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L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 704, January 6, 2013

"It is perhaps a bit late, but individuals
who value civilization are beginning to act."


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Breach of Trust and Bill of Rights Enforcement
by Terence James Mason
tjmason@oneamericanvoice.me

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Attribute to L. Neil Smith's The Libertarian Enterprise

A couple of years ago, I started working in earnest on a novel about how everything would eventually be made "all right," though we would go through hell as a country first. I've been playing with this plot ever since my graduate school days, and while nobody in the novel falls through a "probability breech," my own trip through one weighed heavily on that early planning.

The current incarnation of that novel originally incorporated chapter headings which captured various quotes of the Founders and Framers combined with the text of some of the earlier efforts at "sane" legislation. The latter took a life of its own and eventually became the essay No Loopholes, describing that legislation in extreme detail. (The novel remains in basically the form it had after these sections were removed, and when it get to it I will have to "advance the clock" by four years for it to make sense.)

I mention that because last week in The Libertarian Enterprise, L. Neil Smith published an essay promoting a proposed "Bill of Rights Enforcement" amendment to declare political actions contrary to the Bill of Rights to be treasonous.i I am very sympathetic to that view; many are the times I have looked at politicians (particularly but not exclusively of one party) and thought to myself, or yelled at the television or radio or computer screen, "That's treason!" And similar language permeated some of the early drafts of No Loopholes and the still-pending novel.

But while I wrote in part to demonstrate that the common man can find clear, simple meaning in the Bill of Rights that apparently is not clear or simple to politicians, lawyers, and judges, I did quite a bit of study on some subjects. I still don't claim to be an expert, but I was reminded that the Constitution defines treason in Article III, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have 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.

My reading convinced me that the Framers intended a specific and limited definition of Treason to minimize situations where charges of treason could be used to label political opponents, or as part of a game of political football between factions in Congress and in society as a whole. And while I might enjoy the spectacle of Congress degenerating into a body capable of doing nothingii but throwing about charges of treason on partisan grounds — not least because that might keep them too busy to do other mischief — I elected instead to reserve treason to cases which meet the narrow definition of Article III, Section 3, and introduced a different term both for Anti-Constitutional actions as well as certain types of corruption which fall short of the narrow Constitutional definition of treason: Breach of Trust.

A Breach of Trust Amendment, consistent with the No Loopholes language, which also captures the content and form of the proposed Bill of Rights Enforcement Amendment, might be stated:

Any official, appointed or elected, at any level of government, who introduces or votes on any bill, enforces any law, proposes or introduces any treaty, or issues or executes any regulation, order, or finding, that violates any individual's rights, or any rights of the States, under the rigorous traditional interpretation of the first Ten Amendments, or the 14th Amendment, to the United States Constitution, or grants preferential treatment to any person or persons, including corporate persons, shall have committed a Breach of Trust. An allegation of a Breach of Trust shall require the Congress to investigate and, if evidence is found, impeach such person and bind them over to federal or state court as appropriate for any criminal acts or civil damages incurred by said Breach of Trust. Such person shall be stripped of all privileges and benefits of office, shall be considered a felon and bound from voting in any future federal election or holding any elective or appointed office, and subject to such punishment as is deemed appropriate in a Court of Law or Civil Court reviewing their actions, up to and including capital punishment if so warranted. Should Congress fail to act on an egregious Breach of Trust, impeachment may be obtained by a vote of impeachment recorded by two-thirds of the States, either by a two-thirds legislative majority, or by a special election which garners a majority of registered voters. In such case, any members of Congress who prevent an impeachment for Breach of Trust shall be considered accessory after the fact and concurrently themselves subject to impeachment and removal from office.

One of the objectives of No Loopholes was to spell out in exacting detail exactly to whom each clause refers, eliminating any escape clauses ("loopholes") in the expanded Bill of Rights language. Consequently, the essay offers the following longer and more specific statement of this core principle by defining Breach of Trust in terms of multiple actions described in detail across several proposed amendments, and providing a process by which penalties are incurred and assessed. The core of this argument appears as Amendment 19 (as labeled sequentially within that document):

