Tag Archives: Texas

Comparing Catalonia and the Confederacy—States and Nations (with notes on the Monstrosity of Moderation in Media)

SPAIN TRIED AND FAILED TO SUPPRESS A VOTE FOR SECESSION IN ITS WEALTHY NORTHEASTERN CORNER OF CATALONIA TODAY (Sunday October 1, 2017).  According to the latest tally I have seen on the BBC, 2,020,144 Catalan voters cast their ballots in favor of an Independent Republic, centered on the Mediterranean seaport of Barcelona.  These two million plus voters constituted 90.09% of the 42-43% of the eligible electorate who voted, but Spain itself had urged pro-Spanish “no” voters to stay away from the Polls, and the massive police intervention and use of force must have discouraged some….

Although during the past 42 years that “Francisco Franco is still dead,” Spain has acknowledged the right of the several nationalities (Basque, Galician, Catalan) to assert regional autonomy, Spain has declared this vote illegal and non-binding. The Central Government of Spain in Madrid has been arguing ever since the election of the pro-Independence party in September of 2015,  that Catalonia’s vote was going to be “illegal” and they threatened to, and actually did, try to suppress the vote by Police Action.

Most of the world (which has spoken) has either come out expressly in favor or seems tacitly on the side of Catalans who want independence.  Only Madrid and the Spanish government seem strongly against it—fearful, undoubtedly, of losing prime Mediterranean beach resorts, Barcelona (the second largest city in Spain, seventh largest and “most successful” in all Europe), plus the Balearic Islands (Majorca, Menorca, Ibiza and Formentera).  In essence, Catalonia includes some of the best real estate IN ALL OF EUROPE AND THE CIRCUM MEDITERRANEAN WORLD.  This is indeed “the Spanish Riviera”.

The comparison to the Secession of the Confederate States of America is obvious, but it isn’t getting much currency in the U.S. or British Media, despite the fact that the Confederate States have made a renewed appearance in the news since April, here in New Orleans and around the USA…. and even in the consciousness of the whole world.

So, since nobody else is making the comparison (that I’ve seen so far, anyhow, I will).   In 1860, the Southern states formed (per capita) the richest part of the United States.   Catalonia had better hope that world opinion remains on its side!    Because Spain has its eyes and tax collectors all focused on this rich province, and history tells us that the rich can be laid low when they try to retain their wealth….

For the record, Catalonia was originally, and has always considered itself, a separate “Nationality” (i.e. ethnolinguistic group). During the Middle Ages, the County of Barcelona became the Capital of the “Principality of Catalonia” which later became incorporated into the Kingdom of Aragon.  Aragon, in turn, was one of the most powerful and richest states in the post-Reconquista/Crusader world of the Mediterranean.  Then Aragon, later, under the 15th century reigns of King Ferdinand of Aragon and Queen Isabella of Castile, merged to form the modern Nation-State of “Spain”, leading to 500 years of almost continuous unity, although Aragon and Catalonia have several times reasserted their identities as monarchies or republics.

As James Ronald & Walter Donald Kennedy have shown in their most recent book “Punished with Poverty: the Suffering South, Prosperity to Poverty and the Continuing Struggle”  Columbia, South Carolina: Shotwell Publishing (2016), and as my dearly beloved grandmother always told me, THE SOUTH WAS THE WEALTHIEST PART OF THE UNITED STATES, “before the War” and the poorest part afterwards.   The combined cash value of the crops in any of the three pairs of Virginia and Georgia or Mississippi and Louisiana or North & South Carolina (each pair taken alone) exceeded the cash value of all the manufactured goods produced north of the Mason & Dixon-Ohio River—as of 1860.  But as of 1870, war had irreversibly altered the situation.

https://www.youtube.com/watch?v=Shsf–rh4PE

While neither historians or any Southerners today doubt that the people of the South overwhelmingly favored secession in 1861, the state legislatures only voted to hold popular votes as referenda/plebiscites/”propositions” in three of the thirteen states and one territory seceding (there were fifteen “slave” states, but a secession vote in the legislature in Maryland was suppressed at gunpoint and the state of Delaware never tried—West Virginia seceded from Virginia but kept its slaves and (ironically) after the war was among the most hostile toward enfranchisement of the newly freed slaves, as evidenced in several of the early major civil rights cases which emerged from that idiosyncratic Appalachian state opposite Ohio that seceded to nullify secession—oh, and Arizona was a territory constituting the southern half of what is now Arizona and New Mexico, but had then all been “New Mexico” until 1861).

In the states that held popular vote referenda, Tennessee, Texas, and Virginia, the votes in favor of secession were nowhere nearly as lopsided as the vote held in Catalonia today (Sunday, October 1, 2017), but it should be noted that NO NORTHERN STATE, nor the United States Federal Government, under President James Buchanan, ever questioned or attempted to quash secession in any state.  From South Carolina’s legislature’s first Ordinance of Secession on December 20, 1860, through Louisiana’s secession as the sixth state on January 26, 1861, the popular support for separation from the Union never appeared to waver or be doubtful.

SOUTHERN SECESSION PLEBESCITES

In February of 1861, Texas’ legislature voted to dissolve the state’s barely 16 year old affiliation with the Union on February 1, and a popular referendum was held on February 23, wherein the vote was 3.13:1 in favor of disunion.

