` First Amendment to the ` United States Constitution ‘ Prohibits Making Any Law Abridging the ‘ Freedom of Speech ‘

#AceHistory2Research – UNITED STATES – March 29 – The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that comprise the Bill of Rights.

The Bill of Rights was originally proposed as a measure to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.

In Everson v. Board of Education (1947), the Court drew on Founding Father Thomas Jefferson’s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of 20th and 21st-century court decisions which protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech; these rulings also defined a series of exceptions to First Amendment protections.

The Supreme Court overturned English common law precedent to increase the burden of proof for defamation and libel suits, most notably in New York Times Co. v. Sullivan (1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In Near v. Minnesota (1931) and New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the Amendment implicitly protects freedom of association.

MOST IMPORTANT OF ALL:

In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” Eight of the other thirteen states made similar pledges. However, these declarations were generally considered “mere admonitions to state legislatures”, rather than enforceable provisions.

#AH2RN2014

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` The Democratic Republican Party ‘

#AceHistory2Research – UNITED STATES – 22 March – In United States history, the Democratic-Republican Party, the Republican Party or the Jeffersonian Republicans was a political party organized by Thomas Jefferson and James Madison in 1791-93, which opposed the Federalist Party and controlled the Presidency and Congress, and most states, from 1801 to 1825, during the First Party System.

It split after the 1824 presidential election into two parties: the Democratic Party and the short-lived National Republican Party (later succeeded by the Whig Party, some of whose members in 1854 helped to found the modern Republican Party).

The organization formed first as an “Anti-Administration” secret meeting in the national capital (Philadelphia) to oppose the programs of Secretary of the Treasury Alexander Hamilton.

Jefferson needed to have a nationwide party to challenge the Federalists, a nationwide party organized by Hamilton.

Foreign affairs took a leading role in 1794-95 as the Republicans vigorously opposed the Jay Treaty with Britain, which was then at war with France.

Republicans saw France as more democratic after its revolution, while Britain represented the hated monarchy. The party denounced many of Hamilton’s measures (especially the national bank) as unconstitutional.

The party was strongest in the South and weakest in the North-east. It favoured states’ rights and the primacy of the yeoman farmers.

Republicans were deeply committed to the principles of republicanism, which they feared were threatened by the supposed monarchical tendencies of the Hamiltonians/Federalists.

The party came to power in 1801 with the election of Jefferson in the 1800 presidential election.

The Federalists — too elitist to appeal to most people — faded away, and totally collapsed after 1815.

The Republicans, despite internal divisions, dominated the First Party System until partisanship itself withered away during the Era of Good Feelings after 1816.

The party selected its presidential candidates in a caucus of members of Congress. They included Thomas Jefferson (nominated 1796; elected 1800-1, 1804), James Madison (1808, 1812), and James Monroe (1816, 1820). By 1824, the caucus system had practically collapsed.

After 1800, the party dominated Congress and most state governments outside New England. By 1824, the party was split 4 ways and lacked a centre.

One remnant followed Andrew Jackson and Martin Van Buren into the new Democratic Party by 1828.

That party still exists. Another remnant led by John Quincy Adams and Henry Clay formed the National Republicans in 1828; it held its first convention in late 1831 in Baltimore.

It morphed into the Whig Party by 1835.

The Whig Party fell apart in the mid-1850’s because it could not bridge North-South differences on slavery, while the Democrats held together by taking positions favoured by the South.

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“Trial By Jury: An Essential Safeguard For A Free Society”

#AceHistoryNews says about two centuries ago Thomas Jefferson said “I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”.

"Thomas Jefferson"We live at a time in which we have the potential to learn perhaps more from history than did our ancestors, but it seems that though technology and information have increased, our memories have only grown shorter; we have forgotten the value of those fundamentals that preserve liberty and justice.

One such fundamental is that sovereignty[1] resides in the people. This being the case we can say that the people are masters of their own governments and thus superior to them; they are the creator, the government the created. A corollary of this superiority is that people have the rightful power to check[2] their own government, to keep it within the bounds of what is lawful and constitutional.

English: W. S. Gilbert's illustration for &quo...

