On Wed, 27 Apr 2005 09:47:08 -0400, (I
AmnotGeorgeBush) wrote in
:

From: (Frank*Gilliland)
On Tue, 26 Apr 2005 22:20:28 -0400, "BobC" wrote
in :
(How about Constitutional Law? )

How about it? Although it has fallen by the

wayside during the Bush administration, there

is nothing I suggested that would deprive

anyone of their Constitutional rights. I'm not a

court and I don't execute due process. But if I

have good reason to believe that someone is

violating a law then I don't keep my mouth

shut because of some whacko's ultra-literal

interpretation of the Constitution. Due process

is not pre-empted by a presumption of

innocence -- OTOH, due process must be

initiated before it can occur, and reasonable

suspicion is enough to begin that process.

That's the law. If you don't like it, work to

change it. If you don't then quit whining and

learn to live with the system the way it is.

Fwiw, Due Process (according to the Supreme Court) is a difficult thing
to define. It has been said DP is merely the law of the land. The Fifth
and Fourteenth Amendments refer only to federal agency protection with
regards to DP. DP is basically how and why laws are enforced, and
questions "Is the law fair?" as in "does a law presume guilt?" The end
result is the law (as it applies to all persons) must be clear and
concise and it absolutely MUST have a presumption of innocence to comply
with Due Process.


I think the disagreement is with how "presumed innocent" is applied.
The phrase simply means that the accused must be aquitted unless guilt
can be proven. It does not prohibit any presumption of guilt by the
accuser, the victim, the press, the public, or anyone else except the
judge/jury; i.e, presumption of innocence applies only to those that
are charged with making the -determination- of guilt or innocence.

Now as for "due process".....

According to the 1855 Supreme Court opinion to which you referred,
"due process of law" applies to any law that is (1) not otherwise
unconstitutional, and (2) consistent with "those settled usages and
modes of proceeding existing in the common and statute law..."

For an example of the first condition, Bush's Patriot Act is a direct
violation of "due process of law" because it infringes on the right to
a fair and speedy trial, the right to contest all accusatory evidence,
the right to an attorney, presumption of innocence, etc, etc..... it's
a quite a long list. Therefore, the Act is unconstitutional under the
Fifth Amendment because it's unconstitutional in other respects. It's
kind of a double-whammy.

As for the second condition, Bush's Patriot Act is a voyage into
uncharted legal waters. He fabricated new laws that have no foundation
in common or statutory law. And while the Act itself is statutory,
most of its laws are unprecedented; i.e, they are not derived from
"settled usages and modes of proceeding". Bush's Patriot Act is, once
again, in violation of the Fifth Amendment because it contains laws
that are not based on any legal precedent.

In fact, the passing of the Act by Congress was itself a violation of
the Fifth Amdendment because it was done in direct contradiction to
the Supreme Court's interpretation of the Amendment: "It is manifest
that it was not left to the legislative power to enact any process
which might be devised. The article is a restraint on the legislative
as well as on the executive and judicial powers of the government, and
cannot be so construed as to leave Congress free to make any process
'due process of law,' by its mere will."

Ok, that was way off topic, but you get the drift.







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