[Marxism] NYTimes condemns Patriot Act revisions

Brian Shannon Brian_Shannon at verizon.net
Mon Oct 31 10:10:11 MST 2005

The editorial is below. My comment preceding it follows the argument 
that I have posted earlier, which perhaps could be titled:
What Would Hamilton Do?

Of course, we don't know what Hamilton would do, nor of what Jesus 
would do, so a more accurate description would be: How can we revisit 
Hamilton and others to strengthen our arguments in preservation and 
extension of our liberties?

What is striking about the increasing terrorism of the Patriot Act is 
the way these new measures go against the intent of the Founding 
Fathers, who we should always remember were themselves revolutionists 
and sensitive to the Right of Revolution and the Right to Oppose the 
Government, including their own. It is usually Jefferson who is cited 
for the Right of Revolution. He was not alone.

Despite the perceived political conservatism of those who fought for 
our Constitution to replace the Articles of Confederacy, they were 
aware of their own roots and the rights they fought for.

Nominally, essay #84 is an argument against the Bill of Rights. 
Hamilton claims that they are unnecessary—for woven into the 
Constitution itself are several explicit rights that are overlooked by 
its critics and in fact are superior to those being suggested. He also 
argues that the proposed Bill of Rights may be deficient for 
enumerating rights that we already have under the British Constitution, 
i.e., the common law of England. The danger, he points out, is that 
specific enumeration may be perceived as limiting the rights that we 
have already. In other words, we have considerably more rights than can 
be specifically listed and there should be no suggestion that these 
enumerated rights are all that we have..

Along with the Right to Habeas Corpus and other rights that are 
specifically described in the main body of the proposed Constitution, 
Hamilton points out how the Constitution safeguards the accusation of 
Treason. It must be an overt act and witnessed by two people. This 
limitation is to prevent its abuse by the government against rebels, 
which was what was suffered by his generation under George III and by 
others during earlier dark periods of British history. Thus the spirit 
of the Constitution, as interpreted by the "originalist" Hamilton, is 
explicitly against what is urged by the supporters of the Patriot Act.

The first selection below is a long section of Hamilton's essay #84, 
which I reproduce to give you the flavor. The part regarding Treason is 
at the end. Note the trial by jury. Any abridgment of the rights of 
those days, including a full jury as historically conceived, under the 
guise of patriotism goes against the spirit of our Founding Fathers and 
their "original" intent in the U.S. Constitution.

Just as illustrative of Hamilton's attitude regarding the law of 
Treason is from #74 of the Federalist Papers. Although the discussion 
is about the possibility of internal political opposition to the 
government, the section has passages clearly conciliatory towards the 
presumed rebels and suggests that tranquility is best achieved by a 
spirit of forgiveness.

Hamilton, Federalist Paper #84
Independent of those, which relate to the structure of the government, 
we find the following: Article I. section 3. clause 7. "Judgment in 
cases of impeachment shall not extend further than to removal from 
office, and disqualification to hold and enjoy any office of honour, 
trust or profit under the United States; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, judgment and 
punishment, according to law." Section 9. of the same article, clause 
2. "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." Clause 3. "No bill of attainder or ex post facto law shall 
be passed." Clause [8]. "No title of nobility shall be granted by the 
United States: And no person holding any office of profit or trust 
under them, shall, without the consent of the congress, accept of any 
present, emolument, office or title, of any kind whatever, from any 
king, prince or foreign state." Article III. section 2. clause 3. "The 
trial of all crimes, except in cases of impeachment, shall be by jury; 
and such trial shall be held in the state where the said crimes shall 
have been committed; but when not committed within any state, the trial 
shall be at such place or places as the congress may by law have 
directed." Section 3, of the same article, "Treason against the United 
States shall consist only in levying war against them, or in adhering 
to their enemies, giving them aid and comfort. No person shall be 
convicted of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court." And clause [2], of the 
same section. "The congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted."

