"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, December 3, 2018

The 10th Amendment, its reach, its consequences and how it is played by state and federal governments.

Donald Trump's presidency has stirred to life interest to law and Constitutional Amendments which did not previously draw much public attention.

One of the previously obscure Constitutional Amendments that the public did not feel attracted to is the 10th Amendment, one of the main bases of separation of powers between the state and federal government.

The text of the 10th Amendment is as follows:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Let's look at it once again, in a more structured format:

The powers 
  • not delegated to the United States by the Constitution
  • nor prohibited by it to the states, are 
  • reserved to the states respectively, or 
  • to the people.

It is quite peculiar how the 10th Amendment is - is not - mentioned and is - and is not - litigated nowadays, and how the public mislead as to is meaning, which is quite plain and unambiguous.

Let's look at the recent and not-so-recent judicial decisions regarding interpretation of the 10th Amendment.

The 10th Amendment is often equated with the so-called "police power" - of the states, not the federal government.


The authority for use of police power under American Constitutional law has its roots in English and European common law traditions.[2] Even more fundamentally, use of police power draws on two (Latin) principles, sic utere tuo ut alienum non laedas ("use that which is yours so as not to injure others"), and salus populi suprema lex esto ("the welfare of the people shall be the supreme law"), to justify restriction of individual liberties in order to protect the general welfare.[2] The concept of police power in America was further expanded in a series of notable court cases in the late-nineteenth and early-twentieth centuries, including the landmark 1851 Massachusetts Supreme Judicial Court case Commonwealth v. Alger, and the 1905 Supreme Court case Jacobson v. Massachusetts



So, here are some "police power cases" that have been made by American courts - as an example of laws "made" by courts in the U.S. - completely at a whim, of courts, or those politically and financially powerful forces that make courts tick.  

Vaccination decisions by the U.S. Supreme Court: 
the 10th Amendment is alive (1905), and the 10th Amendment is dead (2011)

Jacobson v. Massachusetts, 197 U.S. 11 (1905), a 1905 case, 

is a case challenging mandatory smallpox vaccination in the state of Massachusetts as a violation of individual 14th Amendment rights.

The U.S. Supreme Court refused to find a 14th Amendment violation in mandatory smallpox vaccination and pointed out that mandatory smallpox vaccination, as protection of public health, is within lawful police power of the state of Massachussetts.

The court did point out that

"if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

Mugler v. Kansas, 123 U. S. 623, 123 U. S. 661; Minnesota v. Barber, 136 U. S. 313, 136 U. S. 320; Atkin v. Kansas, 191 U. S. 207, 191 U. S. 223.

Of course (as a side note), the same U.S. Supreme Court, 20 years after deciding this case, has asked the U.S. Congress for a "right" to pick and choose whether to exercise such a duty and whether to give effect to the Constitution - and the U.S. Congress did give the U.S. Supreme Court a "right" to pick and choose its cases on a whim, so, after 1925, we have in the United States a discretionary enforcement of the U.S. Constitution, and, as a result a discretionary Constitution, and a super-powerful U.S. Supreme Court acting as a super-legislature - which is confirmed by the recent circus of judicial appointments and attempts for judicial appointments to that court:

  • "the stolen seat" of Merrick Garland;
  • the nomination of Neil Gorsuch by President Trump; and especially
  • the nomination of Brett Kavanaugh by President Trump, and
  • the recent #ribsforruth not-so-much-of-a-joke campaign when Ruth Ginsburg, a 85-year-old judge of the court who broke 3 ribs after a "fall in her office" (drunk, asleep or out of it on medication or due to physical frailty or dementia - we do not know since the court refuses to release its judges' medical records, and we are reduced to being force-fed ads about her workouts and interviews with her paid trainer of many years) - the public went so far as openly stating that it will accept a "stuffed Ruth" (I preserved a scan), so far as there is an appearance of a filled seat, the "stuffed Ruth", or her law clerks, rule against Trump, and Trump does not get to appoint a 3rd judge. Note that Ginsburg, by rules of judicial ethics, should be nowhere near Trump's cases - because of her public hostility towards Trump - yet, she sticks to these cases like glue, refuses to recuse, rules against Trump in dissents and is glorified for her obvious judicial misconduct by a large portion of the American public.

