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To: OwenKellogg

The Civil Disobedience, that is the disregard of Federal Regulation, is the function of the States. Texas and Arizona to name two, are showing the way

Eric holder will be arrested if he should show up in Maricopa County.


2 posted on 04/29/2012 9:59:10 AM PDT by bert ((K.E. N.P. N.C. +12 ..... Present failure and impending death yield irrational action))
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To: bert
The Civil Disobedience, that is the disregard of Federal Regulation, is the function of the States. Texas and Arizona to name two, are showing the way

Indeed, they are getting closer to what's really needed--an overt declaration that certain aspects of the federal government are fundamentally illegitimate, and nobody is bound to abide by them. Something similar may be happening at the county level in Illinois, where the voters of Pike County have, by an overwhelming super-majority (80% if I recall), effectively declared that the Illinois statutes which would charge someone who carries a loaded weapon on a public right of way with "Aggravated Unlawful Use of a Weapon" are illegitimate, at least as applied to such conduct. It will be interesting to see how that plays out; if state police tried to charge someone with AUUW within Pike County, the defendant would be entitled to a jury of Pike County residents. Conviction would seem difficult under such circumstances.

Shifting to the federal stage, I think there needs to be a shift in dialog toward recognizing that the Constitution doesn't merely give the Court permission to strike down certain statutes. Rather, any statute which is contrary to the Constitution is, by definition, illegitimate. Further, the Court has no authority to declare otherwise. Any Court decision which would seek to uphold an illegitimate decision would itself be illegitimate.

On a related note, there needs to be a shift in how precedent is regarded. Since there is no Constitutional basis for court precedents to have any authority, legitimate precedents can only be legitimately and meaningfully applied to questions of legitimacy when in cases where all other laws would, in totality, be truly ambiguous. Otherwise, any precedent will either be redundant (if it agrees with what the other laws say), irrelevant (if the laws have changed since it was written), or illegitimate (if it disagrees with what the other laws say). In none of those scenarios would it be even slightly relevant. The only time precedent should be considered, absent bonafide ambiguity, is in determining remedies. For example, if the Court were to illegitimately strike down a perfectly legitimate statute, and then a later case were to come before it concerning that same statute, the Court could rule that the statute was in fact legitimate, and always had been, but nonetheless rule that because of its previous ruling, the government would be forever enjoined against prosecuting violations of the statute which occurred between the issuance of the two decisions. Such action would not recognize that the earlier ruling had ever really been "legitimate", but nonetheless recognize that the government may not legitimately punish people who regard its rulings as granting legitimate license.

Incidentally, I'd like to see a Constitutional amendment explicitly codifying a somewhat expanded version of the last notion into law, but with a caveat:

  1. In any criminal prosecution or punitive civil action which seeks a prison term of any duration, or a penalty in excess of one ounce of gold, the defendant shall be entitled to have a jury evaluate a claim that he reasonably believed his actions to be either de jure or de facto legitimate. Such claim shall be considered an affirmative defense.
  2. To find that a defendant had a reasonable belief that an action was de facto legal, a jury should find that the person reasonably believed that (1) even if agents of the state knew about the action in question, they would not seek punitive action in response; (2) such failure to seek action would not be inconsistent with good-faith performance of the agents' duties.
  3. A reasonably-held belief that an action would constitute at most a petty offense should not necessarily preclude prosecution for a misdemeanor, but should preclude felony prosecution; jurors should use some judgment in evaluating the defendant's state of mind and determining what level of prosecution would be considered "reasonable", and what level would be "cruel and unusual".
  4. Agents of the state who commit actions which are revealed after the fact to have been illegitimate should be allowed to claim their rights under the above, but are not entitled to immunity beyond that available to an ordinary person.
I doubt anything like the above could ever get ratified, but it would probably improve certain aspects of government immensely.
17 posted on 04/29/2012 3:46:56 PM PDT by supercat (Renounce Covetousness.)
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