The 1st & 14th Amendments, Due Process and Occupy Wall Street

“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.”

The first concept to understand is that this is a restriction that We The People have put upon our government, something we specifically deny Them (it, really) permission to do.  The BIll of Rights does not restrict citizens.  It is not a magic bullet that allows you to insult me in my home without recourse, for example.  Likewise, the right to peaceful assembly refers to public lands (and private lands with the owner’s permission) but it does NOT suggest, require or imply that one can drop in at Elton John’s estate and have a camp-out.

Now to the distinction between Rights and laws.  Rights are inalienable.  They are not privileges that the government (supposedly representing the will of The People) can grant or withhold.  They are absolute.  Therefore, the right to peaceful assembly and freedom of speech are both sacred, cannot be taken or restricted in any way by any government.

Some may say “That restricts Congress, but not States or cities.”  The 14th Amendment saw to that loophole.  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The first aspect is obvious enough; Federal protections are restrictions against state governments as well. The Due Process aspect is also important, as we shall soon see.

In 1855, the U.S. Supreme Court effectively defined Due Process to state that “it was not left to the legislative power to enact any process which might be devised. The [due process] 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.”  So when the cities say that Occupy Denver protesters are violating a city ordinance that prohibits occupying the park overnight, they’re attempting to do just that — to circumvent Due Process (which requires the involvement of an unbiased Judicial Branch.)  This is why those ordinances are trumped by the Constitution, why I’ve written that the 1st Amendment itself is their permit, and all the permit they need.

So you see, no one needs permission from the government to have a peaceful assembly on public land, nor can a state or local government get around that by making it illegal to do so, no matter what the ordinance may claim or state.  LIkewise with the freedom to express oneself, or to petition the Government for a redress of grievances.  It makes perfectly good sense that the state capital lawn should be a location at which one would gather peacefully to petition the government for redress of grievances, including (but not limited to) objecting to the carte blanche  that corporations have gotten from that government.

Please feel free to link to this article.  Get the word out, so people understand that what Occupy groups are doing is both lawful and within Constitutional guarantees.

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