Tag Archives: law

Legal “Education”

12 Tuesday Mar 2013

Posted by in Legal/Political Columns

≈ 6 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , ,

This post follows Muddling Through College.  It is intended as a truthful assessment of what life in law school is like and the relationship between legal education and the practice of law and society in general.  As with my undergraduate article, I realize that my experience is dated by a good decade.  Actually, it’s been a pretty bad decade – especially for the legal industry.  Therefore, again, I have tried to incorporate “modern” materials herein as well.

I once heard attorney-turned radio talk show host, Neal Boortz state that when he began practice law in the early 1970s, the law was still a profession.  He then said when he left the law in the early 1990s to pursue radio full-time, the law had degenerated into a trade.  Several times I recall him saying the happiest day of his life was the day he put his status with the Georgia State Bar in the inactive category.  I will update his cycle now – the law has further degenerated into a racket.

The average attorney is greeted by society with all the warmth and affection people normally reserve for a visiting termite.  I hear lawyer jokes every week.  Most are pretty damn funny.  I am one of the few attorneys not offended by these jokes.  Most attorneys do get offended even if they don’t show it.  The reason is that most know the jokes have a great basis in truth and they don’t want to admit the facts.

Mr. Boortz once said, speaking of attorneys, “No other group has done more to help and to damage our society.”  He’s right.  Lawyers were behind the Revolution, the Declaration of Independence, The Constitution, the civil rights movement, and numerous other causes for freedom.  You never hear lawyer jokes in a criminal court.  In a jail holding area or cell block, we are greeted like rock stars.  However, pick any oppressive, illegal, dishonest, or otherwise unsavory law, business, or relationship and you’ll find lawyer DNA all over it.  As a judge I once clerked for said, “It’s amazing how bad most attorneys are.”

The bad begins in law school.  There are about 200 law schools in America which have received the ABA’s seal of approval.  There are more which operate by special rules within their respective states.  U.S. News and World Report ranks and categorizes law schools every year based on a set of semi-relevant criteria.  Schools fight hard to place high on the list.  I don’t see the point.  Judging by the performance of their graduates, all the schools seem equally bad.

prof law

(This cat never practiced law and won’t teach you anything.  Google Images.)

Max “I Hope They Serve Beer in Hell” Tucker wrote an awesome article, http://lewrockwell.com/orig14/max-t1.1.1.html, on reasons NOT to attend law school.  Read it!  I agree with every single thing he said.  By the way, I fell under the Want To Change the World category.  I learned its damn near impossible to change a neighborhood, let alone the world.  And, most people don’t want any change – they enjoy their serfdom.

After four (or 6, 8, etc.) years in college one must score decently on the LSAT and submit a rigorous application in order to gain entry into even the lowest ranking law school.  Once there, one is suddenly trust into an environment that eerily resembles high school.  That’s the law school effect, everyone reverts to teenager-ish behavior and attitudes.  Nothing is actually taught in law school except how to look up information and fill out forms.  You can learn a thing or two in a specialized elective class but nothing therein will appear on the dreaded bar exam of any state.  Given the sad state of the profession, dependant on the exam’s function as a brutal hazing to enter the fraternity, you would think law professors would concentrate on the subjects covered by the bar and the methodology employed for the tests (Byzantine).  They do not.  In fact, after graduating you MUST take a private prep course in order to have any chance of passing the test.  I theorize that any well-educated person could take such a class and pass the bar.  I was not supposed to tell you that.

The majority of instructional time is instead devoted to instilling reverence for the system.  Courts, judges, and their opinions (case-law) are sold as the Gospel.  Rebels like me are interested in core concepts behind the law and the betterment of humanity.  The average student simply accepts the drivel and becomes a system cog.  As I have stated elsewhere, the average lawyer does not know and does not care why we have law or where the law comes from.  Natural Law may as well be officially forbidden by the ABA.

Once one passes the bar and gets that first legal job another enormous short-coming becomes alarmingly clear.  Law schools do not prepare anyone to practice law.  A friend of mine, a Federal Magistrate Judge once asked me, “Remember when you got out, and knew nothing?”  New attorneys are thrown to the wolves.  Half can’t hack it; I think 50% is the current percentage who leave the law sooner than later.  The other 50% live in a nightmarish state, dreaming of getting out. 

In the old days, and in a few foreign countries (Scotland comes to mind), students of the law would apprentice with an existing attorney or law firm for a number of years in order to prepare for actually practicing law.  They would simultaneously “read the law” on their own to gain a full understanding of core concepts.  After satisfying their mentors, the apprentices would be admitted as attorneys, with or without examination.  That’s how Thomas Jefferson, John Adams, Abradamn Lincoln and Cicero did it.  Today, only California, Maine, Vermont, Virginia, and Washington still allow “reading” and I imagine it is discouraged.  This process denies law schools reason to exist and deprives budding young lawyers of their $100,000+ school loan debts.  Students might also emerge ready to practice if allowed to study under a competent attorney.  I’m not supposed to tell you any of this.

I have applied for several positions, academic and administrative, at a variety of law schools of late.  I am hoping my experience will give me an advantage.  One would think it was.  I make a particular point to explain that I want to help as many young people as possible actually prepare for the racket….er…profession.  Oddly, many law professors have never practiced law a day in their lives, many aren’t even members of a bar.  It makes sense, in a way, as law school has absolutely nothing to do with practicing.  That evil bar exam (truly a horror worthy to justify the myths) has nothing to do with school or practice either.  Like the schooling, it’s just there – an unavoidable obstacle to tackle.

Law students become attorneys disillusioned, in debt, unprepared, and in today’s market, with slim job prospects.  Most new attorneys today, who can find a job, earn less than $60,000 per year.  The big bucks go to the elite few who land jobs with major law firms.  At those firms, newbies (with all the problems I mentioned) can start at $150,000 or better.  For that pay, they have to “bill” 2500 hours a year.  Billing 2500 means working 4000; that means working 80-100 hour weeks, every week, for about $30-$40 per hour.  Tucker gives examples of jobs that pay that well, don’t require all the time and hassle, and don’t necessitate wasting 3 years in law school.  Remember, those are the best of the best jobs.  Most big firm associates wash out quickly or else end up in mental institutions or under bridges.

lawyer

(Welcome aboard, young associate.  Google Images.)

Ponder what I have written here if you think you want to join the lawyer club.  Some people are meant to be attorneys and will do well at their chosen work.  Most will drudge on miserably until the retire, die, or go nuts.  Some, like me get out.  Well, I’m trying to get out.  Leaving the law can be like leaving a street gang.  You have to walk a gauntlet to exit.  Please pray I make it.  As for you, avoid the whole racket if you can.

PS: I issue a challenge to all attorneys and law school faculties!  Change the system!  Concentrate on the theory and the practice of the law itself and dispense with the case worship, the obsolete mysteries, and the false illusions of nobility.  For you, read Alan Watson’s The Shame of American Legal Education, 2d ed. (Vandeplas Publishing, 2006).  Watson, of Scottish legal training, nails the problems of the American system.  Let’s change it.

The United States Constitution

08 Friday Mar 2013

Posted by in Legal/Political Columns

≈ 8 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

The United State Constitution is a historical anomaly.  The Constitutions of the several States are as well.  Our English predecessors had a Constitution of sorts as did the Romans long before.  These are however, rarities.  Many nations today have “constitutions” or charters which allege the rule of law, but which in reality are no different from the dictatorships and dominions of old.

Traditionally, most people have lived under one regime or another which ruled by the whims of men and the force they could exert.  Ayn Rand discussed this phenomenon, labelling it “Attila and the Witch Doctor.”  For the New Intellectual (1961).  Attila is representative of the ruling big man, a brute whose law” extends from the barrel of a gun or the tip of a spear.  The Witch Doctor is the “holy” man who finds some “divine” reason to justify Attila’s power and also placated the people to avert their suspicion or anger.

In 1775 the American colonists were under the rule of a gentler Attila, King George, III, who was constrained by Parliament and the English Constitution.  He even had a state-chartered church to serve as the Witch Doctor.  The next year the colonists declared their independence from England and instituted on earth thirteen new nations.  During the Revolutionary War these nations were united in Congress due to their dire predicament.  In 1781 the 13 states adopted the Articles of Confederation (the ratification process began in 1777) which tied them loosely together for mutual benefit.

Not being satisfied with loose ties, in 1789 the early Americans drafted a stronger document to commence a stronger central government – the Constitution.  The first ten amendments to the document, the Bill of Rights, came along in 1791. 

Constitution_Pg1of4_AC

(The Constitution.  Federal Archives.)

