Written and rewritten this thing four times, in order to try to make sure the data is both accurate, and concise. I found that my understanding of many things was insufficient, and the historic background thereof was also insufficient. Much of this has been remedied. Unfortunately, there’s a great deal of bias within the court, specifically on the issue of congress, and the powers of the state.
Those in the United states, in general are citizens of the United States. This citizenship gives specific privileges and immunities, under article 4 of the constitution, as well as rights under the 14th amendment to that document.
Not many in the last few centuries have paid much attention to that article 4 prohibition against the privileges and immunities clause of the Constitution, and in fact, the supreme court has avoided the issue like the plague.
The Prudence Crandall case discussed it, as did Dred Scott. The very wording of the title 18, section 242, as well as title 42, section 1983, and the 14th amendment itself under which those laws were reestablished comes from Dred Scott v. Sandford.
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [p417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Exemption from special and targeted laws… freedom to travel. Freedom to choose your labor, choose your work, choose your trade, to make any business whatsoever, so long as you committed no crime while doing so. Freedom to speak, freedom to associate, freedom to hold meetings, and to keep and bear arms wherever one went.
Between the Prudence Crandall case and the Dred Scott case, these privileges and immunites were recognized by the states. It was not until Cruikshanks that they changed, and the tortured claim was made that those privileges and immunities, having preexisted the constitution, were not protected by it.
Among these current privileges and immunities of citizen are the right to not have bills of attainder, or bills of pains and penalties enacted upon them. This is a primary issue of the republican form of government, a restriction on the intermingling of powers between departments of government, and bearing only one exception, the attaint for treason in the case of the Congress, and then subject only to the levying of forces for the purpose of war, or giving aid and comfort to the enemies of the United States.
Bills of attainder are best illustrated in the discussion of Cummings, but there is far more jurisprudence than just Cummings involved. The discussions range from Cummings to land cases in Georgia to the very essence of citizenship itself.
Loss of citizenship, for instance, within the Trop v. Dulles case, was judged to be a cruel and unusual punishment, pursuant to the 8th amendment, for losing the ‘right to have rights’. It was yet another attainder case, though couched in different words. Congress, in all of the powers it possesses, does not have the authority to divest citizenship, nor does it have the authority to divest the rights involved in citizenship, the privileges or immunities attached to that citizenship, nor divest the individual of his political existence.
The rights of citizenship are the essence thereof; without those rights, there is not any value to citizenship. Congress, in its act of 1866, pursuant to the 13th amendment, passed that which became, after the passage of the 14th Amendment, title 18, section 242, and passed civil liability statutes that dissolved state immunity for the same acts and allowed the officers of the state to be sued in their individual capacity for acts engaged outside of that law.
It is not sufficient to imply, either, that the due process for the individual is ended once trial is over. Subsequent developments, affecting their rights, due to the past act, are punishments for that act. (Ex Parte garland).
New laws, only affecting the individual or class, in states outside of the jurisdiction of the original act are of like character. The state cannot establish jurisdiction by demanding an individual do a thing, else be subject to criminal punishment.
The criminal failure to register is an act predicated entirely upon that prior act, and as such, constitutes a continued punishment for that act, for it is by that act that the determination of those upon whom the law will act is defined. This is a forbidden power of congress.
The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to everyone, and that in the protection (Page 71 U. S. 322) of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no other wise defined.
“Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment, and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment, and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State. ”
“A British act of Parliament,” to cite the language of the Supreme Court of Kentucky, “might declare, that if certain individuals, or a class of individuals, failed to do a given act by a named day, they should be deemed to be, and treated as convicted felons or traitors. Such an act comes precisely within the definition of a bill of attainder, and the English courts would enforce it without indictment or trial by jury.
Cummings v. Missouri.
It does not save the legislative enactment from infirmity, however, when the trial is merely upon the fact that the forbidden, or mandated act occurred or did not occur. The infirmity is the mode of the identification, the naming of the group upon whom the law is to act. It was a guarantee of general law long since abandoned by the states, and federal government.
Merely because, however, the right has lain fallow for over a century does not change the infirmity, or the power of the clause.
“What the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment.
Bailey v. Alabama 219 U.S. 219 (1911)
Both are forms of bills of pains and penalties, forbidden by that attainder clause. Everything within the Constitutional bill of rights, in order to deprive it from a class, would constitute a bill of attainder. The right to travel between states, and to have the jurisdiction of crimes remain within the original state, is a similar right. It cannot be relieved by claiming through interstate compact that they may do the things collectively that they are forbidden individually. It is a fundamental infirmity which may not be relieved by legislation nor by regulation… one of the original privileges and immunities to which the state is forbidden to act.
