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Constitution vs. Ideology
“The American Constitution is nothing more or less than Americans’ prevailing ideology. And this ideology—as any ideology comes from ideas about what is proper and improper, acceptable and unacceptable, desirable and undesirable, practical and impractical, noble and ignoble.” “The constitution is the actual legal framework of our society—and the actual legal framework in America today grants to government extraordinarily vast powers for intruding into the lives of peaceful people.”
The constitution only addressed our society's legal framework, however it did not address its foundation? You wouldn’t build a skyscraper on a shaky foundation. You wouldn’t even want to build your house on a shaky foundation. For a health society, without solid foundation, the framework "Constitution" can only be a game book for the powerful company/person.
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Re: What is the Foundation of Us Constitution
I don’t see the point you are trying to make. The U.S. Constitution does two things: (1) it establishes the federal government, setting out its organization into three branches and detailing the powers of each; and (2) securing for citizens certain rights against the government. It does not set out rules for regulating society and the restraints on government were mostly set out in the 18th century when the U.S. was primarily a fairly small (population wise) agricultural nation. It’s remarkable that the U.S. has thrived as long as it has with this same governmental system in place. While young as a nation, we now have one of the oldest continuing governments in the world.
The power given to the “powerful company/person” as you put it is only as much as the citizens as a whole have been willing to give. If voters truly were upset by that they could elect members of Congress and their state legislatures to more strongly regulate the rich and powerful. But not enough people are outraged by that. Voter participation in presidential elections has not exceeded 60% in the last 50 years. In that time, turnout in off years has not exceeded 45%. Moreover, in recent years the voter population has been, viewed nationally, very split and polarized. Americans seemingly cannot today agree on much, though I think there may be some more common ground than the media portrays. Nevertheless there is not enough common ground to significantly alter the power dynamics that currently exist in this country. But that is not the fault of the Constitution; that’s the fault of the citizens who make up this country. If you want to change that dynamic, you need to motivate people to get interested in the issues and, critically, get them to vote.
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Re: What is the Foundation of Us Constitution
Post hx is - interesting.
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Re: What is the Foundation of Us Constitution
Thanks for your comments. "It does not set out rules for regulating society". Why? Is it a black hole for our society? What is remedy for those issues including "federal laws"( issues of proper and improper, acceptable and unacceptable, desirable and undesirable, practical and impractical, noble and ignoble.)
"The Supreme Court is not a court of error. It does not intervene simply to correct injustices and misapplications of the law." If this is true, where and how to find the legal resolution for those petitions reached Supreme Court (98% of them would be denied)?
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Re: What is the Foundation of Us Constitution
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fgworld
Thanks for your comments. "It does not set out rules for regulating society". Why?
Because our founders believed, wisely in my view, that such rules were best left to Congress and the states to do. Enacting such rules in the Constitution would give them a permanence they do not deserve. Would we want to be governed today by the social order of the late 18th Century? Thomas Jefferson believed that government ought to be remade each generation to suit the needs and desires of the public at the time, a continual process of updating and refining our republic. You don’t do that by locking in detailed rules to govern society in the Constitution.
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Re: What is the Foundation of Us Constitution
Constitution does not regulate the society. It provides legal framework but no foundation or principles? The foundation or principle of society should be "truth, honesty, ethics, righteousness, virtue, fairness, goodness, Ten Commandments..."? Without these, the constitution is just a piece of document? We are fighting for win the case not the truth and rightness. That is why we have so many lawsuits that the legal system “could not handle”. We have the highest number of lawyers per capita and we are one of top 5 most litigious countries by capita in the world. We would create even more lawsuits and problems when the proceeding did not address root cause of lawsuit or the fundamental issues of many of problems in our society. Without foundation, how we apply the “frame work” and ensure the equal protection to all persons and allowing or excusing criminal actions such as perjury, forging document, contempt court order in the court proceedings?
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Re: What is the Foundation of Us Constitution
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fgworld
The foundation or principle of society should be "truth, honesty, ethics, righteousness, virtue, fairness, goodness, Ten Commandments..."?
