WTP "Historic Lawsuit" Dismissed by DC Circuit

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LPC
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WTP "Historic Lawsuit" Dismissed by DC Circuit

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The DC Circuit finally got around to dismissing Schulz's "right to petition" lawsuit.

Next up: Denial of cert. Send money!

We the People Foundation Inc. et al. v. United States et al., 2007 TNT 90-9, No. 05-5359 (D.C. Cir. 5/8/2007).
DC Circuit wrote:WE THE PEOPLE FOUNDATION, INC., ET AL.,
Appellants
v.
UNITED STATES OF AMERICA, ET AL.,
Appellees

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2006
Decided May 8, 2007

Appeal from the United States District Court
for the District of Columbia
(No. 04cv01211)

Mark Lane argued the cause for appellants. With him on the briefs was Robert L. Schulz, pro se.

Carol Barthel, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Kenneth L. Greene, Attorney. Bruce R. Ellisen and Kenneth W. Rosenberg, Attorneys, entered appearances.

Before: GINSBURG, Chief Judge, and ROGERS and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Chief Judge GINSBURG and Circuit Judge ROGERS join.

Concurring opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge: Ratified in 1791, the First Amendment to the United States Constitution provides in part that "Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances." Plaintiffs are citizens who petitioned various parts of the Legislative and Executive Branches for redress of a variety of grievances that plaintiffs asserted with respect to the Government's tax, privacy, and war policies. Alleging that they did not receive an adequate response, plaintiffs sued to compel a response from the Government.

Plaintiffs contend that the First Amendment guarantees a citizen's right to receive a government response to or official consideration of a petition for redress of grievances. Plaintiffs' argument fails because, as the Supreme Court has held, the First Amendment does not encompass such a right. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283, 285 (1984); Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465 (1979).

I

Plaintiffs are numerous individuals and an organization that creatively calls itself "We the People." For purposes of this appeal, we take the allegations in the complaint as true. According to plaintiffs, they have engaged since 1999 in "a nationwide effort to get the government to answer specific questions" regarding what plaintiffs view as the Government's "violation of the taxing clauses of the Constitution" and "violation of the war powers, money and 'privacy' clauses of the Constitution." Joint Appendix ("J.A.") 80 (Am. Compl. ¶ 3). Plaintiffs submitted petitions with extensive lists of inquiries to various government agencies. On March 16, 2002, for example, plaintiffs submitted a petition with hundreds of inquiries regarding the tax code to a Member of Congress and to various parts of the Executive Branch, including the Department of Justice and the Department of the Treasury. On November 8, 2002, plaintiffs presented four petitions to each Member of Congress. Those petitions concerned the Government's war powers, privacy issues, the Federal Reserve System, and the tax code. On May 10, 2004, plaintiffs submitted a petition regarding similar issues to the Executive Branch, including the Department of Justice and the Department of the Treasury.

Plaintiffs contend that the Legislative and Executive Branches have responded to the petitions with "total silence and a lack of acknowledgment." J.A. 85 (Am. Compl. ¶ 35). In protest, some plaintiffs have stopped paying federal income taxes.

Based on their view that the Government has not sufficiently responded to their petitions, plaintiffs filed suit in the United States District Court for the District of Columbia. They raised two claims. First, plaintiffs contend that the Government violated their First Amendment right to petition the Government for a redress of grievances by failing to adequately respond to plaintiffs' petitions. In particular, plaintiffs contend that the President, the Attorney General, the Secretary of the Treasury, the Commissioner of the Internal Revenue Service, and Congress neglected their responsibilities under the First Amendment to respond to plaintiffs' petitions. Plaintiffs want the Government to enter into "good faith exchanges" with plaintiffs and to provide "documented and specific answers" to the questions posed in the petitions. J.A. 78 (Am. Compl.).

Second, plaintiffs claim that government officials -- by seeking to collect unpaid taxes -- have retaliated against plaintiffs' exercise of First Amendment rights. Plaintiffs therefore asked the District Court to enjoin the Internal Revenue Service, the Department of Justice, and other federal agencies from retaliating against plaintiffs' exercise of their constitutional rights (in other words, to prevent the Government from collecting taxes from them).

The Government has responded that the federal courts lack jurisdiction over either claim because the Government has not waived its sovereign immunity with respect to the causes of action asserted by plaintiffs. As to the Petition Clause claim, the Government has contended in the alternative that plaintiffs have failed to state a claim for which relief could be granted because the Petition Clause does not require the Government to respond to or officially consider petitions.

The District Court dismissed plaintiffs' complaint. We The People v. United States, No. 04-cv-1211, slip op. at 6 (D.D.C. Aug. 31, 2005). The Court ruled that the First Amendment does not provide plaintiffs with the right to receive a government response to or official consideration of their petitions. Id. at 2-3. In addition, the District Court concluded that the Anti-Injunction Act bars plaintiffs' claim for injunctive relief with respect to the collection of taxes. See id. at 5 (citing 26 U.S.C. § 7421).