People like me are always rallying to the Constitution, its limits on government power, and it’s protection of individual rights.  When comparing the reality of modern American government to the government set forth in the original text of the Constitution, the two things seem polar opposites.  Thus, the constant call for a return to Constitutional government.  There is no doubt, from a libertarian perspective, the latter would be far easier to accept than the former. 

However, the problem I have finally come to terms with is that the two opposites are really the same thing – separated only by time.  Again, I quote Lysander Spooner: “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it.  In either case, it is unfit to exist.”  “Unfit” is a harsh assessment, but it is probably the most intellectually honest view. 

I have personally sworn (affirmed) several oaths to support and defend the Constitution as an attorney.  Then, immediately, I have been told to look the other way as nearly every provision of the document is rendered moot.  The government these days does what it wants, end of discussion.  Its power is always on display.  If one or two of your rights happen to be respected, be happy.  The government will tell you it gave you those rights!  There is no respect for the letter of the Supreme Law.

In 2009, then Speaker of the House, Nancy Pelosi, was asked by a reporter, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”  Mrs. Pelosi responded with indignation, “Are you serious?  Are you serious?”  She then put on the record that the question was not serious.  http://www.aim.org/guest-column/yes-nancy-pelosi-we-are-serious/.  The question was dead serious and the true answer is “nowhere.”  Truth gets in the way.

Rep.  James Clyburn clarified the issue: “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.”  http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html.  Jimmy was brutally honest.  Over the long-span of our Republic, a few pet phrases and ideas in the old parchment have been used to systematically justify the awesome growth of the federal government – the commerce clause, the necessary and proper clause, the general welfare clause, national defense, and taxation.  Today, when most of what the government does is illegal, they don’t even try to justify their actions.

This was hard for me to accept as an attorney.  Actually, I never did accept it.  In many (most) cases there absolutely nothing I could do for the interests of true justice and Constitutional fidelity.  However, I remain one of the few who will stand on principle to the point of Quixotic excess.  I do not fear being labeled wrong when I am right.

Here’s how the Constitution was supposed to work.  It was quite simply compared to today’s leviathan.

First, please read the Constitution.  Here’s a link: http://www.archives.gov/exhibits/charters/constitution.html.  This is the official site of the Constitution, complete with pictures of the original text.  Make it a “Favorites” link on your browser. 

The Constitution created the federal government, divided into three branches.  The branches were listed in order of importance.  Article One defines and empowers the legislative branch, Congress.  The powers of Congress or the legislative authority it has are mainly derived from Section Eight though a few powers reside elsewhere (some have been added by subsequent Amendments).  The powers enumerated in the text are the only powers which Congress may legally exercise.  The Tenth Amendment says so.  The number of these powers is the subject of some speculation among libertarians.  Some count the individual sub-sections only.  Some delineate each power from the subsections – I follow this approach.  Some extrapolate reasonable relations between the individual powers.  However you calculate them, the powers are few in number.  Let’s say there are about 30.  That’s it!  Those are the only things the government is supposed to do. 

Today we are trapped under tens of thousands of laws and countless regulations which cover literally everything imaginable.  The regulations are issued by various agencies, supposedly to implement the laws Congress passes.  You can find this mind-boggling collection of verbosity at: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.  Don’t make too close of a study; the regulations change constantly.  In my view none of these rules are valid as they are not the expressly permitted work of Congress.  However, the agencies that make them have armies of men with guns to ensure compliance.

Article Two concerns the executive, The President. The President’s authority is even more minimal than Congress’s.  He is supposed to only attempt to enforce the valid laws Congress passes, run the day-to-day operations of the government, and prosecute wars as declared by Congress.  That’s about it. 

Of course, today the President is a virtual government unto himself.  The executive’s ability to take “emergency” action and the constant acquiescence to these actions by the other branches, have made the President the most dangerous part of the central government.  He issues Executive Orders, which were originally only supposed to concern policy implementation within his administration, but today are taken as Acts of Congress (without Acts of Congress).  My view is that almost all of these Orders are invalid.  There again, the President is in charge of all those armies of armed men and the regular military too.  He usually gets his way.

Article Three concerns the federal Judiciary.  This article only established the Supreme Court.  It left another power to Congress to create and empower inferior courts of different kinds.  Originally, legal matters were supposed to be handled by State Courts for the most part, with the Supreme Court deciding differing outcomes from different States when a controversy arose.  Many libertarians think the judiciary has become too powerful.  Perhaps it has.  Most attorneys take the opinions of the courts to be divine.  I do not, for the most part, agree.  Congress has the ultimate authority over law in this nation and has the power to override a contrary court decision.  Congress also has the express authority to limit the jurisdiction of the courts, meaning Congress can prohibit a court from reviewing certain matters.  Congress rarely uses this power.

The rest of the original articles explain various concepts, procedures, and guarantees.  Perhaps the most important feature of the remaining articles is in Article Five – the procedure for adding Amendments to the Constitution.  This has been done 27 times since the original charter was enacted.

The Bill of Rights, those first 10 amendments, was added as a cautious afterthought.  The rights therein were acknowledged as Natural Law in origin and eternal.  In 1789 all ten were taken as a given.  The Founders assured everyone, including each other, that due to its explicitly limited nature, the new government would never be a threat to individual liberties.  There was no point in adding statements of protection.  But, in 1791, suspicion gave way to action, and several core rights were definitely stated and protected.  They have been poorly defended of late.

The remaining seventeen amendments were added over the course of years.  Most granted the government more power.  Only one of those has ever been repealed – the 21st Amendment, the only one ratified following State Convention origination, repealed the 18th Amendment, which outlawed alcohol.  In my estimation, of all the Acts of the federal government in its entire history, none were more cruel than the 18th Amendment.  During a period of dramatically increasing federal power and erosion of individual liberty, the government decided to take away the People’s ability to legally drink their serfdom away.  Thank God it was erased after only 14 years.  True to form though, the government could not simply end prohibition, rather, the ability to regulate alcohol was passed on the States.  The ATF and your State’s revenue department bear witness to the enduring character of legislative folly.

In conclusion, while the Constitution may be revered as creating a government of limited powers, it still created a government.  That government has vastly exceeded its authorized power to the detriment of our Liberty.  I would like to see a return to The Articles of Confederation or some other less powerful central state.  This is not likely to happen.  The best alternative would be to simply adhere to the Constitution as written, no more.  This is equally unlikely to occur.  As is, we will have to wait until time takes its toll on the remains of the Republic.  This process may not be pleasant for us.  Plato described the cycle of the theoretical state about 2500 years ago – we would appear to be somewhere near the end.  Aristocracy gives way to timocracy (rule of land owners).  Timocracy becomes oligarchy (the rule of an elite).  Oligarchy degenerates into democracy.  Democracy can also be called “ochlocracy” or mob rule.  Ultimately this paves the way for a despot to seize power.  The cycle then repeats. 

We can really only hope that someday, a future generation will learn from our mistakes and correct them.  History says that correction won’t last long.

Don’t Drone Me, Bro!

07 Thursday Mar 2013

Posted by in Uncategorized

≈ 4 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

This post rambles from subject to subject.  Be forewarned.

Drones…

Just last night I thrilled you, my dear readers, with a few news stories concerning the law.  While Attorney General Eric “Fast and Furious” Holder refuses to prosecute super-rich banksters for criminal wrong-doing, he has no problem using drones to murder “ordinary” Americans for any reason or no reason.  Well, in his defense, He said the drones would only be used to thwart catastrophic events like the 9/11/2001 or Pearl Harbor attacks.  I don’t believe him.  It doesn’t matter since he’s not in charge of when the triggers are squeezed. 

This morning I was listening to the radio and had the privilege of hearing my friend Austin Rhodes (WGAC, 580 AM, Augusta) give his morning commentary.  He initially praised Senator Rand Paul (Ron’s son) for his filibuster yesterday which targeted the administration’s dystopian law enforcement policies.  Then he surprised me.  He, playing devil’s advocate, asked if a drone strike on David Koresh (remember him?) in 1993 would have prevented the later bloodshed at Koresh’s Seventh Day Adventist Church in Waco, Texas.  At first I was indignant but then I realized the value of his question.  The ultimate answer is “who knows?”  No-one does for certain.

It is my opinion that the government was out to get Koresh and his senior worshippers and would have slaughtered them all anyway.  Austin and I disagree on the nature of the events that unfolded in Waco twenty years ago.  That’s the beauty of America, we can agree to disagree.

There was much disagreement in early 1993, regarding the pre-assualt on the church.  For instance, the warrant obtained by the Imperial stormtroopers was defective.  Perhaps they could not decide on what, if anything, was wrong with Koresh and Co.  That might explain the defects in the law sited to obtain the warrant.  The local Sheriff and the State of Texas disagreed with the feds that crimes were being committed in the church.  A JAG officer (military attorney), when asked about the legality of deploying military assets for this domestic law enforcement “operation,” disagreed with his inquirers.  He reported the scheme was illegal, a violation of the Posse Comitatus Act, etc.  The first Stormtroopers on the scene must have disagreed about the wisdom of carrying communication devices in case something went wrong, whether to open fire immediately upon exiting their horse trailer (official police version), and whether the church members would return fire.

