On May 4, amateur historian David Barton appeared on Jon Stewart’s Daily Show. Barton’s central argument was that, constitutionally, the first amendment applies to the federal government but not to the states. Therefore, if individual states and municipalities see fit to make the Bible the sole standard for criminal and civil law, to reinstate chattel slavery or to make Christianity an official and protected religion, the federal government can do nothing about it.
Barton didn’t suggest that non-federal governments should do these things, merely that they can if they want to.
On May 14th, Jon Stewart invited Richard Beeman, an actual constitutional scholar at the University of Pennsylvania, to respond to Barton’s theory.
Beeman admitted that, prior to 1868, Barton’s states rights argument was valid–the US Constitution really didn’t apply to the states, only to the feds. Then came the 14th amendment, the first section of which reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
During the Reconstruction period, federal armies backed up the provisions of amendments 14-16, ensuring that all confederate state governments abolished slavery and swore loyalty to the federal government and the US Constitution.
Then came the Compromise of 1877 according to which the southern states signed off on the election of Rutherford B. Hayes in exchange for the withdrawal of all federal troops from southern soil. This led to the weird phenomenon we call Jim Crow. The southern states routinely deprived black residents of a wide range of constitutional protections and the federal government looked the other way.
This anomaly was masterfully exploited by Martin Luther King. By pointing out the great, aching gulf separating constitutional protections from social reality, King created a colossal case of national cognitive dissonance.
It should surprise no one that the most conservative fringe of the Republican Party has recently been calling for the repeal of the 14th amendment. Ostensibly, these folks are only concerned about granting citizenship to the children of undocumented residents, primarily those from Latin America. But the passion for repeal goes far deeper. At issue, as David Barton’s unconstitutional scholarship suggests, is the desire of state and municipal governments to return to the good old days when they were free to abrogate the provisions of the US Constitution at will.
It is often believed that the civil rights movement represents the vindication of federalism and the defeat of states-rights southern conservatism. To an extent, this is true. But it is equally true that, in the wake of the civil rights movement, the conservative movement hitched its star to southern white resentment. As the politics of America lurched ever rightward, the typically southern we-don’t-care-what-the-constitution-says reaction to issues like the equal protection of law and church-state separation has been ascendant.
The 14th amendment is still in effect, but we are rapidly drifting toward a second grand compromise in which the states and municipalities flout the provisions of the constitution with impunity.
It is becoming increasingly difficult to reform the criminal justice system on constitutional grounds because, as a practical matter, the Supreme Court has defined and interpreted many of its provisions out of existence. No one really expects the courts to provide equal legal protection to the politician, the police officer and the punk on the corner. The issue of racial bias within the criminal justice system has been largely laid to rest. How long will it be before the children of undocumented immigrants are regarded as non-citizens and the state of Alabama (or Texas, or Mississippi) is free to declare Christianity the official state religion?
This assumes, of course, that present trends continue–and that is something present trends seldom do. But it will take a dedicated moral movement to put steel back into the spine of the 14th amendment.
Friends of Justice 
Written law is practically always good, the problem is court procedure, I think. See my pending 10th Circuit mandamus 11- 1227.
The state constitutions are actually pretty good on their own. The Colorado Supreme Court affirmed PRO SE rights:
While equal protection of the laws does not demand that a statute or rule necessarily applies equally to all persons, it does require, under rational basis analysis, that a governmental classification which singles out a group of persons for disparate treatment be rationally founded on differences that are real and not illusory and that such classification be reasonably related to a legitimate state interest…. When the rational basis standard has not been met, the classification must be stricken even if the invalidation results in an additional administrative inconvenience to the governmental body. Administrative convenience, by itself, does not constitute a valid basis for the imposition of disparate treatment upon persons who, with respect to the activity in question, are basically in the same position as others who are not singled out for different treatment…
“The distinction created by the chief judge’s directive appears to be a distinction not between lawyers and non-lawyers but between pro se litigants and litigants represented by lawyers. The classifying feature of the chief judge’s directive, therefore, is the pro se litigant’s failure to retain an attorney in connection with a claim for which a statutory filing fee is required. The constitutional flaw in the directive is the lack of a rational foundation …the differences between pro se litigants and litigants represented by attorneys are so attenuated and illusory as to render the classification created by the chief judge’s directive arbitrary and irrational…. Such measures, however, cannot arbitrarily discriminate against the pro se litigant who, as much as the litigant represented by counsel, has the right to seek judicial relief for the redress of legal wrongs in accordance with procedures applicable to all who use the courts.”….