II

Plaintiffs raise two legal arguments on appeal. First, plaintiffs contend that they have a First Amendment right to receive a government response to or official consideration of their petitions. Second, plaintiffs argue that they have the right to withhold payment of their taxes until they receive adequate action on their petitions.

The Government renews its argument that plaintiffs' claims are barred by sovereign immunity. In response, plaintiffs have contended that Section 702 of the Administrative Procedure Act waives the Government's sovereign immunity. That section provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. . . . The United States may be named as a defendant in any such action . . . ." 5 U.S.C. § 702. The Government acknowledges that Section 702 waives sovereign immunity from suits for injunctive relief. See Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999) (describing Section 702 as waiving the Government's immunity from actions seeking relief other than money damages); Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006) ("[T]here is no doubt that § 702 waives the Government's immunity from actions seeking relief other than money damages.") (internal quotation omitted). The Government contends, however, that plaintiffs' claims fall within an exception to Section 702 that provides: "Nothing herein . . . affects other limitations on judicial review . . . ." 5 U.S.C. § 702. The Government further argues that the Anti-Injunction Act presents just such a barrier to judicial relief in this case because of the Act's provision that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. § 7421(a).

We agree with the Government that the Anti-Injunction Act precludes plaintiffs' second claim -- related to collection of taxes. See Bob Jones Univ. v. Simon, 416 U.S. 725, 726-27, 749-50 (1974). In asserting that claim, plaintiffs seek to restrain the Government's collection of taxes, which is precisely what the Anti-Injunction Act prohibits, notwithstanding that plaintiffs have couched their tax collection claim in constitutional terms. See Alexander v. "Americans United" Inc., 416 U.S. 752, 759-60 (1974).

Plaintiffs also raise, however, a straight First Amendment Petition Clause claim -- namely, that they have a right to receive a government response to or official consideration of their various petitions. By its terms, the Anti-Injunction Act does not bar that claim, and Section 702 waives the Government's sovereign immunity from this suit for injunctive relief, at least with respect to plaintiffs' allegations regarding actions of certain of the named defendants. See 26 U.S.C. § 7421; cf. Trudeau, 456 F.3d at 187. We therefore will consider that claim on the merits.

III

The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. I. Plaintiffs contend that they have a right under the First Amendment to receive a government response to or official consideration of a petition for a redress of grievances. We disagree.

In cases involving petitions to state agencies, the Supreme Court has held that the Petition Clause does not provide a right to a response or official consideration. In Smith v. Arkansas State Highway Employees, for example, state highway commission employees argued that a state agency violated the First Amendment by not responding to or considering grievances that employees submitted through their union. See 441 U.S. 463, 463-64 & n.1 (1979). In response, the Court held that "the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it." Id. at 465.

Likewise, in Minnesota State Board for Community Colleges v. Knight, the Supreme Court evaluated a state law that required public employers to discuss certain employee matters exclusively with a union representative; this prevented nonunion employees from discussing those matters with their employers. 465 U.S. 271, 273 (1984). Holding that the state statutory scheme had not "unconstitutionally denied an opportunity to participate in their public employer's making of policy," the Court reiterated: "Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Id. at 285, 292. Therefore, the Court concluded that individuals "have no constitutional right as members of the public to a government audience for their policy views." Id. at 286.

Plaintiffs contend that Smith and Knight do not govern their claims in this case because those cases addressed petitions to state officials regarding public policy, not claims that the Federal Government has violated the Constitution. Plaintiffs' attempted distinction is at best strained. In both cases, the Supreme Court flatly stated that the First Amendment, which has been incorporated against the States by the Fourteenth Amendment, does not provide a right to a response to or official consideration of a petition. Knight, 465 U.S. at 285; Smith, 441 U.S. at 465. Nothing in the two Supreme Court opinions hints at a limitation on their holdings to certain kinds of petitions or certain levels of Government. In short, the Supreme Court precedents in Smith and Knight govern this case.

IV

Plaintiffs cite the work of several commentators who suggest that Smith and Knight overlooked important historical information regarding the right to petition. Those commentators point to the government practice of considering petitions in some quasi-formal fashion from the 13th century in England through American colonial times -- a practice that continued in the early years of the American Republic. Based on this historical practice, plaintiffs and these commentators contend that the Petition Clause should be interpreted to incorporate a right to a response to or official consideration of petitions. See, e.g., Stephen A. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J.142, 155 (1986); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899, 904-05 & n.22 (1997); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 17-18 (1993); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111, 1116-18 (1993); cf. David C. Frederick, John Quincy Adams, Slavery, and the Disappearance of the Right of Petition, 9 LAW & HIST REV. 113, 116-18, 141 (1991).