In the end, the dissenters were silenced.  The rest is history.  As I recall the Empire had several grounds for the War in Waco: 1) income tax evasion; 2) illegal drugs; 3) illegal firearms; and 4) the abuse of children.  I think they eventually proved the tax count as they can prove that against almost anyone due to the psychotic nature of our tax laws and regulations.  I think there was no evidence of the guns or drugs – any existing specimens would have been destroyed in the government’s fire.  As for the children, while I recall some survivors insisted there had been some sort of impropriety, most (all?) of the children were killed in the fire or crushed to death beneath the Army’s 70-ton tank.  Some may have been shot by snipers.  Anyway, there wasn’t a lot of evidence after the fact.

Still, none of this answers Austin’s question.  I’ll pose a question which is easy to answer definitively: Would a drone strike on Rev. Koresh been legal?  Two questions, really – Would the drone strike have been ethical?  The answer to both questions is a certain “NO!” 

The Fifth Amendment to the Constitution is clear – “No person shall be … deprived of life, liberty, or property, without due process of law…”  (Emphasis added).  The Fourteenth Amendment backs up the Fifth’s Due Process provision.  These concepts date back the Magna Carta in 1215.  The truth is eternal, it remains the same in 1215, 1791, 1993, or 2013.  The theory is that if the government wants to kill someone, they must adhere to a certain process.  We generally refer to the key part of the process as a trial (Jury, evidence, and stuff).  The theory jives with what that crazy carpenter, Jesus Christ, talked about twelve centuries before King John admitted his authority was not arbitrary.

For those of you who might have heard Austin and taken his question as a simple endorsement by mistake, how about this: Would Sheriff Whittle’s use of a drone against Scott Dean saved us the trouble and expense of a trial?  He was convicted, after all, by twelve wise citizens.  The fact of his innocence and his accuser’s later recantation are irrelevant for this discussion.  For those of you fortunate enough not to live in Cornfield County, Scott Dean was a County Commissioner.  He adopted some girls.  One of the girls, a teenager with a history of lying in court, accused him of a heinous crime.  He denied any guilt but was convicted none the less.  He went to prison.  Then, his lying adopted daughter, safely out of the country, admitted she made the story up and Dean was in fact innocent.

Since the recent revelation of Dean’s innocence I’m sure the twelve men and women who sent him to prison have the utmost difficulty sleeping at night.  Can you imagine the Sheriff’s guilt and shame had he used a drone instead of the law?  Natural Law and its proper extensions in the corporeal world are important.  “I’d give the Devil benefit of law, for my own safety’s sake!”  Saint Thomas More, A Man For All Seasons, 1966.

Due Process of law is a Natural Right to which every person is entitled when human laws exist.  This was obvious to earlier generations of Americans.

Too Big…

In my recent second installment of Slavery In America, https://perrinlovett.wordpress.com/2013/03/05/slavery-in-america-part-ii-of-iii/, I mentioned the Big Club members who are invested in our modern plantation.  The giant banks are charter members of the club.  I mentioned their immunity from criminal prosecution last night.  It seems they are too big to fail, too big to jail, and they are rapidly sucking up all the wealth in this country.  See this story: http://theeconomiccollapseblog.com/archives/corporatism-a-system-of-control-designed-by-the-monopoly-men-of-the-global-elite.  It’s about “corporatism,” the fascists’ bastardization of capitalism.  It’s an excellent article from an eye-opening site.

It Could Be Worse…

We could all be stuck in a cage and abandoned at the car wash…

0307131156a

(This poor guy was!  He was happily adopted though!)

Yeah, ramblin more than normal… 🙂

A Funny Thing Happened On The Way To The Election

05 Tuesday Mar 2013

Posted by in Other Columns

≈ 3 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , ,

In 2004 I did a stupid thing.  Despite my libertarian leanings I once involved myself with the local Republican party.  I did this partly as a networking opportunity and partly as an attempt to side with the famous “lesser of two evils,” a political compromise if you will.  As a result I wasted a lot of time at various party events, listening to irrational people ranting about hateful or pointless things.  I learned a valuable lesson though and I have never placed myself in such a demeaning situation again.

Something funny (or alarming) did happen.  I’ll relate to you now.  I actually got a little bit of wisdom out of the whole experience.  Maybe you will too.  Mainly I learned the Party was useless and certain of its members and supporters were untrustworthy at best.  This story relates to one of the chief events which taught me the lesson.  Enjoy!

It was George Bush, the Dimmer’s, second Presidential campaign.  I was invited to travel down to Marietta, Georgia to attend a luncheon seminar on the subject and what the “grassroots” folks could expect.  The featured speaker was Ralph Reed of former “Christian” Coalition and political snake-oil fame.  The event was held in a trendy hi-rise and the crowd was composed of typical Republican types – older white folks in suits and such. 

bush-stupid-facial-expressions

(The Misunderstestimator.  Google Images.)

Ralph went on and on about how Bush could and should win, if only us little people would do our part.  I was more interested in the menu than the rhetoric for most of the meeting.  Then I caught something Ralph said which made me laugh openly.  I nearly choked on my scone.  He was commenting on how hard it would be to win the re-election, or any new election for that matter, thanks to the Draconian and likely illegal provisions of the dreaded McCain-Feingold campaign finance law, recently enacted.  He went on for a few minutes about the horrors of doing business under the new law and then opened up for questions.

You probably can guess what happened next.  I couldn’t resist.  I raised my hand early and when called on I asked, “Do you mean the same McCain-Feingold law authored by Republican John McCain?  Ralph, reading my thoughts, nodded affirmatively but uncomfortably.  I kept on, “You mean the same law passed by the Republican majority in both houses of Congress?  Ralph began to sweat.  At this point, several of the well-fed attendees looked up from their dessert dishes.  I pressed on, “You’re talking about the law signed by President Bush, the same guy with the current troubles?  Ralph was white and shaky.  He had a hard time answering me.  A few more of the Rush-bots began to listen.

I further inquired, “This is the law which Bush said was probably UnConstitutional, but that he’d sign anyway?”  Ralphie swooned.  I should have stopped but I just could not help myself.  Most of the herd was still grazing thoughtlessly, but I had a large enough audience for my point.  “Didn’t Bush sign the law only to say the Supreme Court would work out the details?” I asked.  At this point Mr. Reed determined to leave early and stopped my questioning with a vague, “Uh, yeah…that law.”  He didn’t want the suits to catch on if they could.  There were no more questions.

As if by chance, or design, I happened to take the same descending elevator as Mr. Reed.  I pressed a little further.  I didn’t want to harass the poor guy but the fun was too good to let slip past.  I asked rhetorically, “I guess it’s up to the Supreme Court, now?”  Ralph began to turn green but responded, “Yeah.  We’ll have to see what they say.”  I ended the verbal water-boarding, “And, we can always count on them, can’t we?”  I wish there was a video to corroborate my story.

The first time I was alone afterwards I laughed loudly for minutes on end.  The ride home was unremarkable though.  I don’t think the person I accompanied ever caught on to what I was implying.  To her, whatever this new law was, it was just another part of the process – our team versus theirs.  What it really meant was that the home team consisted of a bunch of F—ing Morons!  I’ve never seen Ralph since and he won’t accept my Facebook friendship request.  Bad memories I suppose.

The law turned out to mean nothing to the ticks and has since been largely over-ridden.  The Supremes did make their ruling – a classic in my opinion.  They pointed out the oppressive, free-speech limiting nature of the law, but concluded that since it pertained to the two political branches, and since those branches had approved it, the Court would too out of deference.  So they did!  As I said the law has been rendered moot for the most part.  Politicians don’t mind stamping out the little people’s rights and opportunities, but they sure as hell won’t have any law impinging on their schemes.

free-speech

(Justice Scalia did note the chilling provisions of Mc-Gold on “average” people.  Google Images.)

In the end, I guess nothing was gained or lost, except any respect I had for Republicans not named Ron Paul.

The Second Amendment

04 Monday Mar 2013

Posted by in Legal/Political Columns

≈ 17 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

This is a follow-up to some of my recent columns, Posse Comitatus, A Short History of Gun Control in America, and others.  The Second Amendment and its subject matter have been in the news recently as part of the never-ending “debate” over gun control.  The Amendment has also received special attention from the U.S. Supreme Court twice in the past five years. 

