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TRADING WITH THE ENEMY

The United States Government officially declared war on the American people with the passing of the "Trading With The Enemy Act", the enemy being them. . .naturally.

Since its passage in 1917, coupled with The First War Powers Act in 1941, replete with countless Executive Orders, and other notable tyrannical laws bolstering same, it does seem currently that after 93 some odd years, the American people are somewhat, if ever so slightly, starting to become aware of that fact.

Trading with the Enemy Act - 1917 - USA: http://youtu.be/C-AbPCG2sJQ

Unconstitutional Federal Laws

Scary, huh? The presence of extra nodes in a flow-chart means that there are more "loopholes" for unconstitutional legislation to slip through. Perhaps that explains the next few pages, which consist of laws passed by Congress that abridge freedom of speech or of the press. They are, perhaps, the ultimate proof that the real First Amendment isn't the one in the Constitution.

Incidentally, as you peruse these laws, you may find yourself in agreement with some of them from a policy standpoint - I know I do. But if the First Amendment is real, then these laws simply cannot exist at the Federal level; if they are to exist at all, they must be passed by State legislatures. Impractical? Yes. But impracticality is a price the 1791 First Amendment commands we pay.

10 U.S.C. §772 When wearing . . . authorized(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.

17 U.S.C. §108 Limitations on exclusive rights(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work . . .

17 U.S.C. §111 Limitations on exclusive rights . . .(e) Nonsimultaneous Secondary Transmissions by Cable Systems. -

(1) Notwithstanding those provisions of the second paragraph of subsection (f) relating to nonsimultaneous secondary transmissions by a cable system, any such transmissions are actionable as an act of infringement under section 501, and are fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, unless -

(A) the program on the videotape is transmitted no more than one time to the cable system's subscribers; and

(B) the copyrighted program, episode, or motion picture videotape, including the commercials contained within such program, episode, or picture, is transmitted without deletion or editing; and

(C) an owner or officer of the cable system (i) prevents the duplication of the videotape while in the possession of the system, (ii) prevents unauthorized duplication while in the possession of the facility making the videotape for the system if the system owns or controls the facility, or takes reasonable precautions to prevent such duplication if it does not own or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to clause (2),erases or destroys, or causes the erasure or destruction of, the videotape; and

(D) within forty-five days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to clause (2), to the erasure or destruction of all videotapes made or used during such quarter . . .

17 U.S.C. §601 Manufacture . . . of certain copiesPrior to July 1, 1982 . . . the importation into or public distribution in the United States of copies of a work consisting preponderantly of nondramatic literary material that is in the English language and is protected under this title . . . is prohibited unless the portions consisting of such material have been manufactured in the United States or Canada. [exceptions and clarifications follow]

17 U.S.C. §1002 Incorporation of copying controls(a) Prohibition on Importation, Manufacture, and Distribution. - No person shall import, manufacture, or distribute any digital audio recording device or digital audio interface device that does not conform to -

(1) the Serial Copy Management System;

(2) a system that has the same functional characteristics as the Serial Copy Management System and requires that copyright and generation status information be accurately sent, received, and acted upon between devices using the system's method of serial copying regulation and devices using the Serial Copy Management System; or

(3) any other system certified by the Secretary of Commerce as prohibiting unauthorized serial copying . . .

18 U.S.C. §596 Polling armed forcesWhoever, within or without the Armed Forces of the United States, polls any member of such forces . . . either before or after he executes any ballot under any Federal or State law, with reference to his choice of or his vote for any candidate, or states, publishes, or releases any result of any purported poll taken from or among the members of the Armed Forces of the United States or including within it the statement of choice for such candidate or of such votes cast by any member of the Armed Forces of the United States, shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

18 U.S.C. §605 Disclosure of names of persons on reliefWhoever, for political purposes, furnishes or discloses any list or names of persons receiving compensation, employment or benefits provided for or made possible by any Act of Congress appropriating, or authorizing the appropriation of funds for work relief or relief purposes, to a political candidate, committee, campaign manager, or to any person for delivery to a political candidate, committee, or campaign manager; and

Whoever receives any such list or names for political purposes -

Shall be fined not more than $1,000 or imprisoned not more than one year, or both.

18 U.S.C. §709 False advertising or misuse of namesWhoever, except with the written permission of the Director of the Federal Bureau of Investigation, knowingly uses the words 'Federal Bureau of Investigation' or the initials 'F. B.I.', or any colorable imitation of such words or initials, in connection with any advertisement, circular, book, pamphlet or other publication, play, motion picture, broadcast, telecast, or other production, in a manner reasonably calculated to convey the impression that such advertisement, circular, book, pamphlet or other publication, play, motion picture, broadcast, telecast, or other production, is approved, endorsed, or authorized by the Federal Bureau of Investigation . . . [s]hall be punished as follows: a corporation, partnership, business trust, association, or other business entity, by a fine of not more than $1,000; an officer or member thereof participating or knowingly acquiescing in such violation or any individual violating this section, by a fine of not more than $1,000 or imprisonment for not more than one year, or both.

18 U.S.C. §793 Gathering, transmitting, or losing defense informationWhoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.

18 U.S.C. §794 Gathering or delivering defense informationWhoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates . . . or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country . . . any document, writing, . . . or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.

18 U.S.C. §1302 Mailing lottery tickets or related matterWhoever knowingly . . . delivers by mail . . . [a]ny circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance . . . or [a]ny newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of any such lottery . . . [s]hall be fined not more than $1,000 or imprisoned not more than two years, or both; and for any subsequent offense shall be imprisoned not more than five years.

18 U.S.C. §1304 Broadcasting lottery informationWhoever broadcasts by means of any radio station for which a license is required . . . or . . . knowingly permits the broadcasting of, any advertisement of or information concerning any lottery . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Each day's broadcasting shall constitute a separate offense.

18 U.S.C. §1381 Enticing desertion . . .Whoever . . . attempts . . . to entice . . . any person in the Armed Forces of the United States, or who has been recruited for service therein, to desert therefrom . . . [s]hall be fined not more than $2,000 or imprisoned not more than three years, or both.

18 U.S.C. §1462. Importation or transportation of obscene matters Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce -

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful -

Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

This was bad enough, but the Telecommunications Act of 1996 ("the Act") amended the preceding as follows:

SEC. 507. CLARIFICATION OF CURRENT LAWS REGARDING COMMUNICATION OF OBSCENE MATERIALS THROUGH THE USE OF COMPUTERS. (a) IMPORTATION OR TRANSPORTATION- Section 1462 of title 18, United States Code, is amended -- (1) in the first undesignated paragraph, by inserting `or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)' after `carrier'; and (2) in the second undesignated paragraph -- (A) by inserting `or receives,' after `takes'; (B) by inserting `or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)' after `common carrier'; and (C) by inserting `or importation' after `carriage'.

Seems innocuous, until you put 2 and 2 together. As amended by Section 507(a) of the Act, 18 U.S.C. §1462(c) now reads as follows:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or other interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce -

* * * (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or a notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

whoever knowingly takes or receives from such express company or other common carrier or other interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), any matter or thing the carriage or importation of which is herein made unlawful -

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

What's interesting is that under 18 U.S.C. §3559(a), violation of 18 U.S.C. §1462 is a Class D felony. And under 18 U.S.C. §3571(b), the fines for individuals for violating 18 U.S.C. §1462 may be up to $250,000; under 18 U.S.C. §3571(c), the fines for organizations for violating 18 U.S.C. §1462 may be up to $500,000.

Section 507 (c) of the Act states:

The amendments made by this section are clarifying and shall not be interpreted to limit or repeal any prohibition contained in sections 1462 and 1465 of title 18, United States Code, before such amendment, under the rule established in United States v. Alpers, 338 U.S. 680 (1950).

Consequently, Congress explicitly indicated its intent to leave in force all the pre-existing provisions of 18 U.S.C. §1462.

In other words, giving out abortion information over the Internet, as of 1996, is illegal. Wow!

18 U.S.C. §1463 Mailing indecent matter . . .All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, and all postal cards upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene character are written or printed or otherwise impressed or apparent, are nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postal Service shall prescribe.

Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable matter, or knowingly takes the same from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. §1464 Broadcasting obscene languageWhoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.

18 U.S.C. §1696 Private express for letters and packets(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town, or place, between which the mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both.

18 U.S.C. §2386 Registration of certain organizationsThe following organizations shall be required to register with the Attorney General:

Every organization, the purpose or aim of which, or one of the purposes or aims of which, is the establishment, control, conduct, seizure, or overthrow of a government or subdivision thereof by the use of force, violence, military measures, or threats of any one or more of the foregoing.

Every registration statement required to be filed by any organization shall contain the following information and documents . . . [a] copy of each book, pamphlet, leaflet, or other publication or item of written, printed, or graphic matter issued or distributed directly or indirectly by the organization, or by any chapter, branch, or affiliate of the organization, or by any of the members of the organization under its authority or within its knowledge, together with the name of its author or authors and the name and address of the publisher . . .

Whoever violates any of the provisions of this section shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. §2702 Disclosure of contents(a) Prohibitions. - Except as provided in subsection (b) -

(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and

(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service . . .

18 U.S.C. §2709 Counterintelligence access . . .(a) Duty to Provide. - A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section. . . .

(c) Prohibition of Certain Disclosure. - No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

22 U.S.C. §614 Filing and labeling of political propagandaIt shall be unlawful for any person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter to transmit or cause to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any political propaganda for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be, or which he intends to be, disseminated or circulated among two or more persons, unless such political propaganda is conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in such political propaganda, setting forth the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda . . .

23 U.S.C. §131 Control of Outdoor Advertising(a) The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty. . . .

(c) Effective control means that such signs, displays . . . if located within six hundred and sixty feet of the right-of-way . . . located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, displays, and devices, including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, or historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required.

Note: This law seemingly prohibits highway signs pertaining to political speech!

36 U.S.C. §172 Pledge of allegiance to the flag; manner of deliveryThe Pledge of Allegiance to the Flag, "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.", should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.

