Sunday, October 08, 2006

2nd Look--State Govt Unconstitutionalities Against Citizen-Proposed Law

Courtesy, The League of Women Voters[2885 words]
Crimes of the state govts are continually submerged by the horrendous lies and crimes of the national govt. The horrific treasons of the Military Commissions Act of 2006, passed by Congress in late September and signed into law 17 October, are just the latest anti-Constitution treasons by the 3-branch Bush-Cheney fascist despotism.
Because of the anti-Constitution, ex post facto, retroactive nature of most of the MCA's provisions -- in blatant violation of the Constitition's Article 1, section 9, paragraph 3: "No bill of attainder or ex post facto law shall be passed", felony conspiracies against rights in violation of 18 USC 241 and 18 USC 2441, which resulted in many felony murders in the torture gulag over the past three-plus years, were unconstitutionally exonerated, overturning Constitutional provisions with inferior statute provisions. Bush and the Congress created, not law, but a blatantly unconstitutional anti-law regime. That anti-law regime is both a felony conspiracy against citizen rights to have the torture/murder violations of 18 USC 241 and 18 USC 2441 upheld and a violation of the presidential and Congressional oaths of office to protect Constitutional rights -- the combination of which is an act of treason, as defined for the secessionist state legislators in the 1860s.
Felony forfeits all immunities -- legislative, executive, and judicial. Congresspersons voting for MCA-2006, and the Bush-usurper, should be immediately prosecuted, convicted, and imprisoned. They won't be, of course, because this fascist despotism masquerading as our national govt controls all of our law enforcement and most of our courts.
For us to overcome the crimes of the national govt, we have to be able to use our sovereign direct democracy (DD) powers in the states where we already have citizen lawmaking rights. The I&R states are the key to any effective action plan that is capable of ending the Bush-Cheney fascist despotism. Unfortunately, the corruption machines of the elites have done their best to close off that approach. We need to understand what has happened in the I&R states and how to overcome those unconstitutional controls.

DD Recap

Direct democracy (DD), is rule by the people through constitutionally-defined governance components, which are decided by binding referendums.

The eight direct democracy governance components that are legal fact in various US state constitutions are the greatest corruption-fighting machine ever devised. They were put into those state constitutions by the greatest democracy movement of recorded history, our Reform Era. But the corruption-fighting machine that they represent has been crippled by a hundred years of unconstitutional lawlessness administered by the state govts involved. And the greatest democracy movement that ever was has been largely drummed out of our history books by the "Madisonian scholars" of academe, whose prestigeous professorships, prestigeous conference destinations, and prestigeous book publishing contracts enslave them to the class-race elite's dictates.

There are eight constitutionally-defined DD governance components in the states. Two are administrative -- election of representatives (in all states) and the recall (in 18 states). Four are legislative -- constitutional amendment initiative (in 18 states), statute law initiative (in 21 states), statute law veto ("referendum" -- in 24 states), and statute law affirmation ("referendum on existing state law" -- only in Nevada, where it stopped an assault by state govt on women's rights and Roe v. Wade in 1990). The final two are both legislative and consultative -- constitutional amendment referral from the state legislature (in 49 states -- it's how the sovereign people authorize changes in their constitutions in every state except Delaware), and statute law referral from the state legislature (in 25 states at last count, but this "bait and switch" component is popular among corrupt legislators, and sure to increase -- all such measures contain something the people want, but should be carefully reviewed for hidden traps that unfairly advantage the elites at the expense of ordinary people).

For the names of the states with each DD governance component, see States DD Chart on the Direct Democracy League site at http://ddleague-usa.net/statesDD.htm

Note that the eight DD governance components include the election of representatives. There's nothing mystical about elections that set them apart from referendums. Elections are nothing more than binding referendums, voted by all eligible citizens in a given jurisdiction, as all referendums are. The arguments that claim distinctions between elections and referendums done for any other purpose are fallacious.

In the genesis of American DD, in the early 1900s, there was one primary purpose that came through in the DD literature. (DD was most often referred to then as 'Direct Legislation'.) Its primary purpose was to achieve the genuine representative govt that the sovereign people had been promised in the Constitution -- and that political corruption had robbed away.

