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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 15



Section 3, the last section of this Article, concerns the subject of treason.  It defines treason as levying war against the United States, adhering to its enemies, and giving its enemies aid and comfort.  And it is expressly limited to the items stated.  A person can only be convicted of treason by the testimony of two witnesses to the same overt act or by confession in open court.  Our Founders went out of their way to protect an innocent individual from even a charge as serious as treason.  You cannot be convicted of treason on the witness of one person, who might have personal reason to see you prosecuted.  His testimony must be validated by another.  Further, a confession coerced out of you in the back room cannot be accepted as evidence of treason. 


If our Founders felt this strongly about protecting the rights of an individual accused of treason, they most certainly felt the individual should receive these same protections for lesser accusations.  We would all agree that using physical abuse in the back room is an unacceptable method of gaining a confession.  But this is merely the ham-handed approach to the end.  There are more subtle methods:  long periods of questioning without rest or time to go to the restroom, eat, or drink; threats; misleading the accused; and taking advantage of those who do not understand the law.  These are all methods of coercion.  It seems to me that it is from this coercion that our Founders were trying to protect the individual.  It also seems that these things would at least abrogate the spirit of this section of the Constitution.  Besides, it always serves us well to be wary of anything government does behind the closed doors of the back room.


Please don’t misread me.  I’m not one to be soft on crime, and I strongly believe the guilty should be punished.  The most consequential vote that I cast in the State Legislature concerned the issue of reinstating the death penalty in my state; and I voted in the affirmative.  It’s that our goal should not be to punish someone if all we seek is a whipping boy — if just “anyone” will suffice.  Under enough pressure and after a long enough period of time, almost everyone will finally confess; and they may or may not be guilty.  Our first and highest goal should always be justice; and the prospect of justice is tainted when one of the methods to establish guilt is the coercion of the accused, especially when not in open court.


The last sentence of this section reads:  “The Congress shall have the 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.”  This means that Congress can select a punishment for persons convicted of treason, but that punishment will apply to that individual and that individual only, and only in his lifetime.  Congress cannot elect to punish that individual through the punishment of that individual’s posterity.  A little explanation is probably in order.  The penalty of attainder imposes the loss of all civil rights.  Today, this could include loss of property, loss of freedom, loss of the right to vote, and loss of the right to keep and bear arms.  But under Old English Law, it went further than this.  The individual was made to forfeit all his lands and tenements; and in addition, he lost all of his hereditary rights.  This meant that he could neither inherit property from an ancestor nor will any property to his heirs.  This effectively prohibited the transfer of property from him, or his ancestors, to his heirs, thus imposing a punishment upon them.  We should be able to conclude from our Founders’ efforts in this matter, that it was their intention to punish the guilty, and only the guilty.


And don’t you think that if our Founders felt this strongly about protecting the rights of innocent individuals who merely had a connection to the convicted, even in the case of treason, that they felt those individuals should receive these same protections for lesser convictions.  You are reminded here of the “not so well-to-do wife” whose husband was caught in the family car engaged with a prostitute.  Because the car was used in the commission of a crime, it was confiscated even before the man went to trial, much less convicted.  This type of action, too, would seem to abrogate at least the spirit of our Founders’ intent.  This type of law was designed to prosecute drug crimes, so as to make assets of the accused unavailable to them during the trial process.  As you can see from the simple incident above, the use of these laws very quickly progressed well beyond the reasons stipulated when the law was enacted, and the government can now impose punishment before conviction, on the guilty and innocent alike.


This would seem to me to be a fairly serious affront to our liberty and a very dangerous power for a government to have.  The potential for abuse is enormous.  I will grant that the problem of drug abuse is horrendous; but the notion of containment at any cost could well be fatal to our liberty.  The same should be said for the war on guns.  The current practice, of “we the people” trading precious portions of our liberty in return for the ill-conceived notion of absolute personal security guaranteed by government is intolerable. It would be intolerable even if it were achievable.  It is not!  If it continues for any great length of time, it will most certainly be fatal to our liberty.


We have come once again to one of those topics that are not directly addressed in the Constitution; but this seems to be an appropriate location to discuss it.  It is the matter of innocent until proven guilty.  I grew up believing, possibly naively, that under our system of law, every citizen of this nation was granted this status.  I also believed I might at all times rely on the Constitution for the protection of my personal liberties.  It might surprise some of you to learn that “it ain’t necessarily so.”  Most of us, laymen anyway, tend to view a court as a court — one being no different than another.  But the courts have many different possible venues; and different court venues can be used to achieve different ends.  There are criminal, civil, equity, tax, and others.  The rules and procedures among them can differ, sometimes markedly. 


At Article I, Section 9, we discussed some of my concerns about judges caused by their acts of commission.  Here we will speak of acts of omission.  It is reasonably clear that judges have the authority to determine the rules and procedures of the court.  Prosecutors and civil authorities are required to function within these rules and procedures.  It is no secret that they are wont to use these rules and procedures to their very best advantage.  This much is entirely legitimate.  After all, it is their assignment, and they have a duty to fulfill that assignment to the best of their ability.