“The People assert that a rational basis for the classification can be found in the special relationship between lawyers and courts, in that the license to practice law and the obligation to conform to the Code of Professional Responsibility…. The chief judge’s directive at issue here clearly discriminates against pro se litigants solely on the basis of their pro se status and, in that respect, lacks any rational basis in fact and thus violates equal protection of the laws as guaranteed by article II, section 25 of the Colorado Constitution….. While an equal protection challenge generally arises in the context of statutory enactments, it applies equally to judicial action. E.g. Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948); Virginia v. Rives, 100 U.S. 313, 25 L. Ed. 667, (1879); Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1879).
Article II, section 6 of the Colorado Constitution states that “[c]ourts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay. Tassian v. People, 731 P.2d 672 (Colo. 01/20/1987)
You see they brought in the 14th Amendment by citing Shelley v. Kraemer but relied primarily on the Colorado constitution.
Put it this way! Pro Se, latin, what ever it means, is “fundamentally misconstrued” to mean, “Not one of us.” Welcome to discrimination that is equivalent to the animus generated toward the blacks by Ku Klux Klan, or the Jews by the Nazis. The only Pro Se cases I found that win are indigent cases, and this, in my opinion, creates a fallacy for those sympathetic to the courts to maintain the dehumanizing of Pro Se litigants under the logic of a straw man or red herring fallacy, that also misses the point. We can argue and seek credibility as pro se or former pro se. However, the rebuttal by those who adopt Nazi and KKK willful disparate treatment of self appointed lawyers, whose lack of finances mandates “Pro Se,” will simply point to the incremental cases that may exist, and the proletariat will agree with them, out of lack of knowledge of Aristotle’s philosophy that is barred from main stream curriculum. Study Philosophy, but I prefer to call it, “secret knowledge on how to make populace believe a lie.” Rhetoric is the key to revealing truth, or to deceive.
Soooo Having stated that. I posted the Hebbe case, because, even though Iqbal has been viewed by hasty generalization, it is clear that the error is apparent because Twombly
“…did not alter the treatment of pro se filings.” Pssst, look at the word “filings.” Okay so Pro Se, in my case, a county defense attorney could have photo copied Madison v. Marbury, changed the caption and called it a motion to dismiss, and the Magistrate, who, BTW, refused our lack of consent, would have dismissed it. Why the magistrate added testimony and false statement that could not be supported by the record is unclear, other than to show me that if he wanted to make allegations of any nature, he would, and he would get away with it, see case 2:08-CV-02269-KJM-EFB. One colleague of mine, in the civil right movement was arrested and had her bones broken simply for who she was. The Judge was only admonished, and allowed to continue violating the rights of others.
In a nutshell, we claimed that a § 1983 a first amendment violation occurred after a web site I published was criticizing a board of supervisor that caused her to be barred from running for a campaign as a state legislator, on Sept. 13 2007. Additionally we claimed, “but for” the web site, the defendant, with overt vindictive animus, in an attempt to regain confidence in the political party, she illegally fabricated written instruments of deceit, in the form of false arrest reports. She did this not in the capacity of a Board of Supervisor, but a private citizen using her power in office, clear abuse, to engage in racketeering political influence evidence by wire fraud and mail fraud. I cited exhibit A1, letter from late Senator Dave Cox, as the source of the evidence, with his state seal attached, qualifying it as “judicially noticed evidence.” I stated Exhibit A1, contained a rare form of evidence, not required to prove a conspiracy, but we had the rare form, see Dckt. 22 ¶ 22:
See, e.g., ES Dev., Inc. v. RWM Enters., 939 F.2d 547, 553-54 (8th Cir. 1991) (“it is axiomatic that the typical conspiracy is ‘rarely evidenced by explicit~ agreements: but must almost always be proved by ‘inferences that may be drawn from the behavior of the alleged conspirators”‘) (quoting H.L. Moore Drug Exch. v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir. 1981), cert. denied 459 U.S. 880 (1982)), cert. denied, 502 U.S. 1097 (1992).
