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Editorial
Our
Rights
By Karen Kerin
Legal terms have been identified,
but now it is time to look more closely at rights. Most people are familiar
with part of the First Amendment, but have lost all memory of the last
of the five parts. "Congress shall make no law…abridging…the right of the
people…to petition the government for a redress of grievances". Where on
earth did this come from?
A large proportion of the
most valuable of the provisions in Magna Charta, and the Bill of Rights
in 1688, consists of a solemn recognition of the limitations upon the powers
of Parliament; that is, a declaration, that Parliament ought not
to abolish, or restrict those rights. Such are the right of trial by
jury; the right to personal liberty and private property, according
the law of the land; that the subjects ought to have a right to bear
arms; that elections of members of Parliament ought to be free; that
freedom of speech and debate in Parliament ought not to be impeached, or
questioned elsewhere; and that excessive bail ought not be required,
nor excessive fines imposed, nor cruel or unusual punishments inflicted.
Whenever, then, a general power exists, or is ranted to a government, which
may, in its actual exercise or abuse, be dangerous to the people, there
seems a peculiar propriety in restricting its operations, and in exception
from it some at least of the most mischievous forms, in which it may be
likely to be abused. And the very exception in such cases will operate
with a silent, but irresistible influence, to control the actual abuse
of in other analogous cases. [emphasis added]
The above is a direct quotation
from A familiar Exposition of the Constitution of the United States,
Justice Joseph Story, reprinted by Regnery Press (1986) at page 311. Justice
Story was confirmed as an associate Justice at the age of 32 in 1811 and
was a close friend of then Chief Justice John Marshall. Both were on the
court for the Battle of New Orleans and Story was there for the Jacksonian
period, the only political period named for a president.
It seems pretty clear that
the right of redress of grievances stemmed from the earlier Magna Charta,
but expanded in broad language by the founders in the Bill of Rights because
they perceived the possibility of excess by government or other powerful
interests. Nationally, government excess came to prominence under President
Franklin Roosevelt. "FDR put it memorably in his 1932 Commonwealth Club
Address: Government is a contract under which rulers were accorded power,
and the people consented to that power on consideration that they be accorded
certain rights". [Quoted from a speech by Charles R. Kessler at Hillsdale
College on January 30, 2008.] No president in history has tested the limits
of the powers of the ruler more in American history than FDR with his slew
of programs, many of which remain today.
So what do we derive from
all of this? Certainly we can derive that our rights as outlined in the
Bill of Rights are inviolate, or are they? That very last clause of the
First Amendment has been breached, and not by the law makers. How then
did this occur? It was by the machinations of the U.S. Supreme Court in
careless interpretation of the Eleventh Amendment which reads, "The Judicial
Power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State."
You will note that citizens
of another state or citizens or subjects of another state are barred from
challenging the state, but there is no mention whatever of citizens of
the state suing the state. Yet, the U. S. Supreme Court, in College
Savings Bank v. Florida Prepaid Postsecondary Educ. Expense BD, 527
U.S. 666,672 (1999), upheld state sovereign immunity over the First Amendment.
This extinguishes much of the last clause of the First Amendment and flies
in the face of the plain language of the Eleventh Amendment.
Our current Attorney General,
William Sorrell, has utilized this to consistently put his foot on the
throat of the people, all the while keeping busy suing the federal EPA
and various enterprises in other states. The costs have been cleverly hidden
in his budget; however a leak discovered a $1.4 million payment for Sorrell’s
loss in the U.S. Supreme Court on his disclosure that the ridiculous campaign
finance law had never had a violator. But, Sorrell has another ace working
for him in Vermont. Taking notice of the explosion of statutes and the
appearance of annotations in our Vermont Statutes since the late middle
1960’s, another force against the people has been in operation.
The Vermont Constitution
of 1777 in Section XLIV called for a Council of Censors with extraordinary
powers to strike down unconstitutional statutes, order impeachments for
failed officials, and generally oversee the moneys collected and expended
from the people. These Censors were to be elected on the last Wednesday
in March every seven years. Interestingly, the members of the Council could
not be from the Legislature. Do we really need to wonder why? The Council
continued with the Constitution of 1786 and 1793, suddenly disappearing
at some time thereafter. We are in the process of discovering how this
happened and the people were cheated of an effective monitor and check
on the excess of government. A document co-authored by Then Assistant Secretary
of State Paul Gilles and present State Archivist Greg Sanford. A further
report on this will be forthcoming, as it represents an important loss
of freedom and justice that the Vermont’s Founders cleverly devised in
anticipation of the evils we see today.
Karen Kerin is a candidate
for Attorney General
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