My purpose here is to explain what the Amendment means and what most commentators (even pro-firearms authors) miss in their reading and application.  Even if you do not own guns or have an interest in them, this issue affects you and your Liberty.  Somewhere in the writing process I realized I should have divided this into several segments.  My apologies for the heft of the article.  Sadly, I didn’t even get to add in half of what I should – maybe a book is in order?  certainly a follow-up’s follow-up.

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Second Amendment to the U.S. Constitution (1791)(entirety). 

minutemen-revolutionary-war-11

(Minutemen staring down British Regulars.  Google Images.)

The Second Amendment has absolutely NOTHING to do with hunting, sport shooting, and weapon collecting.  Those activities are important and are rights which derive from Natural Law.  However, they are ancillary to the purpose of the 2nd Amendment.  Ancillary also are the issues of self-defense and defense of others and of property from attacks by common criminals.  They to are the absolute rights of the People (absolute, under appropriate circumstances).  However, none of these things, which are commonly attributed to the true nature of the 2nd Amendment and gun ownership, fall under the actual purpose of the Amendment.

There are two primary reasons why the 2nd Amendment was included in the Bill of Rights.  First, the Founders wanted a heavily armed population so that the nation and the constituent States might be well defended from foreign or outside aggression and invasion.  Second, and most important, the Founders wanted the People heavily armed in order to overthrow or repel the State governments or the federal, national government in the event said government ever became tyrannical in nature and operation.  The true purpose of an armed people is to resist tyranny.  This is not only the right of the People, it is also their solemn duty.

Politicians do not like being reminded of this fact these days.  Perhaps their guilty consciences get the better of them given the nature of modern government – as close to tyrannical as just about any in history.  For reasons given herein and, those which I plan to elaborate on in a future column about arms, the ticks have little to fear.  As I have written elsewhere, most humans like to be controlled.  In the absence of fair masters, they will take any master that comes along.  I hope you, by your nature or by reading this article, are a member of the few who prefer freedom to slavery.  Your existence makes the tyrants sweat.

For the longest time the Second Amendment was largely written off by the legal “profession.”  When I was in law school I was told the Amendment (and a few others) didn’t really exist.  I found this strange.  The Amendment was there in the text of the Constitution and its plain language made perfect sense (the 10th Amendment was the same way).  Try as I could, I could never locate the provision which allowed for the murder of babies.  The law school community regards this right, in blasphemy, as if it had been written by God himself. 

Then again, law school has little to do with the law.  The one thing that was not required reading in my Constitutional law classes was the Constitution.  No mention was made of the natural underpinnings of the Constitution.  It’s no wonder most attorneys emerge from this environment without the slightest knowledge of whence our laws are derived.  I was different, I always am.  I read the old documents and inquired as to why certain things were included and excluded textually.  I read a lot.  At the time, the only legal textbook in print which even mentioned the 2nd Amendment was the one compiled by Laurence H. Tribe of Harvard law fame.  His mention was very brief, but at least he had the curtsey to include it at all. 

Most Consitutional law education focuses on two things: 1) the supreme power of the government and; 2) a few pet rights with plenty of case law material for professors to quote (the 1st Amendment, for instance).  I also have columns underway to explain both the Constitution (briefly) and the convoluted subject of Constitutional law.  You’ll have to wait for those.

As I said, the 2nd Amendment received little official attention for many years.  Early in our history and it that of our English forebears, the concept of a well armed population was well enshrined.  It was taken as a given that men would be armed.  The Founders went the brave extra step and set the armed people as defenders of their own Liberty against the heinous forces of organized government. 

Thomas Jefferson was rightly fearful of the problems posed by a standing government army.  The Declaration of Independence was full of accounts of the crimes committed by King George through his armies.  The mandate for a militia rather than a professional army found its way into the Articles of Confederation, Article 4.  While armies are allowed under the Constitution, they are supposed to be limited to a two-year duration, they were meant as an emergency measure.  U.S. Constitution, Article I, Section 8.

In the debates leading to the Constitutional Convention, both the Federalists (in favor of the Constitution) and the Anti-Federalists (fearful of a strong central government) denounced the practice of standing armies as grave threats to liberty. 

Writing for the Federalists Alexander Hamilton, himself not the greatest proponent of decentralized liberty, reiterated the common saying of the time that standing armies “ought not be kept up, in time of peace.”  Federalist, No. 26.  In No. 28 Hamilton asked mockingly, against the fact of armed State militias, when could the federal government ever amass a sufficiently threatening army?  As Monday morning’s historical quarterback, I suppose the answer was “in about 200 years.”  Hamilton also thought the two-year budgetary limitation placed on the army would render it ineffective for tyrannical purposes.  Federalist, No. 24.  Out of the pocket again, we now have a standing army fighting numerous “wars” despite the absence of a federal budget for four years.

The Anti-Federalists were equally fearful of a central army.  In his Tenth Letter, January 24, 1788, “Brutus” (most likely New York judge Robert Yates) warned of two dangers presented by a standing army.  First, it could be used by leaders against the people in order to usurp power.  Second, the armies themselves could “subvert the forms of government, under whose authority they were raised…”  As examples he cited the once free and constitutional Roman Republic and British Empire. 

Interestingly, the Second Amendment could have contained anti-army language.  The Virginia Convention proposed a Bill of Rights (June 27, 1788), which would have had the second amendment as seventeenth.  It would have read: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in times of peace, are dangerous to liberty, and therefore ought to be avoided, as far as circumstances and protection of the community will admit, and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  I rather like that.  The Pennsylvania Minority had put forth a similar proposal on December 18, 1787. 

During the forty-fifth Congress, Rep. William Kimmel of Maryland, author of the Posse Comitatus Act, echoed the sentiments of the Founders as he quoted Tacitus, “Is there any escape from a standing army but a well-disciplined militia?”  7 Cong. Rec. 3579.  He also quoted Lord Bacon, who remarked of the Tudor years of English history, a “mercenary army is fittest to invade a country but a militia to defend it.”  Id.  Many were the quotes from members of the House and Senate on similar points.

The issue faded as the 19th Century progressed because it was still taken for granted that free people should be armed.  As I noted in Gun Control, the States and the federal government from this period to the present, began to enact various illegal, and progressively worse restrictions on gun ownership.  The 2nd Amendment did make appearances in law and court cases though during this period of general dormancy.  I will discuss two such cases here.

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court ignobly affirmed black slaves were property as opposed to people.  However, the Court’s reasoning touched on the 2nd Amendment.  If slaves were considered human beings, then they would be entitled to human rights – such as the right to bear arms.  This case gave silent acknowledgment to the 2nd Amendment, which law professors somehow overlooked or wrote off.  It also slaps their Supreme Court worship in the face.  The fallibility of their god also seems lost on them. 

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court held the 2nd Amendment only protected firearms with militia “value.”  Mr. Miller was arrested for illegal possession of a short-barreled shotgun, one of the weapons regulated under the UnConstitutional 1934 National Firearms Act.  I always thought this case made some sense.  If the only guns protected are those of use to the militia or the military, then it would seem the people have a right to own those types of weapons.  And, if they are entitled to own those, why not allow them all lesser guns (like short-barreled shotguns).  Subsequently, shotguns of reduced length came in useful to the army GIs and Marines in Vietnam and other tight, uncomfortable places. 

The delusional legal community took Miller  to mean something else, something only a law professor could belive – that the 2nd Amendment protects a government’s “right” to keep arms.  The deliberate misinterpretation of Miller during the last half of the 20th Century gave rise to the idiotic “collective rights” theory, an impossibility in and of itself.  The theory lead to the belief of leftists and statists alike that the 2nd Amendment gave the government the “right” to organize a body such as the National Guard.  This was ludicrous.  Only individual persons have rights.  Individuals with rights can join together in the exercise of those rights, but the rights themselves never acquire group status.  The status certainly never transcends from the people, individually speaking, to the government.  Governments have powers, not rights. 

The point was finally clarified (as if such a plainly worded sentence needs clarification…) by the U.S. Supreme Court in two cases early in our current Century.  In District of Columbia v. Heller, 554 U.S. 570 (2008) the high Court overturned D.C.’s illegal law restricting handgun ownership.  The Court also held the Second Amendment did in fact confer upon the people a fundamental right to keep and bear arms.  The collectivists were crushed.  The Court actually noted the Natural Law right of self-defense.  The law professors were confused.  The opinion limited its reach to federal laws and enclaves (like D.C.) and appended certain language regarding “traditional” uses of firearms.  The Court also made notable mention of the proper relationship between the people and the militia, but they did not reach my ultimate conclusion from Miller. 