Virginia went through a similar two stage process in April and May of 1861, and the vote there (after Fort Sumter) was 3.53:1 in favor of taking the Old Dominion state into the Confederacy.  Robert E. Lee had opposed secession, but IN THOSE DAYS ONE’S CITIZENSHIP BELONGED TO THE STATE, NOT THE FEDERATION.  It would be comparable to calling us all “Citizens of the United Nations”—maybe some people WANT Global Citizenship, but so far, THANK GOD, no politically viable majority anywhere have ever voted for such a thing.

Finally, in May-June, Tennessee voted to secede, although the popular vote in that state was only 2.21:1 (for reference and comparison, NO PRESIDENT OF THE UNITED STATES HAS EVER WON ANY ELECTION BY A 2.21-1 POPULAR VOTE (although Lyndon B. Johnson came closest in 1964 against Goldwater at 1.58 to 1 comparable to FDR in 1936 against Alf Landon at 1.61 to 1—there being more third party votes in 1936 which reduced Roosevelt’s over all majority win very slightly).

IS FREEDOM TO CHOOSE REALLY TREASON?

How many of you have been divorced?  No, it’s a serious question.  How many of you have been divorced AFTER taking a vow “Til Death do Us Part”?  I was born an “Anglo-Catholic” (i.e. Episcopalian) and my wife was born Greek Orthodox in Greece.  My parents, despite their vows, split up when I was pre-school/kindergarten and it had a major impact on my life, mostly negative.  I especially regret now, looking back on it, how my grandmother taught me to scorn my own father.  That MIGHT have been a bad thing…  Anyhow, my point was this: my wife Elena and I swore personally to each other, quite aside from the marital vows, that we would never be divorced, that we would always stick together.  And we made collateral agreements that made I think this was actually a genuine promise that we would really keep, but we didn’t.  She hired the nastiest team of divorce lawyers (and their wives) in the entire state of Texas.  She turned into a monster.  Now, I blame the system, not her, but we split up, and it wrecked me.

But, in a sense, as one of my law school professors of international law at the University of Chicago said, “the nations of the world are all in a Roman Catholic marriage with one another.”  Or are they?  Are legal unions really indissoluble?  Most people do not believe that law should stand in the way of divorce, although most marital lawyers want divorce to be as much like an expensive world war as humanly possible.  So: is divorce “normal” or is divorce “treason?”

I have to admit, I led a fairly pro-Southern, sheltered life.  Even when I lived up north and attended Harvard GSAS (A.M., Ph.D.) and the University of Chicago law (J.D.) programs, I never ever heard ANYONE ever call the Southern Confederacy TREACHEROUS or the Southern Confederates called “Traitors”—as a matter of fact, everyone I knew at Harvard kind of went out of their way to apologize for Harvard’s apparent iconography of Yankee imperialism and to point out the rather obscure stained glass windows on Memorial Hall and inscriptions dedicated to the graduates of Harvard who fought for the South—(There were 257, significantly more than you might think, including five major generals, eight brigadier generals, and fully 38% of all Harvard Graduates who died in combat 1861-1865 died in the service of the armies the CSA, including three of those brigadier generals).

So, I confess I was shocked, bowled over in fact, while I was standing in line at the very first public debate held in New Orleans on a steaming day in July in 2015 and an exceedingly unpleasant and unattractive woman in line started talking about how Confederates were all TRAITORS.

Wall Street JOURNAL MODERATE MUGWUMP: Allen C. Guelzo

“A YANKEE VISITS CHARLOTTESVILLE, WHERE GEN. LEE IS UNDER COVER.”

Some writers take poetic license, some take journalistic license.  But let’s face it: some writers DO NOT DESERVE A LICENSE.  Allen C. Guelzo is such a writer, and yet he writes for the Wall Street Journal…. and this is a disaster.  This USED TO BE a conservative, respectable journal***.   But no decent or respectable conservative would ever write that:

“As a Yankee, I find it a little difficult to grasp why monuments to Lee are here in the first place.  He lost, and if there is one sin American culture still prefers to bury from sight, it’s losing. Worse, Lee committed treason against the flag and the Constitution.  And behind that is the ugly truth that the Confederate cause was, when all the rhetorical chaff is swept away, designed to protect Chattel slavery, the singular birth defect of the American republic.” 

This is one of those sad moments when I have to admit I’m glad I’m not Chairman Mao or Uncle Joe Stalin…. because if I were, Guelzo would be TOAST—there wouldn’t be enough left of him to fill a matchbox, I promise.

UNLIKE THE SPANISH GOVERNMENT IN CATALONIA ON SUNDAY OCTOBER 1, 2017—NO POLICE OR TROOPS TRIED TO STOP THE SOUTHERN LEGISLATURES FROM SECEDING OR THE PRO-CONFEDERATE POPULAR VOTES FROM HAPPENING

So, if secession didn’t bother the outgoing President James Buchanan, or if it bothered him he didn’t do anything to stop it.  Buchanan was a Democrat, but he was a PENNSYLVANIA DEMOCRAT—a Yankee….the only Pennsylvanian ever to be elected President and the last President born in the 18th century.

Buchanan supported his own Vice-President, John C. Breckinridge, in the election of 1860—Breckinridge being the choice of the “Southern Democrats” over Stephen Douglas of Illinois.  Breckinridge became a Confederate general—that’s right folks, the Vice-President of the United States who came in Second in the Electoral Vote and Third in the Popular Vote in 1860 became a Confederate General.  Was he a traitor too?