[Historical note: the war with Germany in 1942 (and the familiar salute rendered by the Germans to "Der Fuhrer" during that war) led to the following change from the original text of the statute: on December 22, 1942, the following words were deleted from the instructions about the way to show respect for the flag: "extending the right hand, palm upward, toward the flag and holding this position until the end, when the hand drops to the side". See 36 U.S.C.S. §172, pp. 141-2 (1982).]

36 U.S.C. §176 Respect for flagNo disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing . . .

(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature. . . .

(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.

(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. . . .

(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

Contrast this with the following statute:

18 U.S.C. §700 Desecration of the flag of the United States; penalties(a) (1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled. . . .

(d) (1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).

(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible.

36 U.S.C. §410 Propaganda activities prohibitedNo part of the activities of the corporation shall consist of carrying on propaganda.

40 U.S.C. §13k Parades or assemblages. . .It shall be unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display therein any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement.

47 U.S.C. §227 Fax equipment(a) (2) The term "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images; or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from electronic signal received over a regular telephone line onto paper.

(d) (1) Prohibition. It shall be unlawful for any person within the United States -

(A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any automatic telephone dialing system, that does not comply with the technical and procedural standards prescribed under this subsection, or to use any telephone facsimile machine or automatic telephone dialing system in a manner that does not comply with such standards; or

(B) to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.

(2) Telephone facsimile machines. The Commission shall revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such machine which is manufactured after one year after the date of enactment of this section clearly marks, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the message, and the telephone number of the sending machine or of such business, other entity, or individual.

[This law prohibits anonymous transmission by fax. Supposely, laws preventing anonymity are unconstitutional. At least, that's what the Court said in Talley v. State of California, 362 U.S. 60 (1960). In that incorporated Fourteenth Amendment case, Judge Black stated that:

The question presented here is whether the provisions of a Los Angeles City ordinance restricting the distribution of handbills 'abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution.' The ordinance, §28.06 of the Municipal Code of the City of Los Angeles, provides:

No person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following:

(a) The person who printed, wrote, compiled or manufactured the same.

(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said hand-bill shall also appear thereon. [1]

As Black noted,

There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value'. Lovell v. City of Griffin, 303 U.S. at page 452 . . .

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.[2]

It is ironic that a municipality is prohibited from abridging speech in this manner, in the absence of an express Constitutional prohibition, while Congress is not prohibited, in the presence of an express Constitutional prohibition.]

47 U.S.C. §228 Regulation of carrier offering of pay-per-call services(a) Purpose. It is the purpose of this section-

(l) to put into effect a system of national regulation and review that will oversee interstate pay-per-call services; and

(2) to recognize the Commission's authority to prescribe regulations and enforcement procedures and conduct oversight to afford reasonable protection to consumers of pay-per-call services and to assure that violations of Federal law do not occur. . . .

47 U.S.C. §303a Standards for children's television programming(b) Advertising duration limitations

Except as provided in subsection (c) of this section, the standards prescribed under subsection (a) of this section shall include the requirement that each commercial television broadcast licensee shall limit the duration of advertising in children's television programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays.

47 U.S.C. §317 Announcement of payment for broadcast(1) All matter broadcast by any radio station for which any money, service or other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person . . .

(2) Nothing in this section shall preclude the Commission from requiring that an appropriate announcement shall be made at the time of the broadcast in the case of any political program or any program involving the discussion of any controversial issue for which any films, records, transcriptions, talent, scripts, or other material or service of any kind have been furnished, without charge or at a nominal charge, directly or indirectly, as an inducement to the broadcast of such program.

47 U.S.C. §335 Direct Broadcast Satellite Service Obligations(b) (1) Channel capacity required. The Commission shall require, as a condition of any provision, initial authorization, or authorization renewal for a provider of direct broadcast satelhte service providing video programming, that the provider of such service reserve a portion of its channel capacity, equal to not less than 4 percent nor more than 7 percent, exclusively for noncommercial programming of an educational or informational nature. . . .

47 U.S.C. §399 Editorializing . . . prohibited(a) No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office. . . .

[This law was declared unconstitutional in F.C.C. v. League of Women Voters, 468 U.S. 364 (1984). According to the Court, "§399's broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The regulation impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government."[3]

In that supposedly pro-First Amendment decision, the Court rejected the First Amendment's clear directives, and substituted a fake First Amendment exclusion of speech which "take[s] a directly partisan stand".

In any event, Congress took the Court's advice, and four years later replaced the statute with the following:

No noncommercial educational broadcasting station may support or oppose any candidate for political office.

(As amended Nov. 7, 1988, P.L. 100-626, §10, 102 Stat. 3211)

Progress? Perhaps from a policy standpoint, but the new version still unconstitutionally abridges the freedom of speech. When it rains, it pours.

Even worse, the F.C.C. regulation reflecting this law was not changed. What does this mean? Apparently, it means that there are two sets of laws of the books. Instead of one law regulating speech, now we have two. Not only is "editorializing" still prohibited, but so is support or opposition of political candidates.

47 U.S.C. §605 Unauthorized publication . . . Except as authorized by chapter 119, title 18, United States Code [18 U.S.C. §§2510 et seq.] . . . No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is broadcast or transmitted by amateurs or others for the use of the general public . . .

47 U.S.C. §606 War powers of President (c) Suspension or amendment of rules and regulations applicable to certain emission stations or devices. Upon proclamation by the President that there exists . . . a state of public peril [note: no war required, contrary to the title of this statute -- BK] or disaster or other national emergency, or in order to preserve the neutrality of the United States , the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States as prescribed by the Commission, and may cause the closing of any station for radio communication, or any device capable of emitting electromagnetic radiations between 10 kilocycles and 100,000 megacycles, which is suitable for use as a navigational aid beyond five miles, and the removal therefrom of its apparatus and equipment, or he may authorize the use or control of any such station or device and/or its apparatus and equipment, by any department of the Government . . .

Unconstitutional Federal Regulations

Well, that was an enjoyable survey of Federal legislation. Of course, the previous list is not exhaustive. Interested readers are urged to go to the library and take a look at the United States Code themselves, or read it on the Internet (see the Further Reading chapter).

Now we move to a different set of "laws", called "regulations".

These "laws" have two strikes against them (if only two strikes made an out!). They're not only opposed to the First Amendment (if passed by Congress), but also to Article I, Section I. According to that section,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Regulations, alas, are not created by Congress, but by administrative bodies such as the FCC and IRS. Illegal, of course. Remember, in Perry, the Court saw legislative action as "the unilateral promulgation of a rule with continuing legal effect." [1] The long and short of it is that Congress has, for many years, unconstitutionally delegated its legislative power to unauthorized branches. [2]

Strictly speaking then, the following regulations are not "laws", but just words on a page. However you want to characterize them, they're real - and they're doubly unconstitutional.

30 C.F.R §2.7 Identification and markingsThe information security system requires that standard markings be applied to classified information. Except in extraordinary circumstances as provided in section 1.5(a) of the Order, or asindicated herein, the marking of paper and electronically created documents shall not deviate from the following prescribed formats. These markings shall also be affixed to material other than paperand electronically created documents, including file folders, film,tape, etc., or the originator shall provide holders or recipients of the information with written instructions for protecting theinformation.

(b) Unless the portion marking requirement has been waived as authorized, each portion of a document, including subjects and titles, shall be marked by placing a parenthetical designation either immediately preceding or following the text to which it applies. The symbols, '(TS)' for Top Secret, '(S)' for Secret,'(C)' for Confidential, and '(U)' for Unclassified shall be used for this purpose ...

47 CFR §73.1225 Station inspections by FCC(a) The licensee of a broadcast station shall make the station available for inspection by representatives of the FCC during the station's business hours, or at any time it is in operation....

(c) The following records shall be made available by all broadcast stations upon request by representatives of the FCC....

(5) Station logs....

47 CFR §73.1226 Availability to FCC of station logs and recordsThe following shall be made available to any authorized representative of the FCC upon request:

(a) Station records and logs shall be made available for inspection or duplication at the request of the FCC or its representative. Such logs or records may be removed from the licensee's possession by an FCC representative or, upon request, shall be mailed by the licensee to the FCC by either registered mail, return receipt requested, or certified mail, return receipt requested....

47 CFR §73.1212 Sponsorship identification... related requirements(a) When a broadcast station transmits any matter for which money, service, or other valuable consideration is either directly or indirectly paid or promised to, or charged or accepted by such station, the station, at the time of the broadcast, shall announce:

(1) That such matter is sponsored, paid for, or furnished, either in whole or in part, and

(2) By whom or on whose behalf such consideration was supplied...

(ii) In the case of any television political advertisement concerning candidatess for public office, the sponsor shall be identified with letters equal to or greater than four percent of the vertical picture height that air for not less than four seconds.

(d) In the case of any political broadcast matter or any broadcast matter involving the discussion of a controversial issue of public importance for which any film, record, transcription, talent, script, or other material or service of any kind is furnished, either directly or indirectly, to a station as an inducement for broadcasting such matter, an announcement shall be made both at the beginning and conclusion of such broadcast on which such material or service is used that such film, record, transcription, talent, script, or other material or service has been furnished to such station in connection with the transmission of such broadcast matter...

47 CFR §73.1210 TV/FM dual-language broadcasting in Puerto Rico(b) Television broadcast licensees in Puerto Rico may enter into dual-language time purchase agreements with FM broadcast licensees, subject to the following conditions:

(1) All such agreements shall be reduced to writing and retained by the licensee for possible Commission inspection...

(2) All such agreements shall specify that the FM licensee will monitor sound track material with a view to rejecting any material deemed to be inappropriate or objectionable for broadcast exposure.

(3) No television or FM broadcast station may devote more than 15 hours per week to dual-language broadcasting, nor may more than three (3) hours of such programming be presented on any given day.

47 CFR §73.1920 Personal attacks(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the persons or group attacked:

(1) Notification of the date, time and identification of the broadcast;

(2) A script or tape (or an accurate summary if a script or tape is not available) of the attack; and

(3) An offer of a reasonable opportunity to respond over the licensee's facilities.

