Well, I think I may have it, but in looking at it the past two days I'm not sure if I'm missing certain points to strengthen it. If anyone has time to look it over to point out any weakness and/or lack of clarity, I'd be happy to read your comments.
Introduction
Article VI, Section 3 of the U.S. Constitution states: "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution...."
Part 1
It’s established I visited the Channel Islands National Park and committed two misdemeanors: memorialization and tampering. I gathered together elements of a debris field from a plane crash and built them into a sculpture. On page 19, starting at line 13, Ranger Nelson, upon viewing the sculpture, states he was "...taken aback by the fact that the plane crash site no longer looked as it had for years." But as established in later testimony, page 82, starting at line 19, pieces of debris were blown off the field and down onto the cliffs and ravine lining its south side. The site in question was not static, but changing and deteriorating with time. "I can’t believe he ruined a whole chapter in history," Nelson recounts on page 36, line 4: in other words, what he considered a chapter in history, was actually being scattered to the wind. Nelson initially charged me with disturbing a historic site even though the site did not meet the criteria to be considered such.
On page 70, starting at line 24, Ranger Morales states: "...we get questions about that debris field all the time. People, if they do happen to see it, will ask about it. And it’s part of the history of that island. That aircraft had crashed, the pilot that lost his life. People are interested in that story in itself." Yet a review of the Santa Barbara News Press from March 5, 1949 shows a crash occurred on March 2, 1949, and happened on the opposite end of the island. So the reality of the situation was, we had park rangers providing the public with the information that the site was historic, dating to March of 1949, neither of which was true. On page 7, line 21, the prosecution states, "There’s only one site where there’s plane wreckage is still on the island, and that crash was in 1949." As of this date, to my knowledge, we still don’t know what date the crash in question occurred.
On page 64, starting at line 19, I asked: "Is it possible that someone could cut themselves on any of [the pieces of debris]." The reply, line 21: "Yes." The materials in question were hazardous.
Morales, on page 63, line 10, says: "...but these rocks here (referring to photo) also could be considered hazards. People trip." This was a disingenuous assertion, or a failure to make a critical distinction: the island is rock and you can’t remove that, but you can remove pieces of hazardous debris.
When asked by the prosecution whether the sculpture posed more of a hazard than before it was created, both rangers replied in the affirmative--Nelson on page 47, line 5: "Absolutely," and Morales on page 74, line 18: "Yes, I do." Yet, we’re talking about pieces of ripped/torn aircraft-grade metals that were sharp and hazardous. So how is it that sharp pieces of sharp metal gathered into on spot, clearly visible, are more dangerous than strewn across a field, hidden in grass? It’s absolute nonsense and the rangers should be reprimanded for asserting such at trial in a federal court.
There is also a contradiction of the NPS and Department of Interior in regards to their actions after the incident occurred. The debris field was part of the history of Santa Cruz Island, a park visitor (myself) took that debris and built it into a sculpture. Whatever the opinion of the rangers, the NPS, or the Department of Interior, the acts committed were in fact a new chapter in the history of that debris field. An officer for the Department of Interior, upon reaching the site, began to dismantle the sculpture, and then later the park rangers did more of the same. The NPS and the Department of Interior seek to prosecute for disturbing part of the park’s history, yet did exactly what they condemn. It doesn’t matter whether they enjoyed the sculpture or not, it was then history. As to the assertion the sculpture was an "attractive nuisance" it posed no danger to other park visitors, such as a cliff or remote lake might. It was a relatively small structure in the middle of a large, open field.
One of the goals I had sought to accomplish with this act was to point out to the NPS that they could turn debris fields of hazardous and/or unsightly materials into park resources by putting the call out to local sculptors and assigning them to gather those materials into something of value. In other words, proper management of the parks would include turning hazardous/unsightly debris into new park resources. They could establish criteria for such sculptures, and note them in their literature--including the history of how such debris came to be part of a park’s history. Out of this case I’d hope the court could recommend that to the NPS.