I disagree. The Ten Commandments are rules used by two specific religions, Judaism and Christianity. Our society does not need to governed by religious rules and the Constitution prohibits the government from adopting any one religion or favoring one religion over another. Everywhere in the world that you see theocracies (governments based on or run by religion) you see some of the worst governments and societies, not the best. Truth, honesty, and fairness are certainly good things to strive for, but I have no idea what you have in mind for making those things the “foundation” of our society. If you mean those concepts should be adopted as legal principles that apply to every situation then we would have even more litigation if the law required every person to be honest in everything or required fairness in all circumstances. Do that and every time someone thinks another person lied they'll go to court and sue over it. Your girlfriend lied about why she was late — go sue her for it. Kid lied about why he didn't do his homework — sue him for it. Likewise, every time anyone thinks something is unfair, they’ll run to the courts to litigate it. Someone thinks it's unfair that her boyfriend dumped her — take him to court. Someone thinks that it is unfair that Joe got the promotion at work, sue the employer. It would be a mess and ultimately make us less free and our society more expensive if the law regulated every interaction among people. It should not regulate everything; people can and should deal with some things without resorting to the government and the courts to do it for them.
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Re: What is the Foundation of Us Constitution
You did not mention truth and evidences to prove if one wants sue someone? If you would put heavy penalty on both sides of lawsuit if anyone carry out untruthful actions and intentionally, for example perjury, things would change. Do you agree that someone estimate "if we do not allow or excuse lies or perjury in the system, the lawsuit numbers would be cut in half?"
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Re: What is the Foundation of Us Constitution
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fgworld
Do you agree that someone estimate "if we do not allow or excuse lies or perjury in the system, the lawsuit numbers would be cut in half?"
No, I do not agree. The law already penalizes perjury, so there is no need for another law that prohibits it. As a result, this isn’t something that will magically cut litigation in half. The problem with perjury is proving that someone actually lied as opposed to simply being mistaken or having a different view or recollection of what happened. Too often today when someone states something that turns out to be wrong the other party immediately jumps to the conclusion that the person lied. We need to start realizing that not every wrong statement is a lie. If we start to do that, we can resolve more problems amicably and well before they wind up in court.
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Re: What is the Foundation of Us Constitution
You stated a "ideal situation". In the real world I experienced was that persons lie under oath (during deposition and declaration) not only get away with penalties, but also be awarded with the case and judgments. And the worst part is that I can not sue the liars for perjury crime even with indisputable evidences because it is FBI/DOJ's "job" which they are selective decide who they are going to go after, who would let it go? It is unbelievable. That is the reason my question about our constitution and legal system, we don't have a way to stop this happening - committed perjury and other crimes without penalty, specially for powerful and rich people.
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Re: What is the Foundation of Us Constitution
If you have "indisputable evidences" of someone committing perjury you use it to discredit them in court.
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Re: What is the Foundation of Us Constitution
I don't have the chance yet, no hearing, no trial, no oral argument, just "denied", the case closed. Appealed to Supreme Court, still denied,,,
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Re: What is the Foundation of Us Constitution
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fgworld
You stated a "ideal situation". In the real world I experienced was that persons lie under oath (during deposition and declaration) not only get away with penalties, but also be awarded with the case and judgments. And the worst part is that I can not sue the liars for perjury crime even with indisputable evidences because it is FBI/DOJ's "job" which they are selective decide who they are going to go after, who would let it go? It is unbelievable. That is the reason my question about our constitution and legal system, we don't have a way to stop this happening - committed perjury and other crimes without penalty, specially for powerful and rich people.
That problem is not a defect in the Constitution. It is a defect in human nature. People sometimes lie. But proving that they lied as opposed to simply being mistaken is hard to do. We don’t punish people for simply being wrong. We do punish people for actually lying in court. The prosecutor needs to be sure he can prove that the witness actually lied rather than was simply mistaken, in order to win a perjury conviction.
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Re: What is the Foundation of Us Constitution
“We do punish people for actually lying in court.” Not true! How about Client's case?