19. (Breach of Trust, Impeachment and Recalls Amendment)
19.1. A Breach of Trust shall consist of the commission of any acts specifically prohibited by this Constitution, or conspiracy to commit same, in explicit violation of the oath of office; or violation of law or fiduciary duty to the public trust for personal or political gain; or action in a official capacity, to defraud or damage any person or persons; by any Member or group of Members of Congress, by the President or Vice-President, by any Justice of the Supreme Court, or by any other officer of the United States or justice of a subsidiary Federal Court. In particular, a Breach of Trust shall consist of the execution or implementation of any action, bill, law, regulation, order, or finding which:
19.1.1. Restricts any person or persons from public or private religious worship or from public or private pronouncement of their religious belief(s); however, the prosecution of any person or persons for crimes and misdemeanors with religious motivation may not be restricted.
19.1.2. Restricts in any fashion the freedom of speech or of the press of any person or persons, excepting incidents of fraud.
19.1.3. Restricts any right of peaceable assembly by any person or persons, or refuses to grant hearing to any grievance against the government by those peaceably assembled.
19.1.4. Restricts in any fashion the right to keep and bear arms.iii
19.1.5. Requires any person to be searched in their person or effects without due cause and without execution of a proper warrant.
19.1.6. Permits any seizure of a person's papers and other personal information, however situated, without due cause and without execution of a proper warrant.
19.1.7. Permits any seizure of personal property for any use other than by the government, or permits such seizure without payment of due compensation.
19.1.8. Permits any arrest or holding of a person without due cause and without execution of a proper warrant.
19.1.9. Except for cases involving the armed forces, permits any trial other than by a jury trial, or executes any penalty without the due process of a trial.
19.1.10. Promulgates any distinction in the treatment of persons, or of the States, under the law; in particular, promulgates any difference under the law between the officers of the United States and other Persons.
19.1.11. Causes any damage to a person or persons in violation of established criminal or civil law or legal precedent; in particular, when in a position of trust during bankruptcy, by acting contrary to the established laws of bankruptcy.
19.1.12. Promulgates or promotes any fraudulent action or statement, whether or not such fraud accrues to personal or partisan political gain.
19.1.13. Consists of a Breach of Trust as defined elsewhere within this Constitution.
19.1.14. Seeks to protect any other person who has committed a Breach of Trust from the consequences of their actions, for personal or partisan political gain.
19.2. The commission of a Breach of Trust shall automatically and permanently disqualify any person from holding any elected or appointed position of faith or trust within the government of the United States or its States and their Districts.
19.2.1. Persons who are accused of a Breach of Trust shall be subject to Impeachment in accordance with the provisions of the Constitution where appropriate, and to dismissal otherwise.
19.2.2. Any person who is dismissed or impeached for Breach of Trust may subsequently be held to account for any civil or criminal damages imposed on any person or persons as a result of said Breach of Trust, in accordance with the due process of the law.
19.2.3. No person shall be eligible to become or remain an elected or appointed officer of the United States; who has been convicted in the common courts, or in any State or Federal court of impeachment, or who has been subject to recall, for any infamous crime or Breach of Trust; or who has lost a civil judgment for damages to any person or property resulting from any Breach of Trust in public office of the United States or of any State or district.
19.3. Any petition for impeachment for Breach of Trust shall have precedence over all other actions of Congress, except for those related to Acts of War; except that no petition may be twice offered by Congress for the same offense.
19.4. Any Member of Congress may, on presentation of cause for Breach of Trust, be recalled by the legislature of his or her own State, on two-thirds majority vote; or may be recalled by vote of one half of all voters registered and legally authorized to vote in their district (if a member of the House of Representatives) or their State; without regard for any action by Congress; and such recall shall have the same force and restrictions as an impeachment by the Congress, except that the replacement of any person impeached and removed from office for Breach of Trust shall be by public vote of their district or State, and not by appointment of the legislature, or of the Governor.
19.5. On presentation of evidence of Breach of Trust, a petition of impeachment of any elected or appointed officer of the United States may be offered either by a majority vote of the legislatures of, or by petition of not less than one-half of the registered and legally authorized voters of, three-fifths of the States, and shall have the same standing as articles of impeachment submitted to the body of the House of Representatives.
19.6. Upon presentation of evidence for Breach of Trust, or for high crimes or misdemeanors, and given a failure by Congress to impeach: the President, Vice President, any Member of Congress, or any Justice of the Supreme Court may be impeached, convicted, and removed from office by the States as follows:
19.6.1. Either by a two-thirds majority vote for such impeachment by the legislatures of, or by vote in a special public election in which a number of voters equal to one-half of the count of registered and legally authorized voters votes for such impeachment, in two-thirds of the States.
19.6.2. Such impeachment and removal from office by the States or People shall not be construed as double jeopardy, should impeachment have been voted and failed within the Congress.
19.6.3. Moreover, in such contingency, all Members of Congress who voted against any petition of impeachment, or against conviction, of the indicted official, shall concurrently be impeached, convicted, and removed from office by such vote.
19.7. No officer of the United States who shall have been impeached shall be immune from criminal prosecution for any acts undertaken in office or after being removed from office, except by separate action of the Congress or the President; nor shall they be protected from civil suits at law; nor shall they receive any pension from the United States, or other payments to them, or on their behalf.
19.8. In any suits against the United States for damages to any persons, the officer or officers of the United States who shall be alleged to have caused the damages shall be co-defendant, and shall have first responsibility for the repair of said damages if so ordered by a court of law, in accordance with the common law and of the State or district in which suit is brought.
19.9. Any person holding any office of the United States, who shall become disqualified under the terms of this Amendment, shall be removed from office immediately upon its ratification.
19.10. Any existing instruments which conflict with the provisions herein shall become invalid upon the ratification of this amendment, without prejudice to whatsoever past action resulted in their execution and implementation.

