August 2008 Archives
Reported by Dr. C. Norman Farley
NARLA West Newsletter, July-August
On May 10, at a Freedom Day Celebration hosted by the Carlsbad Northcoast Christian Fellowship of Seventh-day Adventist, Judge Victor Ramirez spoke about how rights protected by Habeas Corpus (Amendments 4, 5, 6 & 14) have been affected since 9/11. He touched on the USA Patriot Act, the Homeland Security Act and the Military Commissions Act, emphasizing the unprecedented degree of secrecy and secret courts prevalent since 9-11. The following article is based on the author’s recollection, and his continued research, since no recording or transcript was made of Judge Ramirez’ presentation. No transcription or recordings of the event were made so the opinions expressed represent the recollections of the author. Judge Ramirez (R) was Judge of the Superior Court in San Diego and was the recipient of the University Of San Diego School Of Law’s Most Distinguished Alumni Jurist Award. A brief constitutional history was presented to lay a foundation for Judge Ramirez’ presentation.
The U.S. Constitution was signed on September 17, 1787 but the Bill of Rights (1st 10 amendments) was not ratified until December 15, 1791. James Madison proposed amendments to the Constitution to settle a conflict between the Federalists and Anti-Federalists. The Federalists believed that the Constitution, by separating the government into three branches, was adequate to protect individual rights. The Federalists were also concerned that a listing of Rights could prove dangerous, serving to limit rather than protect such rights. The Federalists believed the Constitution did not require amending. Others, including Thomas Jefferson, argued that the Constitution failed to adequately protect individual rights. They believed the “necessary and proper clause” of the Constitution gave Congress too much power. This group became known as the Anti-Federalists, who insisted there be limitations of power placed on the Federal Government to protect individual freedoms.
Out of this struggle was born the Bill of Rights which has been the foundation of a free society for more than two centuries. These amendments protect freedoms of speech, press, religion and assembly, the right to keep and bear arms, the denial of unreasonable searches and seizures, cruel and unusual punishment and no compelled self incrimination. In short, Life, Liberty and Property may not be deprived without “due process of law.”
Justice Clarence Thomas states: “We should always start, when we read the Constitution, by reading the Declaration . . .”i Justice Thomas, as well as other unitary judges, contends that the Declaration of Independence contains the structure of the Constitution. The weight of historical scholarship rejects any hint that the Declaration of Independence was ever considered part of the legal foundation of the new nation. Instead, it was written to justify separation from England. It was a revolutionary polemic, not law. In writing the Declaration, Jefferson invoked the “Laws of Nature” and “Unalienable Rights” which are derived from “Nature’s God.” He includes among these Rights “Life, Liberty, and the Pursuit of Happiness (Property).” Furthermore, he proposes that the Government derives its power from “the consent of the governed.” Jefferson didn’t invent this theory; it came from the pen of the humanist philosopher John Locke (1632-1704). Locke proposed that “The State of Nature” was governed by the “Laws of Nature” so that humans are “by nature” “free, equal and independent.” He therefore proposes that humans are granted “Life, Liberty and Property” by the Laws of Nature – NOT by the government.
To Jefferson and other Founding Fathers, it was not only necessary to establish a system of checks and balances in the Constitution but to establish a Bill of Explicit “Rights” to prevent the government from infringing on the “Natural Rights” granted to the citizenry directly from “Nature” and “Nature’s God”.