Other scholars disagree, arguing based on the plain text of the First Amendment that the "right to petition the government for a redress of grievances really is just a right to petition the government for a redress of grievances." Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U. L. REV. 739, 766 (1999); cf. Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1190-91 (1986). These scholars note that the Petition Clause by its terms refers only to a right "to petition"; it does not also refer to a right to response or official consideration. See N. BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (24th ed. 1782) ("To petition": "to present or put up a Petition"); S. JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785) ("To petition": "To solicite; to supplicate"). As they suggest, moreover, the Framers and Ratifiers did not intend to incorporate every historical practice of British or colonial governments into the text of the Constitution. See Lawson & Seidman, 93 NW. U. L. REV. at 756-57; cf. Williams v. Florida, 399 U.S. 78, 92-93 (1970); Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 274-76 (1989) ("Despite this recognition of civil exemplary damages as punitive in nature, the Eighth Amendment did not expressly include it within its scope.").

We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches.

The judgment of the District Court is affirmed.

So ordered.

* * * * *

ROGERS, Circuit Judge, concurring: The text of the Petition Clause of the First Amendment does not explicitly indicate whether the right to petition includes a right to a response. Appellants ask the court to consider the text in light of historical evidence of how the right to petition was understood at the time the First Amendment was adopted. Essentially, they contend that the Petition Clause should be read in light of contemporary understanding, which they suggest indicates that the obligation to respond was part and parcel of the right to petition.

As the court points out, we have no occasion to resolve the merits of appellants' historical argument, given the binding Supreme Court precedent in Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979), and Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984). Op. at 9. That precedent, however, does not refer to the historical evidence and we know from the briefs in Knight that the historical argument was not presented to the Supreme Court.

The Supreme Court's interpretation of the Constitution has been informed by the understanding that:
"The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth."
Konigsberg v. State Bar of California, 366 U.S. 36, 50 n.10 (1961) (quoting Gompers v. United States, 233 U.S. 604, 610 (1914)). Even where the plain text yields a clear interpretation, the Supreme Court has rejected a pure textualist approach in favor of an analysis that accords weight to the historical context and the underlying purpose of the clause at issue. For example, in Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court stated that "[t]he history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused 'to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history.'" Id. at 678 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 671 (1970)); see id. at 673-75. Nor is the Supreme Court's rejection of literalism limited to the First Amendment.1

In the context of the First Amendment, the Supreme Court has repeatedly emphasized the significance of historical evidence. A few examples suffice to illustrate the point. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the Supreme Court acknowledged that:
[The] right of access to criminal trials [by the press] is not explicitly mentioned in terms in the First Amendment. But we have long eschewed any narrow, literal conception of the Amendment's terms, for the Framers were concerned with broad principles, and wrote against a background of shared values and practices. The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights.
Id. at 604 (internal quotations marks omitted) (citations omitted). In Lynch v. Donnelly, the Supreme Court acknowledged that its "interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees." 465 U.S. at 673; see id. at 673-77. In Marsh v. Chambers, 463 U.S. 783, 786-94 (1983), the Supreme Court looked to contemporary practice from the early sessions of Congress and to later congressional practice in holding that paid legislative chaplains and opening prayers do not violate the First Amendment. See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 583-85 (1983); Engel v. Vitale, 370 U.S. 421, 425-33 (1962); Everson v. Bd. of Educ., 330 U.S. 1, 7-15 (1947); Grosjean v. Am. Press Co., 297 U.S. 233, 240, 245-49 (1936); Near v. Minnesota, 283 U.S. 697, 713-18 (1931).2

Appellants point to the long history of petitioning and the importance of the practice in England, the American Colonies, and the United States until the 1830's as suggesting that the right to petition was commonly understood at the time the First Amendment was proposed and ratified to include duties of consideration and response. See Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 22-33 (1993); Norman B. Smith, "Shall Make No Law Abridging . . .": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1154-68, 1170-75 (1986). Based on the historical background of the Petition Clause, "most scholars agree that the right to petition includes a right to some sort of considered response." James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW.U.L.REV.899, 905 n.22 (1997); see David C. Frederick, John Quincy Adams, Slavery, and the Right of Petition, 9 LAW & HIST. L. REV. 113, 141 (1991); Spanbauer, supra, at 40-42; Stephen A. Higginson, Note, A Short History of the Right to Petition, 96 YALE L.J. 142, 155-56 (1986); Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 HARV. L. REV. 1111, 1116-17, 1119-20 (1993); see also Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1156 (1991) (lending credence to Higginson's argument that the Petition Clause implies a duty to respond). Even those who take a different view, based on a redefinition of the question and differences between English and American governments, acknowledge that there is "an emerging consensus of scholars" embracing appellants' interpretation of the right to petition. See Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U. L. REV. 739, 756 (1999).