(b) The provisions of paragraph (a) of this section shall not apply to broadcast material which falls within one or more of the following categories:

(1) Personal attacks on foreign groups or foreign public figures;

(2) Personal attacks occurring during uses by legally qualified candidates,

(3) Personal attacks made during broadcasts not included in paragraph (b) (2) of this section and made by legally qualified candidates, their authorized spokespersons, or those associated with them In the campaign, on other such candidates, their authorized spokespersons or persons associated with the candidates in the campaign; and

(4) Bona fide newscasts, bona fide news interviews, and on-the-spot coverage of bona fide news events, including commentary or analysis contained in the foregoing programs.

(c) The provisions of paragraph (a) of this section shall be applicable to editorials of the licensee, except in the case of noncommercial educational stations since they are precluded from editorializing (section 399 (a), Communications Act).

An interesting sidenote here: In FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court held 47 U.S.C. §399 unconstitutional. That law mandated a prohibition against "editorializing" by noncommercial educational stations. So how come this FCC regulation /law is still on the books?

47 CFR §73.1930 Political editorials(a) Where a licensee, in an editorial,

(1) Endorses or,

(2) Opposes a legally qualified candidate or candidates, the licensee shall, with 24 hours after the editorial, transmit to, respectively,

(i) The other qualified candidate or candidates for the same office or,

(ii) The candidate opposed in the editorial,

(A) Notification of the date and the time of the editorial,

(B) A script or tape of the editorial and

(C) An offer of reasonable opportunity for the candidate or a spokesman of the candidate to respond over the licensee's facilities. Where such editorials are broadcast on the day of the election or within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.

47 CFR §73.1745 Unauthorized operation(a) No broadcast station shall operate at times, or with modes or power, other than those specified and made a part of the license, unless otherwise provided in this part.

(b) Any unauthorized departure from an operating schedule which is required to be filed with the FCC in Washington, D.C, will be considered as a violation of a material term of the licensee.

47 CFR 73.1800 General requirements related to the station log(a) The licensee of each station must maintain a station log as required by §73.1820. This log shall be kept by station employees competent to do so, having actual knowledge of the facts required. All entries, whether required or not by the provisions of this part, must accurately reflect the station operation. Any employee making a log entry shall sign the log, thereby attesting to the fact that the entry, or any correction or addition made thereto, is an accurate representation of what transpired.

(b) The logs shall be kept in an orderly and leglble manner, in suitable form and in such detail that the data required for the particular class of station concerned are readily available. Key letters or abbreviations may be used if the proper meaning or explanation is contained elsewhere in the log. Each sheet must be numbered and dated....

(c) Any necessary corrections of a manually kept log after it has been signed in accordance with paragraph (a) of this section shall be made only by striking out the erroneous portion and making a corrective explanation on the log or attachment to it. Such corrections shall be dated and signed by the person who kept the log or the station chief operator, the station manager or an officer of the licensee.

(d) No automatically kept log shall be altered in any way after entries have been recorded. When automatic logging processes fail or malfunction, the log must be kept manually for that period and in accordance with the requirements of this section.

(e) No log, or portion thereof, shall be erased, obliterated or willfully destroyed during the period in which it is required to be retained....

47 CFR §95.403 Am I eligible to operate a CB station?You are authorized to operate a CB station unless:

(a) You are a foreign government, a representative of a foreign government, or a federal government agency; or

(b) The FCC has issued a cease and desist order to you, and the order is still in effect.

47 CFR §95.412 What communications may be transmitted?(a) You may use your CB station to transmit two-way plain language communications. Two-way plain language communications are communications without codes or coded messages. Operating signals such as "ten codes" are not considered codes or coded messages. You may transmit two-way plain language communications only to other CB stations, to units of your own CB station or to authorized government stations on CB frequencies about -

(l) Your personal or business activities or those of members of your immediate family living in your household;

(2) Emergencies (see CB Rule 18, §95.418);

(3) Traveler assistance (see CB Rule 18, &#16795.418); or

(4) Civil defense activities in connection with officlal tests or drills conducted by, or actual emergencies announced by, the civil defense agency with authority over the area in which your station is located.

(b) You may use your CB station to transmit a tone signal only when the signal is used to make contact or to continue communications. (Examples of circuits using these signals are tone operated squelch and selective calling circuits.) If the signal is an audible tone, it must last no longer than 15 seconds at one time. If the signa1 is a subaudible tone, it may be transmitted contlnuously only as long as you are talking.

(c) You may use your CB station to transmit one-way communications (messages which are not intended to establish communications between two or more particular CB stations) only for emergency communications, traveler assistance, brief tests (radio checks) or voice paging.

47 CFR §95.413 What communications are prohibited?(a) You must not use a CB station -

(1) In connection with any activity which is against federal, state or local law;...

(5) To advertise or solicit the sale of any goods or services;...

(9) To communicate with, or attempt to communicate with, any CB station more than 250 kilometers (155.3 miles) away;

(10) To advertise a political candidate or political campaign; (you may use your CB radio for the business or organizational aspects of a campaign, if you follow all other applicable rules);

(11) To communicate with stations in other countries, except General Radio Service stations in Canada;...

(b) You must not use a CB station to transmit communications for live or delayed rebroadcast on a radio or television broadcast station. You may use your CB station to gather news items or to prepare programs.

47 CFR §95.416 Do I have to limit the length of my communications?(a) You must limit your CB communications to the minimum practical time.

(b) If you are communicating with another CB station or stations, you, and the stations communicating with you, must limit each of your conversations to no more than five continuous minutes.

(c) At the end of your conversation, you, and the stations communicating with you, must not transmit again for at least one minute.

47 CFR §95.419 May I operate my CB station by remote control?(a) You may not operate a CB station transmitter by radio remote control.

(b) You may operate a CB transmitter by wireline remote control if you obtain specific approval in writing from the FCC. To obtain FCC approval, you must show why you need to operate your station by wireline remote control. Send your request and Justification to FCC, 1270 Fairfield Road, Gettysburg, PA 17325-7245. If you receive FCC approval, you must keep the approval as part of your station records. (See CB Rule 27, &#16795.427.)

47 CFR §95.421 What are the penalties for violating these rules?(a) If the FCC finds that you have willfully or repeatedly violated the Communications Act or the FCC Rules, you may have to pay as much as $10,000 for each violation, up to a total of $75,000. (See section 503(b) of the Communications Act.)

47 CFR §95.422 How do I answer correspondence from the FCC?(a) If it appears to the FCC that you have violated the Communications Act or these rules, the FCC may send you a discrepancy notice.

(b) Within the time Period stated in the notice, you must answer with:

(1) A complete written statement about the apparent discrepancy;

(2) A complete written statement about any action you have taken to correct the apparent violation and to prevent it from happening again; and

(3) The name of the person operating at the time of the apparent violation.

(c) If the FCC sends you a letter asking you questions about your CB radio station or its operation, you must answer each of the questions with a complete written statement within the time period stated in the letter.

(d) You must not shorten your answer by references to other communications or notices.

(e) You must send your answer to the FCC office which sent you the notice.

(f) You must keep a copy of your answer in your station records. (See CB Rule 27, &#16795.427.)

47 CFR §97.5 Station license required.(a) When a station is transmitting on any amateur service frequency . . . the person having physical control of the apparatus must hold an FCC-issued written authorization for an amateur station.

47 CFR §97.113 Prohibited transmissions.(a) No amateur station shall transmit:

(1) Communications specifically prohibited elsewhere in this part;

(2) Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules;...

(4) ... messages in codes or ciphers intended to obscure the meaning thereof, except as otherwise provided herein..

(5) Communications, on a regular basis, which could reasonably be furnished alternatively through other radio services.

(b) An amateur station shall not engage in any form of broadcasting , nor may an amateur station transmit oneway communications except as specifically provided in these rules; nor shall an amateur station engage in any activity related to program production or news gathering for broadcasting purposes , except that communications directly related to the immediate safety of human life or the protection of property may be provided by amateur stations to broadcasters for dissemination to the public where no other means of communication is reasonably available before or at the time of the event.

The Myth of Supreme Court Omnipotence

Alexander Hamilton did not believe that Supreme Court was omnipotent - or at least, he didn't say so publicly. In Federalist 78, Hamilton described the power of the judiciary under the text of the 1787 Constitution, and why it was so weak in relation to the other two branches of government:

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.... liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments... [1]

Hamilton's view is constitutional theory; the most powerful power of government, the power to make law, would not be given to an unelected body. This concept of legislation by elected representatives (who are accountable to the people for their actions) is the heart of the 1787 Constitution (as amended by the Seventeenth Amendment), found in Article I, Section I - if you're looking for a "cornerstone", that's where you'll find it (the cornerstone itself has a cornerstone, the paragraph immediately preceding it, more commonly known as the Preamble).

In line with this idea that the most powerful of the powers should be in the hands of elected officials, we shouldn't be surprised to find that the 1787 Constitution gives Congress the power to limit the Supreme Court in a vast number of ways.

These rules, designed to maintain accountability, create a subtle, but real pressure, on the Court to "tow the line". The myth of Supreme Court omnipotence lies behind the false view that we have a "guarantee" that the Bill of Rights will be "enforced". If the Court isn't omnipotent in law, then the guarantee is illusory.

Let's see how omnipotent the Court is. We'll start with the number of members of the Court. Many people believe that this number is fixed for all time, which would prevent encroachments on the judicial power. But this isn't true.

The Supreme Court will consist of nine judges.For now. But this is due to the power of Congress, not by Constitutional direct allocation. The Supreme Court was established with 6 members in 1789, reduced to 5 in 1801, increased to 7 in 1807, increased to 9 in 1837, increased to 10 in 1863, reduced to 7 in 1866, and increased to 9 in 1869. [2] There is no reason why the membership of the Supreme Court can't be decreased to 1, or increased to 500, and in the process, no reason why Congress cannot appoint judges who will carry out their will under threat of impeachment. This ability to change the number of judges decreases the power of the Court and increases the power of Congress. See 28 U.S.C §1.

The Constitution refers to the members of the Supreme Court as "justices".No it doesn't. Expect judgment, not justice.

