Real0ne
Posts: 21189
Joined: 10/25/2004
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How many people repeat the cozy heart warming words: Men create governments to protect their rights.
Yep thats the way it was. Land owners on behalf of themselves and their tenants would contract with the king that the king would maintain an army and constables and protect them, their property, life, etc in exchange for roughly 10% taxes from the proceeds of their farms etc with the agreement they would be subject to the kings authority.
That legal theory is based in common law, the same law that was brought over and is the foundation for US law, and the same legal theory under which the revolution was fought. Its common knowledge for everyone but the 7th district supreme court apparently.
quote:
THE FIRST DUTY OF GOVERNMENT: PROTECTION, LIBERTY AND THE FOURTEENTH AMENDMENT
Steven J. Heyman
DUKE LAW JOURNAL [Vol. 41:507
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3172&context=dlj
INTRODUCTION
I. THE RIGHT TO PROTECTION IN THE ANGLO-AMERICAN CONSTITUTIONAL TRADITION
A. The Origins of the Right to Protection 512
1. The Common Law Tradition and the Original Contract 513
2. The Social Contract and Locke’s Second Treatise... 514
3. Eighteenth-Century Constitutional Theory 516
B. The Right to Protection in Early American ' Constitutionalism 520
1. The Revolution 521
2. The First State Constitutions 522
3. The Federal Constitution 524
C. Protection and Liberty 526
II. THE LEGAL MEANING OF PROTECTION 530
A. The Status of Freeman and Citizen 531
B. Recognition of Substantive Rights 532
C. Enforcement of Legal Rights 534
1. Self-Defense 534
2. Civil Protection 534
3. Criminal Protection 536
4. Prevention of Injury 537
a. Security of the peace 537
b. Protection by peace officers 538
c. Communal liability 541
d. The creation of modem police forces 543
5. Conclusion 545
III. THE FOURTEENTH AMENDMENT 545
A. The Need for a Federal Guarantee of the Right to Protection 546
B. The Adoption of the Civil Rights Act and the Fourteenth Amendment 550
C. The Right to Protection Under the Civil Rights Act and
the Fourteenth Amendment 554
1. The Privileges or Immunities Clause 555
2. The Due Process Clause 557
3. The Equal Protection Clause 563
D. The Meaning of Protection 566
1. Civil Protection 566
2. Criminal Protection 567
3. Prevention of Injury 569
IV. CONCLUSION 570
I. THE RIGHT TO PROTECTION IN THE ANGLO-AMERICAN CONSTITUTIONAL TRADITION
A. The Origins of the Right to Protection
“[E]very member of society,” asserted the Pennsylvania Constitution of 1776, “hath a right to be protected in the enjoyment of life, liberty and property.”
This declaration—which was soon echoed in the constitutions of Delaware, Massachusetts, and New Hampshire —expressed a fundamental principle of American constitutional thought by the time of the Revolution.
The right to protection did not originate in America, however, but was inherited from English constitutionalism. Its roots lay in the common law tradition and natural rights theory. It is necessary to explore these sources to understand the concept of protection in American constitutional thought.
1. The Common Law Tradition and the Original Contract. The right to protection has deep roots in the English legal tradition. Under traditional doctrine, every loyal subject was entitled to the king’s protection. This doctrine received its classic expression in the writings of Sir Edward Coke.
2. The Social Contract and Locke’s Second Treatise. The second major source of the right to protection in Anglo-American constitutionalism was the theory of natural rights and the social contract. The most influential exposition of this theory was John Locke’s Second Treatise of Government. Whereas Coke based the right to protection on the natural bond of allegiance between king and subject, Locke based it on the consent of free individuals to enter into society and establish government for the preservation of their natural rights.
“The first duty of the Government is to afford protection to its citizens.”
INTRODUCTION
On January 22, 1983, Joshua DeShaney, age four, was brought to the emergency room of a Wisconsin hospital with multiple bruises and abrasions. Suspecting child abuse, the hospital staff notified the County Department of Social Services, which immediately obtained custody of Joshua, only to return him to his father’s home a few days later. Over the next fifteen months, the Department received constant reports indicating that Joshua was being seriously abused, but it failed to take any further action to protect him. On March 8, 1984, Joshua’s father beat him so severely that he suffered massive brain damage, leaving him profoundly retarded and confined to an institution for the rest of his life.