The sources cited by appellants indicate that "[t]he debates over the inclusion of the right to petition reveal very little about why the convention delegates may have regarded the right as important or what the 'framers' intended with respect to the substantive meaning of the right." Frederick, supra, at 117 n.19 (citing 4 BERNARD SCHWARTZ, THE ROOTS OF THE BILL OF RIGHTS 762-66, 840-42 (1980)); see Higginson, supra, at 155-56. But neither textual omission3 nor the absence of explicit statements by Framers or Ratifiers on the precise issue has been dispositive in the Supreme Court's First Amendment jurisprudence. Instead, the historical context and the underlying purpose have been the hallmarks of the Supreme Court's approach to the First Amendment. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15 (1976); New York Times Co. v. Sullivan, 376 U.S. 254, 269-71 (1964); Roth v. United States, 354 U.S. 476, 481-84, 488 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-55 (1952).

The Supreme Court's free speech precedent is illustrative. Although the textual meaning of "speech" is as clear, in terms of dictionary definitions, as the meaning of "petition," the Supreme Court has interpreted "speech" broadly in order to protect freedom of expression:
The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word . . . . [W]e have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)); cf. NAACP v. Button, 371 U.S. 415, 430 (1963). The text of the First Amendment mentions neither writing nor conduct, and at the time of the Founding, as now, the word "speech" meant expression through "vocal words."4 Yet the Supreme Court has considered both the history and purpose of the First Amendment in according a broad interpretation to the Free Speech Clause. Looking, in part, to the Framers' intent, the Supreme Court has held that the Free Speech Clause applies to written communications, see City of Ladue v. Gilleo, 512 U.S. 43, 45, 58 (1994); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 61 (1983); Martin v. Struthers, 319 U.S. 141, 141-42, 149 (1943), as well as a broad range of expressive activities, including spending to promote a cause, First Nat'l Bank v. Bellotti, 435 U.S. 765, 767 (1978); Buckley, 424 U.S. at 19-20, burning the American flag, see Johnson, 491 U.S. at 399-400, 404-06, and dancing nude, see City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991). Furthermore, although the dictionaries do not exclude any particular types of oral communication from the definition of "speech," the Supreme Court has held, in light of the historical context, that the First Amendment does not protect obscene speech, Roth, 354 U.S. at 481-85, 488; Miller v. California, 413 U.S. 15, 23 (1973), libelous speech, Beauharnais, 343 U.S. at 254-55, 266, false commercial speech, see Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 563-64 (1980); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771-72 (1976), or speech that is "likely to cause a breach of the peace," Chaplinsky v. New Hampshire, 315 U.S. 568, 569, 573 (1942).

Of course, this court cannot know whether the traditional historical analysis would have resonance with the Supreme Court in a Petition Clause claim such as appellants have brought. It remains to be seen whether the Supreme Court would agree to entertain the issue, much less whether it would agree with appellants and "most scholars" that the historical evidence provides insight into the First Congress's understanding of what was meant by the right to petition and reevaluate its precedent, or conversely reject that analysis in light of other considerations, such as the nature of our constitutional government. No doubt it would present an interesting question. For now it suffices to observe that appellants' emphasis on contemporary historical understanding and practices is consistent with the Supreme Court's traditional interpretative approach to the First Amendment.

FOOTNOTES

1 For instance, in Eleventh Amendment cases, the Supreme Court has rejected "a historical literalism," Alden v. Maine, 527 U.S. 706, 730 (1999), and instead has turned to "history, practice, precedent, and the structure of the Constitution," id. at 741; see id. at 711-24, 730-35, 741-44, explaining that "[a]lthough the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, 'we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms,'" id. at 729 (omission in original) (quoting Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991))); see also Seminole Tribe, 517 U.S. at 69-70; Principality of Monaco v. Mississippi, 292 U.S. 313, 320-26, 330 (1934); Hans v. Louisiana, 134 U.S. 1, 10-11, 15 (1890). In construing the Fifth Amendment in Ullmann v. United States, 350 U.S. 422, 424-25, 438-39 (1956), the Supreme Court rejected the contention that the privilege against self-incrimination protects an individual who is given immunity from prosecution from being forced to testify before a grand jury: For "the privilege against self-incrimination[,] . . . it is peculiarly true that 'a page of history is worth a volume of logic.' For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is . . . with the danger to a witness forced to give testimony" that may lead to criminal charges. Id. at 438-39 (internal quotation marks omitted) (citations omitted) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)). And in interpreting the Ex Post Facto Clause, the Supreme Court in Collins v. Youngblood, 497 U.S. 37 (1990), relied on history rather than adopting a literal construction:
Although the Latin phrase "ex post facto" literally encompasses any law passed "after the fact," it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. As early opinions in this Court explained, "ex post facto law" was a term of art with an established meaning at the time of the framing of the Constitution.
Id. at 41 (internal citations omitted) (citing Calder v. Bull, 3 Dall. 386 (1798)); see Minnesota v. Carter, 525 U.S. 83, 88-89 (1998); Maryland v. Craig, 497 U.S. 836, 844-49 (1990); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 502-03 (1987); Goldstein v. Califoria, 412 U.S. 546, 561-62 (1973); Gravel v. United States, 408 U.S. 606, 616-18 (1972); Wright v. United States, 302 U.S. 583, 607 (1938) (Stone, J., concurring); Olmstead v. United States, 277 U.S. 438, 476-77 (1928) (Brandeis, J., dissenting); Boyd v. United States, 116 U.S. 616, 634-35 (1886).

