(FIRST DRAFT -- I have to get to work today... ;-)
Briefly,
I am neither a Lawyer, nor a Legal Scholar.
Merely a snowball rolling down a long hill, collecting this and that, some of which you may find useful to add to your own snowball.
This essay is presented, in development, for your consideration and contribution. Its intent is to contribute to, not to monopolize, something which belongs to us all.
It is intended not to end in the swamp of some intellectual archive, but to lead to, and indeed, to invoke, Action. It intends to lead irretrievably to a conclusion that no other course but Action is warranted. And it intends to imply what that Action may be.
The Body of Law by which we live -- and mediate our disputes -- contains injunctions both affirmative and passive. Some of these distinctions take place along the dividing lines between Civil Law and Criminal Law.
For example, if a drunken driver kills my sister, ...
...I do not have to bring an action in court to commence a prosecution. The State will do that for me; I have only to report the tragedy for those wheels to be set in motion. My family has Civil remedies available independently of those of the Public's Criminal measures.
Civil matters require my own initiation and prosecution. If I do nothing, nothing will happen.
Considering these two branches of law, we encounter a problem when the State, the Executive, or "The King" is the violator, in what could be either a Criminal or a Civil matter. The State, on its own, will not commence its own prosecution of itself in a large majority of cases.
And it will rarely provide a venue sufficient for such a hearing to be held, nor the resources to carry it out, nor the means for remedy to be made, despite the fact that the citizen who wishes to bring action is expected to fund the State with his daily labors.
And, especially when the State has been captured in its entirety by Private Interests -- the "Factions" spoken of by Madison, Jay, and Hamilton in the Federalist Papers -- the inclination to support a Citizen's right to legal remedy is even the less.
Indeed, much of the distinction between "Civil" and "Criminal" may be lost when it is the State by its mechanisms which violates. When Men of Greed hide behind the great Power entrusted to them, wisely or unwisely, by fellow Citizens, what dimensions of Crime or Contract Violation present themselves?
There is a concept in law called "Acquiescence".
Not knowing of its reach can cost you, big-time.
I will leave it to other lovers of research, and to my own never-to-arrive leisure time, to explore its many other legal applications, but for today, I will go with what I have and merely suggest the most preliminary outlines of a Constitutional approach. If subsequent research shows my premises or conclusions to be wildly errant, I apologize. I mean only to present what seems most right to me as of what I understand now, in the clutch of our Crisis. And I reserve my right to edit this toward a greater accuracy.
As an example of "acquiescence", we may be familiar with the concept in real property ownership of "adverse possession."
If the neighbor beyond my woods builds a garage on my land, and it stands for some period of time, say seven or ten years, without my objection and demand for its removal, and corresponding action at law, then, according to "adverse possession," he has added that portion of my land to his own property.
Similarly, in the broader principle of "acquiescence", under Contract Law, both parties are expected to adhere to a written or provable verbal agreement, but if one party violates a portion of the contract, and the other party, knowing of the violation, continues to perform his side of the contract, then, after a reasonable period of time, it may be construed -- and agreed to in a court of law -- that the Contract has been, in effect, re-written to accommodate the violation as a new part of the agreement.
Mayhap -- and this is a very preliminary thought -- does the U.S. President's adoption of "signing statements" in over 700 pieces of legislation (and those being the ones passed by his own Majority Party!) contain some faint revealing of understanding this principle of "acquiescence", though it be brandished in the service of the "Dark Side"?
Anticipating the return of a Congressional majority hostile to his political views and kleptocratic ways, he is laying groundwork for undermining the Executive's obligation of enforcement in any future legislation. He will go on making and spending his own Budgets, awarding his own Contracts, and prosecuting his own Wars.
In his assertion of aggrandized Executive Power, he is establishing a record of non-acquiescence.
Leaping at once to my Constitutional view of "acquiescence", we were clearly shown several months ago an inflexion point along the path of Constitutional overthrow in the President's ADMITTED violations of the FISA law.
He not only admitted past violations over a period of years; he avowed his Intention to go on violating it, which logically implies an intent to pattern other forms of violation after it, secret until revealed, thence to be asserted as legitimate. Rinse, repeat.
Despite subsequent attempts to retract the confession, or to propose re-writing the law after the fact, the actual admission is on record. Indeed, it was this which brought Russ Feingold and two other principled Senators forward with a censure resolution. The deadness of response by other Democrats is what is most frightening, or revealing of our true situation.
Yet acquiescence by Elected Representatives is not determinative of acquiescence by Citizens. Is not BINDING upon us. In the matter of the Constitutional Relation between Constitutional Government and Citizen, the relation is DIRECT, UNMEDIATED by such Representatives.