Judges on the Supreme Court serve for "life".There is no definite term length indicated in the Constitution for the Supreme Court, but this doesn't mean "life". Under Article III, Section I, the term of the judge is not for "life", but for "good Behaviour", and judges can be impeached at any time for "bad" behavior (as determined by Congress).

The Supreme Court must meet every year.While Article I, Section IV, Clause II says that the Congress shall assemble "at least once in every Year", there is no such provision for the Supreme Court. Under the authority of the "Necessary and Proper" clause in Article I, Section VIII, and the appellate jurisdiction regulation in Article III, Section III, Congress currently begins the session on the first Monday in October (see 28 U.S.C §2), but it doesn't have to. It could begin the next session on the last Monday in October, year 3963.

Under the Constitution, the Supreme Court session

must be for a fixed length of time.Nope. There's no Constitutional provision that the Court's session must even be a session of significant length, nor that sessions held be of significant value. In fact, Congress has the power to shut down the Court entirely! Article I, Section IX, clause VII allows no money to be drawn from the Treasury except that which is appropriated. Consequently, Congress can withhold all funds from the court, other than the salaries of the judges, which cannot be reduced during their tenure (Article III, Section I), but can be reduced thereafter to $1, or even a penny. With no way to conduct legal research, no lights to see by, and no guard to unlock the door to the building, there would be no significant session.

The Supreme Court has the power to veto Federal laws.No. Under the Constitution (and the laws written by Congress), only the President has the power to veto a law: and even then, the law goes back to Congress, which can re-pass the law over this Presidential veto. The Supreme Court only has the power to release prisoners convicted of violating unconstitutional Federal laws. This authority is implictly granted by the Constitutional stricture that judges must take an oath of office to support the Constitution, and by the existence of the Bill of Rights, which limits the power of Congress to legislate in certain areas.

Note, however, that this "safety-valve" applies only to the immediate case before the Court! This local declaration of unconstitutionality (this case) isn't the same as a global declaration of unconstitutionality (all cases). Person after person can be brought up before the Court under the same unconstitutional law, and each person must be "let off" on an individual basis - as it turns out, however, only those who can afford to mount a protracted legal battle have the change to fight a law on the basis of unconstitutionality.

Constitutional analysts will here note a potential flaw in the Separation of Powers concept: the existence of two-tiered tailor-made protection, a double double standard. Not only is accusation selective, but so is defense of accusation. That is, the Executive can decide to arrest A , B, and C (but not D and E), and the Judiciary can decide to hear the case of C only (not A, politically incorrect, and certainly not B, who couldn't afford to get to the Court in the first place). So A & B go to jail, while C, D, & E go free.

You'll note that the First Amendment has yet another "loophole": the First Amendment declares what laws may not be legally passed, but does not provide a remedy for the contingency of "what happens when the First Amendment is violated?" There is no Federal law (nor Constitutional provision) providing a penalty for violators, nor a provision stating that if a Supreme Court judge says "X is unconstitutional", Congress is obligated to strike that "law" from the books. The Marbury v. Madison decision, which some see as granting this power, is not a "law" - it is an "opinion". Laws are made by Congress within the parameters proscribed in Article I and the Bill of Rights, and "opinions" by judges (or any other citizens) to the contrary cannot possibly act to veto these laws - at least, under the 1787 Constitution. More on this later.

The Supreme Court has the power to re-write

"inconvenient" provisions of the Constitution.There is no such language in Article V of the Constitution, and no possible Congressional law that could give the Supreme Court this power. Any such power would have to be created by Constitutional Amendment.

The Supreme Court has the power to make law by precedent.Article I, Section I of the Constitution vests "all" legislative power in "Congress", and none in "the Supreme Court". The Supreme Court has no lawmaking authority. The separation-of-powers destroying notion of judge-made law, called "common-law", was itself obliterated by the Constitution. Indeed, as Madison wrote in a letter to Peter Duponceau in August, 1824, "it cannot well be supposed that the Body which framed [the Constitution] with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd. be a part of the national code, have omitted to express or distinctly indicate the intention." [3]

We have the right to be heard in the Supreme Court.Well, few can afford the process of appealing all the way to the Supreme Court, a process that can take years. This statement is not supported by the Constitution, nor by Congressional law, nor by the Rules of the Supreme Court itself. According to Rule 17 of the Supreme Court (effective June 30, 1980), "[a] review on writ of certiorari is not a matter of right, but of judicial discretion." [4] That is to say, the Court will recognize those "rights" it chooses to recognize. While the First Amendment discusses a "right to petition for grievances", it does not say that the Court must hear the case, only that you have a right to petition the Court to hear the case. The Supreme Court will accept your petition, then file it in the circular file if it has bigger fish to fry. This seems to lend credence to the omnipotence myth, but see the next comment.

The Supreme Court has jurisdiction over every law of Congress.A "quick-and-dirty" reading of Article III may lead one to that conclusion: there we find, in Section I, that "The judicial Power shall extend to all Cases... arising under this Constitution [and] the Laws of the United States... " But that's not the end of the matter. When we move to Section II, we find that this jurisdiction is qualified by these words: "In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make".

Here's where the myth of the "guarantee" is obliterated forever; not only does the Constitution provide for no enforcement of the Bill of Rights, nor a penalty for those officials who violate the Bill of Rights, nor even a right to have one's case decided in case of rights violation, there is even what many will see as a "fatal flaw" in the 1787 instantiation of the separation of powers concept:

Congress can simply decide, when it passes an Unconstitutional law, to simultaneously withhold jurisdiction from the Supreme Court, preventing any judicial remedy for violations - Congress has the power to, on a law-by-law basis, effectively write Article III out of the Constitution!

For example, in the body of a bill banning the publication of "anti-government sentiments" would be this provision: "the Supreme Court has no appellate jurisdiction over any case arising from this legislation". While the Court must obey the Constitution, the Constitution also says that the Supreme Court has no obligation or power to hear all cases involving unconstitutional laws!

To some, this idea of withholding jurisdiction of subject-matter is a "fatal flaw" in the Constitution; to others, it is a "safety-valve" against judicial usurpation of power. There are good arguments for both points of view. But however you want to characterize it, the power of Congress to prevent the Supreme Court from deciding the unconstitutionality of a law isn't just a paper tiger - this tiger bit. The myths tell us the Court is all-powerful, but the reality tells us otherwise.

The case was Ex Parte McCardle, 7 Wall 506 (1869), required reading for first-year law school students around the country. Seeking to protect blacks and federal officials in the South from harassment, Congress passed the Habeas Corpus Act in February 1867, which expanded the Supreme Court's jurisdiction to review denial of writs of habeas corpus. [5]. After a round of post-Civil-War political bickering, Congress turned around and repealed the portion of the act which extended the Supreme Court's appellate jurisdiction over habeas corpus writs on March 27, 1868, over President Johnson's veto. [6]

This case came about when McCardle, a southern editor, was arrested for his anti-Reconstruction writings. He took his case to the Court. A year later, on April 12, 1869, Chief Judge Chase spoke for the Court, holding (quite properly) that Congress had removed the Court's jurisdiction over the McCardle case :

The provision of the Act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus, is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the Legislature. We can only examine its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing Act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause...

It is quite clear, therefor, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. [7]

In Daniels v. Chicago & Rock Island Railroad Co., 3 Wall 250 (1866), the court reaffirmed the legitimacy of this power, holding that the power of the Court was "wholly the creature of legislation." [8]

If we view the text of the Constitution as controlling our government, we can see that the Supreme Court is far from the "guarantor" or "enforcer" of the Bill of Rights in the abstract; rather, it is allowed to enforce the Bill of Rights provided that Congress approves. The sad fact of the matter is that when we look to the text of the 1787 Constitution, we find that our "cornerstone [sic] of democracy [sic]" is a paper tiger -fierce on the page, toothless in the cage.

There is one final myth we'll explore; that

The Supreme Court will enforce the First Amendment when Congress violates the Amendment and has not removed Supreme Court jurisdiction over the Amendment.

We know what the First Amendment means to us.

Let's see what it means to the Supreme Court.

THE UNCONSTITUTIONALITY OF THE 14th AMENDMENT

INTRODUCTION

The following is a treatise on the unconstitutionality of the Fourteenth Amendment, based upon the most comprehensive research and documentation of every angle in the unlawful procedures involved in its purported adoption.

This work was done, and is offered with a realization that the federal courts are not ready to give consideration to the subject, because the U. S. Supreme Court and inferior courts have used the the 14th Amendment to enlarge upon their ungranted powers without limit or reserve.

Socialist organized and directed violent mass demonstrations and armed rebellion in the nation's capital and in many American cities are extorting from Congress more and more radical legislation. These "laws" threaten basic personal freedom, private property rights and encroach upon and destroy more and more the constitutional right of self-government by the people on state and local levels. Executive orders extend toward further federal control of every aspect of life in the Nation, either by shutting off federal funds to those who will not subscribe to their forced dictums or by court injunctive orders to the same effect.

There lies the greatest danger to our country's future: so that the end result in the next or succeeding generation can only be a deteriorated industrial empire and a weakened national defense, which must result in abject surrender to our mortal enemy,-- world-wide Socialism and Totalitarianism. That is the ultimate end of the subversive use of the unconstitutional 14th Amendment.

It is hoped that this treatise, exposing the absolute unconstitutionality of the l4th amendment, will be given sufficient general circulation and publicity to awaken a "consensus" of public sentiment to reach the seats of power in Washington, D. C., so that ultimately the stamp of unconstitutionality may be placed upon the 14th amendment, and constitutional government and national sanity once more may prevail.

Cites and References:

Congressional Record.

Senate, 84th Con. 1st Session., Vol. 101, pp. 7119 to 7124;

Senate, 86th Con., 2nd Session., Vol. 106, pp. 4036 to 4038;

Senate, 89th Con., 1st Session., Vol. III, pp. 10669 to 10671.

