “[t]he validity of the public debt”. It could authorize the Treasury, under the supervision of the President, “[t]o borrow Money”, “[t]o lay and collect Taxes”, even to emit fiat currency in particular amounts. It has done all of these things in the past (the last of them, of course, without constitutional authorization). And under the injunction in Article I, Section 9, Clause 7 that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”, Congress could even decree that the particular moneys borrowed, collected in taxes, or emitted as fiat currency should be “drawn from the Treasury” exclusively for the purpose of paying specific public debts. But, absent such legislation, the President or any of his minions in the Administration is powerless to engage in any of those activities on his own. Inasmuch as Article II, Section 3 the Constitution commands the President to “take Care that the Laws be faithfully executed”—and inasmuch as one of those “Laws” is the Constitution itself—and inasmuch as Section 5 of the Fourteenth Amendment explicitly empowers Congress alone “to enforce” Section 4—it follows that any attempt by the President to usurp any or all of the powers “[t]o borrow Money”, “[t]o lay and collect Taxes”, or to emit fiat currency in order purportedly to enforce Section 4 would constitute a “high Crime[ ] and Misdemeanor[ ]” for which “Impeachment” and “Conviction” would be appropriate, followed by criminal prosecution of both himself and his accomplices. Compare U.S. Const. Article II, Section 4 with Article I, Section 3, Clause 7 and with 18 U.S.C. §§ 241 and 242.

One other point should be clarified, too. “The validity of the public debt of the United States” is not “questioned” simply because that debt is not paid on time (or perhaps is never actually paid at all). “The validity” of a debt is a matter of its legality. Payment is a matter of actual compliance with the obligation’s contractual provisions. A debt may not be paid on time, without anyone’s questioning its validity. The debtor may agree that he owes the money as a matter of law, but may deny that he is able to pay as a matter of fact. In that event, he may be sued for damages, or he may seek the protection of a bankruptcy court—but the validity of the debt is never at issue. The peculiar problem for holders of public debt is whether they have a satisfactory remedy if the Treasury takes the position that it simply cannot pay some debt the validity of which it does not question.

In Perry v. United States, 294 U.S. 330 (1935), which applied Section 4 of the Fourteenth Amendment to invalidate in part the infamous House Joint Resolution No. 192 of 1933, the Court adverted to this problem as follows:

[T]he right to make binding obligations is a competence attaching to sovereignty. * * * The Constitution gives to the Congress the power to borrow money on the credit of the United States. * * * The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with the authority to alter or destroy those obligations. The fact that the United States may not be sued without its consent is a matter of procedure which does not affect the legal and binding character of its contracts. While the Congress is under no duty to provide remedies through the courts, the contractual obligation still exists and, despite infirmities of procedure, remains binding upon the conscience of the sovereign.

294 U.S. at 353-354 (emphasis supplied). So there one has it, directly from the horse’s mouth. Without a remedy—which “matter of procedure * * * Congress is under no duty to provide”—the debt cannot be collected; nonetheless, “the contractual obligation still exists and * * * remains binding upon the conscience of the sovereign”, so that its “validity” has not “been questioned”.

Now, I am the first to condemn the decision in Perry v. United States (indeed, the decisions in all of the so-called Gold Clause Cases), And I have done so in excruciating detail in print, on pages 1127-1240 of Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (Chicago, Illinois: R R Donnelley & Sons, Inc., 2011 GoldMoney Foundation Special Edition of the 2002 Second Revised Edition)—which I commend to those who have advanced, or want to advance, beyond the “Dick and Jane” level of constitutional law and political economics. The point is, however, that this matter of Section 4 of the Fourteenth Amendment has been settled, not only by Section 4 and especially Section 5 themselves at a matter of self-evident legal principle, but also by Perry as a matter of convoluted legal practice (for those who accept decisions of the Supreme Court as somehow the last word on the meaning of the Constitution).

One need not be an electrical engineer, therefore, to realize that the legal “bright bulbs” in the White House are running at far below their self-rated wattage.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published on April 9, 2012, on NewsWithViews.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Judicial Insanity in Indiana

June 10, 2011/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

Recently, a rather shocking “judicial opinion” was handed down by a bare majority of the Indiana Supreme Court, to the effect that it is supposedly illegal under Indiana’s “public policy” for any individual to resist an unlawful search, seizure, arrest, or other assault or detention by rogue law-enforcement officers (or, presumably, any other rogue public officials purporting to enforce, but actually violating, the law).

