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THE LIBERTARIAN ENTERPRISE
Number 704, January 6, 2013
"It is perhaps a bit late, but individuals
who value civilization are beginning to act."
Breach of Trust and Bill of Rights Enforcement
by Terence James Mason
[email protected]
Attribute to L. Neil Smith's The Libertarian Enterprise
A couple of years ago, I started working in earnest on a novel
about how everything would eventually be made "all right,"
though we would go through hell as a country first. I've been playing
with this plot ever since my graduate school days, and while nobody
in the novel falls through a "probability breech," my own
trip through one weighed heavily on that early planning.
The current incarnation of that novel originally incorporated
chapter headings which captured various quotes of the Founders and
Framers combined with the text of some of the earlier efforts at
"sane" legislation. The latter took a life of its own and
eventually became the essay No Loopholes, describing that
legislation in extreme detail. (The novel remains in basically the
form it had after these sections were removed, and when it get to it
I will have to "advance the clock" by four years for it to
make sense.)
I mention that because last week in The Libertarian Enterprise,
L. Neil Smith published an essay promoting a proposed "Bill of
Rights Enforcement" amendment to declare political actions
contrary to the Bill of Rights to be treasonous.i
I am very sympathetic to that view; many are the times I have looked
at politicians (particularly but not exclusively of one party) and
thought to myself, or yelled at the television or radio or computer
screen, "That's treason!" And similar language permeated
some of the early drafts of No Loopholes and the still-pending
novel.
But while I wrote in part to demonstrate that the common man can
find clear, simple meaning in the Bill of Rights that apparently is
not clear or simple to politicians, lawyers, and judges, I did quite
a bit of study on some subjects. I still don't claim to be an expert,
but I was reminded that the Constitution defines treason in Article
III, Section 3:
Treason against
the United States, shall consist only in levying War against them, or
in adhering to their Enemies, giving them Aid and Comfort. No Person
shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court. The
Congress shall have Power to declare the Punishment of Treason, but
no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.
My reading convinced me that the Framers intended a specific and
limited definition of Treason to minimize situations where charges
of treason could be used to label political opponents, or as part of
a game of political football between factions in Congress and in
society as a whole. And while I might enjoy the spectacle of Congress
degenerating into a body capable of doing nothingii
but throwing about charges of treason on partisan grounds — not
least because that might keep them too busy to do other mischief —
I elected instead to reserve treason to cases which meet the narrow
definition of Article III, Section 3, and introduced a different term
both for Anti-Constitutional actions as well as certain types of
corruption which fall short of the narrow Constitutional definition
of treason: Breach of Trust.
A Breach of Trust Amendment, consistent with the No Loopholes
language, which also captures the content and form of the proposed Bill
of Rights Enforcement Amendment, might be stated:
Any official, appointed or elected, at any level of government,
who introduces or votes on any bill, enforces any law, proposes or
introduces any treaty, or issues or executes any regulation, order,
or finding, that violates any individual's rights, or any rights of
the States, under the rigorous traditional interpretation of the
first Ten Amendments, or the 14th Amendment, to the United States
Constitution, or grants preferential treatment to any person or
persons, including corporate persons, shall have committed a Breach
of Trust. An allegation of a Breach of Trust shall require the
Congress to investigate and, if evidence is found, impeach such
person and bind them over to federal or state court as appropriate
for any criminal acts or civil damages incurred by said Breach of
Trust. Such person shall be stripped of all privileges and benefits
of office, shall be considered a felon and bound from voting in any
future federal election or holding any elective or appointed office,
and subject to such punishment as is deemed appropriate in a Court of
Law or Civil Court reviewing their actions, up to and including
capital punishment if so warranted. Should Congress fail to act on an
egregious Breach of Trust, impeachment may be obtained by a vote of
impeachment recorded by two-thirds of the States, either by a
two-thirds legislative majority, or by a special election which
garners a majority of registered voters. In such case, any members of
Congress who prevent an impeachment for Breach of Trust shall be
considered accessory after the fact and concurrently themselves
subject to impeachment and removal from office.
One of the objectives of No Loopholes was to spell out in
exacting detail exactly to whom each clause refers, eliminating any
escape clauses ("loopholes") in the expanded Bill of Rights
language. Consequently, the essay offers the following longer and
more specific statement of this core principle by defining Breach of
Trust in terms of multiple actions described in detail across several
proposed amendments, and providing a process by which penalties are
incurred and assessed. The core of this argument appears as Amendment
19 (as labeled sequentially within that document):
19. (Breach of Trust, Impeachment and Recalls Amendment)
19.1. A Breach of Trust shall consist of the commission of any acts
specifically prohibited by this Constitution, or conspiracy to commit
same, in explicit violation of the oath of office; or violation of law or
fiduciary duty to the public trust for personal or political gain; or
action in a official capacity, to defraud or damage any person or
persons; by any Member or group of Members of Congress, by the
President or Vice-President, by any Justice of the Supreme Court, or
by any other officer of the United States or justice of a subsidiary
Federal Court. In particular, a Breach of Trust shall consist of the
execution or implementation of any action, bill, law, regulation,
order, or finding which:
19.1.1. Restricts any person or persons from public or private religious
worship or from public or private pronouncement of their religious
belief(s); however, the prosecution of any person or persons for
crimes and misdemeanors with religious motivation may not be
restricted.