The following specific terms added to the Tenth Amendment prohibits Congress from delegating legislative authority to the Executive and the Judicial branches, and similarly prohibits those branches from assuming legislative duties, as well as limiting other federal abuses including efforts to overturn the Bill of Rights by treaty, and defines when such acts might be Treason by the narrow definition.

10.4.The Congress shall not delegate its responsibility to legislate to the President and his officers, or to the Supreme Court and lesser courts, such delegation being a Breach of Trust. Congress shall approve any implementation of regulations by the President and his officers in like manner as any other bill.
10.5. Neither the President, nor his officers, shall issue Orders or Regulations contrary to, or in excess of, the legislation specifically authorized under this Constitution and entered into Law; the issuance of any such Order or Regulation being a Breach of Trust.
10.5. Congress shall not, by legislation, offer different, unequal, or preferential treatment to any State or group of States, or to any person or corporation; neither shall such distinction be made by Order or regulation of the President and his officers; such legislation or Order being a Breach of Trust.
10.6. No Treaty or other agreement with any foreign nation or nations, shall have force in any terms which affect the life, liberty, livelihood, property, pursuit of happiness, or other rights of the People of the United States within the boundaries of the United States and its territories, such agreement being a Breach of Trust; and, if it places an undue burden on the armed forces, militia, or right of the people to keep and bear arms, potentially an act of treason.
10.7. The Congress shall not, by legislation or treaty, delegate any portion of its authority to any foreign nation or nations, nor may it permit any nation or coalition of nations to issue dictates which supersede the laws of the United States or of the several States within the boundaries of the United States and its territories, such legislation being a Breach of Trust; and shall recognize any attempt to impose such dictates through force as an Act of War against these United States.
10.8. No Treaty shall have any power on the People of the United States, or on the several States: to levy taxes, or fees, or any other collection of monies or appropriation of property accruing to the benefit of any foreign nation or nations, or their representatives or agents; the ratification of such treaty being a Breach of Trust.

A proposed "Equal Treatment Under the Law Amendment" notes:

15.7.The President and his officers shall implement all laws passed by the Congress as written without reservation or waiver; and may not issue or enforce any Order or Regulation not explicitly authorized by act of Congress, such actions being a Breach of Trust.
15.9. No Act of Congress, Order of the President, Regulation, or finding of the Supreme Court may create or permit the establishment of any laws or regulations requiring preferential or otherwise different treatment of the Members of Congress, the President or Vice-President, the Justices of the Supreme Court, or to the officers and employees of the United States; or exempting the same from said Act or Order; when compared to the States or the People as a whole, unless implemented as part of the regulation of the Military under Congressional authority; such laws being a Breach of Trust.
15.13. No Law or Regulation shall have any provision under which any Citizen of the United States, or any Corporation registered in any State or by the Federal Government, may receive a waiver from any of its provisions. The issuance of such a waiver by the President or any of his officers shall be an impeachable Breach of Trust. Any petition to Congress for a waiver shall, if accepted, immediately render such Law or Regulation null and void in all its terms and in all circumstances.