In my humble but professional opinion (I are a Constitutional and firearms law litigator person, after all), the legal opinion rendered by the D.C. Circuit Court of Appeals in its earlier hearing and decision of Heller, D.C. v. Parker, 478 F.3d 370 (2007)(Parker was then a co-plaintiff with Heller and several others), was a far better recitation of the 2nd Amendment, its meaning and origins.  Judge Laurence Silberman went to great lengths to explain the original meaning of the “militia” and its prerequisite condition of an armed people.  I will comment on this subject a little later, in my own words.

I met Judge Silberman at a legal education luncheon (CLE) in 2008, while Heller was pending the Supreme Court.  I thanked him for his contribution.  However, as is so often my way, I was disgruntled that afternoon and made my usual sarcastic comments to kick off the meeting.  CLE’s do that to me.  Imagine paying a good sum of money for a decent lunch which you can’t enjoy because some dude or dudette is babbling on about the law.  Anyway, I recall referring to D.C. as “the District of Corruption.”  I did this before a small gathering of government attorneys and government-dependent attorneys.  Judge Silberman gave me a nervous chuckle, the rest of the crowd was aghast at my … honesty.

Anyway, the 2008 opinion was good enough of a start.  Two years later the Court added to the new body of 2nd Amendment law.

In MacDonald v. Chicago, 561 U.S. 3025 (2010) the Court, in striking down an illegal Chicago law, “incorporated” the effect of the Second Amendment to the States, via the 14th Amendment.  Many libertarian scholars are dubious of the theory of incorporation but I will not touch on that here other than to say the 2nd Amendment must be respected by the States.  This makes sense, as far as it goes, as no entity may legitimately violate fundamental human rights.  The Court also included some dangerous language in the decision, particularly regarding the possibility laws may place “reasonable restrictions” on firearms ownership.  The reference may prove a trojan horse for gun owners, especially in light of those restrictions already in place (NFA and GCA) which are now taken for granted.  I do not take them so and I have no faith in government to keep any additional restrictions “reasonable.”

Other, newer cases are working their way through the courts, generally with good success.  I think the Amendment is finally getting some of the respect it deserves.  I also don’t think Congress will act to rashly regarding new restrictions, yet, even in the face of the ridiculous hysteria raised of late. 

I began by stating the Second Amendment is about the people resisting government tyranny.  I do not advocate herein the violent overthrow of the government.  Such action, even if warranted, would likely end in disaster.  Besides, given the suicidal tendencies of the federal and most state governments, such action would seem pointless.  I said “even if warranted” because once any government exceeds its scope and purpose to the point it becomes a threat to, rather than a defender of, the Liberties of the People (the only real reason for the existence of government), then again, it is the right and duty of the people to shrug off such tyranny.  When such action is taken legitimately, it is not an act of rebellion.  In fact, at such point, it is the government which is in rebellion and deserving of correction.  This may be subject matter for another future column.

The Founders, being highly suspicious of standing armies in the service of a central government, determined to set up a militia as a proper alternative.  A “militia” is merely the organization to some degree of all the armed men in a jurisdiction.  Every State in the Union still maintains a militia, completely separate from the National Guard.  The militia of a given state is generally divided into two classes – the “organized” militia and the unorganized.  The organized consists of members of the State defense force, whatever it may be termed.  These are voluntary citizen forces under control of the Governor.  They are generally neutered these days but retain the ability to become a combat ready force.  The unorganized force consists of all able-bodied males (and certain females) between certain ages (adults, generally).  I am a proud member of the unorganized Georgia militia!

These militias are primarily at the disposal of the States and can only be utilized by the federal government in certain cases.  The main point of this system is that the weapons are supposed to be in the hands of the people, not the government.  This is specifically true regarding infantry weapons.  A militia member should, today, be able to report for duty with any weapons available to a modern infantryman.  This would include fully automatic rifles (including SAWs) and shoulder launcher systems (Stingers, etc.).

We currently are restricted from such weapons, illegally, by the NFA and the GCA and amendments.  Also, as a counter to my central premise of militia dominance, the federal government has done a terrible job regulating the militias.  The States have all but abdicated their independence and authority to Washington.  Washington has also taken advantage of this situation by raising and maintaining huge standing, professional military forces in perpetuity.  This is all contrary to the intent and the language of the Constitution.  The American people have also undergone a dramatic transformation.  Regarding these instant issues, the populace tends to regard militias as dangerous bands of domestic terrorists while literally worshipping the federal Imperial military.  How many yellow ribbon decals have you seen promoting the militia?

This leads me to my final point, the concept that so many people miss regarding the Second Amendment.  Most historical analysis has focused on the “militia” preface and the “right of the people” action clause, or both together (see Judge Silberman).  What everyone seems to miss is the “security of a free state.”  A state, according to the Founders and their wisdom could only be preserved by an armed people serving as the militia.  The key word here is – “FREE.”  Given the decline of liberty, seemingly demanded by the people, can we be said to live in a free state anymore?  If we do not, is anything else important?  I would, of course, answer affirmatively.  I’m not so sure about my fellow countrymen.  This may provide material for a future column.  Your thoughts?

Interposition, Nullification, and Secession

25 Monday Feb 2013

Posted by in Uncategorized

≈ 5 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Last year I started this humble blog with a short column on the unGodly ObamaCare decision from the Supreme Court, https://perrinlovett.wordpress.com/2012/06/28/the-shared-responsibility-tax-obamacare-a-hit-with-the-supremes-4/.  ObamaCare is not about healthcare for anyone.  It is merely an Insurance Company welfare scheme with taxes that no-one knew were taxes (not even Obama) and bankruptcy-inducing mandates. 

At the end of that early missive I promised to cover possible solutions to the mounting problem of federal tyranny.  Specifically, I named interposition, nullification, and secession as possibilities.  Let’s talk about those now, briefly.

Well, first let’s see how the Republicans did with reversing the law as they boasted they would.  I recall some GOPer saying they would overturn the nightmarish law before the Supremes even got to rule on it.  Didn’t happen.  After the ruling they said they would eliminate the massive tax act before their chosen man, Mittens Romney, the founder of the ObamaCare School of Medicine, won the election.  None of that happened either.  With the nation staring down the barrel of a potentially economy-wrecking gun, they said they would stop the law before it took effect on January 1st of this year.  Having proven themselves to be lying, delusional idiots, we can write off the buffoons of the Elaphantitis party.

Back to my proposals – I’ll take them in the order I first set forth, as that seems to be the hierarchy from least to most extreme.

Interposition

Interposition is a process whereby a State of the American Union declares an Act of Congress or some other federal action to be UnConstitutional and positions itself as a shield between the feds and the citizens of the State.  Wikipedia says that the federal courts have held this an illegitimate theory and that only they have the power of Constitutional review – “Judicial Review.”  See: http://en.wikipedia.org/wiki/Interposition.  Wiki doesn’t mention it by name, but the theory of Judicial Review originated, federally speaking, in the case of Marbury v. Madison, 5 U.S. 137 (1803).   Maybe you’ve heard of this landmark case, students of “Constitutional Law” are taught to revere it.  I was never impressed. 

First, this was one of a shady series of early Supreme Court cases concerning personal profits unfit for court review at all.  Second, if this case did deserve formal investigation and resolution, then such should have been undertaken by the political branches whom the matter concerned anyway.  Third, and most importantly, judicial review by the federal courts is a legal fiction.  Nowhere in the Constitution is the right granted the courts to rule so authoritatively on our laws.  Had the Framers intended such power, they would have written it in; several State Constitutions do grant this power to State Courts (Georgia, for example).

I do not withhold the ability of any court to say a law is UnConstitutional.  Courts should point such out when discovered.  In fact, any branch may make that determination.  President Bush, the Dimmer, said that the McCain-Feingold Campaign Finance law was UnConstitutional, then signed it anyway.  Before that, obviously, Congress had deliberated on the law and must have sensed its illegality.  Bush remarked that the Supreme Court would have to make the ultimate determination.  They did.  Ironically, the Court essentially said (and rightly) the law concerned only the political branches and since both had approved the measure, they would too out of deference.  I had an outrageously humorous “discussion” about this fiasco with a political celebrity in 2004; I’ll relate that in a future post.  This was a case of government gone wild.  Of the three branches, law-making is the art of Congress; correcting bad laws is also.

Anyone who can read and think can declare a law within or without the bounds of the Constitution.  I do it all the time.  However, my power of enforcement is rather weak to say the least.  The theory of interposition, and that of nullification, comes from the ability of the States to so declare a law.  Their power is greater than mine and their authority is a bit more grounded than that of the Courts.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  U.S. Const., Amendment 10.  UnConstitutional laws are those based in authority which is not among those very few expressly Constitutionally delegated powers of the national government ,and thus, are within the purview of the States to affect.  The Tenth Amendment’s reference to “the people” is as fuzzy a concept as anything else in man’s law.  Ultimately, under our form of republican government, the people have the final say on authority as exercised by their voting.  The people prove time and again to be useless guardians of their own liberties.