19.1.2. Restricts in any fashion the freedom of speech or of the
press of any person or persons, excepting incidents of fraud.
19.1.3. Restricts any right of peaceable assembly by any person
or persons, or refuses to grant hearing to any grievance against the
government by those peaceably assembled.
19.1.4. Restricts in any fashion the right to keep and bear arms.iii
19.1.5. Requires any person to be searched in their person or effects without
due cause and without execution of a proper warrant.
19.1.6. Permits any seizure of a person's papers and other personal
information, however situated, without due cause and without
execution of a proper warrant.
19.1.7. Permits any seizure of personal property for any use
other than by the government, or permits such seizure without payment
of due compensation.
19.1.8. Permits any arrest or holding of a person without due
cause and without execution of a proper warrant.
19.1.9. Except for cases involving the armed forces, permits any
trial other than by a jury trial, or executes any penalty without the
due process of a trial.
19.1.10. Promulgates any distinction in the treatment of persons,
or of the States, under the law; in particular, promulgates any difference
under the law between the officers of the United States and other
Persons.
19.1.11. Causes any damage to a person or persons in violation
of established criminal or civil law or legal precedent; in particular,
when in a position of trust during bankruptcy, by acting contrary to the
established laws of bankruptcy.
19.1.12. Promulgates or promotes any fraudulent action or statement,
whether or not such fraud accrues to personal or partisan political gain.
19.1.13. Consists of a Breach of Trust as defined elsewhere within this
Constitution.
19.1.14. Seeks to protect any other person who has committed a Breach
of Trust from the consequences of their actions, for personal or partisan
political gain.
19.2. The commission of a Breach of Trust shall automatically and
permanently disqualify any person from holding any elected or
appointed position of faith or trust within the government of the
United States or its States and their Districts.
19.2.1. Persons who are accused of a Breach of Trust shall be subject to
Impeachment in accordance with the provisions of the Constitution
where appropriate, and to dismissal otherwise.
19.2.2. Any person who is dismissed or impeached for Breach of Trust may
subsequently be held to account for any civil or criminal damages
imposed on any person or persons as a result of said Breach of Trust,
in accordance with the due process of the law.
19.2.3. No person shall be eligible to become or remain an elected or
appointed officer of the United States; who has been convicted in the
common courts, or in any State or Federal court of impeachment, or
who has been subject to recall, for any infamous crime or Breach of
Trust; or who has lost a civil judgment for damages to any person or
property resulting from any Breach of Trust in public office of the
United States or of any State or district.
19.3. Any petition for impeachment for Breach of Trust shall have
precedence over all other actions of Congress, except for those
related to Acts of War; except that no petition may be twice offered
by Congress for the same offense.
19.4. Any Member of Congress may, on presentation of cause
for Breach of Trust, be recalled by the legislature of his or her
own State, on two-thirds majority vote; or may be recalled by vote
of one half of all voters registered and legally authorized to vote
in their district (if a member of the House of Representatives) or
their State; without regard for any action by Congress; and such
recall shall have the same force and restrictions as an impeachment
by the Congress, except that the replacement of any person impeached
and removed from office for Breach of Trust shall be by public vote
of their district or State, and not by appointment of the legislature,
or of the Governor.
19.5. On presentation of evidence of Breach of Trust, a petition of
impeachment of any elected or appointed officer of the United States
may be offered either by a majority vote of the legislatures of, or
by petition of not less than one-half of the registered and legally
authorized voters of, three-fifths of the States, and shall have the
same standing as articles of impeachment submitted to the body of the
House of Representatives.
19.6. Upon presentation of evidence for Breach of Trust, or for
high crimes or misdemeanors, and given a failure by Congress to impeach:
the President, Vice President, any Member of Congress, or any Justice of
the Supreme Court may be impeached, convicted, and removed from
office by the States as follows:
19.6.1. Either by a two-thirds majority vote for such impeachment
by the legislatures of, or by vote in a special public election in which
a number of voters equal to one-half of the count of registered and
legally authorized voters votes for such impeachment, in two-thirds
of the States.