This longer construction encompasses the following points, which are present in the short form but with less rigorous explanation:

  1. The definition of Breach of Trust is much more specific than just saying "violates the Bill of Rights (and the Commerce clause)." That's because, while you or I can easily point to an action and say, "That's a violation of the Bill of Rights," politicians and lawyers often have to be led there by the nose in terms of specifics. Another objective of No Loopholes was to explicitly limit the ability to manufacture exceptions to the Bill of Rights by defining the very rare cases where exceptions might be appropriate — and outlining the many cases where exceptions have been made illegally and saying, "This stops now."iv

  2. For partisan reasons, not to mention corruption, we cannot always expect Congress to police itself. The proposed language empowers State legislatures to act to remove members of their Congressional Delegation for Breach of Trust; empowers Citizens to recall their own Congressmen or Senators for Breach of Trust; and in the ultimate extreme, permits a defined majority of states to petition Congress to act, or to act in the stead of Congress if Congress refuses to act, on a particularly egregious Breach of Trust. Moreover, since it is highly likely that only a partisan effort would block an impeachment and removal of office in Congress, if the States and People successfully vote to remove any person, any members of Congress who prevented such removal in a Congressional vote are concurrently impeached and removed from office. This provision sets a high standard for actually imposing impeachment from outside of Congress, as it should — it will require real, bipartisan outrage to meet this standard.

  3. The purpose of the "no waivers" provision is clearly to enforce the requirement that each law must apply equally to all people, corporations, conditions, places, and circumstances. I believe that, of necessity, this will yield less and simpler legislation, because if the special interests can't build in loopholes or other provisions to their benefit through waivers and special exceptions, most legislation should be reduced to the least common, functionally acceptable, denominator.

  4. The reader will recognize an interpretation of paragraphs 10.6 and 10.7 in the essay "Why the Feinstein Bill is Anti-Constitutional" published in L. Neil Smith's The Libertarian Enterprise on 30 December 2012.

I note that this proposed series of Amendments to the Constitution is tied to specific actions rather than to political speech in general, although it does consider explicit political fraud — if it can be proven — to be an action rather than protected political speech. I don't pretend that this can't necessarily be as politically contentious as the use of the phrase "treason" to describe these Breaches of Trust, but the level and specificity of the tests of any action should act to hinder the frivolous use of these provisions.

I hope you will give serious consideration to my proposal, complex though it is, relative to the much simpler and emotionally satisfying, but potentially more contentious, language of the Amendment discussed in L. Neil Smith's essay last week. If not, more power to you, because I certainly agree in principle that something must be done.

Terence James Mason is the author of No Loopholes: Getting Back to Basics, an assessment of the meaning of the Bill of Rights and a suggestion of additional Constitutional Amendments to restore the Framer's vision for the Republic. No Loopholes is electronically published by Twilight Times Books (http://twilighttimesbooks.com) in Kindle, Nook, and other popular electronic formats. Mason tweets on the need for #NoLoopholes @OneAmericanVoice.


Notes

i Mr. Smith's essay at http://www.ncc-1776.org/tle2012/tle703-20121230-02.html links to this proposed Amendment on the White House web site https://petitions.whitehouse.gov/petition/work-congress-introduce-bill-rights-enforcement-clause/8bGN8pYc: Any official, appointed or elected at any level of government who introduces or votes any bill, or enforces any law, that violates an individual's rights under any of the 1st 10 amendments, or the 14th amendment to the US constitution, shall be judged guilty of treason. An allegation of such an act of treason shall require the federal government to investigate, and if evidence is found, prosecute said individual for treason. If found guilty, that person shall be stripped of all privileges and benefits of office, their citizenship, and subjected to lifelong imprisonment and/or death.

ii Actually, as of the news today (31DEC2012 as I write this), they've certainly accomplished that part.

iii In retrospect, I would modify this as follows (although some of this is covered elsewhere in No Loopholes: Restricts in any fashion the individual right to keep and bear arms, except by judicial finding that the individual is or will become a danger to himself or others; restricts individuals from forming a local militia for their mutual protection, provided said individuals notify their State and district authorities of their intent and actions; or punishes any person or persons from their actions of individual self defense or mutual collective defense, of any person's life, liberty, or property.

ivThe reader's mileage might vary here, of course. For example, No Loopholes's clarification of the Second Amendment would permit maintaining some version of the National Instant Criminal Background Check System (NICS); but entry on that list would require specific and individual judicial action, and would allow State law to override the Federal determination in certain cases. Other than that, virtually every current State or Federal gun law would be invalidated as Unconstitutional. I'm well aware that the truly Libertarian approach is to combine the Zero Aggression Principle with the diligent preparation for, and instant willingness to, assure that initiators of aggression do not survive their attempt to do so, Deus volante.

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