Congress, upon passage of that 1866 and 1871 civil rights acts, established a vesting of that right upon all persons within the states, territories, districts and possessions of this nation. It was an absolute vesting, and a statement that the deprivation of those rights constituted a deprivation of vested property, and a criminal trespass against the individual.
Cruikshanks went around this by warping not only the intent of the law, but by distorting it so severely it took over a century to return it near its original mandate under McDonald v. Chicago, 2010, but even there it is incomplete as to the stated intent of those who wrote that fundamental law.
The Court upheld the interpretation of the original law in Screws v. Classic, and again in Monroe v. Pape, but apparently chose not to approach the initial definitions of privileges and immunities in those cases.
“The model for it will be found in the second section of the act of April 9, 1866, known as the ‘civil rights act.’ . . . This section of this bill, on the same state of facts, not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights. . . . [Footnote 32]”
Thus, it is beyond doubt that this phrase should be accorded the same construction in both statutes — in section 1979 and in 18 U.S.C. section 242.
Monroe v. Pape.
Among those rights constitutional ly protected:
“Our cases have firmly established that the right of interstate travel is constitutional ly protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629 -631; id., at 642-644 (concurring opinion); United States [403 U.S. 88, 106] v. Guest, 383 U.S. 745, 757 -760 and n. 17; Twining v. New Jersey, 211 U.S. 78, 97 ; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, C.J., dissenting). The right to pass freely from State to State’ has been explicitly recognized as among the rights and privileges of National citizenship.’ Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation.” (105-6)
Griffin v. Breckenridge 403 U.S. 88 (1971)
“Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right, whether the “property” in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W. Blackstone, Commentaries *138-140. Congress recognized these rights in 1871 when it enacted the predecessor of 1983 and 1343 (3). We do no more than reaffirm the judgment of Congress today.” (552)
Lynch v. Household Finance Corp. 405 U.S. 538 (1972)
What congress did in that 1866 act, and reiterated in the 1871 act, was a vesting of those individual rights in all persons in every state, territory, district, or possession, and established means of vindicating those rights without regard to any law, statute, ordinance, regulation, or custom to the contrary. They are personal property rights, and enforceable both under the criminal law, as well as the civil law pursuant to title 42, section 1983. No state office can offer immunity to the criminal law issue.
“We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience.. .It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent.”
Ex Parte State of Va. 100 U.S. 339 (1879)
What has effectively been done is a dissolution of one of the highest powers of state sovereignty, the inability of other states to punish for crimes committed outside of their jurisdiction. The initial crime was in the initial state, and there jurisdiction rests. The receiving state has no authority to create legislation, due to the fact of a prior crime, in order to deprive the individual of fundamental rights.
Nor do they possess the power to compel an individual who is not on probation or parole, on threat of punishment, to divulge information or facts regarding their current whereabouts in order to make it public information, particularly under the threat of criminal punishment or deprivation of property.
Again, it is the mode of the determination that is infirm… the state has no power, even by the amendment of its own constitution, to accomplish this goal.
The determination on the fact of the prior criminal act makes the punitive selection obvious, that congress has designated a class as a danger to society, and established deprivations upon that class, and must compel that class by threat of criminal punishment to do those things which are detrimental to both their fundamental rights, and their privileges and immunities as citizens and inhabitants of these United States.
That these particular individual acts may be proven by public record makes the situation untenable. Under the Federal Rules of Evidence, acts of public record stand as valid evidence. That a criminal act exists is undeniable pursuant to title 18, section 242. That we have a right to the enforcement of that statute is also undeniable, as we are persons within that jurisdiction. Pursuant to title 18, section 4 of that Code, individuals aware of a criminal act cognizable by the federal government must make that act known to individuals in civil or military authority. Should the perpetrator of such an act not be pursued, it must be elevated, and the individual failing to bring the act, may be tried under title 18, sections 3 and 4, as well as the title 18, section 242 directly. If they order that the law be not enforced, it is a title 18, section 2 evidence of being a principle to the act.
The courts cannot have jurisdiction where there is none, and jurisdiction is abandoned where criminal acts upon part of the court, or officers of the court, are raised. Municipalities themselves are not immune to the act, being creatures of the state.
Moreover, the congressional debates surrounding the passage of section 1 of the Civil Rights Act of 1871, 17 Stat. 13 — the forerunner of section 1983 — confirm the expansive sweep of the statutory
Page 445 U. S. 636
language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:
“I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provision authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous, were this not the rule of interpretation . As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.”