19.6.2. Such impeachment and removal from office by the States
or People shall not be construed as double jeopardy, should impeachment
have been voted and failed within the Congress.
19.6.3. Moreover, in such contingency, all Members of Congress
who voted against any petition of impeachment, or against conviction,
of the indicted official, shall concurrently be impeached, convicted,
and removed from office by such vote.
19.7. No officer of the United States who shall have been
impeached shall be immune from criminal prosecution for any acts
undertaken in office or after being removed from office, except by
separate action of the Congress or the President; nor shall they be
protected from civil suits at law; nor shall they receive any pension
from the United States, or other payments to them, or on their behalf.
19.8. In any suits against the United States for damages to any
persons, the officer or officers of the United States who shall be alleged
to have caused the damages shall be co-defendant, and shall have first
responsibility for the repair of said damages if so ordered by a
court of law, in accordance with the common law and of the State or
district in which suit is brought.
19.9. Any person holding any office of the United States, who
shall become disqualified under the terms of this Amendment, shall be
removed from office immediately upon its ratification.
19.10. Any existing instruments which conflict with the provisions
herein shall become invalid upon the ratification of this amendment,
without prejudice to whatsoever past action resulted in their execution
and implementation.
The following specific terms added to the Tenth Amendment prohibits
Congress from delegating legislative authority to the Executive and the
Judicial branches, and similarly prohibits those branches from assuming
legislative duties, as well as limiting other federal abuses including
efforts to overturn the Bill of Rights by treaty, and defines when such
acts might be Treason by the narrow definition.
10.4.The Congress shall not delegate its responsibility to legislate
to the President and his officers, or to the Supreme Court and lesser
courts, such delegation being a Breach of Trust. Congress shall
approve any implementation of regulations by the President and his
officers in like manner as any other bill.
10.5. Neither the President, nor his officers, shall issue Orders
or Regulations contrary to, or in excess of, the legislation specifically
authorized under this Constitution and entered into Law; the issuance of
any such Order or Regulation being a Breach of Trust.
10.5. Congress shall not, by legislation, offer different,
unequal, or preferential treatment to any State or group of States,
or to any person or corporation; neither shall such distinction be
made by Order or regulation of the President and his officers; such
legislation or Order being a Breach of Trust.
10.6. No Treaty or other agreement with any foreign nation
or nations, shall have force in any terms which affect the life,
liberty, livelihood, property, pursuit of happiness, or other rights
of the People of the United States within the boundaries of the United
States and its territories, such agreement being a Breach of Trust;
and, if it places an undue burden on the armed forces, militia, or
right of the people to keep and bear arms, potentially an act of
treason.
10.7. The Congress shall not, by legislation or treaty, delegate
any portion of its authority to any foreign nation or nations, nor
may it permit any nation or coalition of nations to issue dictates
which supersede the laws of the United States or of the several States
within the boundaries of the United States and its territories, such
legislation being a Breach of Trust; and shall recognize any attempt
to impose such dictates through force as an Act of War against these
United States.
10.8. No Treaty shall have any power on the People of the United
States, or on the several States: to levy taxes, or fees, or any other
collection of monies or appropriation of property accruing to the benefit
of any foreign nation or nations, or their representatives or agents;
the ratification of such treaty being a Breach of Trust.
A proposed "Equal Treatment Under the Law Amendment" notes:
15.7.The President and his officers shall implement all laws
passed by the Congress as written without reservation or waiver;
and may not issue or enforce any Order or Regulation not explicitly
authorized by act of Congress, such actions being a Breach of Trust.
15.9. No Act of Congress, Order of the President, Regulation,
or finding of the Supreme Court may create or permit the establishment
of any laws or regulations requiring preferential or otherwise different
treatment of the Members of Congress, the President or Vice-President,
the Justices of the Supreme Court, or to the officers and employees
of the United States; or exempting the same from said Act or Order;
when compared to the States or the People as a whole, unless implemented
as part of the regulation of the Military under Congressional authority;
such laws being a Breach of Trust.
15.13. No Law or Regulation shall have any provision under which
any Citizen of the United States, or any Corporation registered in any
State or by the Federal Government, may receive a waiver from any of its
provisions. The issuance of such a waiver by the President or any of
his officers shall be an impeachable Breach of Trust. Any petition to
Congress for a waiver shall, if accepted, immediately render such Law
or Regulation null and void in all its terms and in all
circumstances.