Interposition was made famous long ago by the Virginia and Kentucky Resolutions (1798), which declared the States’ ability to invalidate federal law.  The practice was used to various effect in the 1800’s.  Times have changed dramatically (for the worse) since that Century, with the States giving away a great deal of their former power.  There was also the matter of the war between the States which decided by force and murder, rather than by law, some of these issues. 

Nullification

Nullification is essentially Interposition but with an added declaration by a State or States they will not enforce a federal law or allow enforcement within their territory.  This theory was set forth also by the afore-noted Resolutions.  It has been erroneously dismissed by the courts.  And, it would seem to reside in a previous time.  The theory has raised its head recently though, as it does from time to time.  A few States have begun to void federal laws in principle at least.  Montana, for example, has decided that certain federal firearms laws do not apply within the Montana state lines.  It remains to be seen whether Montana or other modern States will actually take any action necessary to give life to their declarations.

In the old days, States did just that.  The 19th Century was repeat with State and local agents boldly denying the federal government on certain matters.  When a federal agent or officer appeared to enforce a particular objectionable action, the locals would run the fellow out of town on a rail, literally sometimes.  A great read on the subject is Thomas Woods’s Nullification (2010), http://www.amazon.com/Nullification-Resist-Federal-Tyranny-Century/dp/1596981490. 

Again, with the demise of State power and authority in general (see the 16th and 17th Amendments, etc.) the plausibility of nullification seems a dim prospect. 

Secession

Dimmer still, is the ultimate practice of State dissent.  The original 13 colonies of England, once they had declared their independence from the King, became 13 independent nations.  They joined together to fight the Revolutionary War and then entered into a Federation for mutual benefit.  A federation is a group of sovereign entities which come together for some purpose; they remain sovereign.  The Constitution changed none of this.  No language therein makes the federal union permanent and eternally binding upon the member States.

Should a State find itself at unacceptable odds with the central government, it has the power to dissolve its connections and become a completely separate nation again.  Several State assemblies expressly said so when they ratified the Constitution.  This is in complete keeping with the spirit of the Declaration of Independence, just substitute U.S.A. for King George, III. 

Again, and again and again, the States have not only given up power to Washington over the years, they have also become somewhat dependent on D.C. and tend to exhibit a slavish loyalty thereto.  This all renders the prospect of a State succeeding in the 21st Century remote.  There are secessionist movements in some States, like the Free Vermont Republic.  The FVR even has its own flag, but little chance of success. 

There is also the specter of Mr. Lincoln’s illegal war.  The war decided nothing formally or legally.  Wars are not rational undertaking, just pure contests of military power.  Since 1865 the several States have all but abandoned their military power while Washington has assembled the most awesome and dreaded arsenal in the history of mankind.  While secession remains a perfectly legal option, the odds of success do not favor the States.

Where We Are

In today’s political climate none of these three solutions are likely to receive formal discussion by the several States, let alone action.  Deprived of legal and political solutions, what then are we to do? 

Some people with means are beginning to leave the United States for smaller, freer countries.  I do not begrudge them their decisions.  However, I do not like the idea of being run out of my homeland and into a foreign country where, as history dictates, anything can and will happen.  In a way, I would rather stay and face the devil I know here.

There is always the ability of the States or of Congress to call for a new Constitutional Amendment or even a Convention wherein objectionable laws might be remedied.  Amendments are hard to pass these days.  It’s hard to get Congress or the legislature of any State to act productively or intelligently.  Honestly, the idea of a new Constitutional Convention scares me.  While one could hypothetically end with great advances in Liberty, such as returning to the Articles of Confederation or just eliminating the national government completely, I fear, given the weakness of the people and their representatives, we could end up with something far worse.  Imagine 1984, Farenheit 451, Nazi Germany and the old Soviet Union all rolled into one!

Every two years or so the citizens of the States have the opportunity to turn out at least a third of the federal government’s elected morons.  The power to change the government lies with the people by their dismissing representatives who do not do their bidding.  The people must not be aware of this authority or else, they must approve of their government as is.  Options grow thin.

Time will eventually change everything.  5,000 years from now most people living won’t remember the United States.  Given the self-destructive tendencies of our government, it is likely we need not wait that long.  Either way, awaiting the inevitable collapse of leviathan, like expectations of the end of days, is tedious at best.

I’ll see if I can come up with something else more actionable.  You work on it too.

Friday Night News

22 Friday Feb 2013

Posted by in Uncategorized

≈ Comments Off on Friday Night News

Tags

, , , , , , , ,

I just survived an elementary school dance tonight – it looked like a clan of insane hobbits took over a discotheque.  I didn’t even have the foresight to pack earplugs or a flask.  Things could always be worse.

Hobbit madness

(Hobbit Hip-Hop).

Worse, like finding out a friend died in a plane crash.  I discovered that today.  It’s a terrible fate for anyone but especially heartbreaking when it’s someone so extremely nice.  Just another reminder to make the most of every day, you never know when you’ll be called home.

Al-CIA-da must have read my article Droning On and On, https://perrinlovett.wordpress.com/2013/02/15/droning-on-and-on/, and felt sorry for Amerikans.  They have just released to the West their 22-point strategy for evading drones: http://hosted.ap.org/specials/interactives/_international/_pdfs/al-qaida-papers-drones.pdf.  You have to skim through a little propaganda to get to the list.  We had better memorize these (if they work???).

Several new articles (some serials) are under development here in blogland.  The first several will be follow-ups and extensions to my recent articles on law and politics.  And, of course, there’s the much-anticipated exercise routine, part 2 of the Loser follow-up.  I hope to get one or more of these up this weekend.  Speaking of which, if we don’t chat again, have a great weekend!

Perrin

Posse Comitatus

20 Wednesday Feb 2013

Posted by in Uncategorized

≈ 25 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

I love follow-up stories.  The other day I did a piece about military drones killing Americans and mentioned the Posse Comitatus Act as a possible solution.  I said I’d have more to say about the Act soon.  Here it is:

On June 18th of this year we will all celebrate the 135th birthday of the Posse Comitatus Act, 18 U.S.C. § 1385.  Happy Birthday, Pos-Com!!!  Maybe you do not share my zeal?  Perhaps you have never heard of this great Act or maybe you don’t know what it means.  Allow me to educate you.  The Posse Comitatus Act means absolutely nothing.  Those who will celebrate the creation of this dead letter are those who should be prosecuted under it – namely those members of the various executive branches of the Federal and state governments. 

“18 U.S.C. § 1385” is a legal citation to the United States Code, referring to Section 1385 of Title 18.  Title 18 is the federal criminal code thus, Posse Comitatus creates a criminal offense.  Like 99.99% of federal criminal laws it only sets forth a felony offense and punishment.  Unlike most federal crimes though, the Act carries a lower than usual maximum sentence and it HAS NEVER BEEN PROSECUTED!

In law school I wrote a lengthy research paper on the Act – Posse Comitatus – written for my advanced Constitutional Decision-Making seminar taught by the very Honorable Professor John B. Anderson.  Anderson represented the people of Illinois’s 16th Congressional District for twenty years.  You may recall his 1980 independent run for President against Jimmy Carter and Ronald Reagan.  You may also recall his book The American Economy We Need from 1984.

I consider Professor (as I always call him) Anderson a good friend.  Once he and his wife, Keke, graciously received my wife and I at their beautiful home on a visit to Washington.  However, back when I initially presented my paper proposal to him he seemed a bit skeptical.  I suspect that, at the time, even he had not heard of the Act.  As the semester progressed though our Nation’s Capital came under the terror of the Beltway snipers.  Anderson called me one day and said he had just heard a news report on the radio about the snipers, the hunt therefore, and … the Posse Comitatus Act.  He was hooked and I received an “A” for my efforts. 

Over the ensuing decade I have ripped the paper apart, added to it, and conducted additional research on the Act and many related matters.  In the not to distant future (later in 2013 perhaps) I look forward to publishing a book based in part on my original thesis.  The book is tentatively called A Well Regulated Militia (Amazon/CreateSpace/Kindle) and will relate to all things Second Amendment, Militia, and tyranny prevention (and reversal).  This would include, for reasons cited herein, below, the Pose Comitatus Act.  This work will be far more substantial than The Time Given (soon, I promise), though that treatise is no less important to the scope of human happiness than anything else I write.