Had the court not turned itself into a super-legislature, lamentations that death or retirement of a single person, a judge of any court, would change, for decades, the law of a 345-million country positioning itself as a democracy and a leader in defense of human rights would not have been possible.

But - back to the 1905 vaccination case, one of the main cases on the subject of the state police power in the United States.

Here is what the U.S. Supreme Court has said in that case:

"The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety.

While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression.

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health."

So, mandatory vaccination is within the state police powers and does not violate individual 14th Amendment rights - according to the U.S. Supreme Court, as of 1905.

According to the same U.S. Supreme Court, as of 2011, 106 years after Jacobson v Massachussets, 

  • states have mandatory police powers to order vaccination as a public health issue, 


One decision is in direct contradiction to the other.

If it is a state decision to order vaccinations, within the state police power to provide general protection of public health, safety and morals, it is also the state police power to secure access to state courts for victims of such vaccinations.

There is no bar to file a lawsuit in state court against a manufacturer of any medicine other than vaccine and for anybody but a child injured or killed by such a vaccine.

In other words, an adult injured or killed by the vaccine (the adult's legal representative in this case) is allowed to sue the vaccine manufacturer - but a child is not.

And, an adult or a child injured or killed by any medicine other than a vaccine is allowed to sue the medicine manufacturer in state court.

If that is so, then, protection of individuals who were injured or killed by vaccination is within the state power.

Regulation of access to state courts, for state-recognized "causes of action", actionable/legal wrongs - is also within state powers, and neither the U.S. Congress, nor the U.S. Supreme Court could deem it somehow a federal right to regulate.

Yet, we have, from the same U.S. Supreme Court, two cases, both on the issue of vaccination, decided 105 years apart, both still "on the books", one saying that mandatory vaccination is within the state police power to protect general public welfare (health, safety and/or morals), and the other - saying that blocking access to child victims of vaccination to state courts seeking state-recognized remedies for state-recognized legal wrongs (negligence, products liability) is somehow a federal issue and federal government may forego the 10th Amendment, 14th Amendment and 1st Amendment Petitions Clause mandate and to simply forbid children injured or killed by negligently manufactured or applied vaccines from having any legal remedy in state court, while allowing adults to have such a remedy and while allowing children and adults to have such a remedy if injured by any other medicine.

Bruesewitz v Wyeth, a 2011 case, is the 10th Amendment put on its head.

The case was decided 7 years ago, and I do not see any significant coverage of this case in the press, especially now, when the campaign to vaccinate children has descended into the gutter and where anybody opposing vaccination of children regarding a particular vaccine, based on particular grounds of the vaccine's dangerousness, becomes the target of finger-pointing, ridicule and accusations of being a brainless "anti-vaxxer" and child abuser.

So, you are a brainless "anti-vaxxer" and child abuser if you do not vaccinate your child and, as per the U.S. Congress and the U.S. Supreme Court, your child is not entitled to access to court if he/she is injured or killed by that supposedly "safe and effective" vaccine.

That is one bizarre aspect of mis-application of the 10th Amendment.

In fact, the 10th Amendment has been killed in the case Bruesewitz v Wyeth, for the benefit of vaccine manufacturers who craved a captive market (children) for the product with an extremely short shelf life, and received it - from the federal government.

Yet, there was absolutely no grounds for the federal government to legislate under the state police power regarding access to court of victims of negligence of doctors or vaccine manufacturers, where acts of negligence occurred within states and had nothing to do with any powers reserved to the federal government.

In this case, power and money overpowered reason and "the rule of law" - and children's right to health, life and at least for being compensated for the loss of either or both.

So, here both the 10th Amendment and the children lost to money and power.

Female genital mutilation

I've seen a lot of angry comments to the recent decision of a federal judge declaring unconstitutional federal criminal law where the U.S. Congress has made female genital mutilation a crime.

And that is true - but it is also true that, in vaccination cases, there is nothing commercial or economic in a child being injured, permanently disabled or die from application of a vaccine.

The judge was correct, though, that making FGM a crime is a matter for state legislatures.