That is -- contrary to predator elitism's propaganda, sophistries, and vacuous arguments -- the purpose of DD was not to set up a "pure democracy" to weaken representative govt, but rather to set up citizen checks and balances on govt to strengthen it against the treasonous corruptors within and without. (See especially, The National Economic League, The Initiative And Referendum: Arguments Pro And Con By A Special Committee Of The National Economic League. © 1912, J.W. Beatson. Published at Cambridge, MA: Caustic-Claflin Co., Printers.)

State Govt Unconstitutionalities

Unconstitutional actions against citizen-proposed law are practiced by every govt in every state in which the citizens have I&R rights and powers (initiative and referendum petition processes -- citizen lawmaking). The unconstitutionalities were snapped into place by each state's legislature soon after citizens passed the constitutional provisions granting themselves I&R.

The unconstitutionalities keep the rabble down and the elites' profits and power up and unlimited.

So it has always been. Constitutions and statutes have always been subordinate to the elites' natural law of wealth and power. Vague constitutional provisions give elitist judges the leverage they need to arbitrarily decide in favor of their class. It's a lesson in vagueness that the Constitution's authors learned from ancient Rome's Twelve Tables and the Magna Carta. The American elites knew that the British elites had worked around the rights of Englishmen ever since the Magna Carta.

Violation of our state constitutions date back to before the 1789 Constitution was unconstitutionally ratified, in violation of the standing, enviolable national constitution, the 1782 Articles of Confederation.

Violation of our constitutions by elites will remain our single largest political problem as long as we the sovereign people continue to allow it. We are indirectly responsible for our govts' evils. Until we meet our responsibilities, our govts will go right on murdering ordinary people for profits and power worldwide. The tobacco death industry, and its kickbacks to the predator politicians, is just one of the many co-equal paradigms. Murderers do not stop. They are stopped or they go on murdering.

As soon as one state's citizens walked off the I&R battlefield thinking they'd won, the constitutional criminals in the legislature began writing and passing statutes directing public officials and judges to perpetrate many different types of unconstitutional and felonious crimes against citizen-proposed law.

There are many variations on the theme, but the two most common groups of unconstitutional acts against citizen-proposed law are separation of powers violations and binding judicial review of proposed law.

Most of the separation of powers violations occur when executive branch officials perform legislative or judicial branch functions.

The Secretary of State is frequently ordered to write or re-write the ballot language. Writing the ballot language is an important legislative function, not an executive function. If the Secretary of State tried to write the ballot language for a legislature's statute law referral to the people's referendum, he or she would be tossed out on his/her ear.

The ballot language may very well be a factor in subsequent court actions that must interpret the intent of the citizen-proposed law. Subtle, misleading language written by an executive branch official who represents corporate predators, not the sovereign people, could easily result in an unfavorable court ruling.

Another popular trick in the separation of powers variation is for the Attorney General to deem that a particular citizen-proposed law is not clearly written or conflicts with the standing laws of the state, and must therefore be rejected.

The AG's rejection action is unconstitutional on two counts. First, no executive branch official is permitted to reject a bill of law proposed in accord with constitutional provisions, regardless of whether that proposed law comes from the legislature or from civil society. Second, such an executive branch official's binding judicial review of a proposed law would be unconstitutional even if done by a judge. No constitution, state or federal, defines the judicial power to include binding judicial review of proposed law. Binding judicial review can only be applied after the measure has been signed into finished law.

The only way for such cross-branch acts to be constitutional is for them to be specifically ordered in the state constitution.

The Nebraska constitution's separation of powers provision is typical --

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.

There are no provisions in any I&R state's constitution, allowing such cross-branch actions in the handling of citizen-proposed law -- with the sole exception of Massachusetts. I&R constitutional provisions there so heavily contradict other constitutional provisions that all Massachusetts I&R, since its inception in 1918, has been unconstitutional. Only a statewide constitutional convention will have the comprehensive power needed to sort it all out and eliminate the contradictions.

Outside Massachusetts, the most common unconstitutional stunt beyond the separation of powers violations is the "binding judicial review of proposed law" -- done by judges who know exactly how unconstitutional their binding review is. Again, no US constitution defines the judicial power to include binding judicial review of proposed law. Nonetheless, this unconstitutional stunt is so common that it accounts for most of the delays and rejections of citizen-proposed law.

If state officials or judges pulled either of those stunts -- separation of powers violations or binding judicial review -- on legislature-proposed law, they would be impeached and removed before dinner.

