A. POSITIVE
"This Bloodless Liberty" is an important work of modern political philosophy. Its contents should be seriously considered by anyone concerned about the future of America. But the book goes beyond philosophy. It presents us with a unique strategy to move America back toward constitutionalism that is clever and maybe even feasible. The problem Zuniga addresses, in a nutshell, is that the American constitutional republic is failing as it merges into fascism, corporatism, and socialism. We may not all agree on a proper label for the direction in which America is moving, but we can mostly agree on the effect--Big Money is replacing We The People as the source of the powers bestowed on Government despite the Declaration of Independence injunction that Governments derive "their just powers from the consent of the governed."
The unique strategy proposed by Zuniga is to criminally charge individuals within the political establishment (e.g., Congress) for their roles in legislating violations of the U.S. Constitution. Such unconstitutional legislations turn over to Government the rights and powers explicitly guaranteed to the People and the States by the Ninth and Tenth Amendments of the Constitution. Such a proposal is not new but has existed more as a dream than as a viable strategy because the federal courts mostly operate at the pleasure of the executive and the legislative branches and would probably not take such a claim seriously. The uniqueness of Zuniga's proposal centers on bringing the criminal charges against the federal legislator in the state court of their home state for violating state statutes. Zuniga maintains that it is more likely that a state court could hear such a case without prejudice than could a federal court. He is probably right about that.
Here are some excerpts from Zuniga's book so he can make his case for the problem and the solution in his own words.
-- "This book is for Americans like me, who have had enough and who want to take America back. I'll propose a new way of relating to government: not politics, elections, or even secession. Not more faxes, petitions, or pink slips delivered to predators. Such campaigns have transformed hucksters into millionaires, but wrought no change in government. Instead, we must begin to perform our citizen duty assigned by the founding fathers. This book will demonstrate that America's plight is our fault; We The People are apex sovereigns over our Constitution. We don't look to employees to reform themselves; we use our retained power of oversight and law enforcement. To get America back, we must take it back rather than appealing to party machines."--
-- "Beyond being illegal according to our Constitution, fascism and socialism have failed throughout history. ... Despite their ad campaigns, realize that the government and corporations work for you exactly as a lion `works for' gazelles.
"However angry we may be at this cruel arrangement, cheers of `I want action, now!!' are not the wisest way to deal with predators. Gazelles must learn to think and work together to make a sturdy, reusable trap for the lions, that can also nab hyenas and jackals who share the lions' kill from the edge of the tree line.
"If there is one concept that you must grasp from this little book, it is this: as a citizen, you have the highest power of government within our Republic, and this popular sovereignty carries a heavy responsibility, far beyond voting." --
Zuniga then explains his unique strategy for taking back America. Each Member of Congress is subject to the laws of their home state. Zuniga proposes that his organization, AmericaAgain!, monitor activities of each Member of Congress, and when there is sufficient evidence that a state statute has been violated, that information would be passed to AmericaAgain! members in the home state district so that criminal action could begin against the Member of Congress. He defines a crime as any legislative action in violation of the U.S. Constitution, e.g., voting for a law that gives the Federal Government powers beyond those specifically enumerated in Article I, Section 8 of the Constitution. The Ninth and Tenth Amendments make it perfectly clear that such a power grab is unconstitutional. It is no credit to We The People that we have allowed such unconstitutional activity to flourish for well over a century until it has become solid precedent.
Zuniga summarizes his case as follows:
-- "Any twisting of the Interstate Commerce clause, General Welfare clause, or Necessary and Proper clause invites indictment on State charges such as criminal conspiracy, abuse of office, organized criminal activity, money laundering, legislative bribery, criminal solicitation, aggravated perjury, promoting a pyramid scheme, counterfeiting, and others. ... Every power, program, office, department, agency, regulation, project, contract, and bureaucracy from birds to bulbs, from toilet flushes to tracing devices that is not specifically enumerated in Article I, Section 8 of the Constitution is illegal and must be defunded. ... Threat of prison time and asset seizure will teach bent members of Congress the same lessons taught to Ken Lay and Bernie Madoff: crime no longer pays. AmericaAgain! is the end of politics and the beginning of selfgovernment mostly from home, on our terms." --
Zuniga presents such a self-assured case of the propriety of his strategy, that one must step back from it to examine the legal grounds for, and the realism of, successfully prosecuting such actions. Let us first assume that the judges in the state court systems take their oath of office seriously and are dedicated to a just administration of the state statutes. There is a tradition in the state court system of honoring requests for justice even when they push the envelope of accepted principles so long as they are submissive to an established statutory rule of law. Here are five legal issues that, in my opinion, must be considered in determining whether or not such a novel criminal case really does submit to established statutes.
1 What is the specific action of the accused that is in violation of a specific state statute? For example, (my example, Zuniga gives none) suppose one could closely correlate a congressman's voting record for benefits and subsidies to a particular corporation with the campaign contributions from that corporation. Would this be a credible step toward an indictment under the state's bribery laws?
2 What is the appropriate venue of this action? The defense might move to have the venue changed to a federal court. Must all parties be located in the congressman's home district or state?
3 Was there intent to break the law? This will be a very tough one to prove since any legislator can make the case that the legislation they support will benefit the general welfare or adheres to the precedence of the last century of progressively more socialist and fascist legislation upheld by the Supreme Court.
4 There is a long and growing tradition of jury nullification, wherein our founders vigorously approved of jurors not just deciding the facts of the case but critically considering the morality and the constitutional implications of laws and precedence. ([...])
5 This issue relates to the Supremacy Clause (Article VI) of the Constitution, which defines the supreme Law of the Land as the Constitution, the Laws of the United States, and all treaties, all three of these apparently equal weight with not even a mention of state constitutions or statutes. The following quote is from Zuniga's Chapter 3 discussion of why the Supremacy Clause is not a problem. His Madisonian argument, however, is not totally assuring.
-- "As James Madison always said: State trumps federal. ... We also hope to work with a planned new organization of constitutional State prosecutors who will take AmericaAgain! cases to State courts, enforcing the U.S. Constitution against bent federal actors, not by directly appealing to the Constitution's clauses, but using our State criminal statutes to assure that our cases remain outside the jurisdiction of the federal courts, owned by Congress. --
Zuniga neither proposes nor answers any of these important legal issues. He is the quintessential optimist. Optimism, however, must be viewed as a blessing rather than a curse; for without optimism, nothing is possible. There are tremendous hurdles to be overcome, but hurdles may be cleared with sufficient zeal and vision. Zuniga has lots of both.
B. NEGATIVE
Now let's turn from political philosophy to the quality of the book. I find three basic flaws: religion, poetry, and details.
1 RELIGION - Zuniga maintains that he is not religious. Normally I wouldn't care whether he is religious or a bricklayer. But in the case of Zuniga, his religiousness is of some concern. On p. 194, he says:
-- "I'm not a tax lawyer, CPA, tax accountant, nor do I offer legal or tax advice. I'm a follower of Christ first, a Texan second and an American third. We have the God-given right to speak about our rights and duties for self-government; the government and tax industry practitioners and terrorists can't restrict that right." --
Okay, you say, that's not too scary, and I agree. I can live with that. Then on p. 24, he says:
-- "Christians are optimists because we know the end of the story, that our story has no end. C.S. Lewis suggested that in the eternal scheme, one Christian is more significant than an entire civilization; thus our view of life is different from that of the atheist, hedonist, or false religionist. For us, Christ changes everything." --
That's starting to look scary.
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