And, state legislatures - I bet - will not make FGM a crime, because it will be immediately challenged on grounds of gender discrimination and equal protection, and making genital mutilation a crime without regard to the child's gender will cause an uproar in Jewish and Muslim communities where male genital mutilation (circumcision for religious reasons) is routinely practiced and is considered a requirement of the faith.

So, here the 10th Amendment won, but the female children lost.

Occupational licensing of illegal aliens

New York State, California and, likely, other states by now, have begun issuing occupational licenses (law, medical etc.) to illegal aliens back during the President Obama's presidency, with President Obama's opposition.

And here there is an interesting trick of the law that does not often - or at all - get discussed in the mainstream media or in the mainstream legal scholarship in the United States.

While it is proper, under the protection of national security powers, for the federal government to regulate immigration, who does or does not work within a state is a purely state power falling within protection of the "general welfare", police power doctrine protected by the 10th Amendment.

So, the federal government is within its rights to "adjust immigration status" - issue permits to foreigners to stay within the United States, temporarily (visas) or permanently (green cards), or accepting foreigners into citizenship (naturalization).

But, the federal government oversteps its authority given to it by the U.S. Constitution by issuing work permits.

At the same time, it is, of course, bizarre when states issue, specifically, law licenses to illegal aliens - because attorneys are required to take an "oath of office", and swear their allegiance to the federal and state laws and to the federal and state Constitutions.

It is bizarre when a state accepts an oath from attorney of loyalty to the Supreme Law of the Land (which includes federal immigration laws) while knowing that that attorney is, and has been for years, violating those same laws - himself and, often, by bringing into the country and harboring his illegal alien relatives, a federal felony.

State education

I see a lot of article and comments condemning actions of Betsy DeVos, the U.S. Secretary for Education.

Commentators accuse DeVos of undermining public education in various ways.

Recently, there were a lot of accusations because of DeVos's change of federal rules of handling sexual assault of campuses.

From the point of view of a constitutional lawyer and a criminal defense attorney, DeVos actually did not go far enough - she did not forbid ANY procedures handling sex assault complaints by college administrations, as she should have, because it is a state CRIME, and states already provided for both civil and criminal procedure for addressing this issue where it is supposed to be addressed - in court.

DeVos is now vilified because - the horror! - she introduced cross-examination of the accuser (the right of the accused guaranteed in criminal proceedings by the 6th Amendment's Confrontation Clause) in "proceedings" on campus substituting the police, prosecution and state courts and handled by people who have neither training nor authority to hold such quasi-criminal proceedings, with long-reaching, life-changing consequences for the accused. 

Here would be a good time to recall the 10th Amendment.

DeVos, as a federal public official, has no duty to finance or provide for public education in the states.  That duty is squarely, under the police power, the 10th Amendment, on the shoulders of state officials - who are answerable to the public for any mishaps in that area.

And, DeVos certainly has no right to substitute criminal investigations or prosecutions - and there should be, and I am sure that there will be a lawsuit like that by the accused who would tell her that.

Under the 10th Amendment.

It is the state power to control state crime.

And states already provided for how they want that control to be handled, by state police, state prosecutors and state courts.

Not by college administrators.

But, invoking the 10th Amendment in such contexts is inconvenient - because beating federal government for state failures looks kind of stupid, don't you think?

Public safety and the new "duty" to support police power of the state by federal government while there is no duty for the states to help federal law enforcement

Unless you can earn money by that stupidity, of course.

Like New York State Acting Attorney General Barbara Underwood is doing - by engaging a political activist judge to squeeze federal taxpayers for millions of dollars in order to finance irresponsible fiscal policies of the New York State government.


Sooner or later, any parent has this conversation with his child:

  • Child: I am old enough to know what I want, and I want XYZ
  • Parent: you are also old enough to get a job, earn money, and buy what you want with your own money

It is a common sense approach.

In the separation of state and federal governments, it is also a constitutional, 10th Amendment approach.

The states have a right - and obligation - to secure general welfare of their residents, to enact and enforce laws that would protect general health, safety and morals of the public.

The states also have an obligation to generate money, on their own, to be able to discharge these duties. 