The letter, wire fraud, included an “agreement” among my state and local officials that I was to be discredited, and it was ratified by all but Senator Dave Cox. It was bradcasted by fax to private parties, and all my elected officials requesting they “agree” to this illegal conspiracy. State Legislator Ted Gaines was the highest elected official, and he had our home raided by more than a dozen police, not to charge us with a crime, or arrest us, but the police said, “you can no longer contact your representatives, or we will return and it will not be so nice.”
No, I am in the U.S.A., not Afghanistan. [The press is not interested in informing society this behavior occurs. Go figure, but Sullivan v. New York Times explains how the press will no longer expose the corrupt workings of local government, to avoid being tossed by influenced judges to “instructed jury verdicts” that would remove dividends from stockholders. Pravda isn’t the only propaganda since Sullivan, and guess what, the USSR abandoned old school and caught on to USA abuse of power. Don’t force potential civil right advocates under ground, make them believe they have free speech, and they will walk right into the courts and receive intentional infliction of emotional distress via irrational court orders]. This is what the courts consider “Meaningful redress” for Pro Se Litigants.
I digress, but it was necessary. So even though I stated a prima facie first amendment case, for the first 2 years of 120 documents, were every plaintiff document was not addressed and ignored, violating rule 8, 12, 56, etc, though we had “genuine issues of material fact,” and the motion “undisputed facts” was unopposed, the court dismissed the case after 3 years, and we never saw the inside of the courtroom or met this disgusting Magistrate. It was a reversible rule 12(6) because the defense “fundamentally misconstrued” our stated claim, the “substantial motivating factor,” to a non alleged claim that we did not seek redress for. Though every objection noted this, they were ignored, along with genuine issues of material fact. I was amazed that the Magistrate direct quoted statements as a basis for dismissal and made citations to documents as evidence, that didn’t exist, and cited documents as further evidence that didn’t’ exist. Apparantly, subconsciously, he saw that the district court, absent this fabrication may question this. Otherwise, it seems unnecessary over kill, that is evidence that should put him in prison, if Gandhi is correct with his assertion, “There have been tyrants, and murderers, and for a time they can seem invincible, but in the end they always fall. Think of it–always.”.
My judicial counsel complaint, stringently excluded the disallowed “MERITS” of the case. It was based upon over bias and tenet violations, for instance one complaint was the denial of a request for time extension that was denied, even though my surgeon stated in a filed affidavit, “due to recovery of an operation with serious “complications” the patient is unable to perform duties.” But when the magistrate and the defense wanted postponements, they went on vacation, and treated each other like they were in an amusement park. I thought that was “outside the merits of the case” and was rational. However the appallate judicial counsel stated that my post lawsuit surgery, was a “merit of the case” and a basis to deny.
So this isn’t just district court nullification of Appellate court stari decisis, the courts despise us with impunity, and they have no deterrence. Abuse of power, though criminal under 18 USC 242, has been waived for judges, not by immunity, but by the awareness of the noted ignorance of the proletariat. Power is a synonym within the meaning of discretion, but does not spell out the word “power” in the statute. Remember Bill Clinton’s “the meaning of is?” Well abuse of discretion is not criminal, so Judges are allowed by law to be excluded from abuse of power, simply because we citizens are inept. I like to use the analogy Monty Pythons “Holy Grail” akin to the proletariat in the “knights” [law enforcement] explanation of “witch drowning” as a proper rationale to the peasants, “why do witches float, asks the good night?” One peasant retorts, “cause witches are made of wood and they float?” “Of course not” cries the Kight! “Aha,” proclaims the peasant, “because they are ducks!” Judges who are attorney’s, who are required to focus to a high degree; have been lead down a path and have abandoned humanity, who cannot focus. This diferrence though it is in intellect, has elements identical to skin color discrimination but invisible, therefore a lucky charm, magically delicious that disallows a focused discretion! Those who posses this power view us as dirty little crawly animal thingies. It’s not their fault!
