Book Review: Bradford's "Original Intentions" on making of US Constitution

[Apollonian]

Book Review: Bradford's "Original Intentions" on making of US Constitution
(Apollonian, 10 Feb 17)​

M.E. Bradford's "Original Intentions: On the Making and Ratification of the United States Constitution," U. of Georgia Press, Athens (Ga.) and London, 1993, 165 pp., xxvi, 136 text, notes, index; is outstanding primer for understanding the making and real meaning and purpose of US Constitution. For Americans had been successful w. the original Articles of Confederation, having won the war and their independence fm Great Britain, but now had a serious foreign debt and were having some difficulties, esp. w. the latest rebellion led by Shay in Massachusetts. Were things breaking down?--and couldn't they improve things as in way of revenue for the union by more direct method(s), and simplifying the commercial relations among and btwn the states?

So Bradford does great svc for us as he examines the specific state ratification debates, pt-ing out the absolute greatest concern for all of them that the union WOULD NOT DOMINATE THE STATES, that the union only had specifically delegated powers and NO MORE. Only 11 percent of the Constitutional text had to do w. power granted to the union; fully 20 percent made specific prohibitions for what union could NOT do. Of course, the great flaw turned-out to being the far too powerful judiciary, as we now know--it's STILL working its mischief, even to this very day, as always.

For don't forget it was Sup. ct. Justice Joseph Story, fm Massachusetts, first nominated as Democrat-Republican for the ct. by Madison (1811), who originated and formulated that fatal specific idea that the union was superior to the states, against the justly famous "compact" theory of Jefferson and later, Calhoun, Story holding that the whole people of all the states together were "sovereign" over and against the people of the individual and several states, then spoken-for by Sen. Dan Webster and later, Lincoln himself. And whatever one might say about such legalist "fictions" as Story's and Lincoln's, note it was good enough to see to the gross, horrific mass-murder of the people of the south (including blacks, don't forget, of whom about a million died) in the 1860s war of Northern Aggression--in fact, it continues to hold to this day.

For one extremely significant thing, Bradford pt.s out the nowadays little known fact state of N. Carolina actually voted down and refused ratification the first time they met and took a wait-and-see attitude for whether the newly-elected US Congress, after the Const. went into effect, would put in place the promised Bill-of-Rights amendments. B. of Rights wasn't just some optional thing, esp. for the 9th and 10th Amendments.

Another great pt. made by Bradford is reverence of all American founders, and as expressed in the ratification debates, for preceding British constitutional system and traditional rights of Englishmen, including that of Magna Charta. Practically every single provision of US Constitution is derived fm the British system and precedents for law and legal tradition. So when one speaks of American tradition, such as it is, one necessarily implies the preceding British spirit, system, and tradition.

Bradford brings up the "nomocratic" theory by which purpose of constitution is the necessarily republican idea of subjecting state and gov. to strict rule-of-law rather than the present sort of "teleologic" understanding by which the const. is supposed to "grow" and/or "adapt" in accord w. the trends, fashions, and whims of the pure democratic principle.

Of course, death of US Constitution was the 1860s War of Northern Aggression which decisively rejected the only rational basis, the above-noted "compact" theory, even though it's the only possible basis of law. And what has ensued is the same satanic, murderous empire as we see today, all rationalized by moralism, Pharisaism, and oligarchic patronization for the human condition, for the politicians soon enough realized they had to have some plausible excuse for the gross destruction and mass-murder which was perpetrated; high-flown idiocy and lies are what we've been given by the courts.

Thus Bradford's work is such a masterpiece as most substantial, well referenced, scholarly PRIMER, so short and yet well-written, for more than mere basic understanding of law and US Constitution, highly recommended.

 

[Apollonian]

Pennsylvania Supreme Court Rules Police Can’t Force You to Tell Them Your Password​

Link: https://www.blacklistednews.com/art...-police-cant-force-you-to-tell-them-your.html

Published: November 21, 2019
Source: Electronic Frontier Foundation
By Andrew Crocker

The Pennsylvania Supreme Court issued a forceful opinion today holding that the Fifth Amendment to the U.S. Constitution protects individuals from being forced to disclose the passcode to their devices to the police. In a 4-3 decision in Commonwealth v. Davis, the court found that disclosing a password is “testimony” protected by the Fifth Amendment’s privilege against self-incrimination.

EFF filed an amicus brief in Davis, and we were gratified that the court’s opinion closely parallels our arguments. The Fifth Amendment privilege prohibits the government from coercing a confession or forcing a suspect to lead police to incriminating evidence. We argue that unlocking and decrypting a smartphone or computer is the modern equivalent of these forms of self-incrimination.

Crucially, the court held that the narrow “foregone conclusion exception” to the Fifth Amendment does not apply to disclosing passcodes. As described in our brief, this exception applies only when an individual is forced to comply with a subpoena for business records and only when complying with the subpoena does not reveal the “contents of his mind,” as the U.S. Supreme Court put it. (For more on the foregone conclusion exception, see this post on a similar case currently pending in the Indiana Supreme Court.)

The Pennsylvania Supreme Court agreed with EFF. It wrote:

Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant’s assistance may be inconvenient and even difficult; yet, to apply the foregone conclusion rationale in these circumstances would allow the exception to swallow the constitutional privilege. Nevertheless, this constitutional right is firmly grounded in the “realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.”

This ruling is vital because courts must account for how constitutional rights are affected by changes in technology. We store a wealth of deeply personal information on our electronic devices. The government simply should not put individuals in the no-win situation of choosing between disclosing a password—and turning over everything on these devices—or instead defying a court order to do so.

At least two other state supreme courts, in Indiana and New Jersey, are considering similar cases. EFF is participating in both of those cases as amicus along with the ACLU. With the victory in Pennsylvania, and several other courts set to weigh in, there’s a significant chance the U.S. Supreme Court will have the last word. We hope that like the Pennsylvania court, the Supreme Court recognizes just how fundamental the Fifth Amendment right is.

Andrew is a senior staff attorney on the Electronic Frontier Foundation’s civil liberties team. He focuses on EFF’s national security and privacy docket, as well as the Coders’ Rights Project. While in law school, Andrew worked at the Berkman Center for Internet and Society, the American Civil Liberties Union’s Speech, Privacy, and Technology Project, and the Center for Democracy and Technology. He received his undergraduate and law degrees from Harvard University and an M.F.A. in creative writing from New York University. His interests include Boggle and donuts.

This article was sourced from EFF.org

 

[Apollonian]

Here's outstanding commentary on Articles of Confederation, a SUCCESSFUL constitution, which achieved its purpose--which the (ensuing) US Constitution failed to do, destroyed in 1860s, ignored today