Many people are rightly concerned that this decision will provide more grist for the mill of the national para-military police state now being elaborated around the misnamed Department of Homeland Security, which is stretching its tentacles into every State and Local police department. No doubt it will—and perhaps was even intended to do so. For, plainly, this decision is an all-out frontal attack on a principle well known to the Founding Fathers. As Sir William Blackstone observed, “[s]elf-defence * * * , as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society”. Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, Subscribers’ Edition, 4 Volumes & Appendix, 1771-1773), Volume 3, at 4.

Protective measures, though, are available. WE THE PEOPLE are not at the mercy of the ideological descendants of Reinhardt Heydrich and Lavrenti Beria who seem to have usurped control over much of America’s contemporary “judiciary”. For Indiana, as well as every other State in the Union, has a government of legislative supremacy subject to popular sovereignty. So, this most recent “judicial” travesty can be rectified in Indiana, and prevented in other States, by the simple expedient of a statute.

As a public service, I have drafted a model bill that, with a bit of workmanlike tinkering by local lawyers to fit it into the possible peculiarities of each State’s own code, should do the job (at least as a first step).

I am confident that, in many States, foresighted patriots will put this suggestion to good use.

AN ACT TO GUARANTEE THE RIGHT OF SELF-DEFENSE TO THE PEOPLE OF […name of State…]

SECTION 1. The State of [ … ] recognizes that the right of personal self-defense is an unalienable right that no just government, or any official of any such government, may abridge, infringe, or burden at any time, for any reason, or to any degree.

SECTION 2. No individual within this State shall be denied, prevented from exercising, or penalized for having exercised, the right to defend

(a) his or her person in any place; or

(b) the person of any member of such individual’s family, or any friend, associate, or co-worker in any place; or

(d) the security of such individual’s property, possessions, papers, and other effects of whatever nature, wherever they may lawfully be kept; or

(e) the privacy of the home, permanent or temporary residence, place of employment, or vehicle of any member of such individual’s family, or any friend, associate, or co-worker who has, directly or indirectly, placed such home, permanent or temporary residence, place of employment, or vehicle in such individual’s custody or under his or her supervision or care; or

(f) the security of the property, possessions, papers, and other effects of whatever nature, wherever they may lawfully be kept, of any member of such individual’s family, or any friend, associate, or co-worker who has, directly or indirectly, placed such property, possessions, papers, or other effects in such individual’s custody or under his or her supervision or care,

against an unlawful search, seizure, arrest, or other assault or detention, or unlawful attempted search, seizure, arrest, or other assault or detention, by any law-enforcement officer or other public official of this State or any of its political subdivisions, so long as such individual employs in his, her, or another’s defense, or in the defense of the privacy or security of his, her, or another’s home, permanent or temporary residence, place of employment, vehicle, property, possessions, papers, or other effects, no force or threat of force greater than he or she reasonably believes at the time to be necessary under the circumstances in order effectively to deter, repel, or otherwise resist such unlawful search, seizure, arrest, or other assault or detention or unlawful attempted search, seizure, arrest, or other assault or detention.

SECTION 3. In any civil action or criminal prosecution in which is at issue an individual’s exercise of his or her right of self defense with respect to an actual or attempted search, seizure, arrest, or other assault or detention by any law-enforcement officer or other public official of this State or any of its political subdivisions—

(a) The lawfulness or unlawfulness of such actual or attempted search, seizure, arrest, or other assault or detention shall be determined before any other issue is heard and decided.

(b) The party or parties asserting the lawfulness of the said actual or attempted search, seizure, arrest, or other assault or detention shall have the burden to produce competent evidence thereof beyond a reasonable doubt.
(c) No matter how any other issues in the action or prosecution may be tried or decided under applicable law, the issue of the lawfulness or unlawfulness of the actual or attempted search, seizure, arrest, or other assault or detention shall be tried to a jury, in which proceeding

(i) the jury shall consist of twelve persons;

(ii) the jury shall be instructed that the reasonableness of the force or threat of force that was employed by the individual in the exercise of his or her right of self-defense must be determined from the viewpoint of the individual at the time that he or she so acted; and

(iii) the jury shall be instructed that it may judge, not only the facts, but also the law under color of which arose the actual or attempted search, seizure, arrest, or other assault or detention; and

(iv) the jury’s verdict must be unanimous.

