My guess is they will prolong the agony as much as possible,
and have prolonged it up to now, because they fear an eventual appeal will get
him freed on First Amendment grounds.
The treason charge is idiotic and there is no very persuasive
legal/constitutional basis for government secrecy.
Not that there shouldn’t be.
But there isn’t.
As for the intent of the bloody sacred framers and founders,
recall that Madison and the people who had been at Philadelphia resisted the
Bill of Rights mightily, insisting absurdly and mendaciously that
the proposed Amendments were redundant since the constitution as written was
already a perfect embodiment of political wisdom and a perfect guarantor of
liberty.
And a perfect safeguard of the power, sovereignty, and liberty of the states, too.
[Aside:
Recall, if you will, that the first amendments were proposed, after all, by anti-federalists.
In the lingo of the time, pretty much the opposite of today's usage, a federalist favored more power for the national government and less for the states.
Hamilton, writer of most of The Federalist Papers, had proposed abolishing state sovereignty and creating an integral and exclusively national government to simply supplant them all.
The anti-federalists were the ones who stood for the continuation of state power, state sovereignty, and states' rights.
Their mistrust of the government erected by the Philadelphia constitution, despite the restriction of its competences to enumerated powers, led to proposal of a number of amendments to deny it specific powers altogether, to require it to observe certain legal constraints and procedures, to further weaken the executive power, and to expressly concur that powers denied the federal government were allowed (reserved to) the states.
Even Madison, by no means the nationalist that Hamilton was, resisted, for a time.
This was the true fundamental conflict faced by the men of Philadelphia.
On the one side were the nationalists of whom the monarchist, Hamilton, whose model constitution came as close as possible to that of Great Britain with his life tenure for the president and for senators, was a bit of an extremist.
And on the other were the people who, if they had their 'druthers, would stick with the Articles of Confederation.
For them, the federal government would never be anything more than a league of states, jealous of their ultimate sovereignty and rights.
Few of them, in the end, would take seriously the perpetuity of the union asserted in the Articles and that Hamilton, anyway, expressly insisted would continue uninterrupted under the Philadelphia constitution, though the latter text omitted any such notion.
Fewer still took the least bit seriously the perpetuity of the Articles, themselves, open to change only through the very limited process of Article XIII that required unanimity among the states.
/Aside]
And that’s why the Supremes since the very earliest times
have never once had reference to any of the first ten Amendments when ruling on
the constitutionality of anything at all.
They might as well not be there.
They do nothing.
Yes, of course I'm kidding.
Well, anyway . . . before the Civil War it was understood that the amendments of the Bill of Rights are aimed at and constrain the federal government and that none of them apply to the states except the last, which reserves to them powers not expressly denied in the constitution elsewhere.
That was the understanding though only the First Amendment contains wording making this understanding explicit and unavoidable.
Nothing in the Civil War amendments can honestly be read to have changed that.
And see this on due process and equal protection.
But I now see the privileges and immunities clause denies
to states power to reduce any class of citizens to a position no better than
that of aliens or other non-citizens, coming as it does right after the clause
of the 14
th Amendment unfortunately creating unrestricted
birthright citizenship with the evident intention of guaranteeing citizenship
and its rights to the freedmen and their progeny in perpetuity.
And see Article Four, Section 2 of the Constitution for a bit more light on this.
And you could see Article IV of the Articles of
Confederation for a bit more about privileges and immunities, too.
I missed that, earlier.
I am well aware that much that liberals cherish, and much that I value right alongside them, in the law was fabricated mendaciously by liberal courts - just as much that conservatives still cherish in constitutional law no longer with us was built squarely on conservative lies.
It does no good to deny this; well,
in foro interno, anyway.
Puzzles for the intelligent amateur reader of the constitution.
How did Marshall's court have jurisdiction in Marbury vs. Madison, to begin with? See Article 3, Section 2.
The power of the Supremes to nullify state or federal legislation or action for conflict with the constitution is often said to rest on the supremacy clause in Article VI, nothing of the kind being anywhere to be found in the article of the Constitution creating and explaining the nature and power of the federal judiciary, Article III.
But does the supremacy clause not bind only
the states, asserting the nullity of anything in their laws or constitutions conflicting with federal laws, provisions of the federal constitution, or treaties?
And note that the supremacy clause does not occur within or even near Article III.
It occurs as a kind of summing up of a necessary consequence of
having a federal constitution at all, right after Article V on the process to govern future amendments to the thing and right before the very last Article, the one rather absurdly specifying the terms of the constitution's own ratification, Article VII, in flat and illegal defiance of Article XIII of the then governing Articles of Confederation.
There is nothing to the supremacy clause but an assertion that the constitution is binding on the states, and
there is no grant of power there to be found, to the judiciary or to anyone or anything else.
Imagine that.
In his introduction to The Anti-Federalist Papers and the
Constitutional Convention Debates, Ralph Ketcham says that by the time of the
convention at Philadelphia there had been much experimentation with republican
institutions among the states including referenda, recall of elected officials,
and popular election of judges.
By then, he says, election of judges was thought to have
impaired the impartiality and professionalism of the judiciary.
Hence Madison and others sought safety in life tenure.
Of course, they had had no experience with anything like the
shameless, partisan dishonesty of a life-tenured and irresponsible court that had
given itself absolute power to construe not only the laws but the constitution,
itself, as Marshall’s court did in 1803.
We have.
