Peeking Justice 1Does the constitution really mean what it says? This article is reposted from Outpost of Freedom.

Though I have posted the Preamble to the Bill of Rights a number of times, people still ask if there really is a Preamble to the Bill of Rights.  A preamble sets forth the purpose of the document, as the Preamble to the Constitution sets forth its purpose.  It is not a part of the document, rather an explanation as to why the document was created.  When Congress approved, and sent the Bill of Rights to the States, as required by Article V of the Constitution, the first paragraph explained why theJoint Resolution was passed.  It states, “declaratory and restrictive clauses should be added” for the purpose of “extending the ground of public confidence in the Government.”  To wit:

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

So, now, we must determine if, in fact, it has extended “the ground of public confidence in the Government“, in light of the current situation.  Our query must be directed to the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

We must also look to the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

So, between these two Amendments, we find that every judicial concept in the Constitution, with the exception of the House and Senate’s disciplinary procedures regarding their own members, requires a jury to make the determination of guilt or innocence.

The matter at hand is the additional charges brought against the lower level defendants in the occupation of the Malheur National Wildlife Refuge.  Since the government did not get a conviction of the leaders of said occupation, they have stooped to a new low, perhaps just being poor losers.  They have brought aMisdemeanor Information, for Trespass and other crimes, against the second group of defendants.  These charges were not a part of the Superseding Indictment.

Now, with regard to “public confidence“, we need to look no further than what Judge Anna Brown has provided for in her “Order Following January 20, 2017, Status Hearing“.  The pertinent text is as follows:

TRIAL BY JURY ON MISDEMEANOR COUNTS

The Court concludes each of the misdemeanor counts in the Misdemeanor Information (#1628) are Class B misdemeanors and, therefore, are petty offenses on which Defendants do not have a right to a trial by jury as to those counts. Pending further order, the Court will conduct the trial on the Class B misdemeanor counts at the same time as the trial on the felony counts in the Superseding Indictment (#282), that is set to begin February 14, 2017.

The Court, nonetheless, will consider the parties arguments regarding whether the Court has the authority to provide Defendants with a jury trial on those counts and, if so, whether it should do so. Accordingly, the Court directs the parties to file no later than Noon, January 25, 2017, a single, joint status report that sets out (1) the parties’ arguments as to the Court’s authority to provide Defendants with a trial by jury on Class B misdemeanor counts; (2) if so, parties’ arguments regarding whether the Court should exercise its discretion to provide Defendants with a trial by jury on the Class B misdemeanor counts; and (3) the parties’ recommendations as to trial procedure in the event that the Court determines it will conduct a bench trial as to the Class B misdemeanor counts.

From past history, all that Judge Brown is looking for is the Prosecution to come up with some words that she can include in here Order to “proclaim” that the Constitution is null and void, and that the criminal charges of trespass are not really criminal, and that those who Framed the Constitution didn’t really mean “criminal” when they said “criminal prosecutions“.

Is it at all possible that she honestly believes that the misdemeanor charges are, somehow, civil?  That strains credulity, at best.  But, if the charges are civil, then the defendants still have a right to a jury.

Since the Judge seems to think that it is not “criminal”, since they are Class B Misdemeanors, let’s see what the Prosecutor thinks.  At the end of “Misdemeanor Information” (linked above), we find:

Upon conviction of the offenses set forth in Counts 1 through 7 of this Information, defendants JASON PATRICK, DUANE LEO EHMER, DYLAN ANDERSON, SEAN ANDERSON, SANDRA LYNN ANDERSON, DARRYL WILLIAM THORN, and JAKE RYAN shall forfeit to the United States pursuant to Title 18, United States Code, Section 924(d) and Title 28, United States Code, Section 2461(c) any firearms and ammunition involved in or used in the willful commission of the offense.

All pursuant to Title 18, United States Code, Section 924( d) as incorporated by Title 28, United States Code, Section 2461 ( c ).

The U. S. Code is broken into “Titles”.  You will note that they want firearms to be “forfeit to the United States pursuant to Title 18, United States Code“.  It continues on to say, “All pursuant to Title 18, United States Code, Section 924(d)“.  Well, heck, according to the law books, Title 18 is titled “Crimes and Criminal Procedures“.  So, they are going to make them forfeit any firearms, by using Criminal Statutes, but the crime that they did not commit is not criminal.  Darn, that is enough to boggle the mind.