"The prosecutor needs to be sure he can prove that the witness actually lied rather than was simply mistaken, in order to win a perjury conviction." What happen if prosecutor and victim even did not get the chance to prove the case in the court? If the Prosecutor can not prove in the court, the witness would be free and "win" the case. However, in the real world he/she did committed perjury. Our legal system and Constitution is all about win or lose, not about truth or false, in this case is intentional false - a crime is hard to prove??? Because we can not "handle the truth" or don't want deal with truth since various interests and power are more important than "law". FBI would spend lot of resource to investigate the "intention/connection" of the "emails leak" with no indisputable evidences while not provide resource and ignore the complain of perjury with forensic evidences?
Watched the movie "Heavens Fall" two weeks ago and felt that we are not living in the "heaven". Our system has lots of defects, however the worst part of it is few willing to recognize it not mention improve it?
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Re: What is the Foundation of Us Constitution
fgworld, I have to ask. Are you simply pulling together legal terms and phrases and posting them?
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Re: What is the Foundation of Us Constitution
Anything wrong with that? Your comments and suggestions? Thanks.
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Re: What is the Foundation of Us Constitution
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fgworld
Anything wrong with that? Your comments and suggestions? Thanks.
Usually understanding those terms and phrases is a prerequisite ...
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Re: What is the Foundation of Us Constitution
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fgworld
“We do punish people for actually lying in court.” Not true! How about Client's case?
What client’s case? Surely you are not an attorney, or you’d not have the misunderstanding of the law that you do. So what client is this?
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fgworld
"The prosecutor needs to be sure he can prove that the witness actually lied rather than was simply mistaken, in order to win a perjury conviction." What happen if prosecutor and victim even did not get the chance to prove the case in the court?
You might want to explain the circumstances if you want to get any feedback on this. The prosecutor can bring perjury charges if he or she believes there is a good case to pursue. Most of the complaints the prosecutor gets about perjury are, however, not very good cases. There just isn’t strong enough evidence to prove beyond a reasonable doubt all the requirements for a perjury charge. The persons making the complaint, of course, are absolutely certain that witness lied. Sometimes they are wrong in their belief. Even if they are right, there is still the matter of proving the perjury to a jury of people who know nothing of the witness or the truth/falsity of the statements the witness made. It’s one thing to believe a person lied; it’s another to actually prove it.
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fgworld
Our legal system and Constitution is all about win or lose, not about truth or false,
Our legal system is designed to allow each side to present their evidence and contest the evidence the other side presents. In that way, it is hoped that the jury will then be able to sort out from the evidence presented what the truth of the matter was. But humans are imperfect and so are the systems we design. Some people get away with lying. There is no way to completely prevent that. You are evidently upset at some particular case in which you believe a witness lied. The usual way to deal with that is for the other side to challenge the witness and expose the lie. If the other side can't do that, then they evidently lack the evidence needed to prove a perjury charge, too. But without details of what happened in that case there is no way I can comment on it.
If you think you have some brilliant new way to tackle the problem of lying witnesses, lay out your idea and you can get feedback on it. If you don’t have any ideas for dealing with it you might have to accept that right now the system we have, while imperfect, is the best we are going to do on this problem, at least for now.
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Re: What is the Foundation of Us Constitution
President Bill Client's "perjury" case.
If I can present to you and jury with the evidence of declaration of witness (about a process test) and photo (can be forensic proved) I took for the event. By comparing the two evidence you and jury can easily identify the differences and false statements. Do you think that it is "strong enough evidence to prove beyond a reasonable doubt" for perjury?
The simple way to tackle the problem is follow the law and due process. I was denied all the time and no chance so far to show jury the evidence and my points. I even can not sue the liars and have to wait for FBI/DOJ attorney to do that?
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Re: What is the Foundation of Us Constitution
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fgworld
President Bill Client's "perjury" case.
If I can present to you and jury with the evidence of declaration of witness (about a process test) and photo (can be forensic proved) I took for the event. By comparing the two evidence you and jury can easily identify the differences and false statements. Do you think that it is "strong enough evidence to prove beyond a reasonable doubt" for perjury?
You can present evidence that the photo contradicts a statement of fact that the witness made. But that alone does not prove the witness lied, i.e. that he knew at the time he made the statement that the statement he made was false. He could also have simply been mistaken and truly believed what he said was true. And that is the challenge in a perjury case: the prosecution must not only prove that the defendant’s statements were untrue, it must also prove beyond a reasonable doubt that the witness knew it was not true when he make the statement. In a lot of cases that is extremely hard to do, and if the prosecutor doesn’t think he can prove that, he’s not going to bring a perjury case.