But it is well within the courts’ power to decide whether these rules and procedures serve the ends of government or whether they will serve the ends of justice.  We, as individuals, not only have the right to expect the courts to protect us from the harm of other individuals and corporate entities, but also from government itself.  And the court has an obligation to provide us this protection also.  We have a right to expect justice.


Perhaps an example will better illustrate my concerns.  We will use tax court for our example.  Tax court is not a court of Common Law.  This is acceptable because the Constitution allows for courts other than those of Common Law.  (See the Seventh Amendment.)  Although a jury may sometime be impaneled, it is not always the case.  But this, too, is acceptable because it is only in the case of criminal prosecution that we are guaranteed a jury trial.  (See the Sixth Amendment.)  Just because the Constitution allows for courts other than those for Common Law, it does not mean it is necessary to use them for this purpose.  And just because the Constitution does not guarantee a jury trial in all cases does not mean the defendant should not be granted a jury trial if requested.  In the instance of Common Law, it is important for this reason:  it is my understanding that in a court of Common Law, one is allowed to place himself under the protection of the Constitution and make a constitutional argument.  In tax court, if one persists in trying to make a constitutional argument, one will most likely receive a citation for contempt of court for his effort.  Under the rules of that court, one is barred from making such an argument.  Under Common Law, one is presumed innocent until proved guilty.  Tax court doesn’t quite work that way. 


To understand why, we need to take a look at United States Code (USC) Title 26.  This is where the tax laws of the United States are to be found.  USC Title 26 is a very cunning piece of legislation and legerdemain.  It is to apply to all taxpayers; but in this law, a taxpayer is very ambiguously defined, if at all.  The catch phrase is this:  “ . . . if you shall become liable.”  In the tens and tens of thousands of words in that law, I have yet to discover just what it is that makes an individual “liable” for income tax.  You would think you could find these one, two, three, things that would make you liable; but you probably won’t.  I would be very happy to have some tax whiz point them out to all of us.  In fact, you would think the court would demand that a prosecutor for the IRS point them out to the accused in tax court; but they do not.  Thus, while these court battles drone on and on over how much money the accused did or did not remit to the Treasury, the question of whether the accused was liable for the taxes demanded is simply presumed in favor of the IRS.  In other words, you are presumed guilty until you can prove yourself innocent, which can be exceedingly difficult when you cannot determine exactly what it is that makes you liable in the first place.  This causes most people to simply throw in the towel and acquiesce to the demands of government.


While this “may” all be constitutional, it does engender a legitimate question to be asked of our judges.  Do you serve government, or do you serve justice?  Justice and the Constitution are not mutually exclusive, and the Constitution was implemented to bind down the government so it could not oppress the people.  In your official capacity, it is your obligation to rule on the law as it is enacted, as long as it is constitutional.  We accept this; but the law’s constitutionality should be beyond question.  If it is not, it is an omission on your part not to raise that question or at least demand the government to be clear and upfront in the prosecution of that law.  Whether we are right or wrong, there are many of us out here who are not very confident that everything is aboveboard in this arena.  Please show us where we are wrong.  Clearly point out to us that which makes us liable.


Now we come to the matter of non-jury trials.  It is true that not all defendants wish to have a jury trial.  It is also understood that not all trials are of such consequence as to demand the time and expense of a jury trial.  At the other end of the spectrum are those trials of serious consequence in which the accused wants a jury trial.  Sometimes, these are denied on the grounds that the laws to be invoked are of such complexity that a jury of ordinary citizens would be incapable of determining an informed verdict on the case.  Again, this is an unacceptable situation.  If ordinary citizens are incapable of understanding the law, how can they be expected to live by the law, except in total submission to the government?  Such laws are repugnant to liberty.


You are reminded again of the words of Thomas Jefferson:


On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.  (Letter to William Johnson, 1823).


The spirit of the debate was this: “In questions of power, let us hear no more of trust in men, but rather bind them down from mischief with the chains of the Constitution.”  (Thomas Jefferson).


Judges, as well as all other officers of government, take an oath to uphold and defend the Constitution.  In the execution of their duty, it would be well if they paid particular heed to the words of Mr. Jefferson.  When they are deciding on laws, it would seem provident they did so not in the light of “what meaning may be squeezed out” of the instrument; but that they did so in the light of “the spirit manifested in the debates” in which it was passed.  Even though a law may be constitutional by the interpretation of some sole clause or phrase taken apart from the body of the instrument, that doesn’t necessarily make that law constitutional.  My meaning is this:  if a single word of the Constitution, by itself, were enough to proclaim a law unconstitutional, it would be so.  But for a law to be declared constitutional, it has to pass the constitutional test not merely on one or two points, but on each and every point of constitutional relevance.  Failing even one will negate constitutional compliance.  To define the Constitution using only certain of its parts and not the whole of the instrument is a perversion of the instrument.  Neither can you add (emanations and penumbras) to the instrument.  For a judge to add to or subtract anything from the instrument is an unconstitutional act.  Such an act, in and of itself, would amend the Constitution in a manner foreign to the instrument and is unconstitutional on its face.  And to me, it would seem a fit matter for impeachment.  It is imperative that we understand the Constitution as Jefferson instructed us.  That is, “in the spirit manifested in the debates.”




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