At sentencing I was order to pay $3,194.73 to the NPS for costs incurred in the prosecution of this case. Since it was established at trial the debris was hazardous and strewn across a field--none of it marked on site, nor noted in park literature as a warning--the rationale behind my prosecution may be construed as the NPS attempting to save face after their neglect and dereliction was exposed. The NPS ought to recognize I quite probably prevented a future injury and/or lawsuit, in addition to alerting them to their oversight in addressing the hazards, and/or to their failure to initiate steps to have the debris registered as historic (which was impossible in this case based on criteria set by the National Historic Registry).
It’s my position the NPS should be instructed to consider this matter a fortuitous act from which their stewardship can benefit in that it revealed a failure/neglect without a tragedy attached to it. It’s also my position that no restitution/fines should be required and I find it unfortunate the Government and the NPS would attempt to maintain the pretense that what I did was harmful, and instead not view this matter as nothing less than a blessing in disguise.
Part 2
On page 114, starting at line 25, and continuing on to page 115, the federal magistrate in this case states: "There were many alternate legal means to bring this issue to the attention of others.... In any event, committing a criminal act is not a proper way to bring attention to the issue, and for that reason I don’t find that the defense of necessity applies in this case."
As to attempts to bring this issue to the attention of others, I’ve traveled the country three times (the 2002 Olympic Torch Route, the 2004 Presidential Campaign, the 2008 Presidential Campaign), discussing this issue with Americans from all walks of life, and all political persuasions. I was instrumental in getting a federal lawsuit about this issue before the Supreme Court (Walker v. Members of Congress 06-244 U.S. Supreme Court [denied certiorari October, 2006]), of which I also produced a short documentary. Getting the suit before the Supreme Court and producing the documentary was done at a personal cost of about $10,000. I’ve written all my representatives in Congress about this. I’ve attended numerous national and local assemblies in regards to this issue: United For Peace and Justice, Yearly Kos, and 9/11 Truth conferences. I’ve blogged on political sites for over five years, in addition to making calls to political radio shows and C-Span too. I was left no alternative but to break a law, in order to get before a federal court to have this issue addressed and properly adjudicated.
On page 99, starting at the first line the Assistant U.S. Attorney states: "Defendant testified with respect to his constitutional arguments that the reason he went out to the island to construct the monument was because he felt that there was some type of constitutional problem. I’ve reviewed portions of the [supporting] brief.... I don’t see how factually and legally it applies to any part of this case."
First, the Model Penal Code, from which many states draw the language they use in wording their statutes, defines the necessity defense as follows: "Conduct that the actor believes to be necessary to avoid harm to himself or to another is justifiable, provided that the harm sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged."
Because I’d spent several years in attempts to raise awareness and a proper understanding of this issue, to no effect, I believe my conduct on Santa Cruz Island was necessary to avoid continued harm to the United States of America. Secondly, the brief in question listed over five hundred state applications for the Article V Convention. They were never addressed by the Government at trial. When the Government takes into account what precisely the Defense of Necessity in this case is based on, it has to acknowledge the state applications listed in the supporting brief (since trial took place, a national group, Friends of the Article V Convention [of which I was a founding member], have discovered more than 750 applications in Senate and House records; they’ve created a first-ever database of PDF files, found at FOAVC.org).
Part 3
On page 114, starting at line 15, the federal magistrate presiding over the trial stated: "As far as an act of civil disobedience to call attention to the [constitutional] issue, you’ve definitely accomplished that goal because we have spent the afternoon examining it and discussing it, and I was not aware of this issue until you brought that to the court to be discussed."
Page 6, starting at line 6 of the trial transcript, the Assistant U.S. Attorney states: "The government would move to exclude and strike from the evidence the trial brief filed by the defendant in this matter. I’ve read it in a little bit of detail, and I’ll confess that I don’t fully understand the entire trial brief. But what I do know is that it has absolutely nothing to do with this case factually or legally."
Because we had a federal magistrate stating in open court that they were unaware of this "issue," and the prosecuting attorneys stating they didn’t fully understand the supporting brief, we must take a moment to review a certain amount of information which sheds light on our circumstance. I do not mean to be condescending, but it’s important to review the following.