Hamilton, Federalist Paper #74
The expediency of vesting the power of pardoning in the President has, 
if I mistake not, been only contested in relation to the crime of 
treason. This, it has been urged, ought to have depended upon the 
assent of one, or both, of the branches of the legislative body. I 
shall not deny that there are strong reasons to be assigned for 
requiring in this particular the concurrence of that body, or of a part 
of it. As treason is a crime levelled at the immediate being of the 
society, when the laws have once ascertained the guilt of the offender, 
there seems a fitness in referring the expediency of an act of mercy 
towards him to the judgment of the legislature. And this ought the 
rather to be the case, as the supposition of the connivance of the 
Chief Magistrate ought not to be entirely excluded. But there are also 
strong objections to such a plan. It is not to be doubted, that a 
single man of prudence and good sense is better fitted, in delicate 
conjunctures, to balance the motives which may plead for and against 
the remission of the punishment, than any numerous body whatever. It 
deserves particular attention, that treason will often be connected 
with seditions which embrace a large proportion of the community; as 
lately happened in Massachusetts. In every such case, we might expect 
to see the representation of the people tainted with the same spirit 
which had given birth to the offense. And when parties were pretty 
equally matched, the secret sympathy of the friends and favorers of the 
condemned person, availing itself of the good-nature and weakness of 
others, might frequently bestow impunity where the terror of an example 
was necessary. On the other hand, when the sedition had proceeded from 
causes which had inflamed the resentments of the major party, they 
might often be found obstinate and inexorable, when policy demanded a 
conduct of forbearance and clemency. But the principal argument for 
reposing the power of pardoning in this case to the Chief Magistrate is 
this: in seasons of insurrection or rebellion, there are often critical 
moments, when a welltimed offer of pardon to the insurgents or rebels 
may restore the tranquillity of the commonwealth; and which, if 
suffered to pass unimproved, it may never be possible afterwards to 
recall. The dilatory process of convening the legislature, or one of 
its branches, for the purpose of obtaining its sanction to the measure, 
would frequently be the occasion of letting slip the golden 
opportunity. The loss of a week, a day, an hour, may sometimes be 
fatal. If it should be observed, that a discretionary power, with a 
view to such contingencies, might be occasionally conferred upon the 
President, it may be answered in the first place, that it is 
questionable, whether, in a limited Constitution, that power could be 
delegated by law; and in the second place, that it would generally be 
impolitic beforehand to take any step which might hold out the prospect 
of impunity. A proceeding of this kind, out of the usual course, would 
be likely to be construed into an argument of timidity or of weakness, 
and would have a tendency to embolden guilt. —from #74 of The 
Federalist papers

Brian Shannon

October 31, 2005
Editorial, New York Times

The House's Abuse of Patriotism

In the national anguish after the terrorist attacks of Sept. 11, 2001, 
Congress rushed to enact a formidable antiterrorism law - the Patriot 
Act - that significantly crimped civil liberties by expanding law 
enforcement's power to use wiretaps, search warrants and other 
surveillance techniques, often under the cloak of secrecy. There was 
virtually no public debate before these major changes to the nation's 
legal system were put into effect.

Now, with some of the act's most sweeping powers set to expire at the 
end of the year, the two houses of Congress face crucial negotiations, 
which will also take place out of public view, on their differences 
over how to extend and amend the law. That's controversy enough. But 
the increasingly out-of-control House of Representatives has made the 
threat to our system of justice even greater by inserting a raft of 
provisions to enlarge the scope of the federal death penalty.

In a breathtaking afterthought at the close of debate, the House voted 
to triple the number of terrorism-related crimes carrying the death 
penalty. The House also voted to allow judges to reduce the size of 
juries that decide on executions, and even to permit prosecutors to try 
repeatedly for a death sentence when a hung jury fails to vote for 

The radical amendment was slapped through by the Republican leadership 
without serious debate. The Justice Department has endorsed the House 
measure, and Representative James Sensenbrenner Jr., the Judiciary 
Committee chairman, who is ever on the side of more government power 
over the individual, is promising to fight hard for the death penalty 

There are now 20 terrorism-related crimes eligible for capital 
punishment, and the House measure would add 41 more. These would make 
it easier for prosecutors to win a death sentence in cases where a 
defendant had no intent to kill - for example, if a defendant gave 
financial support to an umbrella organization without realizing that 
some of its adherents might eventually commit violence.
Any move to weaken the American jury system in the name of fighting 
terrorism is particularly egregious. But the House voted to allow a 
federal trial to have fewer than 12 jurors if the judge finds "good 
cause" to do so, even if the defense objects. Under current law, a life 
sentence is automatically ordered when juries become hung on deciding 
the capital punishment question. But the House would have a prosecutor 
try again - a license for jury-shopping for death - even though federal 
juries already exclude opponents of capital punishment.

The House's simplistic vote for another "crackdown" gesture can only 
further sully the notion of patriotism in a renewed Patriot Act.

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