There is no federal law forcing the federal government to finance state needs.

Sometimes, the federal government does provide some discretionary funds (discretionary - meaning, no obligation) to the states.

Lately, this discretion of the federal government was put on its head, and the states that played fast and loose with taxpayer money and thus are not able to make ends meet to discharge its police power duties decided that the discretionary (no obligation) money have become actually the obligation of the federal government (meaning, obligation of taxpayers from other states), simply because particular states cannot put together a workable fiscal policy and to properly arrange financing of the state governments.

That challenge was brought under the pretext of "resisting Trump" by the unlikeliest of civil rights defenders - by state attorneys General.

I suggested, in 2014, for the New York State AG to be truthful and tell the voters in the election campaign exactly what he is going to do once elected - or re-elected:


If you elect me as Attorney General,


I also published, in 2016, when Obama was President, entire lists of dockets from federal courts showing how exactly the New York State Attorney General is opposing civil rights lawsuits against New York State officials accused of violating individual constitutional rights in the state.

All of what I said in 2014, when Obama was President, is as applicable at present, when Trump is President.

State AGs, including the New York State AG, 
  • continue to OPPOSE civil rights lawsuits in court, 
  • continue to represent, at taxpayers' expense, government officials accused by citizens of misconduct and corruption, instead of prosecuting them, 
  • often seek from the court a punishment against civil rights litigants for bringing civil rights lawsuits against the government officials violating their civil rights, as well as to make them pay attorney fees - in other words, to make them BOTH finance his work as taxpayers AND as litigants, and to finance his work not to protect their civil rights, but to protect violators of their civil rights.
Only now they are pretending they are also defending civil rights of a particular part of state population - illegal aliens.

And, they are defending the non-existing "right" of states to make the federal government to finance state policies of harboring illegal aliens (a federal felony) - now presented as the states' 10th Amendment power to "secure and protect public safety" - at federal taxpayers' expense.

See, for example, what acting New York State AG Barbara Underwood said in her recent public statement:

The "public safety" victory - is the supposed "right" of state governments to receive GIFTS (grants) from the federal government to do what is their duty to do (and finance, with their own means) in the first place - secure public safety.

Underwood remembers that the police power is the power separate and distinct from the federal government:

And it is true - as with any emancipated child - you earn your own money (collect your own taxes, run your own state-owned enterprises for profit), you use your earned money in any legal way you want.

But, the emancipated child has a right not only to SPEND the money, but to, in the first place, EARN it.

Here the State AG has a memory lapse:

In other words, New York, the state from which taxpayers run because of corruption of its government, high taxes and waste, forced the entire country (federal taxpayers, since the U.S. Attorney General was sued in his official capacity, representing all U.S. taxpayers) to finance its welfare programs for illegal immigrants.

In other words, the employers will get their "right" to hire illegal aliens, paying them under the table much less than the legal wage that legal residents and citizens would have been paid, New York taxpayers will foot the bill of providing for their public education, health and for policing additional crime coming from illegal immigrants (including gangs), and federal taxpayers will be forced to pony up 29 million dollars for New York State to continue its harboring of illegal aliens, once again, a federal felony.

And the person who obtained this "civil right" is Barbara Undrewood - 

  • the person who will fight your civil rights lawsuit in court, on behalf of the government;
  • who will represent every corrupt public official in court, at your expense as a taxpayer, but against you.

And, this "victory" is "won" by Underwood in judge Edgardo Ramos's court - under the 10th Amendment.

Police power.

Imagine an emancipated child who says - yes, I am old enough to earn the money, and I do earn the money, but, I have squandered my money on betting, drinking, what not - so, since you were giving me money before, you now MUST give me money for my living expenses, because now it is my right.

The 10th Amendment does not presuppose a right to rescue bankrupt state officials who cannot properly secure or manage state finances to discharge their own state duties.

And, State AGs, unless they stop opposing civil rights in court, may not call themselves civil rights defenders.

The only thing they protected was not public safety, but New York State's right to squander more federal taxpayer money on its irresponsible, and criminal, handling of the crisis of illegal immigration.

And that is very far from what the 10th Amendment allows it to do.

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