2 Similar analysis is found in the Supreme Court's interpretation of other provisions of the Constitution. See Crawford v. Washington, 541 U.S. 36, 42-50 (2004) (Sixth Amendment); Atwater v. City of Lago Vista, 532 U.S. 318, 326-40, 345 n.14 (2001) (Fourth Amendment); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 782-83, 800-15 (1995) (Tenth Amendment); Harmelin v. Michigan, 501 U.S. 957, 975-85 (1991) (Eighth Amendment); Wesberry v. Sanders, 376 U.S. 1, 2-3, 7-17 (1964) (Art. I, § 2).

3 See, e.g., Globe Newspaper, 457 U.S. at 604. The Supreme Court has adopted the same approach in interpreting other provisions of the Constitution. For example, in holding that the Speech or Debate Clause applies to a Senator's aide even though it mentions only "Senators and Representatives," the Supreme Court in Gravel observed that although the Clause "speaks only of 'Speech or Debate,'" its precedent, consistent with adhering to the underlying purpose of the Clause, "ha[d] plainly not taken a literalistic approach in applying the privilege" to protect committee reports, resolutions, and voting. Gravel, 408 U.S. at 617; see id. at 616-18. In the Fourth Amendment context, although the Amendment speaks only to protecting people in their houses, the Supreme Court in Carter noted that its precedent, in some situations, had extended that protection to apply to individuals' privacy in other people's houses. Carter, 525 U.S. at 88-89; see also Faretta v. California, 422 U.S. 806, 819 & n.15 (1975); Goldstein, 412 U.S. at 561-62; Principality of Monaco, 292 U.S. at 320-23, 330; Hans, 134 U.S. at 10-11, 15.

4 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785) ("speech": "The power of articulate utterance; the power of expressing thoughts by vocal words," "Language; words considered as expressing thoughts," "Particular language; as distinct from others," "Any thing spoken," "Talk; mention," "Oration, harangue," "Declaration of thoughts"); 2 THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1790) ("speech": "The power of articulate utterance, the power of expressing thoughts by vocal words; language, words considered as expressing thoughts; particular language as distinct from others; any thing spoken; talk, mention; oration, harangue"); see NATHAN BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (24th ed. 1782) ("speech": "Language, Discourse"); see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1731 (3d ed. 1992) ("speech": "The faculty or act of speaking," "The faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words," "Something spoken; an utterance," "Vocal communication; conversation"); THE NEW OXFORD AMERICAN DICTIONARY 1630 (2d ed. 2005) ("speech": "the expression of or the ability to express thoughts and feelings by articulate sounds"); 16 THE OXFORD ENGLISH DICTIONARY 175-77 (2d ed. 1989) ("speech": "The act of speaking; the natural exercise of the vocal organs; the utterance of words or sentences; oral expression of thought or feeling").

END OF FOOTNOTES
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
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Post by . »

Even though it's a loss, there were no sanctions, so therefore it's a win. Let the countdown to the begging by BS commence.
All the States incorporated daughter corporations for transaction of business in the 1960s or so. - Some voice in Van Pelt's head, circa 2006.
Brian Rookard
Beefcake
Posts: 128
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Post by Brian Rookard »

Actually, Rogers opinion seems to be very sympathetic.

And I must say, that if you actually take the time to read some of the scholarly articles in support of the right to petition ... it IS interesting (especially those aspects in which the right to petition can be seen as a right to file suit and a qualification on sovereign immunity).

Although Bob is a tax protestor and a cretin, there is an aspect of his argument (as brought out in the supporting law review articles) that is fascinating. It's just too bad that it is him making this argument, and not someone with a little more gravitas (tax protestors not being very sympathetic figures).

I believe that the court's standing and sovereign immunity doctrines are often very ... strained. Courts seem to go out of their way sometimes to deny access to the courts and to actually redressing wrongs. (And don't get me started on the whole "political question" thingey ... as if the courts are unable to prevent the other branches of government from violating the constitution).