In DeShaney v. Winnebago County Department of Social Services, the Supreme Court ruled that the Department’s failure to protect Joshua did not violate the Federal Constitution. Chief Justice Rehnquist maintained that nothing in the language or history of the Due Process Clause of the Fourteenth Amendment required a state to protect its citizens from private violence. That clause, he observed, “is phrased as a limitation”: “It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State” to protect these interests “against invasion by private actors.” This interpretation was reinforced by the history of the Clause, which indicated that “ts purpose was to protect the people from the State, not to ensure that the State protected them from each other.”
The broader constitutional theory underlying this interpretation was articulated by Judge Richard Posner of the Court of Appeals for the Seventh Circuit. According to Posner, the Constitution is “a charter of negative rather than positive liberties,” a view that is compelled by the original understanding:
The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from op¬pression by state government, not to secure them basic governmental services.
DeShaney thus has crucial implications for constitutional law and theory. In addition to rejecting a constitutional right to protection, DeShaney implies that the Constitution protects only negative liberty— freedom from governmental oppression—while imposing no positive ob¬ligations on government.
This Article challenges DeShaney on its own ground—the original understanding of the Fourteenth Amendment. As I shall argue, the congressional debates on the Fourteenth Amendment show that establishing a federal constitutional right to protection was one of the central pur¬poses of the Amendment.
The principal aim of the Fourteenth Amendment was not to create new rights, but rather to incorporate into the Federal Constitution the fundamental rights that individuals already possessed under general constitutional theory, but that the states had failed to enforce adequately.
For this reason, the Fourteenth Amendment must be understood against the background of constitutional and legal theory before the Civil War.
In Part I, I trace the origins and development of the right to protection in Anglo-American constitutionalism. With its roots in the common law tradition and social contract theory, the right to protection in life, liberty, and property became a central principle of American constitutional thought by the time of the Revolution. This principle was ex¬pressed in the first state constitutions and was implicit in the Federal Constitution, which divided the function of protection between the state and federal governments.
Part I also explores the conception of liberty in American constitutional and legal thought between the Revolution and the Civil War. Contrary to Posner’s view, the classical conception of liberty was not merely negative, but had a crucial positive dimension—the protection of individual rights under law.
As I show in Part II, the right to protection was not merely a matter of constitutional theory, but a doctrine with concrete legal meaning. In the common law tradition, the protection of the law implied both the recognition of fundamental rights by law, and the enforcement of such rights by government. The paradigmatic instance was the government’s duty to protect individuals against violence. By the middle of the nineteenth century, this duty was understood to include not only the enforcement of civil and criminal law with respect to injuries already committed, but also the responsibility to prevent violence before it occurred.
In Part m, I turn to the congressional debates over the Fourteenth Amendment. As these debates show, the members of the Thirty-Ninth Congress fully shared the classical view on the right to protection. The widespread violence and discrimination against blacks in the South after the Civil War convinced most Republicans that the states could not be relied upon to protect the fundamental rights of all persons. A central purpose of the Fourteenth Amendment was to compel the states to fulfill this obligation, by incorporating it into the Federal Constitution and em¬powering the national government to enforce it.
Of course I absolutely disagree with the 14th amendment, especially its unlawful enactment not from the 'secondary' or 'accessory' purpose, the aspect of rights protection, but the gubmint solution to create wards of state (14th) which operates in the final analysis for their own overlord purposes by reducing all rights to privileges subject to state which ultimately are less than we had prior to the revolution.
Hence the deshaney case as one example where the supreme court ruled that the gubmint has no obligation to protect your rights despite it should still have been covered under negligence theory.
The 14th amendment was a giant step backwards legalizing the creation of a totalitarian police state at the behest of the gubmint.
This examination of law demonstrates how your rights are absorbed, that is removed from you and placed under the state over the course of years and ill-gotten decisions made by judges which we are to believe are for the 'people' and accept as supreme.
Long story short, I believe that it should be obvious the gubmint wants/gets it both ways and the people are left out in the cold.
comments?
ps: sorry for the long quote, I felt it was needed to clearly express the several elements of the premise I am making.
< Message edited by Real0ne -- 7/22/2015 9:26:13 AM >
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RE: 14th Ammendment - 
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