English: W. S. Gilbert’s illustration for “Now, Jurymen, hear my advice” from Gilbert and Sullivan’s Trial by Jury (Photo credit: Wikipedia)

The right to trial by jury stands as one of the most effective checks against the tyranny of government – it is, as Winston Churchill put it, the “supreme protection invented by the British people for ordinary individuals against the state”.[3] The right to trial by jury is enshrined in the Magna Carta[4] and is, according to that constitutional document, an everlasting birthright of the people of this land.[5]

A jury is a tribune of the people (or country).[6] Being randomly selected, the jurors are independent of the government and thus bear no vested interest in the same. Further, they are representative of the full range of views, morality and common sense that exist among the people.

A recurring principle of Common Law is that the power to make decisions and consequence is retained by the people and never delegated to government. Thus a jury is convened to make decisions regarding the fate of those accused of breaking the law – a decision which is so vital that it is not entrusted to government.

Under its full and (I would submit) rightful power, the jury may:

Hold the Court (including the judge) to account. The jury stands supreme.[7] It is a check upon governmental abuse of power. It must be able to hold any and all to account or it will not be able to fulfil its role.

Have all evidence made available to them. If the Government have the power to set the rules by which evidence may be introduced then it might as well be given the power to frame someone. All the lawfully gathered evidence must be made available to the jury.

Deliberate in secret. The jury must be free to meet and discuss their thoughts in secret, in a spirit of safety, knowing that they will not be influenced, punished or harassed, either at that time or in the future, by government or its agents. Attempts by government and its officials to interfere or sit in on jury deliberations are wholly unacceptable to a free and fair trial.

Not be punished in any way by the Court. Again, for a free and fair trial, the jury must not fear any form of punishment or penalty for performing their duty.

By unanimous consent vote the accused “guilty” or “not guilty” of wrongdoing regardless of whether they think the accused has broken the law or not. Government may not bind the conscience of the jury. If the jury feels a law is unjust, or that a law has been unjustly applied, then they in effect throw the case out of court by voting “not guilty” and thus ensure corrupt laws (and the corrupt application of laws) work no ill upon the people. This is called jury nullification because the law is nullified.[8]

If this were otherwise then the jury would serve no purpose in providing a check on government; if it was forced to vote a certain way it would become a mere tool of enforcing the laws of the government of the day. The jury therefore decides if someone is guilty of wrongdoing not of acting illegally.

William Camden, Antiquarian and Historian

William Camden, Antiquarian and Historian (Photo credit: lisby1)

Lord Camden, debating in the House of Lords in 1792, gave the following cogent argument for this very principle. The record states that he said, “he must contend that the jury had an undoubted right to form their verdict themselves according to their consciences, applying the law to the fact. If it were otherwise, the first principle of the law of England would be defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny it utterly, because every Englishman was to be tried by his country; and who was his country but his twelve peers, sworn to condemn or acquit according to their consciences? If the opposite doctrine were to obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would try the man. He would contend for the truth of this argument to the latest hour of his life, manibus pedibusque. With regard to the judge stating to the jury what the law was upon each particular case, it was his undoubted duty so to do; but, having done so, the jury were to take both law and fact into their consideration, and to exercise their discretion and discharge their consciences.“[9]

The jury is thus a powerful tribune in preserving liberty, for without its consent the government may punish no person and all its unjust laws and oppressive application of laws are of no effect. Trial by jury is the final legal check on tyranny and thus a hallmark of and safeguard for a truly free people. It is thus vital we defend that right for ourselves and our children.

End Notes

1. Sovereignty has reference to that which is superior or supreme, it is nothing more or less than the power of self-determination. All sovereignty resides in the individual because it is individuals who possess free will. National sovereignty, for example, is only a representation of the individual sovereignty of each citizen of that society. For a greater explanation of this see the text and references in the article Freedom in Jeopardy: The Case Against the EU and Supranationalism by the same author; available on-line at http://www.freedom-central.net/euandbritain.html.

2. “The right to bear arms, the right of juries to nullify the law, and the right of revolution all have the same root: the inalienable right of the people to control the government when they believe it has become destructive of their liberties.” (The Rise and Fall of Jury Nullification by James Ostrowski, see “Recommended Reading” below).

3. “…the great principle of Habeas Corpus and Trial by Jury…are the supreme protection invented by the British people for ordinary individuals against the state. The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgment by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian governments.” (Winston Churchill, minute to the Home Secretary, 21st November 1943; emphasis added).