Anyways, there is a part of Bob's suit that could be so, so interesting ...
David Merrill

no authority to sanction the people

Post by David Merrill »

http://pacer.cadc.uscourts.gov/docs/com ... -5359a.pdf
Powers denied individual states. (1) No state shall enter into any treaty, alliance or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts...
No wonder there are no sanctions. And of course it is a victory because the Constitution the We the People folks love so dearly was upheld. Endorsement of private credit is a private contract and by process of law, the federal constitution would not prevent states for impairing contracts if it was going to impair contracts itself, would it?

http://friends-n-family-research.info/F ... cMoney.wmv

Like I say in my video; the agreement is not unconstitutional - it is non-constitutional. Argueing on the basis of the First Amendment makes no more sense than Bob Shultz saying he is a citizen of the US and then saying he is the People; all in the same breath.



Regards,

David Merrill.
David Merrill

Post by David Merrill »

Courts seem to go out of their way sometimes to deny access to the courts and to actually redressing wrongs.
To quote Brian again...

Brahahahahahaa!

That was a memorable moment.



Regards,

David Merrill.
Imalawman
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Post by Imalawman »

Brian Rookard wrote:Actually, Rogers opinion seems to be very sympathetic.

And I must say, that if you actually take the time to read some of the scholarly articles in support of the right to petition ... it IS interesting (especially those aspects in which the right to petition can be seen as a right to file suit and a qualification on sovereign immunity).

Although Bob is a tax protestor and a cretin, there is an aspect of his argument (as brought out in the supporting law review articles) that is fascinating. It's just too bad that it is him making this argument, and not someone with a little more gravitas (tax protestors not being very sympathetic figures).

I believe that the court's standing and sovereign immunity doctrines are often very ... strained. Courts seem to go out of their way sometimes to deny access to the courts and to actually redressing wrongs. (And don't get me started on the whole "political question" thingey ... as if the courts are unable to prevent the other branches of government from violating the constitution).

Anyways, there is a part of Bob's suit that could be so, so interesting ...
I agree, and its looks as if Rogers was actually encouraging the supreme court to take the case up. He practically was making a case for it all the way though by establishing why it was diferent than previous cases.

My wife and I (she's a lawyer as well) were discussing this case just the other day. It is an interesting proposition. One reason why I don't think SCOTUS will ever rule contrary to their current position is that the gov't would be swamped with such petitions. Then, of course, litigation would arise over what consitutes an adequate response. Could the government simply say, "we deny everything and will not answer each point." That is a response, but does that count? So, although, I must admit I have a certain amount of sympathy for Bob's position, I cannot see that it would be useful to require a response.

In the end though, to give bob a win would just increase my workload with TP junk, so I can't say I hope the Sumpremes take up the issue. But if they do, I'll be keeping close tabs.
"Some people are like Slinkies ... not really good for anything, but you can't help smiling when you see one tumble down the stairs" - Unknown
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Post by Quixote »

I doubt the SC will touch it. It's much too messy. First, it isn't clear what the WTP was petitioning for. Was their grievance that the government wouldn't answer their questions? If so, their lawsuit was their petition for redress and they've received an answer. Their list of questions was certainly not a petition for redress of a grievance. I have seen some very muddled petitions for redress sent to members of Congress, but I could usually tell what the petitioner wanted.
"Here is a fundamental question to ask yourself- what is the goal of the income tax scam? I think it is a means to extract wealth from the masses and give it to a parasite class." Skankbeat
silversopp

Post by silversopp »

It has always been my opinion that the right to petition the government for a redress of greivances required a specific action to be performed. You present your case that the government harmed you in the amount of $x, and request that you be compensated $x. The government then decides whether to honor the request or not. If they don't, you can then go through the normal court system.

I haven't read WTP's petitions fully, but it seems that they just ask dozens of question and expect the government to answer them. That isn't a redress of greivances, that's requesting a taxpayer subsidized civics lesson.

What was the whole point of this lawsuit? Did they just want the government to say, for the 200th time, that the income tax is indeed legal? What a bunch of whackos.
Brian Rookard
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Post by Brian Rookard »

Imalawman wrote:
Brian Rookard wrote:Actually, Rogers opinion seems to be very sympathetic.

And I must say, that if you actually take the time to read some of the scholarly articles in support of the right to petition ... it IS interesting (especially those aspects in which the right to petition can be seen as a right to file suit and a qualification on sovereign immunity).

Although Bob is a tax protestor and a cretin, there is an aspect of his argument (as brought out in the supporting law review articles) that is fascinating. It's just too bad that it is him making this argument, and not someone with a little more gravitas (tax protestors not being very sympathetic figures).