Our RIGHTS inhere in us as individuals, and as a People, and are not "given to us by Government." Our Representatives merely congeal to carry out certain appointed tasks.
To leave to them our authority to acquiesce in the surrender of our Constitution and the limits it places upon Government is legally incorrect, inappropriate, and mental laziness and cowardice explainable only in an era of "American Idol" and 900 channels of Blather and Infotainment.
You, I, and other astute readers know that the violations by this Regime are legion. The tip of an iceberg is a useful thing to see -- not for the indulgence of one's hobbying in sub-aquatic research, but for the steering of the ship containing our children away from disaster. When you've seen the tip, you don't wait for proof that an entire iceberg lies below it. (Called a "Doh" Moment -- still awaiting the Constitutional synonym for "Doh".)
For a bill of indictment to commence, we need only one provable count. And, in this one, we can save ourselves the time of investigation, testimony, and the gathering of proof.
Before this moment, we witnessed a Regime with Motive, Opportunity, and a "long train of abuses", er, a persistent pattern of overstepping Constitutional boundaries evincing a Design to rewrite the relation of power between Government and the Individual.
In this case, George W Bush's confession is as public and as final (and probably more credible) as is that of Zacharias Moussasaui (sp?) which the media, denied its splendiferous "9-11 Trial," tried to make into a spectacular sentencing trial!
Similarly, in the matter of Bush's confession, we have only to proceed to the sentencing phase.
IF WE DO NOT, WE ARE "ACQUIESCING" TO THE CRIME THAT HAS BEEN COMMITTED.
We are, in effect, acquiescing in re-writing the law, or Social Contract between Citizenry and Government, which limits in this case the intrusion of Government into our private lives. THE VERY ROOT PURPOSE FOR THE CONSTITUTION TO EXIST.
Unfortunately, at this time, there is no court which will take up that case on our behalf.
We must now worry about what measure of time without a countervailing action comprises "acquiescence" on our part.
An electoral Reversal of Power is uncertain, and uncertain to be followed by compensatory action by any of the Three Branches.
The Executive avows his right to refuse to follow Legislative dictate. The Vichy Democrats are likely to still hold numerical sway in any vote on Impeachment. And the Roberts Supreme Court, with its own questionable legitimacy, is topped off with Party hacks.
To invoke an earlier example of questionable legitimacy -- hopefully as support and not distraction from the course set out upon -- this one supra-Presidential: The Elections of 2000 and 2004.
Alongside the body of evidence calling into question the results in Florida and Ohio, the injection of the Supreme Court, and thus the election outcome, we have the President's own behavior since that first Inauguration.
The President is duty-bound to act as President of "all the people." If you had assumed office under questionable -- unprecedented -- circumstances, would you not be reasonably expected to satisfy the defeated half of the public as to your legitimacy? Would you not be expected to INITIATE investigation into the errors, abuses and open questions about the conduct of that election, if only to bolster your own grip on the Office?
Not a word.
And what does this tell us? What may a REASONABLE PERSON construe from this silence? In this case, and adding to it the confessed violation of laws, and the pattern of deceptions that has accompanied it, we have the "silence of the guilty." The Silence that speaks Volumes.
In the matter of George W Bush's "Presidency", my neighbor's garage has now been sitting there for nearly six years. It is time for me -- for you -- to issue our own "signing statements."
And what might those be?
In the most-publicized Trial of our lifetimes, a famous defendant was found not guilty of the murders of his ex-wife and her male companion.
However, a Civil Action later undertaken by the families of the deceaseds found that by a Preponderance of the Evidence, that defendant had caused those deaths, and was obligated to make compensation.
Those who await the Congress to act on Impeachment are like citizens awaiting the State to prosecute a neighborhood child molester, without taking injunctive steps to protect their own children.
As we await the hoped-for Acts of Impeachment, which are the prosecutorial equivalent of a Criminal Action by a District Attorney, seeking punishment -- removal, the equal of "Capital Punishment" for an illegitimate regime -- we also must pursue the Route of Civil Action allowed to us, not under law or government fiat, but under the Rights of Man upon which our Constitution was founded.
As the legal concept of acquiescence is founded in the principle of impartial fairness, even to the Malfeasant, so we must establish our strong claim to having followed a course of Non-Acquiescence to the Bush Malfeasance in the remaining years available to us.
As in the realm of Contract Law, if we continue to comply docilely with our former obligations under a Social Compact that is being re-written from the other side, we day by day forfeit our Standing to later object to the fruits of that new Contract as we are forced to eat them.
And, I submit to you in this present time of worrying over the status of Citizen, we forfeit our right to denote ourselves as Citizens of the Constitutional Republic we were born into.
To be continued...