Note that the gauntlet of unconstitutionalities is only selectively applied -- so that civil society doesn't connect the dots.

Citizen-proposed law that is offensive to money-power is stopped -- or worse, passed and turned into a nightmare of anti-DD, anti-sovereign-people, and anti-public-education machinations, as was the case with California's Prop 13, limiting property taxes, in 1978.

Citizen-proposed law that is NOT offensive to money-power sails right on through. Such events prove that the system works -- with deafening huzzahs from the predator politicians.

It's been a successful strategy, helping to keep the people from noticing the unconstitutionalities, for over a hundred years.

And, please, no more specious arguments, claiming that there is some sort of viable distinction between legislature-proposed law and the citizen I&R petition. Both are proposed law, pure and simple.

The I&R petition proposes that a law be passed, not that an executive agency policy or judicial ruling be passed. The I&R petition, once approved by the sovereign people, becomes law, not anything else. The law that the approved I&R petition becomes is open to binding judicial review as law, just as is any law passed by the legislature. The I&R petition is a legislative function within the legislative power of govt and is, purely, proposed law having the protection of all applicable constitutional provisions.

And let's be clear. There are two different levels of constitutional crime being committed against citizen-proposed law in the I&R states. They come together in one criminal conspiracy, but they are separated by the wide gulf of choice.

First, the legislatures begin with their blatantly unconstitutional statutes. They're allowed to pass unconstitutional statutes, with impunity, until what they've done becomes part of a felony conspiracy.

The moment that any two or more individuals comply with any one of those statutes, the unconstitutional statute becomes not law, but an anti-law regime that is part of a felony conspiracy against rights, in violation of 18 USC 241. It also violates 42 USC 1983 -- civil deprivation of rights by state officials or judges.

Felony forfeits legislative immunity. Every state constitution carries that exclusion from legislative immunity. Under 18 USC 241, any legislator who voted for the blatantly unconstitutional statute becomes a felony-perpetrating co-conspirator who can be criminally prosecuted in federal court, despite being an office-holder. (State-defined felonies have also been committed.)

Second, state officials and judges are perfectly capable of choosing to comply, or not to comply, with statute instructions that direct them to blatantly violate the fundamental constitutional law of their state's and nation's sovereign people. If they choose not to comply, there's no crime. However, if they choose to violate constitutional law in the handling of citizen-proposed law, then they become perpetrators of felonious conspiracies against rights.

In the past hundred years, thousands of public officials and judges have chosen to violate their sovereign people's constitutions and laws relating to citizen-proposed law. We can hold all of those constitutional officers responsible for knowing that they were violating constitutional and statute law.

Needless to say, any citizen who is deprived of rights by a criminal conspiracy of state officials or judges, can sue the co-conspirators in federal court on civil charges under 42 USC 1983. Makes no difference whether the criminal prosecution goes to trial or not. Torts have been committed against the persons of citizens.

Examples in Election 2006

In the upramp to every general election, state officials and judges use the gauntlet of unconstitutionalities to keep down the civil society's attempts at good governance. Election 2006 is no exception.

In July 2006, BallotWatch, a site maintained by the I&R Institute, published a piece in PDF format titled, "Early Look At 2006 Ballot Measures". In a section titled, "Removed and Struck Down", this text appears:

"In June, the Colorado Supreme Court removed an initiative intended to deny government services to illegal immigrants on the grounds that it violated the rule that a measure concern only a single subject. In March, the Florida Supreme Court took a redistricting off the ballot also on single subject grounds. "State courts are aggressively wielding the single-subject requirement to deny voters the ability to vote on important policy issues. The Colorado decision is particularly problematic because the Court reasoned that multiple purposes behind the measure meant that it encompasses multiple subjects," said IRI director and University of Southern California professor Elizabeth Garrett.

"In South Dakota, Secretary of State Chris Nelson (R) refused to place two initiatives on the ballot even though petitioners submitted the required signatures. Both initiatives would have repealed existing laws, one authorizing the state's video lottery and the other a tax on cell phones. The measures were disqualified on the grounds that only a referendum could be used to repeal an existing law -- initiatives can only be used to propose new laws. Interestingly, when the legislature originally passed the laws being challenged, a clause was attached to each declaring that they were "necessary for the support of state government", making them not subject to a referendum.