I believe that the court's standing and sovereign immunity doctrines are often very ... strained. Courts seem to go out of their way sometimes to deny access to the courts and to actually redressing wrongs. (And don't get me started on the whole "political question" thingey ... as if the courts are unable to prevent the other branches of government from violating the constitution).

Anyways, there is a part of Bob's suit that could be so, so interesting ...
I agree, and its looks as if Rogers was actually encouraging the supreme court to take the case up. He practically was making a case for it all the way though by establishing why it was diferent than previous cases.

My wife and I (she's a lawyer as well) were discussing this case just the other day. It is an interesting proposition. One reason why I don't think SCOTUS will ever rule contrary to their current position is that the gov't would be swamped with such petitions. Then, of course, litigation would arise over what consitutes an adequate response. Could the government simply say, "we deny everything and will not answer each point." That is a response, but does that count? So, although, I must admit I have a certain amount of sympathy for Bob's position, I cannot see that it would be useful to require a response.

In the end though, to give bob a win would just increase my workload with TP junk, so I can't say I hope the Sumpremes take up the issue. But if they do, I'll be keeping close tabs.
I agree that the Supreme Court will likely not overrule their sovereign immunity doctrine ... and there is a good reason for sovereign immunity (just on the whole "shutting down the government with lawsuits" argument). Do I *really* want that to happen? Probably not.

But is it really in line with our democratic and republican institutions to think that the people envisioned a government which could not be sued ... AT ALL ... without the rulers permission? The articles are extremely interesting.

On the other hand, the judiciary has absolutely abdicated its role in judging the constitutionality of the acts of the legislative and executive branches with the whole "political question" doctrine (which is really a "standing" question).

It is awful frustrating to see the government do something plainly unconstitutional and for the courts not to entertain a suit because "well, that's a political question".

You got a frickin' job to decide tough cases ... you were picked for this job ... and now you want to punt because it's difficult?

There is a point to "standing" ... at least as it relates to "cases and controversies" ... at least that doctrine is supported by the constitutional text ... but "prudential" standing is really the court saying "we really don't want to get involved there ... although there's nothing constitutionally objectionable" ... we just don't want to hear this case or controversy because we deem it to be 'prudent' not to do so."
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Post by Joey Smith »

The U.S.A. who responded took a wrong turn by not responding that the case was moot because the IRS had indeed answered WTP's questions repeatedly through its publications.
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David Merrill

Post by David Merrill »

Joey Smith wrote:The U.S.A. who responded took a wrong turn by not responding that the case was moot because the IRS had indeed answered WTP's questions repeatedly through its publications.
Failure to state a claim. The Federal Reserve is the central bank of the United States, not US government.



Regards,

David Merrill.
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Post by Neckbone »

Joey Smith wrote:The U.S.A. who responded took a wrong turn by not responding that the case was moot because the IRS had indeed answered WTP's questions repeatedly through its publications.
I disagree. If USA responds by saying, "we answered your questions," that lends some credence to the argument that the govt. is obligated to respond to every nutjob petition for redress. Bad signal to send. Especially if the signal gets to someone like PAM or SFBFKADVP.

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Post by . »

that lends some credence to the argument that the govt. is obligated to respond
Perhaps if they had couched it as "While the US maintains that there is never any obligation to respond in any way whatsoever, we note parenthetically that all of the questions in the petition have been fully answered in IRS publications, both in print and on-line, rendering the petition moot and raising the obvious question of whether the petition is nothing but a frivolous vehicle to enable the solicitation of donations from the gullible for the undue enrichment of the Appellant's officer," they could have avoided lending any credence to BS's BS while pointing out the obvious.
All the States incorporated daughter corporations for transaction of business in the 1960s or so. - Some voice in Van Pelt's head, circa 2006.
Disilloosianed

Post by Disilloosianed »

It is awful frustrating to see the government do something plainly unconstitutional and for the courts not to entertain a suit because "well, that's a political question".

You got a frickin' job to decide tough cases ... you were picked for this job ... and now you want to punt because it's difficult?

There is a point to "standing" ... at least as it relates to "cases and controversies" ... at least that doctrine is supported by the constitutional text ... but "prudential" standing is really the court saying "we really don't want to get involved there ... although there's nothing constitutionally objectionable" ... we just don't want to hear this case or controversy because we deem it to be 'prudent' not to do so."
I've always understood the "political question" response to be the judiciary's way of punting, not because it's a hard question, but because they know that no matter what they say, it makes not a whit of difference. When it comes right down to it, if the Congress and the President simply ignored the Court's ruling on a "political question," there's nothing the Court can do. The President controls the military/law enforcement and Congress controls the money. You can think deep thoughts at things all day, but if you can't enforce it, your deep thoughts don't mean much.
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Post by LPC »

Disilloosianed wrote:
It is awful frustrating to see the government do something plainly unconstitutional and for the courts not to entertain a suit because "well, that's a political question".