I hope the book-buying public also gives my work an “A” and I experience mass market financial success.  Remember, you need not actually read a book; what counts is buying it (multiple copies if possible).  I have limited the many notes and many of the citations which accompanied my old paper and which will inevitably appear in the book.  For the book I intend to clean them up, eliminate them if possible, or relegate them to the seldom viewed “Notes” section at the back. I hear notes, like charts and graphs, drive down sales.  Pictures have been known to help though:

Minutemen-1776

(Our Posse.  Source: Google images).

The history of the Act is a great part of the history of the 19th century in America.  As you may recall in the middle of that century we had a rather unpleasant incident which resulted in the deaths of about 600,000 men.  I refuse to call it The Civil War because it wasn’t.  A “civil war” is where two or more factions fight for control of a central government.  In our case, the Southerners wanted to be free of Washington, not in control of it.  It also wasn’t a declared war (I’ve had debates with other attorneys about what that meant). My northern friends often ask me my opinions about the war.  I can sum the up easily: it was as deadly as it was unnecessary. 

I am in the minority of honest legal historians who believe that the southern states had every authority to seceed from the union.  I think any state today has that same authority.  Nothing in the Constitution compels eternal membership and several states expressly reserved the ability to withdraw at any time.  They asserted a Natural Law position which, being universal, would seem to apply to even those states which joined without such reservation. 

Back in the Nineteenth Century, America was plagued with major problems – debt, financial scams, economic warfare, lying politicians, and, of course, slavery.  Come to think of it, the more things change, the more they stay the same.

You may recall from history that once the “war” was over and the Union reunited, a probationary period was imposed on the southern states.  This period was known as Reconstruction.  It was rank with abuse.  In numerous cases the legislatures of southern states and other institutions were invaded or harassed by regular army troops.  The Posse Comitatus Act was passed partly in  response to these alarming events. 

“Posse Comitatus” is a Latin phrase roughly meaning “power of the county.”  “Posse” in latin is a verb which means to “be able” or to “have power”.  “Comitatus” means “company” or “retinue.”  In other words, it refers to the local militia – those men available for service in times of crisis.   An aside, suited for a future article: “militia” does not correlate with the “National Guard.” 

The concept of the militia predates and was well established at the time of our nation’s founding.  Congress still acknowledges the militia separately from the Guard; the Guard and the militia are differentiated under Titles 10 and 32 of the U.S. Code.  Every State maintains a militia (at least in the law books) separate from the Guard.  In Georgia, the State militia is officially the Georgia State Defense Force.  See: O.C.G.A. § 38-2-23, et seq. 

The Guard was instituted in the early twentieth century and is essentially a back-up force for the regular national army – it is sometimes on loan to the several States.  Enough on that for now.

The Pose Comitatus Act reads, in its entirety: “Whoever, except in cases and circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”   18 U.S.C. § 1385.   

The Act (let’s call it the “PCA” from here out) originally started out as an amendment to the Army Appropriations Bill (H.R. 4867) for the fiscal year ending in 1879.  This would be during the forty-fifth congress, second session, in 1878.  The initial mention of the concept of the PCA as an amendment came from Rep. William Kimmel of Maryland on May 20, 1878.  Kimmel was cut off in mid speech by time constraints; however, he successfully laid the framework for the PCA amendment.  See: 7 Cong. Rec. 3586. 

H.R. 4867, PCA and all, eventually became law on June 18, 1878, hence the pending birthday celebration.  See: 7 Cong. Rec. 4686.  Some scholars have speculated the PCA was enacted only to end the use of he army in supervising southern elections and legislative sessions.  Earlier I said the PCA was partly enacted for the reasons said scholars state.  I, however, dug deep into Congressional history (boy, what fun) and found a more complicated picture. 

The roots behind the theory of Posse Comitatus go much deeper and further back in history than the American Republic.  The concept was present at the end of the Roman Republic, more than twenty centuries ago.  Gauis Curio attempted to disarm Caesar’s returning army in order to preserve domestic tranquility.  See: Caesar, The Gallic War, Loeb Classical Library, 587 (Harvard U. Press, 2000).  As you know, Caesar “crossed the Rubicon” and the Empire shortly thereafter commenced.

In early America the fear of armed military forces present in everyday life was of grave concern to our Founding Fathers.  Beginning the Declaration of Independence with a nod to Natural Law, Thomas Jefferson listed the first grievance against King George that “He has kept among us, in times of peace, standing armies without the consent of our legislature. … He has affected to render the military independent of and superior to the civil power.”  Dec. Independence, para. 13 – 14 (1776).  Jefferson listed various other similar complaints against the King.

Jefferson was not alone in his fear of standing armies, provisions against which found their way into both the Articles of Confederation and the Constitution (remember the Constitution?).  In The Federalist Papers, Alexander Hamilton, himself not the greatest proponent of freedom, railed against the standing army as “unsupported by any precise or intelligible designations of reasons.”  The Federalist, No. 27 (Hamilton).   

The Forty-Fifth Congress considered several issues in developing the PCA: a standing army versus a militia; limited central government; and, the proper (if any) uses for an army within the confines of the territory of the Republic.  A sub-issue of concern at the end of the 19th Century was the potential rise of communism, which Congress greatly and rightly feared.  Karl Marx was still alive at the time of the PCA debate, his works on “economics” relatively fresh off the presses.  Rep. Abram S. Hewitt of New York commented on the subject: “If you want to fan communism, increase your standing army and you will have enough of it.”  7 Cong. Rec. H. 3538 (1878). 

Rep. Kimmel stated the then current use of the army in domestic affairs was a direct “violation of the Constitution.”  He cited numerous examples of federal troops aiding tax agents, governors, sheriffs, and district attorneys in Georgia, Kentucky, Michigan, and New York.  7 Cong. Rec. 3580 – 3582.  Again, it is popularly said that the PCA was the result of Southern states fed up with the misuse of federal soldiers during elections. Most of Kimmel’s examples were responses to tax collections and labor disputes.  In 1878, as today, New York and Michigan are generally regarded as northern states.  Other Representatives related similar troubles all across the country.  The problem was national in scope.

In the Senate the debate continued.  Senator Benjamin Hill of Georgia remarked, “A posse comitatus is a wholly different thing from an army; it is different in every respect from an army…”  7 Cong. Rec. 4246.  He continued, “it never was lawful, it never shall be lawful, to employ the army as a posse comitatus until you destroy the distinction between civil power and the military power in this country.”  Id. 

As the PCA is a criminal law and given the federal Empire’s love of prosecuting any and everything, one would expect numerous cases under the PCA over the past century or so.  One would be mistaken.  There has never been one single case brought against anyone under the PCA.  This may be due to the fact that the most likely suspects are government officials.  They don’t like to go after their own.  Honor among thieves you know.

The closest semblance of judicial review of the PCA has been in the form of indirect rulings in cases involving other crimes.  Defendants have asserted, as a defense, an alleged violation of the PCA by government officials executing some duty (such as drug enforcement).  This defense universally fails.  I will not bore my audience with any particular cases, though they date from at least 1975 and continue into this Century.

Oddly, I, the great authority on this matter, was once threatened with the potential of facing a PCA violation!  Yes, yours truly, Perrin Lovett.  It all stemmed from one of those lovely anti-family law cases of which I have previously expounded: https://perrinlovett.wordpress.com/2013/02/09/anti-family-law/.  I believe it was a custody dispute. 

Anyway, the defendant was a member of the U.S. Army stationed at Camp Zama in Japan.  Thus, I was tasked with the trouble of perfecting International legal service of process which is not necessarily the easiest thing to do.  I decided to circumvent technicalities by having the defendant simply acknowledge he had received my petition.  Not having an exact address for him, I contacted several offices at the Camp in an attempt to solicit their help in the matter.  The Provost Marshall’s office quickly told me they could not assist with serving a civil lawsuit without running afoul of the PCA.  They actually said that; you know, from the history given here, this type of situation was not within the original intention of Congress.  I pointed out that I was not asking for such, just for friendly information.  As luck would have it, I located the defendant on my own and the case went forward.  As usual, no-one was happy.  Correction: I am happy to have avoided being the only PCA prosecution in history.

Back to reality.  There have been cases innumerable of the military becoming involved in civil law enforcement – from the “war” on drugs to the massacre at Waco, to the Wounded Knee massacre, to the hunt for the D.C. snipers, etcetera, ad nauseum.  Why then, have there been no criminal cases arising from the incidents?

The answer lies in the actions of both the Executive branch and, especially, with Congress.  Exception after exception to the PCA have been enacted over the long years.  Congress has all but rendered the PCA a dead letter to the point the Act is useless for its intended purpose.  

It is somewhat interesting that, having taken the teeth away, Congress has not fully repealed the PCA.  This may be because federal laws never die, they linger forever, used or not.  Amazingly, as recently as 2005, the 107th Congress reaffirmed the spirit of the PCA, literally, but not meaningfully.  “The Congress reaffirms the continued importance of …[the PCA] … and it is the sense of Congress that nothing in this Act [H.R. 5005 – creating the Department of Homeland Security] should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws.”  H.R. 5005 § 780(a) – (b). 

