Constitution 101: Fourth Amendment Prevents Government From Asking

With all the recent publicity in the U.S. media with respect to the Pentagon's stances on the "Don't Ask, Don't Tell" policy, and domestic differences of opinion in the McCain household which also have recently made the mainstream broadcast media for their spins, it has amazed this Constitutional Conservative American just how far afield this "discussion" and polling has gone, and just whose opinions are being sought - rather than our framers and founders.

It seems pretty clear to me that the Fourth Amendment actually PREVENTS the government from asking, but not the gay community from telling if they so desire. It is there and was given to protect the privacy of Americans in such a matter clearly as their sexual preferences and orientations, and the government has no business knowing such information with the exception of those who may eventually be serving active duty in some foreign engagement where there might be housing concerns.

And I guess if we would get over our addiction to pre-emptive and aggressive wars instead of defensive wars only, this would be a non-issue really to begin with.

But such "news" doesn't make the headlines. Or the schoolrooms, it appears, on absolutely any level whatsoever anymore.

And if there wasn't already adequate proof that our grammar school, high school and college curriculums could use major adjustments in that area, rather than the "science and technology" fields and teaching kids how to use a computer, rather than to think, this issue makes it crystal clear just where our schools have deliberately "dumbed down" our kids, our Pentagon officials, those serving on Capitol Hill, our newscasters and print journalists.

Maybe all the McCains could get behind this one.

Or not.

America: Returning To Constitutional Representative Government Again

Since Barack Obama assumed the Office of Presidency in January, there has been much activity going on in Washington in attempt to reportedly "fix" the economic and other problems which were facilitated under the former Bush administration and salve the discontent in the United States that the majority of the citizens now have with the goings on in our nation's capitol.

While Obama has been on whirlwind tours of the United States and Europe promoting his economic solutions, and throwing money right and left at whatever fire springs up (such as the GM bailouts, and his "foreclosure" solutions), his policies have left much to be desired and actually have further sunk this country into an economic quagmire without truly addressing any of the problems which lead to this.

Self-serving politicians who have consistently for decades acted for their own political interests and benefactors, rather than the Constitution and citizens of the nation in their proscribed duties and functions.

It is difficult in this day and age to get elected to state of federal offices without a huge campaign war chest. This was not so in prior generations and it got me to investigating just why, particularly in this last half century, most campaign elections have become more and more costly, and yet less and less effective in bringing about any true change in governmental policies, or even sound and Constitutional government.

And the answers I found were actually quite simple and enlightening.

You cannot have a true Constitutional Republic and "representative" government when those "representatives" are not "representatives" of the districts of citizens they are elected to represent.

And this has been the case now for well over seventy-five years.

How did this distortion of our true intended form of representative government come about?

By veering from the "intended" provisions of the founders of the country in the election of the leaders at both the state and federal levels. Although not "written in stone" in the Constitution, it was a very simple restriction and gentlemen's agreement that the founders felt didn't even bear inclusion in the Constitution at all, since it was assumed within the framework of the document itself.

Any and all donations to candidates running for elective office for any seat in any public service position throughout the country would necessarily have to be both a resident of the district in which he represented, and also restricted to financing and promotion by only those living within his respective district.

In other words, a candidate could not accept any sponsorship or donations from outside his legislative district, in order that he truly was a representative of his constituency within that district.

And returning to those "legal" yet unstate provisions once again would turn help also dilute the influence of the "corporate" and special interest groups that reside on K Street and hang around the Halls of Congress with their hands out seeking their "corporate" welfare on the backs of the American people rather than working for a living.

Such as those now in the energy and health care field, and Wall Street, who are looking for handouts at the American public's expense, when they have already made a good portion of the population right now literally homeless and jobless.

Congress had no inherent authority to institute "campaign finance" laws at all, other than to restate the obvious: Any and all candidates for federal or state office must both reside in their districts, and were precluded from accepting ANY outside donations other than from those in their own representative district. And for any and all "corporate" donations (which were precluded since "corporations" were not people actually at all), then the address of the principal or statutory office would be used as their district.

Wake up, America. These Congressman and Senators have been accepting unlawful campaign donations and been in violation of the true campaign finance laws for literally decades, in order to pick and choose which industries will benefit them personally the most and ensure their political survival.

And rewinding to the "intent" within the framework of our Constitution, might just bring about true change, rather than the Obama (Bush in drag) version.