You got a frickin' job to decide tough cases ... you were picked for this job ... and now you want to punt because it's difficult?

There is a point to "standing" ... at least as it relates to "cases and controversies" ... at least that doctrine is supported by the constitutional text ... but "prudential" standing is really the court saying "we really don't want to get involved there ... although there's nothing constitutionally objectionable" ... we just don't want to hear this case or controversy because we deem it to be 'prudent' not to do so."
I've always understood the "political question" response to be the judiciary's way of punting, not because it's a hard question, but because they know that no matter what they say, it makes not a whit of difference. When it comes right down to it, if the Congress and the President simply ignored the Court's ruling on a "political question," there's nothing the Court can do. The President controls the military/law enforcement and Congress controls the money. You can think deep thoughts at things all day, but if you can't enforce it, your deep thoughts don't mean much.
Well, I disagree with both of you.

Brian's statement about "plainly unconstitutional" seems to me to put the rabbit in the hat, so to speak.

My view is that the "political question" doctrine is based on two different problems:

1. The issue is not easily susceptible of a judicial resolution. Congressional apportionment is a good example of this problem. Once you move past "one man-one vote" and start to look at the shape of districts or their political affiliations, what standards do you apply? If a district is 30% Republican in a state that is 55% Republican, is that unconstitutional? How much variation do you allow? And what provision of the Constitution gives you any guidance on what is or is not allowable?

2. The Constitution has specifically vested authority in another branch of the government to make the decision in question and attempts by the courts to supervise the decision of the other branch is too great a violation of the principle of the separation of powers. A good example of this would be impeachment. The President can be impeached for "high crimes and misdemeanors," but the Senate is the "sole judge." If the House impeached the president for jaywalking (or speeding or some other trumped-up charge) and the Senate convicted, could the President appeal the decision in court? My answer would be absolutely not.

Schulz's claim that the "right to petition" requires some reasonable response raises problems in both areas. What is a "reasonable response"? What kind of standards could a court develop to determine what is or is not a reasonable response by Congress to a petition? And is it really appropriate for a court to tell Congress how much time they must spend considering petitions, or how their responses should be worded?

I don't think that the courts have any business telling Congress how it must respond to petitions.
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
Disilloosianed

Post by Disilloosianed »

I've never known the courts to really beg off a case that they really wanted to decide for the first reason. Think Brown v. Board and its progeny.
David Merrill

Post by David Merrill »

Neckbone wrote:If USA responds by saying, "we answered your questions," that lends some credence to the argument that the govt. is obligated to respond ... Bad signal to send.

Neckbone
Too bad Shultz never looked at that fact; that the FRB is not the US Government. See FRB St Louis v. Metrocentre Improvement District #1. LV-C-77-100.


But then again the Readers already know better than to petition one party to respond for another.



Regards,

David Merrill.
Last edited by David Merrill on Thu May 10, 2007 9:55 pm, edited 1 time in total.
Brian Rookard
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Post by Brian Rookard »

LPC wrote: * * * 2. The Constitution has specifically vested authority in another branch of the government to make the decision in question and attempts by the courts to supervise the decision of the other branch is too great a violation of the principle of the separation of powers.
I'm going to disagree at this point (and you're point is one that has been made here in Michigan where "separation of powers" has been used as a rationale to expand "standing" requirements to the point of silliness.

The argument of "separation of powers" is used (as you have used it here) to mean that one branch of government cannot oversee what the other branch of government is doing.

But that ignores the very evident purpose of separating powers ... as a system to restrain the separate branches of government by providing checks and balances. That purpose is often overlooked (or ignored) by the courts.

The federal courts have the specific power to decide cases and controversies arising under the Constitution. There is no exception for "when one branch of government is given the power to this or that."

By what rationale can the courts then say ... well, we don't have power to decide this case or controversy arising under the Constitution? ... when the Constitution specifically provides the hearing of cases and controversies arising under the Constitution?

Basically, the courts are using separation of powers to say that they *don't* have the power ... instead of the historically correct view where separation of powers *also* means that the courts are too be a check on the other branches.

I would cite Federalist 78, where I think it is apparent that the Founders have a much different conception on the role of the judiciary in these situations ...
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
hartley

Post by hartley »

Aw, damn.

Yes, the questions were stupid. And yes, the IRS had already answered them in their many publications.

But the suit went beyond that.

I think that WtP does have a point in that a "right to petition" means *nothing* without a corresponding obligation to respond.

It'll be interesting to see what SCOTUS does.
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Post by Red Cedar PM »

hartley wrote: I think that WtP does have a point in that a "right to petition" means *nothing* without a corresponding obligation to respond.
Apparently they (and you) don't think that it would be nice to be able to sue the government.