Sunday, April 26, 2009

Constitutional Questions

This one is for the Legal minds among us. (Chessnovice, come on by!).

Under the Bush Administration, "Torture," against a violent Non-Governmental Organization named Al-Queda, a non-signatory to the Geneva Convention on Torture, was considered legal.

Now, with the Obama Administration wishing to Prosecute the Bush Administration, I was pointed back to the Constitution itself.

As someone who reads Patriots by AJ Langguth every July 4th, I understand their worry of a Centralized Government, hence the Articles of Confederation. Earlier in this Blog, I asked Democrats if they wanted to go back to the Articles under President Bush -- after 2009, Democrats love, love, love the Electoral College and Expansion of Powers for a Democratic President. That is, what I believe, situational ethics. The Government is to be respected when Democrats are in power, according to the Democrats in the past 8 years.

The Founding fathers were smarter then any Modern Administration. Why? Look at Article 1, Section 9, Clause 3. Smart men. We should be humble before them

Let's break it down:

We go to Article I. It discusses the role of the Legislative Branch. Like all who are wary of Centralized Power, it helps to emphasize the Branch closest to the American People. The House runs every Two years, Senators run every subsequent 6 years. The people vote for this Branch Every Election. The Founders knew what they were doing.

Now, section 9: Power has limits. The Founders gave many powers to the Legislative (Check section 8) they did not give to the Executive. However, they limited the power of the Legislature as well. The Legislative Branch might be close to the American public, but they worked on keeping it away from Mob Rule. I'm still smiling.

Finally Clause 3: Obama Administration, please read this;

No Bill of Attainder or ex post facto Law shall be passed.

What does that mean?

A) Bill of Attainder: A legislative act that singles out an individual or group for punishment without a trial. (h/t: Tech law Journal) Simply put, if Congress writes a law that everyone with freckles should be jailed, the legislature is wrong.

B) Ex Post Facto: Term used to designate action taken to change the effect given to a set of circumstances. This action relates back to a prior time and places this new effect upon the same set of circumstances existing at that time. (h/t: Electric Law Library). Which means if alcohol is legal Monday and prohibited Friday, you do not go to jail for selling it on Monday through Thursday. The law changed on Friday.

That was my statement, now here are the questions:

1) Is the Obama Administration breaking Article 1, Section 9, clause 3 by going after the Bush Administration for the (supposed) change in "Torture," policy?

2) What was the precedent for Article 1, Section 9, clause 3? I am looking for the Historical story, links are welcome.

3) Do Supranational agreements trump American laws? Why or why not?

4) What, if any, Constitutional laws were broken by the Bush Administration? Was there any legal or historical precedent?

5) Argue why or why not the Obama Administration should continue with the idea of Prosecutions. I'd like to see case references.

Court is in session.

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  1. In regards to your third question related to supranational agreements, my answer as a layman is as follows.

    I would argue that the opinion in the 1884 Head Money Cases, written by Justice Samuel Freeman Miller afirmed that international treaties to which the United States was a party possessed the force of law within the American legal system. American law accords treaties the same status as any Act of Congress.

    A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that, with all this, the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.

    A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

    But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

    A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

    In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.
    Head Money Cases
    , 112 U.S. 580 (1884).

    I will address yoor other questions in subsequent comments.

  2. Written by Chessnovice:

    Turning to your second point I would argue that the Obama administration has not yet contravened the Ex Post Facto clause contained in Article 1 section 9 of the Constitution.

    The holdings of the the Supreme Court on this issue have been remarkably consistent. The high has always adopted a narrow interpretation of the clause even the Warren Court which was characterized as an "activist" court applied a restrictive reading of the clause. A reaading which upheld Justice Chase's view.

    I would assert that Justice Chase's view of an Ex Post Facto law as illustrated in Calder v Bull 3 U.S. 386 (Dall.) (1798) serves not only as the foundation for the interpretation of the clause but, sets the standard by which future cases concerning ex post facto laws have been adjudicated.

    I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME. The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principles of Government. Calder v Bull 3 U.S. 386 (Dall.) (1798).

    Time will tell whether the Obama Administration has violated the clause. however, I would argue that it is too early to determine the answer to that question beyond a reasonable doubt.

  3. Having said that the Obama administration has shifted its public position to a more moderate stance and temperate stance.

    I doubt that the talk of holding officials in the previous administration accountable for their actions is unlikely given the atance taken by the administration in Bostan v Obama.In light of this position, if the administration undertook a prosecution of Bush Administration for their acts, the Obama Administration could face a broadside of criticism from Congress and the Courts for their hypocritical behavior.


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