THE 14th AMENDMENT IS UNCONSTITUTIONAL

The purported 14th Amendment to the United States Constitution is and should be held to be ineffective, invalid, null, void and unconstitutional for the following reasons:

1. The Joint Resolution proposing said amendment was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution.

2. The Joint Resolution was not submitted to the President for his approval as required by Article I, Section 7 of the U. S. Constitution.

3. The proposed 14th Amendment was rejected by more than one-fourth of all the States then in the Union, and it was never ratified by three-fourths of all the States in the Union as required by Article V of the U. S. Constitution.

CHAPTER I

THE UNCONSTlTUTIONAL CONGRESS

The U. S. Constitution provides:

Article I, Section 3. "The Senate of the United States shall be composed of two Senators from each State"

Article V provides: "No State, without its consent, shall be deprived of its equal suffrage in the Senate."

The fact that 28 Senators had been unlawfully excluded from the U. S. Senate, in order to secure a two-thirds vote for adoption of the Joint Resolution proposing the 14th Amendment is shown by Resolutions of protest adopted by the following State Legislatures:

The New Jersey Legislature by Resolution of March 27, 1868, protested as follows:

"The said proposed amendment not having yet received the assent the three-fourths of the states, which is necessary to make it valid, the natural and constitutional right of this state to withdraw its assent is undeniable ".

"That it being necessary by the constitution that every amendment to the same should be proposed by two-thirds of both houses of congress, the authors of said proposition, for the purpose of securing the assent of the requisite majority, determined to, and did, exclude from the said two houses eighty representatives from eleven states of the union, upon the pretence that there were no such states in the Union: but, finding that two-thirds of the remainder of the said houses could not be brought to assent to the said proposition, they deliberately formed and carried out the design of mutilating the integrity of the United States senate, and without any pretext or justification, other than the possession of the power, without the right, and in palpable violation of the constitution, ejected a member of their own body, representing this state, and thus practically denied to New Jersey its equal suffrage in the senate, and thereby nominally secured the vote of two-thirds of the said houses." [Cite 1]

The Alabama Legislature protested against being deprived of representation in the Senate of the U. S. Congress. [Cite 2]

The Texas Legislature by Resolution on October 15, 1866, protested as follows:

"The amendment to the Constitution proposed by this joint resolution as article XIV is presented to the Legislature of Texas for its action thereon, under Article V of that Constitution. This article V, providing the mode of making amendments to that instrument, contemplates the participation by all the States through their representatives in Congress, in proposing amendments. As representatives from nearly one-third of the States were excluded from the Congress proposing the amendments, the constitutional requirement was not complied with; it was violated in letter and in spirit; and the proposing of these amendments to States which were excluded from all participation in their initiation in Congress, is a nullity." [Cite 3]

The Arkansas Legislature, by Resolution on December 17, 1866, protested as follows:

"The Constitution authorized two-thirds of both houses of Congress to propose amendments; and, as eleven States mere excluded from deliberation and decision upon the one now submitted, the conclusion is inevitable that it is not proposed by legal authority, but in palpable violation of the Constitution." [Cite 4]

The Georgia Legislature, by Resolution on November 9, 1866, protested as follows:

"Since the reorganization of the State government, Georgia has elected Senators and Representatives. So has every other State. They have been arbitrarily refused admission to their seats, not on the ground that the qualifications of the members elected did not conform to the fourth paragraph, second section, first article of the Constitution, but because their right of representation was denied by a portion of the States having equal but not greater rights than themselves. They have in fact been forcibly excluded; and, inasmuch as all legislative power granted by the States to the Congress is defined, and this power of exclusion is not among the powers expressly or by implication, the assemblage, at the capitol, of representatives from a portion of the States, to the exclusion of the representatives of another portion, cannot be a constitutional Congress, when the representation of each State forms an integral part of the whole.

This amendment is tendered to Georgia for ratification, under that power in the Constitution which authorizes two-thirds of the Congress to propose amendments. We have endeavored to establish that Georgia had a right, in the first place, as a part of the Congress, to act upon the question, 'Shall these amendments be proposed?' Every other excluded State had the same right.

The first constitutional privilege has been arbitrarily denied.

Had these amendments been submitted to a constitutional Congress, they never would have been proposed to the States. Two-thirds of the whole Congress never would have proposed to eleven States voluntarily to reduce their political power in the Union, and at the same time, disfranchise the larger portion of the intellect, integrity and patriotism of eleven co-equal States." [Cite 5]

The Florida Legislature, by Resolution of December 5, 1866, protested as follows:

"Let this alteration be made in the organic system and some new and more startling demands may or may not be required by the predominant party previous to allotting the ten States now unlawfully and unconstitutionally deprived of their right of representation to enter the Halls of the National Legislature. Their right to representation is guaranteed by the Constitution of this country and there is no act, not even that of rebellion, can deprive them of its exercise." [Cite 6]

The South Carolina Legislature by Resolution of November 27, 1866, protested as follows:

"Eleven of the Southern States, including South Carolina, are deprived of their representation in Congress. Although their Senators and Representatives have been duly elected and have presented themselves for the purpose of taking their seats, their credentials have, in most instances, been laid upon the table without being read, or have been referred to a committee, who have failed to make any report on the subject. In short, Congress has refused to exercise its Constitutional functions, and decide either upon the election, the return, or the qualification of these selected by the States and people to represent us. Some of the Senators and Representatives from the Southern States were prepared to take the test oath, but even these have been persistently ignored, and kept out of the seats to which they were entitled under the Constitution and laws.

Hence this amendment has not been proposed by 'two-thirds of both Houses' of a legally constituted Congress, and is not, Constitutionally or legitimately, before a single Legislature for ratification." [Cite 7]

The North Carolina Legislature protested by Resolution of December 6, 1866 as follows:

"The Federal Constitution declares, in substance, that Congress shall consist of a House of Representatives, composed of members apportioned among the respective States in the ratio of their population, and of a Senate, composed of two members from each State. And in the Article which concerns Amendments, it is expressly provided that 'no State, without its consent, shall be deprived of its equal suffrage in the Senate.' The contemplated Amendment was not proposed to the States by a Congress thus constituted. At the time of its adoption, the eleven seceding States were deprived of representation both in the Senate and House, although they all, except the State of Texas, had Senators and Representatives duly elected and claiming their privileges under the Constitution. In consequence of this, these States had no voice on the important question of proposing the Amendment. Had they been allowed to give their votes, the proposition would doubtless have failed to command the required two-thirds majority.

If the votes of these States are necessary to a valid ratification of the Amendment, they were equally necessary on the question of proposing it to the States; for it would be difficult, in the opinion of the Committee, to show by what process in logic, men of intelligence could arrive at a different conclusion." [Cite 8]

CHAPTER II

JOlNT RESOLUTlON INEFFECTIVE

Article I, Section 7 of the United States Constitution provides that not only every bill which shall have been passed by the House of Representatives and the Senate of the United States Congress, but that:

"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." [Art I, Sect. 7]

The Joint Resolution proposing the 14th Amendment [Cite 9] was never presented to the President of the United States for his approval, as President Andrew Johnson stated in his message on June 22, 1866. [Cite 10]

Therefore, the Joint Resolution did not take effect.

CHAPTER III

PROPOSED AMENDMENT NEVER RATlFIED BY THREE-FOURTHS OF THE STATES

1. Pretermitting the ineffectiveness of said resolution, as above, fifteen (15) States out of the then thirty-seven (37) States of the Union rejected the proposed 14th Amendment between the date of its submission to the States by the Secretary of State on June 16, 1866 and March 24, 1868, thereby further nullifying said resolution and making it impossible for its ratification by the constitutionally required three-fourths of such States, as shown by the rejections thereof by the Legislatures of the following states:

Texas rejected the 14th Amendment on Oct. 27, 1866. [Cite 11]

Georgia rejected the 14th Amendment on Nov. 9, 1866. [Cite 12]

Florida rejected the 14th Amendment on Dec. 6, 1866. [Cite 13]

Alabama rejected the 14th Amendment on Dec. 7, 1866. [Cite 14]

North Carolina rejected the 14th Amendment on Dec. 14, 1866. [Cite 15]

Arkansas rejected the 14th Amendment on Dec. 17, 1866. [Cite 16]

South Carolina rejected the 14th Amendment on Dec. 20, 1866. [Cite 17]

Kentucky rejected the 14th Amendment on Jan. 8, 1867. [Cite 18]

Virginia rejected the 14th Amendment on Jan. 9, 1867. [Cite 19]

Louisiana rejected the 14th Amendment on Feb. 6, 1867. [Cite 20]

Delaware rejected the 14th Amendment on Feb. 7, 1867. [Cite 21]

Maryland rejected the l4th amendment on Mar. 23, 1867. [Cite 22]

Mississippi rejected the 14th Amendment on Jan. 31, 1867. [Cite 23]

Ohio rejected the 14th amendment on Jan. 16, 1868. [Cite 24]

New Jersey rejected the 14th Amendment on Mar. 24, 1868. [Cite 25]

There was no question that all of the Southern states which rejected the 14th Amendment had legally constituted governments, were fully recognized by the federal government, and were functioning as member states of the Union at the time of their rejection.

President Andrew Johnson, in his Veto message of March 2, 1867, [Cite 26] pointed out that:

"It is not denied that the States in question have each of them an actual government with all the powers, executive, judicial and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them they make, administer, and execute the laws which concern their domestic affairs."

If further proof were needed that these States were operating under legally constituted governments as member States in the Union. the ratification of the 13th Amendment by December 8, 1865 undoubtedly supplies this official proof. If the Southern States were not member States of the Union, the 13th amendment would not have been submitted to their Legislatures for ratification.

2. The 13th Amendment to the United States Constitution was proposed by Joint Resolution of Congress [Cite 27] and was approved February 1, 1865 by President Abraham Lincoln, as required by Article I, Section 7 of the United States Constitution. The President's signature is affixed to the Resolution.

The 13th Amendment was ratified by 27 states of the then 36 states of the Union, including the Southern States of Virginia, Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia. This is shown by the Proclamation of the Secretary of State December 18, 1865. [Cite 28] Without the votes of these 7 Southern State Legislatures the 13th Amendment would have failed. There can be no doubt but that the ratification by these 7 Southern States of the 13th Amendment again established the fact that their Legislatures and State governments were duly and lawfully constituted and functioning as such under their State Constitutions.