SECTION 4. In any civil action, howsoever and by whomsoever initiated, in which is at issue an individual’s exercise of his or her right of self defense with respect to an actual or attempted search, seizure, arrest, or other assault or detention by any law-enforcement officer or other public official of this State or any of its political subdivisions, the said individual may cause to be named or joined as adverse parties any or all of the individuals who counseled, authorized, planned, or participated in such actual or attempted search, seizure, arrest, or other assault or detention, for the purpose of adjudicating the lawfulness thereof. In the ensuing litigation, no defense of or other argument based upon official immunity, whether absolute, qualified, or of any other kind or degree whatsoever, shall be allowed.

And if the jury determines that such actual or attempted search, seizure, arrest, or other assault or detention was unlawful, then each and every individual who counseled, authorized, planned, or participated in such actual or attempted search, seizure, arrest, or other assault or detention shall be personally liable, jointly and severally, for all damages suffered by the individual who exercised his or her right of self-defense, as well as for all reasonable attorney’s fees, expenses, and other costs which that individual incurred in litigating the question of the unlawfulness of the actual or attempted search, seizure, arrest, or other assault or detention. Provided, that no portion of any damages, attorney’s fees, expenses, or other costs imposed upon any individual under this subsection shall be paid by any public treasury, office, fiscal agent, or other authority of the State or any political subdivision thereof; nor shall any such public treasury, office, fiscal agent, or other authority reimburse or make whole any such individual, either directly or through insurance, guarantee, surety, or any other third-party payment, for any such damages, attorney’s fees, expenses, or other costs

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published at NewsWithViews.com on May 21, 2011.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

Death Squads—Part I

March 28, 2011/0 Comments/in Commentary, Dr. Edwin Vieira Commentary /by Inter-American

Recently, one of the General Government’s District Court Judges dismissed a lawsuit that challenged the purported authority of the President to order the assassination overseas of American citizens whom someone in the Executive Branch has categorized as a dangerous “terrorist”. The Judge ruled that the plaintiff, being only the father of the threatened victim, rather than the victim himself, lacked “standing” to prosecute the suit, and that in any event the issue involved a “political question” that could not be adjudicated in court. So the underlying claim was not decided, one way or the other.

The judicial dodge of denying “standing” to people who raise contentions that are extremely embarrassing to rogue officials in the General Government has become all-too-familiar these days—particularly in lawsuits and other proceedings that raise challenges to the qualifications of Barak Obama for the office of President. But in this case, not merely usurpation, but nothing less than murder is the ultimate issue. Which, one might have imagined, should have given even the most legally dim-witted and morally obtuse judge serious cause for concern that perhaps the matter was not just a “political question”.

Rather than analyzing the some eighty-three pages of this particular Judge’s opinion, though, I shall simply lay out some of the principles on which any honest and competent jurist would not only find “standing” in a case such as this, but also declare the claims of the Executive Branch to be unconstitutional.

1. The basic assertion from the Executive Branch is that the President, in his capacity as “Commander in Chief” during “the war on terror”, enjoys the inherent power, by himself or through his subordinates, to identify certain American citizens as extremely dangerous “terrorists”, and on the basis of that determination to order operatives of the General Government to assassinate those Americans wherever they may be found in foreign venues. Furthermore, the exercise of this purported power: (i) is not dependent upon any prior judicial determination that an individual targeted for execution is guilty of any crime punishable by death, or that the individual could not be apprehended and made to stand trial in some court; and (ii) is not subject to any other kind of judicial review, either before or after the execution takes place. Indeed, because many of the supposed facts on which a determination of an individual’s status as a “terrorist” certainly will be claimed to be “state secrets”, meaningful judicial review either ex ante or ex post would routinely be impossible as a matter of practice. In addition, inasmuch as the Constitution does not limit the exercise of the powers of the “Commander in Chief” (whatever they may be) to foreign venues only, no reason can be found why the supposed authority to execute certain Americans outside of any judicial process, if it does exist at all, cannot be exercised within the United States proper, even on the lawn of the White House itself. After all, if an American “terrorist” who might be apprehended in Afghanistan may nonetheless simply be assassinated there, because some bureaucrat in the Executive Branch considers the latter course of action more efficient than the former, then why should not an American “terrorist” operating within the United States also simply be executed out of hand, for the same eminently practical reason? So, in its fullest statement, the President’s contention is that he enjoys judicially unreviewable discretion—acting either by his own hand or by the hands of his minions—to assassinate, anywhere in the world and presumably by whatever means may prove effective, any American citizen whom someone in the Executive Branch, whose identity may never be disclosed, has identified as a dangerous “terrorist” by some process and on the basis of some purported evidence that in its most important particulars may forever remain secret.

