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As Long as We Remember...

March 12, 2012

Abrogating The Bill of Rights

Jill King

Today, the House Rules and Executive Nominations Committee of the Maryland General Assembly will conduct a hearing on a measure that challenges the federal government’s “Abridgement of Federal and State Constitutional Protections in the 2012 National Defense Authorization Act (NDAA).”


This resolution* (HJ12) condemns the federal order for provisions in the 2012 National Defense Authorization Act, specifically the clause that removes the citizen’s right to habeas corpus and due process. It is sponsored by Del. Michael Smigiel (R., Eastern Shore) and Del. Michael McDermott (R., Lower Shore).


The section of that federal law that is being questioned is Section 1021 and 1022, which abrogates a portion of our Constitution’s Bill of Rights.


During the Sixth District Republican debate, recently conducted by the Frederick County Republican Central Committee, this topic added some combativeness and self interpretation.


Peter James, a Constitutional candidate, berated Congressman Roscoe Bartlett for signing onto the National Defense Authorization Act. The congressman bellowed back: “They lied to me.”


As I was sitting there, I thought how in the world could anyone sign onto something they have never read, nor comprehend the entirety of the language contained therein?


Who lied to you? Was it your staff that our tax dollars pay for?


Don’t you carry a copy of our Constitution in your pocket all the time, and haven’t you always expressed the importance of that document in classroom visits?


Apparently, this happens frequently with those who are not starry-eyed anymore by our government system. They lose their fizz, depend on others to do their homework, and it becomes routine. It is no longer about the freedoms and powers they swore to uphold when entering Congress.


The response to this became even more heated a short time later when Del. Kathy Afzali (R., Frederick), also a candidate for Dr. Bartlett’s seat, injected in a matter a fact manner that the bill is misinterpreted.


The next day, Ms. Afzali posted a speech by Allen West (R., FL) on The Forgotten Men’s page.  (The link is under the caption: “Hey guys, Just wanted to let you know that there is a lot of misinformation going around about NDAA. The act DOES NOT allow for the detention and imprisonment of American citizens and legal residents without due process. Please ask your listeners to watch also they can read the wording directly.”


Thanks, Delegate Afzali! Glad you did your research…well, only if you can listen to a quote from page 657, by a congressman and still not read the bill. Who wants to read a bill and identify potential language issues or foresee the possible court interpretation?


A quick search revealed that Habeas Corpus, in Latin “you have the body,” has long been a legal instrument which prohibits the unlawful detention of a citizen and is currently applied in many systems throughout the world. However, it does not guarantee the right to a fair trial.


The Habeas Corpus Act of 1679 was created by the English Parliament as a procedural device, which forced the courts to examine the lawfulness of a prisoner’s detention. It was not the first notion of habeas corpus, although it put into place a structure that identified lawful detention with the rights of the individual in mind.


When creating our Constitution, the Founding Fathers kept this in mind and contained the passage in Article I, although Article I Section 9, Clause 2 allows “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”


The procedure was once revoked, during the Civil War; it was then used during the Reconstruction Era, which brought us its incorporation in the Thirteenth, Fourteenth, and Fifteenth Amendments. The states still retained authority over their people and could implement this at any time that each sovereign state deemed necessary.


The federal government has since tried to obtain this discretionary power; removing habeas corpus is only to be used during war time.


We have not been at war since World War II, according to Congress and history. We are still required by a declaration by Congress for our nation to be “at war.” There has been no recent declaration of such; therefore, this right cannot be suspended.


Due process, a clause from the Fifth Amendment, guarantees that no one can have life, liberty, or property taken away without due process. In the U. S. it derived from the English Common Law, specifically the Magna Carta. This concept was put into the Bill of Rights through the requirement by all of the colonies to force the central government to prosecute based only on written laws.


Monarchies throughout history showed a valuable need for due process to be in writing, for their will could determine rights on an individual basis, not a rule of law. Without it we could be vulnerable to the most egregious rules and power that can force the country loss and self destruction.


The Fifth Amendment due process clause applied only to the federal government, binding their power. As time went on –and again during the Reconstruction Era – a clause was added to the Fourteenth Amendment applying the principle to the states.


These protections are guaranteed to the people and should never be taken away by the stroke of a pen. The judicial system has shown a past history of interpreting matters not to the original intent, causing much dissent. It is now up to the states to rectify this and push the federal government back to their intended position.


The House of Delegates resolution (HJ12) is a necessary tool for the state which needs our support. The Congressional debate proved this.


Retraining my brain for the future, conferring with my past…





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