"In Missouri, Secretary of State Robin Carnahan (D) refused to count the petitions for TABOR and eminent domain initiatives after questions arose about the petition process. The TABOR petitions were not counted because the pages were not numbered sequentially by county. The eminent domain petitions were not counted because the ballot title on the petition pages was "insufficient". This was a Catch-22 for the petitioners since they used the ballot title that had been approved by the Secretary of State, but was declared insufficient by a circuit court after the petitions had already been circulating."

Note that the last-mentioned action is a very common one-two govt punch, in which a judge makes an unconstitutional binding judicial review, directing an executive branch officer to re-do his/her unconstitutional legislative function until it is done right. This absurdity of unconstitutionalities accounts for a very substantial number of citizen-proposed laws being delayed from one general election for the two years until the next general election.

All of the state govt actions described in the BallotWatch extract are unconstitutional, felonious, and treasonous.

Costs of the Unconstitutionalities

When constitutional criminals reach outside the state's constitution to delay, alter, and/or reject citizen-proposed law, the dollar and human costs are incalculable.

The harm done is far beyond the delays, alterations, and/or rejections of an individual I&R petition. The people-abusive and costly corruptions that the citizen-proposed law would have ended are continued. The good-governance advantages that would have been enjoyed by most citizens, if not all, are lost. Citizens with good ideas for resolving political problems are deterred from speaking up in the future. Violence is done to constitutionally guaranteed rights. The govt sworn to protect the people's rights has blatantly refused to protect those rights, perpetrating with impunity a treason defined in the 1860s. And, constitutional criminals set themselves above the rule of law -- the single most important legal principle of our nation -- betraying, defiling, and violating it, with impunity.

The unconstitutional and arbitrary blocking of state-level citizen-proposed law is the predators' first line of defense against limitation of their illicitly-gained profits and power. It prevents those same good-governance policies from ganining national traction.

For example, citizens in many I&R states have tried to pass initiatives ending regressive personal income taxes, and replacing them with progressive sales taxes. Of course, sales taxes to support state services would cost the luxury-item-buying elites a lot more money. State govts have unconstitutionally thrown out all such progressive taxation attempts for decades.

Both Major Political Parties

It is very important for this simple fact to register in your brain. Compute this.

The hundred years of lawlessness against I&R by thousands of officials and judges in roughly half of our state govts has been knowingly participated in by the leadership of both major political parties.

The leadership of both major parties have been involved in creating hundreds of unconstitutional statutes that provide continual variation on the theme of lawlessness against citizen-proposed law -- so that the people will not focus on the lawlessness of any one variation.

No rebuilding of either political party will save us from the predators. The leadership of both political parties are predators.

Both political parties are self-contained corruption machines, ready to cooperate with the other on any issue that benefits the class-race elite, the corporate predators, or the predator politicians themselves.

Postscript

Our DD corruption-fighting machine is muddied but extant. We have the power to clean it up and put it back in the hunt for which it was intended.

If the 1-party, 3-branch, fascist despotism in Washington DC has its way, we are already too late. Their tentative locks on our now-privatized and easily hacked electoral system, their tentative locks on the US District Attorneys and many of the US District Courts, and their tentative lock on the Department of Justice, with its central role in the obstruction of justice for all of the despotism's players, may mean that the state govt constitutional criminals are as untouchable as are the national govt's constitutional criminals. It's all tentative now, and we have the power to break those tentative locks -- but it will become permanent if we allow it to continue much longer.

It's all on us. There is no help coming. See the "Unity America" action plan in "Open Letter To Susan--Making Bush-Cheney Null & Void", 13 September 2006, on this blog.

Until we are organized enough to have citizen action groups that reach across state lines, looking for constitutional crimes and their perpetrators, we will be largely ignorant of what is being done to us. Until we have those wide-ranging citizen action groups, we won't have the leverage to clean up our DD corruption-fighting machine.

Organizing is the next big thing.

"The struggle may be a moral one, or it may be a physical one, or it may be both. But it must be a struggle. Power concedes nothing without a demand; it never has and it never will." Frederick Douglass said that about his people regaining their freedom in the 1860s.

The meek shall inherit the earth by taming the elites, their govts, and their corporations -- and then enjoying each other's company.

Latest Revision Sun 22 Oct 2006, at 9:40am CDT.

© by Stephen Neitzke, 2006

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