2. This stark statement of the issue settles the question of “standing”. For, on this statement, any American—and certainly every American who, for whatever reason, may run politically afoul of the Executive Branch or of some subversive private organization with malign influence over the Executive Branch—is potentially the victim of an “official” assassination, the real reason for which can easily be disguised behind some fictional, or perhaps merely erroneous, assertion that the victim is a “terrorist”. Because the process and criteria for selection of an individual for “official” assassination are largely secret, one cannot predict who these victims will be, until they are killed and someone from the Executive Branch admits to complicity in the deed. But, self-evidently, once a victim has been executed, an injury irreparable by judicial process will have occurred. So, if the courts are to enforce the constitutional mandate of the Fifth Amendment that “[n]o person shall * * * be deprived of life * * * without due process of law”—with proper emphasis on the word “[n]o”—then they must entertain at least one suit by one American to determine the legality of the power the President claims, before that individual—or anyone else—is actually assassinated. Which means that the very first lawsuit meeting the standard requirements for personal jurisdiction and venue should be heard on the merits. (Of course, this would not guarantee that the issue would be decided correctly, the Bench being overrun by one Judge Flapdoodle after another in every jurisdiction throughout the federal system. But at least it would move the process of inquiry ahead under public scrutiny.)

Prudential considerations compel the same result. The doctrine of “standing” is mostly the bastard contrivance of individual judges, in the formulation and application of which the personality on the Bench rather than any fixed and certain legal principle usually decides the outcome. As such, the doctrine of “standing” is wholly nonscientific—being both unverifiable and unfalsifiable. Yet, in this case, that is no demerit. Rather, it is an advantage. Because, here, a clever judicial wordsmith could easily concoct out of bits and snippets extracted from hundreds of other judicial opinions his own decision in favor of “standing”. And although other jurists and lawyers might disagree with his conclusion, who could declare him to be wrong in any objective sense? No one. He would, as well, be quite right morally. Because, having found “standing”, he could at least temporarily enjoin the continuation of the program of “official” assassinations, until the Judiciary could pass on the question after plenary consideration, thereby preventing who could predict how many irretrievable violations of the Fifth Amendment. Eventually, higher courts might overrule him, licensing the assassins to proceed. But then the blood would encarnadine those judges’ hands, not his.

If they were honest in their claim of constitutional authority, the President and his agents in the General Government, too, would themselves encourage this result, so as to find out exactly where they stand legally. For if “official” assassinations committed anywhere within the United States are unconstitutional, then both the assassins and their principals are criminals for whose transgressions the penalty may be death. For just one example, Title 18 of the United States Code provides as follows:

§ 241. Conspiracy against rights.
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, * * * or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

§ 242. Deprivation of rights under color of law.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, * * * shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, * * * or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Moreover, the victims of attempted unconstitutional “official” assassinations would, in the exercise of their natural right of self-defense, be entitled to resist their assailants with deadly force. Which means that, in an environment in which any agent of the General Government might secretly be engaged in an “official” assassination on American soil, against which the Judiciary refused to protect the citizenry, any American—and certainly any political dissident—could reasonably and justifiably resist any government agent with deadly force at any time, because the victim would have no way of knowing whether that particular agent’s assault was actually a “hit” disguised as some kind of supposedly valid “law enforcement”. Too many contemporary Americans may be sheep willing to be shorn; but it is unlikely that more than a few of them are sheep willing to be slaughtered after they finally realize that such is the shepherd’s intention, and are exposed to some examples of his bloody handiwork. And having publicly espoused the position that they may with impunity kill any American for secret (and judicially unreviewable) reasons at any time, agents of the General Government could hardly complain if every American took them at their word, and defended himself accordingly.

Obviously, to allow a situation of this kind to degenerate into widespread violence would verge on madness. So, any judge’s invocation of the “standing” ruse to derail timely litigation of this issue is more than merely intellectually indefensible and morally irresponsible. Unless the judge can successfully invoke the defense of insanity on his own behalf, his misuse of the “standing” doctrine amounts as well to his complicity in—and at least equal culpability for—whatever crimes may be perpetrated in the course of any attempted “official” assassinations. For part two click below.

Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.

This article was originally published originally published at NewsWithViews.com on December 10, 2010.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.