I ask you (and Guelzo) somewhat rhetorically: IF the Vice-President of any country decides to take up arms agains that Country—don’t you suppose that there are some MAJOR issues at stake?  If James Buchanan believed that he had no constitutional power to stop secession, where did Abraham Lincoln get the idea that he had that power?

For the moment, I will leave that idea to you, but recommend to all my readers the words of James Ronald Kennedy and Walter Donald Kennedy, but also of Von Mises Institute Economist Thomas James DiLorenzo.

But is it significant that England would surely have allowed Scotland to opt out of the UK if Scotland had voted to do so several years ago?  Is it significant that Spain is trying very hard to look like a bully as it tries to bully Catalonia into submission, but that the world will almost certainly accept Catalonian secession in fairly short order?

***The Wall Street Journal was a feature of life in and around my maternal grandparents’ home in Highland Park in Dallas from the time I went to live there at age 6 years, two months, until my grandmother’s death in May 2001.  I respected it as perhaps the best newspaper in all of North America—I even arranged to have the WSJ delivered to Hacienda Chichén (and later the adjacent Casa Victoria) when I lived there, and made it the headquarters of my Harvard-Peabody-National Geographic-Chichén Itzá Archaeological Project 1983-1988.  Arranging such things by courier delivery from the Aeropuerto Internacional de Cancún in the 1980s was no piece of cake.

Curbing (Abolishing) Official Immunity for Federal and State Officers: Executive, Judicial, and Legislative, following where Senators Sam Ervin & Strom Thurmond of North & South Carolina led the way

The “law” of absolute judicial immunity not only cannot be found in the Constitution nor in any statute, but in fact offends the Constitution and common sense, when articulated as follows:

     Judges enjoy absolute immunity from liability for damages for acts performed in their judicial capacities.  Immunity exists for “judicial” actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in his official capacity. 
      The policy behind this principle is that judges must be free to act in a manner they view proper without fear of subsequent personal liability.  This rule is deemed essential to preserve judicial independence.  
       A judge’s errors may be corrected on appeal, but he should not have to fear that dissatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
      The immunity afforded judges is quite broad and applies to all acts performed in the exercise of judicial functions. Judges are immune from liability even for corrupt or malicious acts. Liability exists only where a judge acted in the “clear absence” of all jurisdiction or performed an administrative task not embraced within the judge’s judicial duties.
Olney v. Sacramento Bar Association, 212 Cal.App.3d 807, 260 Cal.Rptr. 842 (July 28, 1989)(citations omitted).

Obviously, being a judge by these standards rights right up there with the Divine Right of Kings or even divinity itself!  Nice work if you can get it, I guess, but can we tolerate such immunity for judges, prosecutors, and even (effectively) for the police and other officers of executive and judicial function if we are to remain in any sense a free society?  “Jurisdiction” limits judicial power, as do doctrines of “judicial discretion”—but if immunity remains absolute, regardless, and only clumsy, indirect, highly technical, and cumbersome appellate remedies exist, do judges not in fact rise higher in the real power hierarchy of earth than all the gods of the Ancient Nile, Greek Olympus and Norse Valhalla combined, inferior only to the One Creator of the Universe, who for unknown reasons rarely intervenes directly in human affairs?

I oppose all sorts of official immunity: executive, legislative, and judicial, but I especially deplore and oppose absolute immunity for judges to take actions without jurisdiction which infringe upon or violate constitutional rights.  If elected to the United States Senate, I promise to fight vigorously to construe all civil rights laws to apply to judicial and prosecutorial misconduct, as well as to executive “police actions” and legislatively authorized derogations from the Bill of Rights and other fundamental constitutional protections.  I will work to strengthen and ensure the colorblind, race neutral, application and construction of 42 U.S.C. §§1983, 1985, 1986, and 1988, which the Courts currently only apply and construe in favor of African-Americans (and occasionally but atypically Hispanics or Asians) against Whites.   White Caucasian Americans must have equal rights to assert violations of their Civil Rights, even when the civil rights involve commercial,  contractual, or proprietary violations rather than race-based violations, but as I have often stated on this blog, I do contend that the judicial constructions of 28 U.S.C. §1443 and 42 U.S.C. §1981-1982 actually DO constitute race-based infringements upon the equal rights of White Caucasian Americans to invoke the provisions of these statutes in their own defense in cases of non-race-based discrimination and oppression under color of law.  But now on to the general concept of immunity, and the roles of Senators Sam Ervin and Strom Thurmond in fighting these concepts.

“POLITICAL PROCESS” labels the mechanism by which societies allocate decision-making authority.  ”AUTHORITY” means “POWER”.  ”POWER without CONSEQUENCES FOR ABUSE” defines “ABSOLUTE POWER”, and “ABSOLUTE POWER” equates (in societies possessing relatively well-developed judicial systems) with “ABSOLUTE IMMUNITY” from civil suit or criminal prosecution for official derogations, deviations, excessive use or application, infringement, or violations of any stated limits on power or action, especially when these result in the derogation, infringement, or violation of the rights or powers of others.   English Political language contains an ancient aphorism that “Absolute Power corrupts Absolutely.”  In my opinion, that aphorism needs to be expanded as a constitutional norm that “Absolute Immunity corrupts Absolutely.”  And the simple truth is that in modern America, both Federal and State Officers, Executive, Judicial, and Legislative, possess something very close to absolutely immunity for all crimes, torts, and violations of the constitution which they may choose to commit in their “official capacity.”