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fgworld
The simple way to tackle the problem is follow the law and due process. I was denied all the time and no chance so far to show jury the evidence and my points. I even can not sue the liars and have to wait for FBI/DOJ attorney to do that?
You have not told us much about the lawsuit in which the person lied: what the case was about, what statements the witness made that you believe that were lies, or how you were harmed by the alleged lies, nor have you said whether you attempted to impeach the witness during that trial, and you have not indicated in what state that took place, and whether the lawsuit was in federal or state court. Did you represent yourself in that lawsuit? If you did, then you likely had problems getting your evidence before the court because you didn’t follow the proper procedure.
But in any event, no, you cannot sue the witness for perjury. Perjury is a crime, and crimes require the prosecutor to file the charges or seek indictment against the accused. So yes, you’d have to rely on the prosecutor to act to bring a perjury prosecution.
Finally, I have no idea what you mean with you reference to the perjury allegations that were made against former President Bill Clinton. I don’t see any connection here.
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Re: What is the Foundation of Us Constitution
Witness wrote a memo and published the memo to himself and HR manager (per email) within 2 hours of the event complete to document the details he "observed". He also took the notes during the event. The email was used in the courts as the key evidence from Defendant. However, my photo clearly about 11 statements and descriptions of that memo are false. During the deposition, witness refused to answer any question related to the memo and my photo evidence under instruction of his attorney. Few days later, he made the declaration (under oath) and stated the memo was true and correct "under penalty of perjury". Do you believe the witness committed the perjury as his action meet the four elements of perjury : an oath, an intent, falsity and materiality? It could be proved beyond a reasonable doubt!?
Client and other powerful people (the witnesses in this case) were not punished for actually lying in court (committed perjury)!!!
"Crimes require the prosecutor to file the charges or seek indictment against the accused", why not anyone can file the charges? Which federal law states that? What it would happen if prosecutor ignored and take no action about this?
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Re: What is the Foundation of Us Constitution
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fgworld
Witness wrote a memo and published the memo to himself and HR manager (per email) within 2 hours of the event complete to document the details he "observed". He also took the notes during the event. The email was used in the courts as the key evidence from Defendant. However, my photo clearly about 11 statements and descriptions of that memo are false. During the deposition, witness refused to answer any question related to the memo and my photo evidence under instruction of his attorney. Few days later, he made the declaration (under oath) and stated the memo was true and correct "under penalty of perjury". Do you believe the witness committed the perjury as his action meet the four elements of perjury : an oath, an intent, falsity and materiality? It could be proved beyond a reasonable doubt!?
Client and other powerful people (the witnesses in this case) were not punished for actually lying in court (committed perjury)!!!
"Crimes require the prosecutor to file the charges or seek indictment against the accused", why not anyone can file the charges? Which federal law states that? What it would happen if prosecutor ignored and take no action about this?
The State is acting on behalf of the victim. That's why you see State (or People) vs. Defendant, and not Victim vs. Defendant.
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Re: What is the Foundation of Us Constitution
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fgworld
Witness wrote a memo and published the memo to himself and HR manager (per email) within 2 hours of the event complete to document the details he "observed". He also took the notes during the event. The email was used in the courts as the key evidence from Defendant. However, my photo clearly about 11 statements and descriptions of that memo are false. During the deposition, witness refused to answer any question related to the memo and my photo evidence under instruction of his attorney. Few days later, he made the declaration (under oath) and stated the memo was true and correct "under penalty of perjury". Do you believe the witness committed the perjury as his action meet the four elements of perjury : an oath, an intent, falsity and materiality? It could be proved beyond a reasonable doubt!?
You seem convinced that the photo proves the witness committed perjury, but then you are biased in the matter. Your perception of the events would no doubt tend to favor you; that is simply human nature. The witness may well have perceived that same event differently. I haven’t seen the memo nor have I seen the photo. But even if the photo might prove that the statements made by the witness were not accurate, i.e. not true, there is still the problem that the government has to prove beyond a reasonable doubt that the witness KNEW it was untrue. Your posts in this thread suggest that the trial in this case occurred in federal court (if it was in state court you need to provide the state in which the litigation took place). The federal perjury statute is this:
Whoever--
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.