But there is a trail that is very dark and in fact, the Ninth Circuit has identified elements where officials can engage in arbitrary denial of the 14th amendment equal protection and be the “cause of murder” by proxy. This happens when crime victims, disgruntled by police or court common bureaucratic negligence, certain of the worst of officials can orchestrate retaliation through the crime victims alleged perpetrator by ignoring rational basis facts. If they are being accused excusable negligence they take offense. One by product results by allowing the perpetrator to carry out crimes against the annoying crime victim failing complaints to superiors. Because any valid response to the victims redress validates the victims claim of negligence, another magically delicious power. I doubt this is common, but here is a case I will share, and there are more. I think the Ninth Circuit regrets making these implications, but it was upheld on 2010. Macias v. Ihde, 219 F.3d 1018, 1028-29 (9th Cir. 2000):
The Appellants contend that the district court “fundamentally misconstrued” the constitutional deprivation at issue in this case. They maintain that the alleged constitutional deprivation occurred when the defendants failed to provide Mrs. Macias with equal police protection in the months leading up to her death. Their brief states: 35
The district court erred in determining that there was insufficient evidence of actual causation in part, by misconstruing [the Appellants’] constitutional injury as `murder’ rather than `lack of equal protection.’ By so doing, the court ignored the evidence that [the Appellees’] arbitrary failure to enforce the law caused [Mrs. Macias] to suffer not only her murder on April 15, 1996, but the three months of harassment, stalking, and death threats that proceeded it.
This is how the courts perpetrate fraud, as a reversible error, even if it is maliciously done. Though, in our case, the content of the web site, explained that we, along with a large number of community members were being stalked at gun point by a mentally ill individual, according to court records. Other affidavits and signs on the individuals property reveal that this nut was as a campaigner for a District Attorney who after he got elected, dismissed attempted murder, vandalism, inter alia, contradicting his predecessor, who filed charges and gained preliminary hearing basis on indictments. The newly elected D.A. stopped making the previos 4 sepearte arrests and turned a blind eye to more violent crime spree, including a robbery of a store where the man threatened to murder employees and the assistant manage. He also refused to prosecute and enforce 5 separate restraining order contempt violations. If that is not the, “’inferences that may be drawn from the behavior of the alleged conspirators,” supra, you’d think, exhibit A would have done the trick.
But never was any of our complaint addressed or opposed. Instead a straw man fallacy was built by the defense, and it was obvious that the magistrate was influenced and obstructed justice by ratifying the straw man in spite of the record that showed they did not address my complaint and the did not provide a rational basis for denying constitutional right to “MEANINGFUL” access to the courts.
Even more horrifying to us was the discovery of another neighbor, at the same time, who filed a civil right claim against the same D.A. as a defendant and he had the Same Magistrate. I checked, and the Pro Se civil Right cases were funneled to this magistrate in a “course of conduct” that can be shown to be RICO violations. Though at one point he violated 636 usc provision by dismissing the injunction absent a District Court judge, a motion for protective order when violence was occurring against us resulting in assaults, and murder threats to our employees by the individual they were using to intimidate us.
We were shocked when, at the time of our motion for a protection order, John O’Sullivan the other civil right plaintiff, also was being disfavored as a Pro Se litigant, his stalker murdered him. Now go back up and read the Macias case. Magistrate Edmund F. Brennan was fully aware of the facts of both cases. Allegations were similar in that the D.A. defendant was favoring individuals arrested by former D.A.’s or in O’Sullivans case, his stalker was a retired Sheriff, and the favoritism was professional courtesy. O’Sullivan, after failed attempts to get Magistrate Brennan and other law enforcement agencies to abandon willful arbitrary denial of the 14th amendment, was murdered by the retired Sheriff, who is now serving life imprisonment.