This problem stands as a central focus of my life and career since at least 1995 when I first perceived that Family Court Judges in Texas possessed unreasonable power and discretion to infringe on the Constitutional rights of litigants in family court actions, and that the law itself, through such hopelessly vague concepts as the statutory power of Family Court Judges to rule “in the best interests of the child” when a marriage is “irretrievably broken” constituted a wild derogation from the constitutional norms of due process of law applicable in every other field.  ”Best interests of the child”, and/or “irretrievably broken” as formally enacted statutory norms, constitute extreme legislative breaches and violation of constitutional rights to due process and equal protection, in my humble opinion.

On February 15, 2012, an opinion came down from a Florida District Court of Appeal which reversed a final decision rendered 19 days after my fiftieth birthday in 2010, on the grounds that “the circuit court did not have jurisdiction to render a final order disposing of the case.”  ”A trial court lacks jurisdiciton to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity.”  ”A trial court may proceed in a cause pending a non-final appeal and dispose of any matter not in form or effect interfering with the power and authority of the appellate court to make its jurisdiction effective, but the trial court may do so only short of final disposition.”  “This may all sound like legal gobbledegook to some…but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.”  Many other aspects of this case offer promise and possess extreme interest to all who care deeply about the Constitution as a guiding light for the life of the United States of America, but those aspects must await the briefing of a Motion for Rehearing and, eventually, remand to the Circuit Court from whence this particular appeal arose.

In citing and quoting this very recent decision of an intermediate appellate court in Florida, I mean only to ask the question: should a judge so described by his immediate court of appeals not be held personally liable for acting in the complete absence of jurisdiction?  If his actions caused harm, why should any immunity at all attach to “judicial conduct” undertaken without jurisdiction, since “jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.”  

Only the bravest and most eccentric and idiosyncratic of all recent politicians have ever dared to confront the question of immunity head on.  Among these are Sam Ervin and Strom Thurmond.

The Senatorial career of North Carolina Senator Sam Ervin began and ended with questions of legislative and executive immunity, respectively, which rocked the nation between 1954 and 1974, respectively, namely the investigations into the conduct of Wisconsin Senator Joseph Raymond McCarthy (1908-1957) and President Richard Milhous Nixon (1913-1994).

Ervin’s 1954 role in leading to the censure of Senator McCarthy for making irresponsible allegations constitutes a curious (and effectively unique) abrogation of or exception to the most basic and fundamental concepts of “legislative immunity” in that McCarthy’s conduct which Ervin’s inquiry deemed “censurable” occurred almost entirely in the context of Senate Debate’s and proceedings, and consisted entirely of verbal conduct.  In that sense, McCarthy’s censure differed from all but one of the other nine censures rendered by the Senate in United States history, which mostly commonly have concerned non-debate related issues such as financial irregularities (Hiram Bingham 1929, Thomas J. Todd 1967, Herman Talmadge 1979, and David Durenberger 1990), physically fighting on the Senate Floor (Benjamin R. Tillman and John L. McLaurin 1902) and breaches of secrecy (Timothy Pickering 1811 and Benjamin Tappan 1844).  Of these eight, only Pickering’s conduct, a breach of secrecy during 1811, actually occurred on the Senate floor during Senate debates, and even so was only very vaguely comparable to the censure against McCarthy.  Senator Sam Ervin’s role in leading the censure of McCarthy is notable as the most severe censure ever for conduct almost clearly within the meaning of the Constitution’s Article I “debates” clause (protecting members of the U.S. House and Senate as “be[ing] privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”  In this connexion I consider Ervin’s role in prosecuting McCarthy historymaking: it shows (or at least suggests) that members of Congress must be held responsible for their role in obstructing or interfering with justice (and other constitutional rights) even while participating in senate proceedings.

As important and historical as Ervin’s early work with the investigation of Joseph McCarthy may have been), Ervin achieved immortality by his monumental and most memorable role on the world stage as Chairman of the Senate Select Committee on Watergate, 1973-1974. Richard Milhous Nixon’s extremely ambiguous place in United States and World history began as a communist-baiter (in the House, largely contemporaneous with McCarthy’s in the Senate), but ended as a communist-appeaser (seeking “Detente” with the Soviet Union and beginning the “sellout” of America to Maoist China), whom the Senate (including Republicans such as Barry Goldwater) forced to resign because of a twisted and bizarre serial episode of abuses of Presidential power in connexion with the Watergate Scandal.  Senator Sam Ervin earned worldwide reverence as  advocate for the nation’s conscience while this writer was in High School in Hollywood, California.  Senator Sam Ervin’s final year in the Senate oversaw the collapse of the Nixon Presidency, in large part due to Sam Ervin’s commitment AGAINST Executive Privilege (as Nixon referred to his claim of immunity from prosecution or even inquiry regarding his domestic actions taken as President against American citizens in the name of National Security).

