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Are Constitutional Violations a Crime?
If a Senator or Representative votes in favor of legislation that violates provisions of the Constitution and/or the Bill of Rights, has that individual committed a crime and should they be punished or removed from office?
Please post your comments in the section below.
Replies to This Discussion
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Permalink Reply by Joe brown on
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Where does it say that perjury is a common law crime? How do ex post facto (after the fact) laws stop common law crimes? Who said we have to use common law to pursue politicians for perjury? The 7th Amendment indicates that common law is allowed by our constitution.
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There are only three categories of crime: common law, statutory, and constitutional. The U.S. Constitution defines the crime of "treason" but prescribes no penalty, delegating that to Congress. It does not delegate a power to punish perjury, which would need a clause like "Congress shall have power to punish perjury." A common law crime is only defined at the point the court gives the final order. Up to that point it is only a matter of custom, which is not law. That point occurs after the offense, therefore is ex post facto. Read the article to which I posted a link. All of it. Maybe once a day for ten days or so until it sinks in. Most laypersons seem to need to do that to understand the points such articles contain, which are quite deep. Each time you read it more will sink in. Don't expect deep understanding to be handed to you on a platter.
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A custom or other part of common law is based on the past thereby excluding it from being ex post facto. Courts interpret law during trials which are after the offense. "Case Law" (precedent) is not constitutional law, but is used as if it were. Also, Congress does not necessarily have to punish perjury. The people, states legislatures, attorney general(s) and/or the Supreme Court could. There may be a statute, code, law, act, regulation or the like about punishment for perjury. Maybe there is a court case that could be used for this.
I do not recall reading any power delegated to Congress to punish any crime except treason (A III, S 3). But this does not exclude others from punishing for a crime.
To say that perjury is a crime, but there is no way to hold perjurers accountable makes no sense. But then politicians make no sense.
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The concept of "common law" is that the court (judge and jury) "find" the natural law governing the case, and translate that into human law at the moment the final decision is made, in a process that is conceived as a kind of religious revelation of natural law. Custom and precedent provide some guidance to how other courts have found, but they are not themselves "law".
Yes, the original expectation was that a federal official, once removed, might be prosecuted under state law, if the offense happened in that state, or under federal law, if the offense was committed on federal territory. But there are gaps in coverage and most of the things being discussed in this thread are not covered by any statute at any level.
The constitutional crimes are: (1) treason; (2) counterfeiting; (3) piracy; (4) felony on the high seas; (5) offenses against the law of nations (as of 1787). To which have been added a few others by amendment: (6) enslavement; (7) violation of rights by state actors; (8) denial of voting on any of several grounds. See http://www.constitution.org/rf/kr_1798.htm
There is a way to hold them accountable. We could make general perjury (as distinct from witness perjury) a crime on federal territory. But it is not in current law. It could be enforced after the official leaves office. Other than that, the recourse is to remove them or not re-elect them. But anything takes a lot of people. There are no magic solutions.
As an exercise to participants, research the law of perjury in your state, and find what it covers, and does not cover. You will find witness perjury, and perjury for signing certain kinds of reports, affidavits, and similar documents, but if you find anywhere that it is a crime for an official to violate his oath of office, report back to this forum. Anyone want to make a bet on what people will find?
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2010 Georgia Code
TITLE 16 - CRIMES AND OFFENSES
CHAPTER 10 - OFFENSES AGAINST PUBLIC ADMINISTRATION
ARTICLE 4 - PERJURY AND RELATED OFFENSES
§ 16-10-70 - PerjuryO.C.G.A. 16-10-70 (2010)
16-10-70. Perjury
(a) A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.
(b) A person convicted of the offense of perjury shall be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than ten years, or both. A person convicted of the offense of perjury that was a cause of another's being imprisoned shall be sentenced to a term not to exceed the sentence provided for the crime for which the other person was convicted. A person convicted of the offense of perjury that was a cause of another's being punished by death shall be punished by life imprisonment.
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That is witness perjury, not oath of office perjury. See if you can find anything that makes violation of that a crime.
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Jon, it's interesting (and illogical) that both these offenses are lies under oath, but only one is prosecutable.
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I never heard of "human law" nor of going from commom law to natural law then to human law. Nor is this consistant with the definitions of common law and natural law. Even if true, this is not constitutional, rational or comman sense. This varying legal crap is why people do not pursue politicians and why politicians get away with crimes such as perjury. Just because one method is used now does not mean it was used 100+ years ago nor that it is lawful now. Decades ago unwritten "laws" were enforced by people going to court. Today we can do the same, sue, file a criminal complaint or use common law or natural law to punish perjurers. Politicians are not immune just because there is no written law. And they will never pass a direct law that could make them liable.
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Yes, we the people are the ultimate enforcers of our Constitution. We might elect some as servants to perform various duties, but we must never leave it to them, for if not closely supervised, they will try to become our masters. One way they do that is to induce us into allowing government to become so large that it is impossible to supervise them, because even if all of us did it 24/7 there wouldn't be enough time. Supervision is not just about voting. It is literally about standing over them while they work, checking every move they make. That is a job in itself. And as anyone knows from holding management jobs, a single manager can usually not effectively supervise more than about 20-30 employees. More than that and one winds up just reading reports that are full of lies, and the employees run amok.
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Jon, you have a unique, common sense grasp of reality, combined with an acute understanding of legal complexities, and the ability to explain them so a layman can readily understand them. A rare skill, indeed.
In reference to your proposed amendments;
1. Making crimes of violations of the Constitution by officials.
2. Removing obstacles to criminal prosecution by private parties.
3. Authorizing grand juries to remove official immunity from officials, and to decide which court, state or federal, has jurisdiction (thus largely eliminating removal jurisdiction by federal courts of state criminal case.They seem so logical, yet how can we (the People) ever get these passed when the very people required to put them into effect are the ones who will have to live under them?
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I have had a lot of practice, and more than 50 years of intense research at a professional level. It didn't come to me overnight.
As for how we get any of these reforms passed, start by trying to make them leading issues in the next election. If no candidates respond positively, get someone else to run who will, or run yourself. That's why I an a candidate for U.S. senator.
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Yes, they have violated their oath of office and should be removed from office.
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