NOTE:  Even before I got this far in writing this article, I had visions of Alice in Wonderland.  And, yes, it did include the Queen of Hearts, acting as Judge Brown, and saying “Off with their heads.”!

Now, the Information does cite the “Code of Federal Regulations” (C.F.R.) as the authority, or, well, the “law” that has been violated.  But, the C.F.R. is often only of rules promulgated by administrative agencies, and not laws.  Congress enabled rule-making, though they have no constitutional authority to delegate that authority, as the Constitution describes them as holding, “All legislative Powers“.  However, they have also created a Fourth Branch of Government, which is explained in greater detail, in “Administrative Agencies – The Fourth Branch of Government“.  Perhaps, since they are rules promulgated by administrative agencies, they really are not criminal.  However, if that were the case, we can clearly see that the government that was created by the Constitution no longer abides by the Constitution.

This warrants a final thought, from a North Carolina Supreme Court decision, given prior to the culmination of the Constitutional Convention:

“But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”

Bayard v. Singleton [1 N.C. 42] 1787

This article can be found on line at Burns Chronicles No 54 – To Jury, or, Not To Jury

7 Comments

  1. The reason the US District Court judges can do this is because Congress amended the oath. US District Court judges now swear an oath under the Constitution and the laws of the United States. They are no longer Article III judges. They cannot hear Constitutional questions. They are administrative judges of the Congress. These judges operate under statutory law. The Constitution provides no duties for judges except they take an oath to defened and support the Constitution.

    The Supreme Court Justices take the Constitutional oath and the judicial oath mandatd by Public Law 101-650

    This video by MrsB Stacy at the 30 minute mark Stacy explains how and what this amended oath does.
    https://youtu.be/354QUwfpj_w

    Exerpted from https://supremecourtcase.wordpress.com
    Congress on December 1, 1990, however, in Public Law 101–650, at section 404 thereof, 104 Stat. 5124—effective 90 days later, March 1, 1991 (104 Stat. 5124 at § 407)—alter materially by way of amendment, the oath at 28 U.S.C. § 453, 62 Stat. 907, so as to relieve all justices and judges of the United States of any duty of fidelity to the Constitution; to wit:

    “Sec. 404. Amendment to Oath of Justices and Judges.
    “Section 453 of title 28, United States Code, is amended by striking out ‘according to the best of my abilities and understanding, agreeably to’ and inserting ‘under’”. Pub. L. 101–650, 104 Stat. 5089, 5124, December 1, 1990.

    Upon amendment, 28 U.S.C. § 453 Oath of justices and judges of the United States, 104 Stat. 5124, provides:

    “Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: ‘I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.’
    “(June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124.)”

    The only duties incumbent upon justices and judges of the United States to discharge or perform are provided in the statutes of Congress, i.e., the laws of the United States; the Constitution provides none.

    Because there is no provision of the Constitution that requires a justice or judge of the United States to discharge or perform any duties, there are no duties under the Constitution incumbent upon any such justice or judge to discharge or perform; meaning: Mention of the Constitution in the 1990 amended oath, 28 U.S.C. § 453, 104 Stat. 5124, supra, is superfluous and may be omitted from said oath without changing its meaning.

  2. Let the foregoing statement sink in. What does it mean to those facing a judge or magistrate in a US District Court?

    Essentially it means thay are not proteced by the Constitution or by Bill of Rights. They only have civil rights in these courts. It means that if Judge Anna Brown decides she doesn’t want you to have a jury trial, unless it it is a statutory requirement to have a jury trial Judge Anna Brown will prevail.

  3. Judge Anna Brown doesn’t have to give the defendants a trial by jury because she doesn’t take an oath to support the constitution. She takes an oath to “understanding agreeably to the constitution,” which according to Marbury v Madison is the power to interpret the constitution.So since Judge Brown has the power to interpret the constitution, she can make trial by jury mean trial by judge.

    1. Mr. Medenbach,

      Can you show me where to find the oath of office the US District Court Judges take?

      I have found the Supreme Court Justices take both the Constitutional oath and the judicial oath but have not been able to find anything that actually berifies the oath the US District Court judges and magisrtates take nowadays.

      The attorneys take an oath to support and defend the constitution.

    2. Mr. Medenbach,

      Can you show me where to find the oath of office the US District Court Judges take?

      I have found the Supreme Court Justices take both the Constitutional oath and the judicial oath but have not been able to find anything that actually verifies the oath the US District Court judges and magisrtates take nowadays.

      The attorneys take an oath to support and defend the constitution.


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