As an aside, I pledge that if I should achieve election to the United States Senate—Senator Sam Ervin would serve as my role-model on almost every issue.  I would fight both legislative and executive immunity and simultaneously uphold the Bill of Rights against all legislative infractions including the “no knock” laws which Ervin fought, which have now become routine nationwide.  Ervin, like his South Carolina cohort Strom Thurmond, feared the advent of the Police State in America long before it became fashionable or even acceptable to do so among most of the Southern and Western U.S. Middle Class—who have a terrible habit of confusing and conflating their perfectly reasonable political opposition to cultural social change with a need for legal repression and suspension of the Constitution.   All constitutionalists must deplore such confusion and conflation, for without the Constitutional protections for our freedom, no hope remains for our traditional cultural or social norms whatsoever.

Now, ironically enough, everything that Nixon did (and covered up) during Watergate is now not only legal, in the aftermath of Federal “National Security” legislation passed in 1996-2011), but Nixon’s (and his White House staff’s) conduct and career of constitutional infringements and violations pales and seems of little consequence or importance compared with what President’s now have “statutory authority” to do.  The recent National Defense Authorization Act, in particular, provides legislative statutory authority for the president to order “indefinite detention” of “terrorists” which (as a pair of connected concepts subject to wildly abusive application) is exactly analogous to the vaguest provisions of family law mentioned above regarding judicial authority to rule and render in the “best interests of the child” whenever a marriage is “irretrievably broken.”

I have in any event focused on the career of North Carolina Senator Sam Ervin because he was one of my first “media heroes” and I first dreamed of studying and applying myself to the resuscitation of American Constitutional Law while watching him preside over the Watergate hearings.

Less known and less famous (and much less politically correct in the modern context) to celebrate is Senator Sam Ervin’s role as the co-author of the “Southern Manifesto” with Senators Strom Thurmond of South Carolina and Richard Russell of Georgia.   The “politically correct” way to look at this document requires calling it a reactionary racist response to Brown v. Board of Education and the subsequent orders of the Supreme Court of the United States requiring school desegregation.  But forced desegregation and integration caused social chaos, first in the South, and only slightly later in the North, causing murderous race-riots even in such “liberal” citadels as Boston, Massachusetts through the mid-1970s.   Just as I have often observed that Brazil never experienced anything approaching the level of racial hatred or tensions known in the United States, precisely because emancipation took place gradually and without force there in the Brazilian Empire (and in fact in every nation of the Americas EXCEPT first Haiti and then the United States), the use of force to accelerate the implementation of social change is almost always destructive.

The authors of the Southern Manifesto saw this destructive waive being unleashed by the Supreme Court in America, and they also perceived, correctly, that pitting black against white constituted a means of destabilizing society and increasing the power of the Federal government (in particular) over the people, and of accelerating the empowerment of the police state.

The authors of the Southern Manifesto against forced school-integration rightly focused their criticisms on Chief Justice Earl Warren.

As I like to point out, Earl Warren’s life-long commitment to civil rights manifested itself early on in his career as Attorney General and Governor of California when he supervised the hateful and purposeless, in fact counterproductive, internment of hundreds of thousands of (as the newsreels of the time and even early “Batman” movies recited over and over again) “shifty-eyed Japs”, the Second Generation or “Nisei” as they called themselves during World War II.

In any event, Senators Sam Ervin and Strom Thurmond led the ultimately failing Southern Resistance against Earl Warren’s Court and what became, effectively, America’s Second “War Between the States”, although this time more ink spilled in the Courtrooms than blood on the streets.

For purposes of this present topic of immunity, I will end with my repeated hymn of praise to Senator Strom Thurmond for his crafty drafting of the 1996 Amendments to the Civil Rights Action, 42 U.S.C. §§1983, 1988(a).   The United States had handed down its most dramatic and emphatic “anti-Judicial Immunity” opinion in 1984, in the decision of Pulliam v. Allen, which has been my personal favorite Supreme Court decision for more than a quarter of a century now.  Pulliam v Allen 466 US 522 104 SCt 1970 80 LEd2d 565 (May 14 1984).  In 1996, Strom Thurmond proposed a relatively minor amendment to 42 U.S.C. §§1983 & 1988 to clarify the application of this provision to judicial officers.  Under Thurmond’s leadership, Congress amended the Civil Rights Statute to clarify that judges would only be liable for judicial actions taken “clearly in excess of jurisdiction” in the statute, and this language exactly tracks Justice Blackmun’s language in his opinion in Pulliam v. Allen (footnote 12) which reviews the tradition of limiting judicial immunity to matters “clearly within their cognizance” or “clearly within their jurisdiction”, in full (Blackmun here was in fact quoting Blackstone!).  Writing of the Judges of England, Blackstone in Volume 3 of his commentaries at pages 112-113 stated that if these Judges,

in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes, or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law; else the same question might be determined different ways, according to the court in which the suit is depending: an impropriety, which no wise government can or ought to endure, and which is therefore a ground of prohibition. And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it; and an action will lie against them, to repair the party injured in damages.

The Southern Manifesto co-authored by Sam Ervin & Strom Thurmond (and Richard Russell?) did not expressly cite Blackstone but began:

The unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.  The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power. They framed this Constitution with its provisions for change by amendment in order to secure the fundamentals of government against the dangers of temporary popular passion or the personal predilections of public officeholders.”