This longer construction encompasses the following points, which are
present in the short form but with less rigorous explanation:
The definition of Breach of Trust
is much more specific than just saying "violates the Bill of
Rights (and the Commerce clause)." That's because, while you or
I can easily point to an action and say, "That's a violation of
the Bill of Rights," politicians and lawyers often have to be
led there by the nose in terms of specifics. Another objective of No
Loopholes was to explicitly limit the ability to manufacture
exceptions to the Bill of Rights by defining the very rare cases
where exceptions might be appropriate — and outlining the many
cases where exceptions have been made illegally and saying, "This
stops now."iv
For partisan reasons, not to
mention corruption, we cannot always expect Congress to police
itself. The proposed language empowers State legislatures to act to
remove members of their Congressional Delegation for Breach of
Trust; empowers Citizens to recall their own Congressmen or Senators
for Breach of Trust; and in the ultimate extreme, permits a defined
majority of states to petition Congress to act, or to act in the
stead of Congress if Congress refuses to act, on a particularly
egregious Breach of Trust. Moreover, since it is highly likely that
only a partisan effort would block an impeachment and removal of
office in Congress, if the States and People successfully vote to
remove any person, any members of Congress who prevented such
removal in a Congressional vote are concurrently impeached and
removed from office. This provision sets a high standard for
actually imposing impeachment from outside of Congress, as it should
— it will require real, bipartisan outrage to meet this
standard.
The purpose of the "no
waivers" provision is clearly to enforce the requirement that
each law must apply equally to all people, corporations, conditions,
places, and circumstances. I believe that, of necessity, this will
yield less and simpler legislation, because if the special interests
can't build in loopholes or other provisions to their benefit
through waivers and special exceptions, most legislation should be
reduced to the least common, functionally acceptable, denominator.
The reader will recognize an
interpretation of paragraphs 10.6 and 10.7 in the essay "Why
the Feinstein Bill is Anti-Constitutional" published in L. Neil
Smith's The Libertarian Enterprise on 30 December 2012.
I note that this proposed series of Amendments to the Constitution
is tied to specific actions rather than to political speech in general,
although it does consider explicit political fraud — if it can
be proven — to be an action rather than protected political
speech. I don't pretend that this can't necessarily be as politically
contentious as the use of the phrase "treason" to describe
these Breaches of Trust, but the level and specificity of the tests
of any action should act to hinder the frivolous use of these
provisions.
I hope you will give serious consideration to my proposal, complex
though it is, relative to the much simpler and emotionally
satisfying, but potentially more contentious, language of the
Amendment discussed in L. Neil Smith's essay last week. If not, more
power to you, because I certainly agree in principle that something
must be done.
Terence James Mason is the author of No Loopholes:
Getting Back to Basics, an assessment of the meaning of the Bill
of Rights and a suggestion of additional Constitutional Amendments
to restore the Framer's vision for the Republic. No Loopholes
is electronically published by Twilight Times Books
(http://twilighttimesbooks.com)
in Kindle, Nook, and other popular electronic formats. Mason tweets
on the need for #NoLoopholes @OneAmericanVoice.
Notes
i
Mr. Smith's essay at
http://www.ncc-1776.org/tle2012/tle703-20121230-02.html
links to this proposed Amendment on the White House web site
https://petitions.whitehouse.gov/petition/work-congress-introduce-bill-rights-enforcement-clause/8bGN8pYc:
Any official, appointed
or elected at any level of government who introduces or votes any
bill, or enforces any law, that violates an individual's rights
under any of the 1st 10 amendments, or the 14th amendment to the US
constitution, shall be judged guilty of treason. An allegation of
such an act of treason shall require the federal government to
investigate, and if evidence is found, prosecute said individual for
treason. If found guilty, that person shall be stripped of all
privileges and benefits of office, their citizenship, and subjected
to lifelong imprisonment and/or death.
ii
Actually, as of the news today (31DEC2012 as I write this), they've
certainly accomplished that part.
iii
In retrospect, I would modify this as follows (although some of this
is covered elsewhere in No Loopholes: Restricts in any fashion
the individual right to keep and bear arms, except by judicial
finding that the individual is or will become a danger to himself or
others; restricts individuals from forming a local militia for their
mutual protection, provided said individuals notify their State and
district authorities of their intent and actions; or punishes any
person or persons from their actions of individual self defense or
mutual collective defense, of any person's life, liberty, or
property.
ivThe
reader's mileage might vary here, of course. For example, No
Loopholes's clarification of the Second
Amendment would permit maintaining some version of the National
Instant Criminal Background Check System (NICS); but entry on that
list would require specific and individual judicial action, and
would allow State law to override the Federal determination in
certain cases. Other than that, virtually every current State or
Federal gun law would be invalidated as Unconstitutional. I'm well
aware that the truly Libertarian approach is to combine the Zero
Aggression Principle with the diligent preparation for, and instant
willingness to, assure that initiators of aggression do not survive
their attempt to do so, Deus volante.
Was that worth reading?
Then why not:
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