3. Furthermore, on April 2, 1866, President Andrew Johnson issued a proclamation that,

"the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi and Florida is at an end, and is henceforth to be so regarded." [Cite 29]

On August 20, 1866, President Andrew Johnson issued another proclamation [Cite 30] pointing out the fact that the House of Representatives and Senate had adopted identical Resolutions on July 22nd [Cite 31] and July 26th, 1861, [Cite 32] that the Civil War forced by disunionists of the Southern States, was not waged for the purpose of conquest or to overthrow the rights and established institutions of those States, but to defend and maintain the supremacy of the Constitution and to preserve the Union with all equality and rights of the several states unimpaired, and that as soon as these objects ere accomplished, the war ought to cease. The President's proclamation on June 13, 1866, declared the insurrection in the State of Tennessee had been suppressed. [Cite 33] The President's proclamation on April 2, 1866, [Cite 34] declared the insurrection in the other Southern States, except Texas, no longer existed. On August 20, 1866, [Cite 35] the President proclaimed that the insurrection in the State of Texas had been completely ended; and his proclamation continued:

"the insurrection which heretofore existed in the State of Texas is at an end, and is to be henceforth so regarded in that State, as in the other States before named in which the said insurrection was proclaimed to be at an end by the aforesaid proclamation of the second day of April, one thousand, eight hundred and sixty-six.

And I do further proclaim that the said insurrection is at an end, and that peace, order, tranquillity, and civil authority now exist, in and throughout the whole of the United States of America."

4. When the State of Louisiana rejected the 14th Amendment on February 6, 1867, making the 10th state to have rejected the same, or more than one-fourth of the total number of 36 states of the Union as of that date, thus leaving less than three-fourths of the states possibly to ratify the same, the Amendment failed of ratification in fact and in law, and it could not have been revived except by a new Joint Resolution of the Senate and House of Representatives in accordance with Constitutional requirement.

5. Faced with the positive failure of ratification of the 14th Amendment, both Houses of Congress passed over the veto of the President three Acts known as Reconstruction Acts, between the dates of March 2 and July 19, 1867, especially the third of said Acts, 15 Stat. p. 14 etc., designed illegally to remove with "Military force" the lawfully constituted State Legislatures of the 10 Southern States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana and Texas. In President Andrew Johnson's Veto message on the Reconstruction Act of March 2, 1867, [Cite 36] he pointed out these unconstitutionalities:

"If ever the American citizen should be left to the free exercise of his own judgment, it is when he is engaged in the work of forming the fundamental law under which he is to live. That work is his work, and it cannot properly be taken out of his hands. All this legislation proceeds upon the contrary Assumption that the people of each of these States shall have no constitution, except such as may be arbitrarily dictated by Congress, and formed under the restraint of military rule. A plain statement of facts makes this evident.

In all these States there are existing constitutions, framed in the accustomed way by the people. Congress, however, declares that these constitutions are not 'loyal and republican,' and requires the people to form them anew. What, then, in the opinion of Congress, is necessary to make the constitution of a State 'loyal and republican?' The original act answers the question: 'It is universal negro suffrage, a question which the federal Constitution leaves exclusively to the States themselves. All this legislative machinery of martial law, military coercion, and political disfranchisement is avowedly for that purpose and none other. The existing constitutions of the ten States conform to the acknowledged standards of loyalty and republicanism. Indeed, if there are degrees in republican forms of government, their constitutions are more republican now, than when these States - four of which were members of the original thirteen - first became members of the Union."

In President Andrew Johnson's Veto message on the Reconstruction Act on July 19, 1867, he pointed out various unconstitutionalities as follows:

"The veto of the original bill of the 2d of March was based on two distinct grounds, the interference of Congress in matters strictly appertaining to the reserved powers of the States, and the establishment of military tribunals for the trial of citizens in time of peace.

A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by federal officers, who are to perform the very duties on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same federal agency.

It is now too late to say that these ten political communities are not States of this Union. Declarations to the contrary made in these three acts are contradicted again and again by repeated acts of legislation enacted by Congress from the year 1861 to the year 1867.

During that period, while these States were in actual rebellion, and after that rebellion was brought to a close, they have been again and again recognized as States of the Union. Representation has been apportioned to them as States. They have peen divided into judicial districts for the holding of district and circuit courts of the United States, as States of the Union only can be districted. The last act on this subject was passed July 28, 1866, by which every one of these ten States was arranged into districts and circuits.

They have been called upon by Congress to act through their legislatures upon at least two amendments to the Constitution of the United States. As States they have ratified one amendment, which required the vote of twenty-seven States of the thirty-six then composing the Union. When the requisite twenty-seven votes were given in favor of that amendment - seven of which votes were given by seven of these ten States - it was proclaimed to be apart of the Constitution of the United States, and slavery was declared no longer to exist within the United States or any place subject to their jurisdiction. If these seven States were not legal States of the Union, it follows as an inevitable consequence that in some of the States slavery yet exists. It does not exist in these seven States, for they have abolished it also in their State constitutions; but Kentucky not having done so, it would still remain in that State. But, in truth, if this assumption that these States have no legal State governments be true, then the abolition of slavery by these illegal governments binds no one, for Congress now denies to these States the power to abolish slavery by denying to them the power to elect a legal State legislature, or to frame a constitution for any purpose, even for such a purpose as the abolition of slavery.

As to the other constitutional amendment having reference to suffrage, it happens that these States have not accepted it. The consequence is, that it has never been proclaimed or understood, even by Congress, to be a part of the Constitution of the United States. The Senate of the United States has repeatedly given its sanction to the appointment of judges, district attorneys, and marshals for every one of these States; yet, if they are not legal States, not one of these judges is authorized to hold a court. So, too, both houses of Congress have passed appropriation bills to pay all these judges, attorneys, and officers of the United States for exercising their functions in these States.

Again, in the machinery of the internal revenue laws, all these States are districted, not as 'Territories,' but as 'States.'

So much for continuous legislative recognition. The instances cited, however, fall far short of all that might be enumerated. Executive recognition, as is well known, has been frequent and unwavering. The same may be said as to judicial recognition through the Supreme Court of the United States.

To me these considerations are conclusive of the unconstitutionality of this part of the bill now before me, and I earnestly commend their consideration to the deliberate judgment of Congress.

Within a period less than a year the legislation of Congress has attempted to strip the executive department of the government of some of its essential powers. The Constitution, and the oath provided in it, devolve upon the President the power and duty to see that the laws are faithfully executed. The Constitution, in order to carry out this power, gives him the choice of the agents, and makes them subject to his control and supervision. But in the execution of these laws the constitutional obligation upon the President remains, but the powers to exercise that constitutional duty is effectually taken away. The military commander is, as to the power of appointment, made to take the place of its President, and the General of the Army the place of the Senate; and any attempt on the part of the President to assert his own constitutional power may, under pretence of law, be met by official insubordination. It is to be feared that these military officers, looking to the authority given by these laws rather than to the letter of the Constitution, will recognize no authority but the commander of the district and the General of the army.

If there were no other objection than this to this proposed legislation, it would be sufficient."

No one can contend that the Reconstruction Acts were ever upheld as being valid and constitutional.

They were brought into question, but the Courts either avoided decision or were prevented by Congress from finally adjudicating upon their constitutionality.

In Mississippi v. President Andrew Johnson, (4 Wall. 475-502), where the suit sought to enjoin the President of the United States from enforcing provisions of the Reconstruction Acts, the U. S. Supreme Court held that the President cannot be enjoined because for the Judicial Department of the government to attempt to enforce the performance of the duties by the President might be justly characterized, in the language of Chief Justice Marshall, as "an absurd and excessive extravagance." The Court further said that if the Court granted the injunction against enforcement of the Reconstruction Acts, and if the President refused obedience, it is needless to observe that the Court is without power to enforce its process.

AND NOW TO THE COURT.

In a joint action, the states of Georgia and Mississippi brought suit against the President and the Secretary of War, (6 Wall. 50-78, 154 U.S. 554).

The Court said that:

"The bill then sets forth that the intent and design of the acts of Congress, as apparent on their face and by their terms, are to overthrow and annul this existing state government, and to erect another and different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design, the defendants, the Secretary of War, the General of the Army, and Major-General Pope, acting under orders of the President, are about setting in motion a portion of the army to take military possession of the state, and threaten to subvert her government and subject her people to military rule; that the state is holding inadequate means to resist the power and force of the Executive Department of the United States; and she therefore insists that such protection can, and ought to be afforded by a decree or order of his court in the premises."

The applications for injunction by these two states to prohibit the Executive Department from carrying out the provisions of the Reconstruction Acts directed to the overthrow of their government, including the dissolution of their state legislatures, were denied on the grounds that the organization of the government into three great departments, the executive, legislative and judicial, carried limitations of the powers of each by the Constitution. This case went the same way as the previous case of Mississippi against President Johnson and was dismissed without adjudication upon the constitutionality of the Reconstruction Acts.

In another case, ex parte William H. McCardle (7 Wall. 506-515), a petition for the writ of habeas corpus for unlawful restraint by military force of a citizen not in the military service of the United States was before the United States Supreme Court. After the case was argued and taken under advisement, and before conference in regard to the decision to be made, Congress passed an emergency Act, (Act March 27, 1868, 15 Stat. at L. 44), vetoed by the President and re-passed over his veto, repealing the jurisdiction of the U. S. Supreme Court in such case. Accordingly, the Supreme Court dismissed the appeal without passing upon the constitutionality of the ReconstructionActs, under which the non-military citizen was held by the military without benefit of writ of habeas corpus, in violation of Section 9, Article I of the U. S. Constitution which prohibits the suspension of the writ of habeas corpus.

That Act of Congress placed the Reconstruction acts beyond judicial recourse and avoided tests of constitutionality.