Father Of The Bill Of Rights: Patrick Henry's Virginia Assembly Speech 1788

June 16, 1788: Patrick Henry demands and gets a Bill of Rights
Virginia Ratification Convention ^ | June 16, 1788 | Patrick Henry


Mr. HENRY. Mr. Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before.


... Let us consider the sentiments which have been entertained by the people of America on this subject. At the revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.


When fortified with full, adequate, and abundant representation, was she satisfied with that representation? No. She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges, which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon.


She is called upon now to abandon them, and dissolve that compact which secured them to her. She is called upon to accede to another compact, which most infallibly supersedes and annihilates her present one. Will she do it? This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.


How were the congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great Britain? The states were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the states, respectively, which was not given up to the government of the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.

Your own example furnishes an argument against it. If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control. And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman.

When our government was first instituted in Virginia, we declared the common law of England to be in force.

That system of law which has been admired, and has protected us and our ancestors, is excluded by that system. Added to this, we adopted a bill of rights.
By this Constitution, some of the best barriers of human rights are thrown away. Is there not an additional reason to have a bill of rights?


By the ancient common law, the trial of all facts is decided by a jury of impartial men from the immediate vicinage. This paper speaks of different juries from the common law in criminal cases; and in civil controversies excludes trial by jury altogether. There is, therefore, more occasion for the supplementary check of a bill of rights now than then.


Congress, from their general, powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by.


But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our bill of rights? — "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more you depart from the genius of your country. That paper tells you that the trial of crimes shall be by jury, and held in the state where the crime shall have been committed. Under this extensive provision, they may proceed in a manner extremely dangerous to liberty: a person accused may be carried from one extremity of the state to another, and be tried, not by an impartial jury of the vicinage, acquainted with his character and the circumstances of the fact, but by a jury unacquainted with both, and who may be biased against him. Is not this sufficient to alarm men? How different is this from the immemorial practice of your British ancestors, and your own! I need not tell you that, by the common law, a number of hundredors were required on a jury, and that afterwards it was sufficient if the jurors came from the same county. With less than this the people of England have never been satisfied. That paper ought to have declared the common law in force.


In this business of legislation, your members of Congress will loose the restriction of not imposing excessive fines, demanding excessive bail, and inflicting cruel and unusual punishments. These are prohibited by your declaration of rights. What has distinguished our ancestors? — That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany — of torturing, to extort a confession of the crime.


They will say that they might as well draw examples from those countries as from Great Britain, and they will tell you that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity.


We are then lost and undone.


And can any man think it troublesome, when we can, by a small interference, prevent our rights from being lost? If you will, like the Virginian government, give them knowledge of the extent of the rights retained by the people, and the powers of themselves, they will, if they be honest men, thank you for it. Will they not wish to go on sure grounds? But if you leave them otherwise, they will not know how to proceed; and, being in a state of uncertainty, they will assume rather than give up powers by implication.


A bill of rights may be summed up in a few words. What do they tell us? — That our rights are reserved. Why not say so? Is it because it will consume too much paper? Gentlemen's reasoning against a bill of rights does not satisfy me. Without saying which has the right side, it remains doubtful. A bill of rights is a favorite thing with the Virginians and the people of the other states likewise. It may be their prejudice, hut the government ought to suit their geniuses; otherwise, its operation will be unhappy. A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute. In the present Constitution, they are restrained from issuing general warrants to search suspected places, or seize persons not named, without evidence of the commission of a fact, &c. There was certainly some celestial influence governing those who deliberated on that Constitution; for they have, with the most cautious and enlightened circumspection, guarded those indefeasible rights which ought ever to be held sacred!


The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained Within proper bounds.


With respect to the freedom of the press, I need say nothing; for it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity. They should, from prudence, abstain from violating the rights of their constituents. They are not, however, expressly restrained. But whether they will intermeddle with that palladium of our liberties or not, I leave you to determine."



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Hence, the "common law" at the time of the ratification which had stood for literally centuries with respect to civil and criminal laws, trials by juries, search and seizure, fines & punishments, etc., which England had at that time abandoned, was what Patrick Henry was referring to. That the 'common" or "natural" laws were pre-emiment when it came to individual citizens rights, and absolutely needed to be set forth in the U.S. Constitution, as it was in the Virginia Articles of Confederation at the time, or he would not sign it. And he and George Mason were the two that insisted the most vocally, and were responsible for that first ten amendments which were promised if either gave their support at the final ratification as the first order of business, so as to also comply with the State of Virginia and other states already existing state "constitutions" which were drafted at the time of the Declaration of Independence and prior to the Revolutionary War or at that time "Articles of Confederation."