18 U.S.C. § 1621 (bolding added.) Note the parts that I bolded: the statute requires that the defendant did not believe the statement was true at the time he made the statement. The U.S. Supreme Court provided the basic test for the federal perjury statute as follows: “A witness testifying under oath or affirmation violates this statute if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993). Federal appeals courts have stated the rule from the Supreme Court as requiring the following: “The elements of perjury are that a witness: (1) when testifying under oath, gives false testimony; (2) concerning a material matter; (3) with willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.” United States v. Massey, 48 F.3d 1560, 1573 (10th Cir. 1995). The prosecution must prove each of those elements beyond a reasonable doubt. So it not enough to prove the statement was false. The government must prove that the defendant also believed it was false, i.e. the defendant had the willful intent to provide false testimony, at the time the statement was made rather than a statement that was made as a the result of confusion, mistake, for faulty memory. In a lot of cases, that is very difficult to prove.
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fgworld
"Crimes require the prosecutor to file the charges or seek indictment against the accused", why not anyone can file the charges? Which federal law states that?
The Fifth Amendment to the U.S. Constitution provides that federal criminal charges for capital (death penalty) offenses and offenses in “infamous crimes” must be brought by grand jury. Among the classic infamous crimes in English and American law was the crime of perjury. See Ex parte Wilson, 114 U.S. 417, 423, 5 S. Ct. 935, 938, 29 L. Ed. 89 (1885). The modern rule established by the Supreme Court is that an “infamous crime” is one that is punishable by a year or more of imprisonment, i.e. what federal law defines as a felony. This is now reflected in Rule 7 of the Federal Rules of Criminal Procedure (F.R.Crim.P.). The federal perjury crime is a felony offense and, as noted, was a classic infamous crime anyway, and thus the charge would have to be brought by federal grand jury indictment. The court impanels the grand jury, and the only parties who can be present with the grand jury are: “attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.” F.R.Crim.P. 6(d)(1). Thus, it is only the DOJ attorney who may bring matters before the grand jury. You are not allowed to present anything to the grand jury.
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fgworld
What it would happen if prosecutor ignored and take no action about this?
Nothing. The prosecutor has the discretion to decide which cases to prosecute. You cannot force the DOJ to prosecute and you cannot successfully sue the DOJ for not prosecuting the case.
You had the photograph and the witness’ statement. When the matter went to trial, you could have attempted to impeach the witness’ credibility. If the evidence from the photo was as strong as you believe it was, the jury would not have believed the witness and this would not be a problem. This is the typical way to deal with this problem and you see it in trials all the time. If you were unable to impeach the witness because you were pro se and didn’t know the procedure needed to do it, well that’s on you. If you represent yourself pro se you have to know the rules just like the attorneys do.
I realize that you are especially outraged that the witness, in your view, lied in his testimony. But you’ll have to get over that as your options for dealing with it are limited. You can complain to the FBI/U.S. Attorney about it, and I suspect you already have done that. It will be up to the U.S. Attorney to decide whether to prosecute the alleged perjury. If you believe the court erred in denying you the opportunity to present the photo and try to impeach the witness and if there is still time left to file an appeal then you may pursue that appeal. Apart from that, though, there isn’t any recourse for you on this.
You may just have to let this go. It does no good for you to dwell on things that are over and done with and that you cannot change. Ours is an imperfect world and not everything will turn out as they should if the world was perfect. We have to accept that sometimes in life we will be on the wrong end of something that is unfair. That’s just a part of life. Sure, it sucks, but continuing to dwell on it will only make you unhappy.
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Re: What is the Foundation of Us Constitution
Thank you very much for your comments and advice.
It is a federal case. Comparing with a similar perjury case ( Lipinski et. al. v. Meritage Co., Civil Action No. H-10-CV-605, United States V. Amy Fisher, 15CR 227.), I believe that I can prove those four elements of perjury with other and more evidences.
For insider is part of life. For outsider is part of nightmare? I will let it "fly" for a while before let it "go".