It is recorded that one of the Supreme Court Justices, Grier, protested against the action of the Court as follows:

"This case was fully argued in the beginning of this month. It is a case which involves the liberty and rights, not only of the appellant, but of millions of our fellow citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of the court. By the postponement of this case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislative interposition to supersede our action, and relieve us from responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow. I can only say... I am ashamed that such opprobrium should be cast upon the court and that it cannot be refuted."

The ten States were organized into Military Districts under the unconstitutional "Reconstruction Acts," their lawfully constituted Legislatures illegally were removed by "military force," and they were replaced by rump, so-called Legislatures, seven of which carried out military orders and pretended to ratify the 14th Amendment, as follows:

Arkansas on April 6, 1868; [Cite 38]

North Carolina on July 2, 1868; [Cite 39]

Florida on June 9, 1868; [Cite 40]

Louisiana on July 9, 1868; [Cite 41]

South Carolina on July 9, 1868; [Cite 42]

Alabama on July 13, 1868; [Cite 43]

Georgia on July 21, 1868. [Cite 44]

6. Of the above 7 States whose Legislatures were removed and replaced by rump, so-called Legislatures, six (6) Legislatures of the States of Louisiana, Arkansas, South Carolina, Alabama, North Carolina and Georgia had ratified the 13th amendment, as shown by the Secretary of State's Proclamation of December 18, 1865, without which 6 States' ratifications, the 13th Amendment could not and would not have been ratified because said 6 States made a total of 27 out of 36 States or exactly three-fourths of the number required by Article V of the Constitution for ratification.

Furthermore, governments of the States of Louisiana and Arkansas had been re-established under a Proclamation issued by President Abraham Lincoln December 8, 1863. [Cite 45]

The government of North Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated May 29, 1865. [Cite 46]

The government of Georgia had been re-established under a proclamation issued by President Andrew Johnson dated June 17, 1865. [Cite 47]

The government of Alabama had been re-established under a Proclamation issued by President Andrew Johnson dated June 21, 1865. [Cite 48]

The government of South Carolina had been re-established under a Proclamation issued by President Andrew Johnson dated June 30, 1865. [Cite 49]

These three "Reconstruction Acts" [Cite 50] under which the above State legislatures were illegally removed and unlawful rump or puppet so-called Legislatures were substituted in a mock effort to ratify the 14th amendment, were unconstitutional, null and void, ab initio, and all acts done thereunder were also null and void, including the purported ratification of the l4th Amendment by said 6 Southern puppet State Legislatures of Arkansas, North Carolina, Louisiana, South Carolina, Alabama and Georgia.

Those Reconstruction Acts of Congress and all acts and thing unlawfully done thereunder were in violation of Article IV, Section 4 of the United States Constitution, which required the United States to guarantee every State in the Union a republican form of government. They violated article I, Section 3, and article V of the Constitution, which entitled every State in the Union to two Senators, because under provisions of these unlawful acts of Congress, 10 States were deprived of having two Senators, or equal suffrage in the Senate.

7. The Secretary of State expressed doubt as to whether three-fourths of the required states had ratified the 14th Amendment, as shown by his Proclamation of July 20, 1868. [Cite 51] Promptly on July 21, 1868, a Joint Resolution [Cite 52] was adopted by the Senate and House of Representatives declaring that three-fourths of the several States of the Union had ratified the 14th Amendment. That resolution, however, included purported ratifications by the unlawful puppet Legislatures of 5 States, Arkansas, North Carolina, Louisiana, South Carolina and Alabama, which had previously rejected the 14th Amendment by action of their )awful)y constituted Legislatures, as above shown. This Joint Resolution assumed to perform the function of the Secretary of State in whom Congress, by Act of April 20, 1818, had vested the function of issuing such proclamation declaring the ratification of Constitutional Amendments.

The Secretary of State bowed to the action of Congress and issued his Proclamation of July 28, 1868, [Cite 53] in which he stated that he was as acting under authority of the Act of April 20, 1818, but pursuant to said Resolution of July 21, 1868. He listed three-fourths or so of the then 37 states as having ratified the 14th Amendment, including the purported ratification of the unlawful puppet Legislatures of the States of Arkansas, North Carolina, Louisiana, South Carolina and Alabama. Without said 6 unlawful purported ratifications there would have been only 26 states left to ratify out of 37 when a minimum of 28 states was required for ratification by three-fourths of the States of the Union.

The Joint Resolution of Congress and the resulting Proclamation of the Secretary of State also included purported ratifications by the States of Ohio and New Jersey, although the Proclamation recognized the fact that the Legislatures of said states, several months previously, had withdrawn their ratifications and effectively rejected the 14th Amendment in January, 1868, and April, 1868.

Therefore, deducting these two states from the purported ratifications of the 14th amendment, only 23 State ratifications at most could be claimed; whereas the ratification of 28 States, or three-fourths of 37 States in the Union, were required to ratify the 14th Amendment.

From all of the above documented historic facts, it is inescapable that the 14th Amendment never was validly adopted as an article of the Constitution, that it has no legal effect, and it should be declared by the Courts to be unconstitutional, and therefore null, void and of no effect.

CHAPTER IV

THE CONSTlTUTION STRIKES THE 14TH AMENDMENT WITH NULLITY

The defenders of the 14th Amendment contend that the U. S. Supreme Court has finally decided upon its validity. Such is not the case.

In what is considered the leading case, Coleman v. Miller, 507 U. S. 448, 59 S. Ct. 972, the U. S. Supreme Court did not uphold the validity of the 14th Amendment.

In that case, the Court brushed aside constitutional questions as though they did not exist. For instance, the Court made the statement that:

"The legislatures of Georgia, North Carolina and South Carolina had rejected the amendment in November and December, 1866. New governments were erected in those States (and in others) under the direction of Congress. The new legislatures ratified the amendment, that of North Carolina on July 4, 1868, that of South Carolina on July 9, 1868, and that of Georgia on July 21, 1868."

And the Court gave no consideration to the fact that Georgia, North Carolina and South Carolina were three of the original states of the Union with valid and existing constitutions on an equal footing with the other original states and those later admitted into the Union.

What constitutional right did Congress have to remove those state governments and their legislatures under unlawful military power set up by the unconstitutional "Reconstruction Acts," which had for their purpose, the destruction and removal of these legal state governments and the nullification of their Constitutions?

The fact that these three states and seven other Southern States had existing Constitutions, were recognized as states of the Union, again and again; had been divided into judicial districts for holding their district and circuit courts of the United States; had been called upon by Congress to act through their legislatures upon two Amendments, the 13th and 14th, and by their ratifications had actually made possible the adoption of the 13th Amendment; as well as their state governments having been re-established under Presidential Proclamations, as shown by President Andrew Johnson's Veto message and proclamations, were all brushed aside by the Court in COLEMAN by the statement that:

"New governments were erected in those States (and in others) under the direction of Congress." and that these new legislatures ratified the Amendment.

The U. S. Supreme Court overlooked that it previously had held that at no time were these Southern States out of the Union. White v. Hart, 1871, 13 Wall. 646, 654.

In COLEMAN, the Court did not adjudicate upon the invalidity of the Acts of Congress which set aside those state Constitutions and abolished their state legislatures,- the Court simply referred to the fact that their legally constituted legislatures had rejected the 14th Amendment and that the "new legislatures" had ratified the Amendment.

The Court overlooked the fact, too, that the State of Virginia was also one of the original states with its Constitution and Legislature in full operation under its civil government at the time.

The Court also ignored the fact that the other six Southern States, which were given the same treatment by Congress under the unconstitutional "Reconstruction Acts", all had legal constitutions and a republican form of government in each state, as was recognized by Congress by its admission of those states into the Union. The Court certainly must take judicial cognizance of the fact that before a new state is admitted by Congress into the Union, Congress enacts an Enabling Act, to enable the inhabitants of the territory to adopt a Constitution to set up a republican form of government as a condition precedent to the admission of the state into the Union, and upon approval of such Constitution, Congress then passes the Act of Admission of such state.

All this was ignored and brushed aside by the Court in the COLEMAN case. However, in COLEMAN the Court inadvertently said this:

"Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States."

In Hawse v. Smith, 1920, 253 U. S. 221, 40 S. Ct. 227, the U. S. Supreme Court unmistakably held:

"The fifth article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the Legislatures of three-fourths of the states, or conventions in a like number of states. Dodge v. Woolsey. 18 How. 331, 348, 15 L. Ed. 401. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed."

We submit that in none of the cases, in which the Court avoided the constitutional issues involved in the composition of the Congress which adopted the Joint Resolution for the 14th Amendment, did the Court pass upon the constitutionality of the Congress which purported to adopt the Joint Resolution for the 14th Amendment, with 80 Representatives and 23 Senators, in effect, forcibly ejected or denied their seats and their votes on the Joint Resolution proposing the Amendment, in order to pass the same by a two-thirds vote, as pointed out in the New Jersey Legislature Resolution on March 27, 1868.

The constitutional requirements set forth in Article V of the Constitution permit the Congress to propose amendments only whenever two-thirds of both houses shall deem it necessary,- that is, two-thirds of both houses as then constituted without forcible ejections.

Such a fragmentary Congress also violated the constitutional requirements of Article V that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

There is no such thing as giving life to an amendment illegally proposed or never legally ratified by three-fourths of the states. There is no such thing as amendment by laches; no such thing as amendment by waiver; no such thing as amendment by acquiescence; and no such thing as amendment by any other means whatsoever except the means specified in Article V of the Constitution itself.

It does not suffice to say that there have been hundreds of cases decided under the 14th Amendment to supply the constitutional difficiencies in its proposal or ratification as required by Article V. If hundreds of litigants did not question the validity of the 14th Amendment, or questioned the same perfunctorily without submitting documentary proof of the facts of record which made its purported adoption unconstitutional, their failure cannot change the Constitution for the millions in America. The same thing is true of laches; the same thing is true of acquiescence; the same thing is true of ill considered court decisions.

To ascribe constitutional life to an alleged amendment which never came into being according to specific methods laid down in Article V cannot be done without doing violence to Article V itself. This is true,because the only question open to the courts is whether the alleged 14th Amendment became a part of the Constitution through a method required by Article V. Anything beyond that which a court is called upon to hold in order to validate an amendment, would be equivalent to writing into Article V another mode of amendment which has never been authorized by the people of the United States.