The word constitution is used to signify something superior to legislative acts: a text of principles beyond the control of a legislature, executive, court, private group, or private citizen. If the individuals who populate the federal government fail to protect the common good, the states cast applications for a convention to propose needed change(s). This is a profound constitutional principle, if not the most profound.
Since a constitution is a social agreement--a compact/covenant/contract--where the society agrees with each citizen, each citizen with the society; that all shall be governed by law for common good; that government is based upon that agreement between a people and a state, the pertinent legal issue then is the validity of applications on record.
The position of Anti-Conventionists is that applications in Senate/House records have somehow expired and/or are void because not cast within the same session of Congress, and/or because they’re not same-subject. It’s long be held to be an inferential leap to believe that any application, on any subject, at any time, can be combined with all others to mandate a convention. To get to the crux of this, the most recent amendment to the Constitution provides proper context in which to view it.
The 27th Amendment was ratified in 1992 though was originally proposed by James Madison, and was meant to be part of the Bill of Rights. It sat in the office of the Secretary of Congress all the way up to the point a college student from Texas discovered it, brought it to light, and in a natural progression of events it was ratified. It was originally proposed in 1789, which means it was active for over two hundred years.
Anti-Conventionists question whether the same principle applies to state applications for the Article V Convention. The reason the same principle applies is the reason the 27th Amendment was ratified: because no law existed which prohibited it.
Anti-Conventionists question whether applications should be effective 10,000 years from now, asking if it can be argued the Founders intended such a result? Is there historical evidence of such intent? Yes: Article V is the historical evidence of such intent. The Founders probably did not expect the Constitution and the several states to last for 10,000 years, does that mean if they do that they should expire at some point? An application for the Article V Convention is an expression between a state and the federal government and it lives on in perpetuity as long as there are states and a federal constitution, or until a convention is called.
Further evidence of intent is Federalist 85 and the numerous debates in ratifying conventions where it was brought up repeatedly: not to fear our new Constitution and national legislature for the convention clause: should the Congress become corrupt or compromised by special interests, it shall call a convention once enough applications go on record. Anti-Conventionists presume burden is to show why it doesn’t matter when or for what reason an application was cast, when actually, burden is to show why any single application has somehow become void or expired. Anti-Conventionists cannot provide the basis for such a position because only one law exists regarding them: Article V of the Constitution. Once the requisite number apply, the convention call is peremptory--ministerial in nature. Why? Because the Founders knew the worst in politicians would resist the Article V Convention at all costs. Why? Because it will do what it’s designed to: create a balance of power against a runaway Congress, purge corruption from that branch, and in turn make the other two stand to attention.
If I had committed the two criminal acts, and the requisite applications for the Article V Convention were not on record, I would be guilty. The reason the Defense of Necessity holds in this case is because the requisite applications are on record and the legislative branch to this moment has failed to carry out its constitutional obligation.
The U.S. Constitution is currently in a state of violation and therefore suspension due to this violation by Congress. The Constitution is the contract between the people and the individuals they elect to office, and it has been and is still to this moment being violated by the 111th Congress. This is the ultimate harm to We The People, elected officials failing to obey their oath to protect and defend the U.S. Constitution. It’s our right to the Article V Convention when governance fails us, and to point out one of the many ways it’s failed us (and perhaps the most important way), is its inability and/or reluctance, due to the influence of special interests, to create an effective national standard for voting. Figures vary, but more than half the country currently cast votes on privately designed and manufactured voting machines, the source code of which is proprietary. Voting is the issue upon which all other issues rest and without transparent elections you cannot have a free society--the two are one in the same. The people are not only being denied their freedom, but government for them, by them.
While burden is on Anti-Conventionists to substantiate their position against convoking the Article V Convention, the following citations refute them:
Marbury v. Madison, 5 U.S. 137 (1803): "It cannot be presumed that any clause in the constitution is intended to be without effect." In other words, the convention clause of Article V is not without effect.