The consequences of this language include the assertion that public officeholders (including judges) must be liable for the consequences and injuries caused by their derogations from and violations of “established law.”  Just as in the recent Florida case decided above, where a judge enters a decision in violation of well-and-long established law relating to jurisdiction and scope of authority, that Judge renders nothing but a personal statement with personal consequences, for which that Judge should be personally liable.
I ask here: should any Judge enjoy immunity from prosecution for civil rights violations and/or suit for civil rights violations when that judge violates the letter of the Constitution, especially when a litigant points out that violation to the Court and no excuse (such as a Constitutionally declared war or surprise invasion) exists to suspend the Constitution temporarily…. and temporarily only… I have often had occasion to refer to 1996 USCCAN 4216-4217 which affirms that these amendments do not establish absolute immunity for judges.  I submit that Strom Thurmond authored the 1996 Amendments to the Civil Rights Action to ensure that Judges (like Chief Justice Earl Warren) could and would be held liable for their actions taken “clearly in excess of jurisdiction.”  Unfortunately, to date, neither the State nor Federal Courts have recognized the importance of these amendments, and continue to enforce Absolute Judicial Immunity.
The doctrine of “qualified immunity” also arose out of Watergate, particularly in the case of Mitchell v. Forsythe, 472 U.S. 511 (June 19, 1985) in which the Supreme Court limited former Attorney General John Mitchell to merely “qualified immunity” rather than “absolute immunity.”  Oddly enough, the standard the Supreme Court applied to the Attorney General of the United States involved a determination of what a “reasonable person” would know about the law (reasonably or unreasonably, most people in the United States today know almost nothing about the law, which explains why lawyers run amok and control the country).  Specifically, the Supreme Court held that the Attorney General of the United States would enjoy qualified immunity, “so long as his actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
         Rather unsurprisingly, in practice, interlocutory appeal of any and every trial court determinations of qualified immunity plus a very pro-defense, anti-plaintiff judiciary means that even for prosecutors and police officers, “qualified immunity” is difficult to distinguish from “absolute immunity.” 

I know that my critics often accuse me of writing overly long-and-windy commentaries on my blog, and I suppose this will constitute one of my more offensive pieces.  I submit that the American public have become too used to short sound bytes and non-analytical thinking, and I hope I can encourage a more “in depth” and historically-based approach here.

Regarding legislative immunity, I recently discovered a very interesting and historically based article by a journalist name Chuck Murphy (Colorado Constitution and History of Legislative Immunity):

Murphy: Colorado’s legislative immunity rooted in 17th century England

Blame it on King Charles I.

He dissolved Parliament, made Oliver Cromwell famous and is as responsible as anyone for the get-out-of-jail-free card Rep. Laura Bradford of Mesa County used last week.

Bradford, R-Collbran, was pulled over Wednesday night on suspicion of driving while intoxicated after a Denver officer saw her make an improper lane change. But after failing a roadside sobriety test, Bradford mentioned that she was on her way home after a legislative function at a Colfax Avenue bar.

Those were the magic words.

Article V, Section 16 of the Colorado Constitution says:

“The members of the general assembly shall, in all cases except treason or felony, be privileged from arrest during their attendance at the sessions of their respective houses, or any committees thereof, and in going to and returning from the same; and for any speech or debate in either house, or any committees thereof, they shall not be questioned in any other place.”

That’s where Charles comes in.

By the time he took the crown in 1625, England had a robust Parliament and Charles was determined to put them in their place. He declared the divine right of the king to rule as he chose, and, after a series of confrontations, dissolved Parliament. Four years later, he did it again — and this time, he put much of the body’s leadership in prison. He was eventually defeated by Cromwell and lost his head — literally.

Say this for Brits — they have long memories.

It was 60 years later when Charles’ second son, James II (Dismal Jimmy), ascended to the throne. He wanted to impose Catholic rule on a deeply skeptical nation, and it did not go well. Within four years, he was deposed by his daughter Mary, and her husband, William of Orange. They are better known today as William and Mary.

Parliament had invited them to take over, but with certain conditions, partly based on the naughty behavior of Charles I. One of those was the 1688 Bill of Rights, which said in part:

“That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

“That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;”

And…

“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

A couple hundred years went by before 1876, when Colorado was working on its latest version of a state constitution designed to get us admitted to the union. By then, we had the U.S. Constitution and the work of several other states to crib from, including an 1859 effort from Kansas:

“For any speech or debate in either house, the members shall not be questioned elsewhere. No member of the Legislature shall be subject to arrest — except for felony or breach of the peace — in going to or returning from the place of meeting, or during the continuance of the session; neither shall be he subject to the service of any civil process during the session, nor for fifteen days previous to its commencement.”

Look familiar? It all leaps right out of 17th-century England.

Now, say what you will about Gov. John Hickenlooper — he is impetuous, and he does on occasion show signs of a temper — but he is not about to lock up members of the legislature, not even the House, if he doesn’t get his way. I’m certain of it.

These immunity clauses exist in a majority of state constitutions today (legislators know a good thing when they see it). Arizona has discussed getting rid of theirs after their former Senate majority leader avoided arrest on a domestic-violence charge by invoking legislative immunity. His girlfriend was arrested while he went home, provoking well-placed outrage.

Legislators have no right to any protections not enjoyed by every other citizen, period, and most don’t avail themselves of this constitutional provision anyway. Even Bradford denies that she intended to avoid arrest by mentioning where she was coming from.

So who in Colorado’s legislature will take up the charge to rid our constitution of this anachronism? We amend the document all the time, with mixed results, but this seems like a no-brainer in an election year.

All it takes is a proposal to get it on the ballot. A majority of Coloradans just might go along.