On this point, therefore, the question is, was the 14th Amendment proposed and ratified in accordance with Article V?

In answering this question, it is of no real moment that decisions have been rendered in which the parties did not contest or submit proper evidence, or the Court assumed that there was a 14th Amendment. If a statute never in fact passed by Congress, through some error of administration and printing got into the published reports of the statutes, and if under such supposed statute courts had levied punishment upon a number of persons charged under it, and if the error in the published volume was discovered and the fact became known that no such statute had ever passed in Congress, it is unthinkable that the Courts would continue to administer punishment in similar cases, on a non-existent statute because prior decisions had done so. If that be true as to a statute we need only realize the greater truth when the principle is applied to the solemn question of the contents of the Constitution.

While the defects in the method of proposing and the subsequent method of computing "ratification" is briefed elsewhere, it should be noted that the failure to comply with Article V began with the first action by Congress. The very Congress which proposed the alleged 14th amendment under the first part of Article V was itself, at that very time, violating the last part as well as the first part of Article V of the Constitution. We shall see how this was done.

There is one, and only one, provision of the Constitution of the United States which is forever immutable - which can never be changed or expunged. The Courts cannot alter it; the executives cannot change it; the Congress cannot change it; the State themselves - even all the States in perfect concert - cannot amend it in any manner whatsoever, whether they act through conventions called for the purpose or through their legislatures. Not even the unanimous vote of every voter in the United States could amend this provision. It is a perpetual fixture in the Constitution, so perpetual and so fixed that if the people of the United States desired to change or exclude it, they would be compelled to abolish the Constitution and start afresh.

The unalterable provision is this . . . "that no State, without its consent, shall be deprived of its equal suffrage in the Senate."

A state, by its own consent, may waive this right of equal suffrage, but that is the only legal method by which a failure to accord this immutable right of equal suffrage in the Senate can be justified. Certainly not by forcible ejection and denial by a majority in Congress, as was done for the adoption of the Joint Resolution for the 14th Amendment.

Statements by the Court in the COLEMAN case that Congress was left in complete control of the mandatory process, and therefore it was a political affair for Congress to decide if an amendment had been ratified, does not square with Article V of the Constitution which shows no intention to leave Congress in charge of deciding whether there has been a ratification. Even a constitutionally recognized Congress is given but one volition in article V, that is, to vote whether to propose an Amendment on its own initiative. The remaining steps by Congress are mandatory. If two-thirds of both houses shall deem it necessary, Congress shall propose amendments; if the Legislatures of two-thirds of the States make application, Congress shall call a convention. For the Court to give Congress any power beyond that to be found in Article V is to write the new material into Article V.

It would be inconceivable that the Congress of the United States could propose, compel submission to, and then give life to an invalid amendment by resolving that its effort had succeeded,- regardless of compliance with the positive provisions of Article V.

It should need no further citations to sustain the proposition that neither the Joint Resolution proposing the 14th amendment nor its ratification by the required three-fourths of the States in the Union were in compliance with the requirements of Article V of the Constitution.

When the mandatory provisions of the Constitution are violated, the Constitution itself strikes with nullity the Act that did violence to its provisions. Thus, the Constitution strikes with nullity the purported 14th Amendment.

The Courts, bound by oath to support the Constitution, should review all of the evidence herein submitted and measure the facts proving violations of the mandatory provisions of the Constitution with Article V, and finally render judgment declaring said purported amendment never to have been adopted as required by the Constitution.

The Constitution makes it the sworn duty of the judges to uphold the Constitution which strikes with nullity the 14th Amendment.

And, as Chief Justice Marshall pointed out for a unanimous Court in Marbury v. Madison (1 Cranch 136 at 179):

"The framers of the constitution contemplated the instrument as a rule for the government of courts, as well as of the legislature."

"Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government?"

"If such be the real state of things, that is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."

"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, courts, as well as other departments, are bound by that instrument."

The federal courts actually refuse to hear argument on the invalidity of the 14th Amendment, even when the issue is presented squarely by the pleadings and the evidence as above.

Only an aroused public sentiment in favor of preserving the Constitution and our institutions and freedoms under constitutional government, and the future security of our country, will break the political barrier which now prevents judicial consideration of the unconstitutionality of the 14th Amendment.

Cites and References:

1. New Jersey Acts, March 27, 1868.

2. Alabama House Journal 1868, pp. 210-213.

3. Texas House Journal, 1866, p. 577.

4. Arkansas House Journal, 1866, p. 287.

5. Georgia House Journal, November 9, 1866, pp. 66-67.

6. Florida House Journal, 1866, p. 76.

7. South Carolina House Journal, 1868, pp. 33 and 34.

8. North Carolina Senate Journal, 1866-67, pp. 92 and 93.

9. 14 Stat. 358 etc.

10. Senate Journal, 39th Congress, 1st Session. p. 563, House Journal p. 889.

11. House Journal 1868, pp. 578-584 -- Senate Journal 1866, p. 471.

12. House Journal 1866, p. 68 -- Senate Journal 1886, p. 72

13. House Journal 1866, p. 76 -- Senate Journal 1866, p. 8.

14. House Journal l866, pp. 210-213 -- Senate Journal 1866, p. 183.

15. House Journal 1866-1867. p. 183 -- Senate Journal 1866-1867, p. 138.

16. House Journal 1866, pp. 288-291 -- Senate Journal 1866, p. 262.

17. House Journal 1866, p. 284 -- Senate Journal 1866, p. 230.

18. House Journal 1867, p. 60 -- Senate Journal 1867, p. 62.

19. House Journal 1866-1867, p. 108 -- Senate Journal 1866-1867, p. 101.

20. McPherson, Reconstruction, p. 194; Annual Encyclopedia, p. 452.

21. House Journal 1867, p. 223 -- Senate Journal 1867, p. 176.

22. House Journal 1867, p. 1141 -- Senate Journal 1867, p. 808.

23. McPherson, Reconstruction, p. 194.

24. House Journal 1868, pp. 44-50 -- Senate Journal 1868, pp. 33-38.

25. Minutes of the Assembly 1868, p. 743---Senate Journal 1868, p. 356.

26. House Journal, 80th Congress, 2nd Session. p. 563 etc.

27. 13 Stat. p. 567.

28. 18 Stat. p. 774.

29. Presidential Proclamation No. 153, General Record of the United States, G.S.A., National Archives and Records Service. 30 14 Stat. p. 814.

31 House Journal, 37th Congress, 1st Session. p. 123 etc.

32 Senate Journal, 37th Congress, 1st Session. p. 91 etc.

33 13 Stat. p. 763.

34 14 Stat. p. 811.

35 14 Stat. p. 814.

36 House Journal, 39th Congress, 2nd Session. p. 563 etc.

37 40th Congress, 1st Session. House Journal p. 232 etc.

38 McPherson, Reconstruction, p. 53.

39 House Journal 1868, p. 15, Senate Journal 1868, p. 15.

40 House Journal 1868, p. 9, Senate Journal 1868, p. 8.

41 Senate Journal 1868, p. 21.

42 House Journal 1868, p. 50, Senate Journal 1868, p. 12.

43 Senate Journal, 40th Congress. 2nd Session. p. 725.

44 House Journal, 1868, p. 50.

45 Vol. I, pp. 288-306; Vol. II, pp. l429-]448 - "The Federal and State Constitutions," etc., compiled under Act of Congress on June 30, 1906, Francis Newton Thorpe, Washington Government Printing Office (1906).

46 Same, Thorpe, Vol. V, pp. 2799-2800.

47 Same, Thorpe, Vol. II, pp. 809-822.

48 Same, Thorpe, Vol. I, pp. 116-132.

49 Same, Thorpe, Vol. VI, pp. 3269-3281.

50 14 Stat. p. 42B, etc. 15 Stat. p. l4, etc.

51 15 Stat. p. 706.

52 House Journal, 40th Congress, 2nd. Session. p. 1126 etc.

53 16 Stat. p. 708.

The above treatise is taken in part from the research of Judge L. H. Perez.

Further notes and addenda.

It must be noted that the Resolution proposing the twelve sections which comprise the Bill of Rights was not issued to the States with a signature, nor were nos. 11, 12, or the original 13th. The proposed "Corwin" 13th of 1861 legalizing Slavery and acknowledging States rights, signed as approved by Buchanan two days before Lincoln's inauguration, and the Anti-Slavery Amendment, signed by then President Lincoln were the only two signed by presidents. So President Andrew Johnson's argument was probably defective.

It may be helpful to know that the 14th amendment proclamations of July 20, 1868, cite 51, and July 28, 1868, cite 53, were issued as Presidential Executive Orders.

Presidential Executive Order No. 6 **, issued July 20, 1868. Ratification of the 14th Amendment certified as valid, provided the consent of Ohio and New Jersey be deemed as remaining in force despite subsequent withdrawal. **Signed by William H. Seward, Secretary of State. Has the form of a proclamation.

Presidential Executive Order No. 7 **, issued July 28, 1868. 14th Amendment certified as in effect and ordered published. **Signed by William H. Seward, Secretary of State.

From Presidential Executive Order Title List -- Presidential Executive Orders, 2 vols. (N.Y.: Books, Inc., 1944 Copyright by Mayor of N.Y. 1944), vol. 1, pp. 1-2.

In this light the 14th (amendment), which has perplexed many, is an Executive Order, not an (Article) of Amendment to the Constitution of the united States of America, albeit a statute and so remains an Executive Order.

What really counts are these points:

A) New Jersey was disenfranchised in the Senate by having its lawfully elected Senator accepted, and then rejected, and without a 2/3rds vote;

B) Oregon's faulty ratification vote with unlawful state legislators being allowed to cast votes; and the lawfully constituted state legislature then rejecting the Fourteenth, but too late.

C) Non-republican [Reconstruction] governments of the southern States imposed by military force and fiat, cannot ratify anything. Either the Fourteenth is legal and the anti-slavery amendment is not, or the anti-slavery amendment is legal and the Fourteenth is not.

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