4. “No freeman shall be taken, imprisoned, or disseized [dispossessed], or outlawed, or exiled, or in any way harmed – nor will we go upon [condemn] or send upon [imprison] him – save by the lawful judgement of his peers or by the law of the land.” (Magna Carta AD 1215, Clause 39; emphasis added).

5. “…men in our kingdom shall have and hold all the aforesaid liberties, rights and concessions well and peacefully, freely and quietly, fully and completely, for themselves and their heirs from us and our heirs, in all matters and in all places for ever…” (Magna Carta, AD 1215, Clause 63; emphasis added). Those rights include the right to due process of law, the right to trial by jury, and the right to be presumed innocent until proven guilty.

6. A jury trial is a trial by country (as opposed to a trial by government). Towers wrote: “And in all pleas of the crown, the prisoner is said to put himself for trial upon his country; which is explained and referred by the clerk of the court, to be meant of the jury, saying to them, ‘which country you are’.” (An Enquiry Into the Question, Whether Juries are, or are not, Judges of Law, As well as of Fact; With a particular Reference to The Case of Libels, Joseph Towers, 1764; available on-line at http://www.constitution.org/jury/cmt/towers/towers.htm). Lysander Spooner wrote: “The object of this trial ‘by the country,’ or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or ‘the country,’ judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are? Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other – or at least no more accurate – definition of a despotism than this.” (An Essay on the Trial By Jury by Lysander Spooner; see “Recommended Reading” below).

7. “The power that puts the jury above the law can never safely be entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.” (The Conscience of the Jury, The Right Honourable Lord Devlin, “Law Quarterly Review”, July 1991, Vol. 107, p. 404 as quoted in Reclaim the Law (see “Recommended Reading” below)).

8. “For more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.” (An Essay on the Trial by Jury, 1852, Lysander Spooner; see below). Compare this with the following extract from the Report of the FCDA, Europe; Cannabis, the Facts, Human Rights and the Law: “In the governance of men and women, few if any matters are of greater consequence than the diligence and precision with which the judiciary observe and adhere to the civilised code long-established for the determination of an accused person’s guilt or innocence. At least the equal of all other aspects of importance of this code is the Right and Duty of the jury to judge of the justice of the law. All governments, comprised of as they are of human beings, are fallible. Governments are capable of passing bad or oppressive (i.e. illegal) laws, and authorising and organising the enforcement of such bad laws. If juries were limited in their role to decide guilt or innocence only on the evidence produced by the state prosecutor of whether the accused had broken a law or not, any jury acting in this restricted way would not be able to protect good fellow Citizens from unjust laws or oppressions of the state. These inadequate ‘show trials’ are observed to take place in the tyrannies of totalitarian dictatorships and are traditionally scorned for the mockery of justice that they are when compared to the democratic high standards Trial by Jury. Some term other than Trial by Jury is necessary to describe a court ritual enacted where in the jury is not informed of the jurors Right and Duty to judge on the justice of law, without which real Trial by Jury cannot be said to have taken place”. (ISBN: 0-954421-1-6. On-line reference: http://www.ccguide.org/fcda.php).

9. 29 Parliamentary History 1535, 1536; final emphasis added.

Recommended Reading

Reclaim the Law (article)
http://www.flyingfish.org.uk/articles/excuse/lawful.htm.

An Essay on the Trial By Jury by Lysander Spooner (essay)
http://www.lysanderspooner.org/node/35

The Rise and Fall of Jury Nullification by James Ostrowski (PDF essay)
http://www.mises.org/journals/jls/15_2/15_2_3.pdf

American Jury Institute (organization)
Highly recommended and informative website concerning fully informing juries as to their rights and duties. http://www.americanjuryinstitute.org

Juries: A Double Edged Sword (Steven Montgomery, writing for The Moral Liberal)
A short history of the right of a jury to decide matters of law as well as fact. And the obligation that rests upon society to apply this right properly. http://www.themoralliberal.com/2011/05/18/juries-a-double-edged-sword

TRIAL BY JURY: AN ESSENTIAL SAFEGUARD FOR A FREE SOCIETY

#History2Research

Copyright 2004. Darren Andrews. Feel free to print but please acknowledge Freedom-Central.Net as the source. Do not copy to a web site without permission.

 

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