Chuck Murphy: 303-954-1829, cmurphy@denverpost.comortwitter.com/cmurphydenpost

Read more:Murphy: Colorado’s legislative immunity rooted in 17th century England – The Denver Posthttp://www.denverpost.com/murphy/ci_19849376#ixzz1mpThOiJt
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Completing the First 1% of the Third Millenium….

I remember New Year’s Eve, December 31, 1999 in New Orleans—what an amazing party it was. My then 8 year old son rode on my shoulders as we were crushed among the crowds at Jackson Square. I recall we had a really good view and nearly a perfect vantage point at one early point about an hour before midnight, but got distracted by something and then by midnight we were just in the square crushed by what seemed like millions, looking at the fireworks from the Riverwalk by the Old Jax Brewery. Elena and I had discussed when deciding it was time to “get pregnant” with Charlie that it would be fun to have a child who would remember the transition between the 20th and the 21st century, and having Charlie in 1992 was almost the last chance to have such a child. Charlie was born during Hurricane Andrew in 1992 on August 23, 1992, in Palm Beach, Florida. It was an amazing event. We were on the first page of the Palm Beach Post the next day—a beautiful picture of Elena holding Charlie with me on the telephone in the background. We knew we were going to have a boy and it was a foregone conclusion he was going to be Charles Edward Lincoln IV, but we added the name “Andrew” as a second middle name, and among other oddities, the windows of St. Mary’s Hospital in West Palm Beach were all duck-taped with gigantic X-es, which on the horizontal hospital windows looked like transparent Scottish flags bearing St. Andrews’ Crosses.

This holiday vacation, as I mentioned before, is the first time since 2001-2002 that Charlie and I have been able to spend the entire Christmas and New Year’s holiday together. The fact that we have done so (in California) as well as the fact that we spent the past two summers together in Cambridge, Massachusetts, is a tribute to Elena K. Lincoln’s spirit and willingness to compromise and/or admit de facto defeat or mistake, in the face of her de jure victory in Court, which was the event or series of events which changed my life, and caused me to take the paths I have taken in life since 2002.

Yes, during the past decade, the first 1% of the Third Millenium, I dedicated my life in large part to attacking the Texas Family Code, a tradition which I continue now in Florida, and would like to begin in California. The Texas Williamson County Family Court establishment was my first great confrontation with a major establishment. The City of Lago Vista Police abuse cases in my hometown/backyard in 1997-98, which ultimately got me disbarred in the W.D. Texas and , were just a very mild warmup to what became a major anti-establishment civil rights and reform career. Lago Vista Police Chief Frank Miller and his “prize” officer Bart Turek were my first major civil rights adversaries, but I did not hate them or even particularly dislike them. They had just instituted and upheld a misguided and injurious police policy in Lago Vista. The people I came to hate were those who destroyed my family and took my son away from me for during 2002-2007, with only a few respites. I have dedicated my life to exposing the lies and the evil embodied by Williamson County Judge Michael P. Jergins, Laurie J. Nowlin, J. Randall Grimes, and Michael Davis, as well as their henchment such as the crew of psychologists including Don Jones.

But this moment, these two weeks with my son, overlooking the Pacific Ocean, with the low hills of Catalina Island in the background, is one of the sweetest moments of my life, and I thank God, and Elena for it. I should note that I invited Elena here to share this moment not once but many times. There’s enough sleeping space here for three to be in private rooms, as was proved when Peyton and Charlie were both here for Thanksgiving. But Elena demurred, preferring to go to Cancun, ironically enough, since the Yucatan Peninsula was where Elena and I met in 1985.

Anyhow, to everyone out there, I wish a glorious and prosperous New Year 2010, and I hope that whatever happens to me, Charlie, and Elena, and to everyone else, that the next decade will be as full of emotional, psychological, and spiritual growth as the past decade has been for me. In every defeat and setback I have found the inspiration to move forward and see deeper truths and meanings, and for such experiences I can only be thankful to all who gave me such opportunities, even if they meant me harm by doing so. The absolute rock bottom low-point of this decade for me was clearly the death of my grandmother Helen in May 2001. But not a day goes by that I do not recall fondly and given thanks for the century of life my grandmother enjoyed on earth and at all the time I shared with her and her husband, my grandfather Al, who predeceased her by 21 years in 1980. The high points of the decade were all spent with my son, and none were higher than our days on Harvard Square and in California.

On this beautiful New Year’s Day looking West, I remember and give thanks to all my good friends and allies during the past ten years (whether we’re in contact to this day or not), in particular to my trustee, Peyton Yates Freiman, a more honest and truer soul does not exist! I also recall my oldest friends Helen S. Carr (the only person not related to me by blood who has remembered every birthday, Christmas, and intercardinal solstice or equinox to me since the 1970s) and John K. Naland, but also to my newest best friends just made in 2009, Robert J. Ponte, Dennis & Milenne DeLeon, Renada Nadine March, and (irony of irony’s, because I first heard of her as an adversary) Lisa Liberi. In this transitory life, in this “shake and bake” world we live in, there are many people who were once important to me whom I never see anymore, even if I have not forgotten them, but I hope that my new friends from 2009 will remain with me always.