Martin v. Hunter’s Lessee, 14 U.S. 304 (1816): "The government of the United States can claim no powers which are not granted to it by the Constitution." In other words, no branch of government has the power to question the validity of a state application for the Article V Convention.
Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539 (1842): "[The] Court may not construe the Constitution so as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them." In other words, to question the validity of a state's application attempts to construe and defeat the obvious ends of the convention clause.
Dodge v. Woolsey, 59 U.S. 331 (1855): "The departments of the government are legislative, executive and judicial. They are coordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, right-fully done by either, is binding upon the others. The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, any thing which may be done unauthorized by it is unlawful." In other words, the three branches of government are unauthorized to question the validity of a state application because the power to do so does not exist. In fact, according to Federalist 85, the saving grace of the Constitution is the prohibition of such a power. The validity/effect of each state application is based solely on its having been cast.
Jarrolt v. Moberly, 103 U.S. 580 (1880): "A constitutional provision should not be construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at which it was aimed." In other words, to attempt to question the validity of a state application, either through its contemporaneousness or subject matter, is to attempt to defeat its purpose and allow the mischief at which it’s aimed to suppress.
U.S. v Sprague, 282 U.S. 716 (1931): "Where intention of words and phrases used in Constitution is clear, there is no room for construction [re-interpretation] and no excuse for interpolation." In other words, any attempt at construction or interpolation as to the validity of state applications runs counter to the intention of the words used in Article V.
Ullmann v. U.S., 350 U.S. 422 (1956): "Nothing new can be put into the constitution except through the amendatory process, and nothing old can be taken out without the same process." In other words, there's nothing in the Constitution which places any stricture in any way whatsoever on the validity of state applications for a convention. If Anti-Conventionists wish to limit the validity/effect of a state’s application, they must propose such a law and then work to have that law ratified.
Ullmann v. U.S., 350 U.S. 422 (1956): "As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion." In other words, the constitutional guarantee to a national convention is currently suffering subordination because of the applications on record, and based on the rule of law the Article V Convention is mandated.
Part 4
In refusing to obey the law of the Constitution and issue the call for the Article V Convention when required to do so, members of Congress are violating their oath of office. Congress has never altered the Article V Convention clause by constitutional amendment, the original language written in the law by the Framers and its original intent remains undisturbed and intact. That law specifies a convention call is peremptory on Congress when the states have applied for a convention call and uses the word "shall" to state this. The applications are on record.
When members of Congress disobey the law of the Constitution and refuse to issue a call for the Article V Convention when peremptorily required to do so by that law, they have asserted a veto power when none exists nor was ever intended to exist in that law. This veto alters the form of our government by removing one of the methods of amendment proposal the law of the Constitution creates. Such alteration without amendment is a criminal violation of 5 U.S.C. 7311 and 18 U.S.C. 1918: "Whoever violates the provisions of section 7311 of title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he (1) advocates the overthrow of our constitutional form of government [and] shall be fined under this title or imprisoned not more than one year and a day or both."
The definition of "advocate" is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311. One provision of Executive Order 10450 specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate "the alteration ... of the form of the government of the United States by unconstitutional means." Our form of government is defined by the Constitution of the United States. It can only be "altered" by constitutional amendment. Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331 which alters our form of government, other than by amendment, is a criminal violation of the 5 U.S.C. 7311.
5 U.S.C. 3331: "An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services shall take the following oath: ‘I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’"
Conclusion
I have combined two criminal acts, the Defense of Necessity, Congressional Records, and our Constitution in order to have the court order this constitutional mandate satisfied by the current U.S. Congress.
Our situation today is fortunate in that we can resolve more than one national issue by convoking a convention. 1) It will reset the number of Article V Convention applications on record. 2) A 28th Amendment proposal on electoral reform, capable of ratification, will likely result. 3) It will check special interests currently influencing governance in the USA.
If it’s reasonable to think that if you alert a police officer to a crime in progress, they will take action, then it’s just as reasonable to think that if one presents a constitutional violation to the judicial branch and the officers of that branch, that they too will take action.