And notice what he has to say about trials by juries, the authority of the citizen jurists to determine facts and law, search and seizures, free speech as fundamental natural and God given "rights" under the common and natural law, and not to be ursurped or abridged by either the state or federal governments for ANY purpose as inviolate.

I wonder. It wouldn't appear that Sonia Sotomayor has the same understanding of the Bill of Rights and actual "Law" of the land and those Bill of Rights protections as "inviolate" for the people and unalieanble and "set in stone" (not government, nor "corporate") as this lawyer did.

I don't think she referred to the Constitution actually very much at all. Simply judicial and judge (state) made "precedents." With the same lack of understanding and lack of reverence, it would appear, as our current and former President, Congress and Administration.

And would hold more with the countries referred to in "foreign precedent" insofar as the treatment of the prisoners at Guantanamo, and now with Obama, continuing an "unlawful" and "illegal" foreign engagement outside Constitutional authority.

And "treason" of it is the highest criminal offense of all.

James Madison On The "General Welfare Clause"

From the words of the acknowledged "Father of the Constitution" with respect to the phantom "General Welfare" clause cited by both Congress and the Supreme Court as the basis for their continued violation and failures to limit their actions to their designated and proscribed powers:

James Madison had this to say:

"Let there be no change [in the Constitution] by usurpation. For though this, in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands;

they may appoint teachers in every State, county and parish and pay them out of their public treasury;

they may take into their own hands the education of children, establishing in like manner schools throughout the Union;

they may assume the provision of the poor;

they may undertake the regulation of all roads other than post-roads;

in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.... Were the power of Congress to be established in the latitude contended for,

it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."

U.S. Constitution is De Facto Law of the Land

Below is an excerpt from the Sixteenth American Jurisprudence, Second Edition, Section 256, which affirms that the U.S. Constitution, unless and until LAWFULLY amended as contained within it's express provisions, is a contract between the federal and state government and it's people, and the defacto Law of the Land.

As a contract itself and in spite of U.S. history almost from the moment it was ratified by the 13 original colonies, any and all interpretations or applications of the provisions contained within it under the "common law" upon which contract law is based according to the Magna Carta (used by the founders in their deliberations) by any and all judicial authorities at both the state and federal level is to be done using the "common useage" English definitions in such interpretations or applications pursuant to "contract law doctrine." The footnote citations relate to U.S. case law which enforces this restatement and can be researched after pulling up the Am.Jur citing for a listing of footnoted case laws at any local law library:

Section 256. Generally.

The general rule is that an unconstitutional statute, whether federal [29] or state, [30] though having the form and name of law, is in reality no law, [31] but is wholly void, [32] and ineffective for any purpose; [33] since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, [34] an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. [31] Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. [36] No repeal of such an enactment is necessary. [37]

Since an unconstitutional law is void, the general principles follow that it imposes no duties, [38] confers no rights, [39] creates no office, [40] bestows no power or authority on anyone, [41] affords no protection, [42] and justifies no acts performed under it. [43] A contract which rests on an unconstitutional statute creates no obligation to be impaired by subsequent legislation. [44]

No one is bound to obey an unconstitutional law [45] and no courts are bound to enforce it. [46] Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines paid. [47]

A void act cannot be legally inconsistent with a valid one. [48] And an unconstitutional law cannot operate to supersede any existing valid law. [49] Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. [50] Since an unconstitutional statute cannot repeal or in any way affect an existing one, [51] if a repealing statute is unconstitutional, the statute which it attempts to repeal remains in full force and effect. [52] And where a clause repealing a prior law is inserted in an act, which act is unconstitutional and void, the provision for the repeal of the prior law will usually fall with it and will not be permitted to operate as repealing such prior law. [53]

The general principles stated above apply to the constitutions as well as to the laws of the several states insofar as they are repugnant to the Constitution and laws of the United States. [54] Moreover, a construction of a statute which brings it in conflict with a constitution will nullify it as effectually as if it had, in express terms, been enacted in conflict therewith. [55]

An unconstitutional portion of a statute may be examined for the purpose of ascertaining the scope and effect of the valid portions. [56]

The numbers in [brackets] are footnotes that refer to court decisions. You can look them up in the American Jurisprudence at any law library.

Juries in the United States have the right and power to judge the law as well as the facts. This means that a jury can acquit a defendant for any reason or none and need not give any reason for it's decision. Therefor bad statutes that are unconstitutional or immoral can be set aside, or good laws that are misapplied can be ignored. This is called "jury nullification."