No inventory of my most steadfast friends could ever be complete without “honorable mention” of Lisa Cook, my sister-in-law in Michigan, who talked to me and understood me and listened to me for years when to do so meant that her own husband’s family (my wife Elena’s relatives) would heap scorn upon her during “the war years” when Elena was calling me “Not Family, but Cancer in the House.” Lisa was always there for me and I tried always to be there for her, even when nobody else was. Charlie’s Brazilian Godmother Helir Arlotta from Palm Beach and Tarpon Springs, Florida, falls into this same category…. I don’t have Lisa’s new telephone number (I tried to reach her over the holidays) and Helir has vanished, but we do not and will not forget each other, I’m sure.

Throughout it all, the priests at St. Luke’s-on-the-Lake in Austin provided genuine friendship and support—and I will never forget them even though I might never spend much time in Austin again. Father James P. Jameson, a fellow Harvardian, Father Philip May, and Father Mike Wyckoff were there for me (during the “war years” with Elena) when I had no one else to whom I could turn. They are true Christians, true gentlemen, and truer friends than I ever deserved. Father May was actually willing to meet with me and Charlie in secret in 2005, to provide “aid and comfort” like the Church Martyrs of old….

I remember more often that they will imagine possible the close relationship I had over three years of tumultuous conflict with my steadfast attorneys during the “War Years” (withe Elena of 2003-2006 Francis Wayne Williams Montenegro and Valorie Wells Davenport. They worked mostly for free, certainly without any profit, and their dedication to my cause was incomparable, encapsulated in Francis Williams’ statement that he would support me even if threatened with a firing squad, and I believe he meant it at the moment, even though he and Valorie, once actually faced with an “offer they couldn’t refuse” by way of extortion or a “constructive bribe” from the Deputy Texas Attorney General James Carlton Todd, Mike Davis, J. Randall Grimes, and the obviously intimidated visiting Judge James F. Clawson (who replaced Jergins after the Federal suits), ultimately gave up the struggle rather than face sanctions. Francis and Valorie also introduced me to two good people Corinne Irwin and Rod A. Dal Sasso. I remember and pray for my late father Charles Edward, Jr., who supported my struggles until he could not stand to hear about them anymore.

I remember my friends in the Southern District of Texas early mortgage note battles: Dan Swank, Jacques S. Jaikaran, Mike Palma, Robert Bruce, and David A. Sibley (who despite some ironic vicissitudes, started off a friend and returned to friendly status) from 2006 and Jon Drew Roland, my first trustee and closest friend and ally from 2004-2007.

Daniel Louis Simon of Liberty Hill joined my crusade against the Texas Family Courts and Code and has become a steadfast and probably last-long friend. He holds the dubious distinction of having been sanctioned for following my lead against the Texas Family Courts and Code by Judge Walter Smith, who sanctioned Dan and me jointly and severally to the tune of $150,000.00 in March 2008 for the sole purpose of preventing us from continuing our crusade against the Texas Family Code in Federal Court. His continued friendship and support is a great comfort to me, and I hope I can provide the same for him.

Between January 2005 and September 2007, I went through major ideological transformations in my life, realizing that the “normal” paths to reform were all but closed in the United States. It was during these years that I also met and first had the privilege of meeting and working with Senator Jerry O’Neil of Columbia Falls and Kalispell, Montana. Many friends, even on this ten year list, have already come and gone out of my life, but I hope Jerry will remain my friend for all the rest of the days we might both be living on earth. He is the truest Patriot I know, one of the greatest constitutional scholars of the “Old School”, and one of the most honorable men on earth (in addition to being, as my son says, “the coolest guy I ever met”).

I remember my Florida friends and accomplices Nancy Jo Grant, Bob Hurt, Bill Trudelle, Pearl Lanier Bryan, and Kathy Ann Garcia-Lawson. Nancy is a hero who should be known to all Patriotic Americans. Bob, Bill, & Pearl have provided me with so much support and courage. Pearl is a warrior among warriors. Kathy Garcia-Lawson is in so many ways my soulmate, with regard to our parallel paths crusading against (respectively, the Texas and Florida) Family Law and Domestic Relations Courts. Kathy is such a paragon of the devoted, virtuous spouse committed to and still in love with her husband, even after five years since he left her, I can only stand in awe of her. Kathy breathes new meaning into the words “family” and “until death do we part.” Kathy’s funny, sassy, and spunky daughter Alexandra, and all of their friends whom I have met in Palm Beach Gardens, especially Claire and Rebecca. I love Kathy, her character, and her mind, and hope that she and I will also forever be friends. And yes, in connection with a person to whom Kathy introduced me, I even will toast on this day Orly Taitz whose affection and company “woke me up” in so many ways up through November 4, 2009—May she find peace and harmony and achieve freedom from want and freedom from fear sufficient that she might break free from the golden shackles that hold her prisoner in what may be a comfortable or even palatial prison.

And I would especially like to remember Vance Fecteau and Moshe Leichner, whom the Federal government continues to hold in prison, who were my closest friends during the worst 54 day period of my life, and who made even that extreme low moment a much brighter, more enlightened, and so more bearable moment. I doubt that it will happen within the next decade, but I pray for a day when America and the rest of the world will be truly free again, when 1-2% of the population will no longer be incarcerated or on supervised release of some sort, when crimes will be established and measured only by their actual injury to others, so that no person will ever again be incarcerated merely to increase the arrest rates and the prison population so that large corporations owned by major politicians can make larger profits. I can honestly say that all my experiences in the past decade have educated me and made me a better person and patriot.