The Homeland Security debacle … Act … followed the Patriot Act and decades of “war” on drugs, crime, and your freedom.  Various National Defense Authorization Acts have followed.  The result has been the complete decimation of the PCA.  President Bush (No. 43) and his successor, Barack Obama, have made clear their intention to use the military whenever necessary, wherever needed, to keep us safe, of course.  Obama even claims he can use military weapons to kill without Due Process.  The protests against his claim are less than deafening.  I protest!

I have some suggestions for changes and improvements to restore the vitality of the PCA.  This is one of the few instances where you will ever hear me call for a new or continued statute.  In the name of freedom, Congress should amend the PCA first to kill all of the previous exemptions.  Second, they should specify that the law only applies to those members of the federal, state, or local governments who would dare to use federal military force to accomplish civil law enforcement of any kind; they could define a violation as an act of government employee-specific treason. 

The punishment could be expanded accordingly.  Perhaps the original punishment might be appropriate in minor cases.  Others, such as those which involve the mass killing of American citizens could be made capital felonies.  Congress has the Constitutional authority to also limit the review of any conviction from any court – including the Supreme Court; thus, when a high official (an attorney general for example) orders Army tanks to drive into a church and burn the worshippers within alive, that official could be convicted under the PCA and immediately hanged in public.  This might serve as a warning to future would-be tyrants. 

Again, this is only a suggestion.  I do not relish the idea of killing even to avenge killing.  I reconsider, reluctantly, when the dread act(s) have the potential of continuing against all of the free people.

This leads me back to my article on drones picking off the voting, tax-suffering public, https://perrinlovett.wordpress.com/2013/02/15/droning-on-and-on/.  A President, already forbidden to use military drones against domestic targets (his already unConstitutional Orders overridden by my proposed law) might think twice about defying the law if he knew the gallows awaited his defiance.

The issues raised herein may likely lead to other related articles.  All of which concern you and those you hold dear.  It is your freedom, security, and happiness that drives me to raise the alarm – the same alarm raised by the Founders and the forgotten members of the forty-fifth Congress.  Bless their wisdom and fore-sighted concern.

Tuesday Evening Tune-Up

19 Tuesday Feb 2013

Posted by in Uncategorized

≈ 1 Comment

Tags

, , , , , , , , ,

Thank you to everyone who helped me with the Operation Thunder article.  I understand there’s a Georgia video floating around.  I’m not sure if I can (or have the skill to) link or upload that here.  Anyway, I think that issue is done.

I’ve been making small improvements here and there.  I’ve added a list of websites I find useful along with a link to my Twitter feed: http://twitter.com/perrinlovett or @perrinlovett or just search my name on twitter.  You can follow me there and get updates about this site and other relevant news and ideas.  A big thanks to Marshall and Jake for leading me into the Twittersphere, as I call it.  I am now able to alert my friends and fans to new articles here, like the very one you’re reading now, by Facebook and Twitter and something called “Freshly Pressed.”  Not sure what that last one does except generate a duplicate article link I usually delete.  Trial and error, folks.

My college buddy (from the past century), Marshall McCart, hosts TWO interesting blogs: http://www.eastmetroblog.blogspot.com/ is his libertarian plus site; and http://www.thepiedmontchronicles.blogspot.com/ is his awesome assortment of tales, legends and ramblings about all things middle Georgia.  Check them out!

Another site idea I’m toying with here is categorizing my posts for easier organization and reference.  I try to tag the fire out of them – I guess that helps with … something.  An index maybe?  I do all this for you, dear readers.

Now, how about more good reading?  Drones (domestic) are back in the news already.  Sadly, much like cancer and mosquitos, I suspect they are here to stay.  I may do a brief update if I think it’s warranted. 

I have a BIG DRAFT on deck with ties into the last Droning article; it’s more of a legal paper, and those seem popular.  Trust me, this one won’t disappoint.  It’s still a draft because I’m having to pare it down, word count wise.

Another heavy-duty draft is underway building on my Loser article.  Not quite sure where it’s going just yet.  Wherever it goes, it will be inspirational.  Look forward to something in between a motivational exercise/health report and a full-blown program on how to shed pounds and be happy(ier).

Much more to come after all of that.  Stay tuned.  Again, feel free to look around the whole site and “like,” “comment,” and “follow” to your heart’s content.

Natural Law

15 Friday Feb 2013

Posted by in Legal/Political Columns

≈ 10 Comments

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Ninety-Nine percent of lawyers in the United States graduate from law school and practice their profession without much if any consideration of the ultimate underpinnings of the laws, regulations, and processes with which they work.  I mean something deeper and more eternal that a mere constitution or the tradition of Anglo-American law.  This lack of knowledge is not necessarily their fault.  Law schools rarely teach or even mention said underpinnings.  Legislatures, executive officers, and courts now operate without the slightest acknowledgment of that from whence they derive their just authority.  Most citizens seemed confused about the nature and base concepts of law, rights, and justice generally.  This is all forgivable to a fault (especially for the lay audience).  Let me tell you briefly about where “law” comes from.

Long ago, policy makers and attorneys such as Thomas Jefferson, Thomas Paine, and Patrick Henry did understand and acknowledge the source of their governmental efforts and the results thereof.  This deeper sense of purpose was never limited to American statesmen.  Pre-Americans and even pre-Christians such as William Blackstone, Cicero, Aristotle, and Solon also were aware of the greater power behind their actions.

That power and influence is called “Natural Law,” sometimes referred to as “Natural Rights” and similar names.  These are fundamental concepts which are imbued into each human spirit by their Creator.  Made-man law is or is supposed to be an expression of the natural law.  David Miller, et al., eds, The Blackwell Encyclopedia of political Thought (Oxford 1987).  Some argue that the individual rights associated with natural law must be or may be curtailed to a degree in a complex society.  Miller, et al, supra.  I, like many libertarians, disagree with this notion insofar as one person’s rights do not become an infringement on the rights of another.

So, where did natural law come from?  To answer that question let us journey back in time – way back, to the beginning of time, if fact.  Natural law along with all principles of science, measure, and understanding were created by God, the Almighty, as a product of His grand universal creation.

The concepts of natural law are, thus, as eternal and fixed as the laws or rules of physics or mathematics.  Regarding those rules of “hard” science, humans are on a continuing mission to explore, understand, master, and apply the same.  So it is with natural law.  Being imperfect and tainted by original sin, it is unlikely that we shall ever have complete mastery of any of these ideas.  Therein lies another agony resulting from the original disobedience and the ensuing free will dominated “knowledge” with which mortals outside the garden must grapple.  As natural law relates to human behavior and society – “soft” sciences, academically speaking, it is much more difficult to grasp, let alone use than some other universal truths.  Four plus four equals eight and gravity almost always attracts separate bodies together.  Whether people should have a king or a board of selectmen is a wholly different and subjective problem.

As a note, one need not be a Christian or a believer in any specific faith in order to respect natural law.  For those so inclined, just consider it another facet or force of the universe we happen to inhabit.  As alluded to above, many, many philosophers and legal scholars and practitioners observed natural law millenia before the founding of the United States and centuries before Christ.

In describing the “visible world” the Catechism of the Catholic Church (“CCC”) (No. 341) describes man’s progressive discovery of the laws of nature as he observes the interaction and beauty of the universe.  “The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin…”  Pope Leo XIII, Libertas, 597; CCC, 1954.

God originally, long after the expulsion from paradise, gave us ten simple Commandments by which to live – they are a direct and further exemplification of natural law.  Jesus gave us the most simple explanation possible of natural law with his Law of the Gospel, “new commandment:” “love one another.”  John 13:34; CCC, 1970.  People, it seems, are unwilling or simply unable to follow clear, simple admonishment.  The history of the past twenty centuries bears this out.

As a result of our collective incompetence, we are now subject to laws, regulations, and rules both innumerable and incomprehensible (and mostly unnecessary).  However, at their core, if these human statutes are valid, they are based on some interpretation of natural law.

“The natural law is immutable, permanent throughout history.  The rules that express it remain substantially valid.  It is a necessary foundation for the erection of moral rules and civil law.” CCC, 1979 (entirety).  The question for us, is how to interpret and apply these immutable principles as we create civil law.  Rest assured that nothing we do will ever be perfect.  The best we can strive for is an approximation.  Harken though and remember that this whole body of law is contained in our souls; we only need to tap into it when necessary.  This never-ending task has been the study of great men throughout history.

In Natural Right and History, Leo Strauss explored the origins and ideas of natural law.  He noted  Plato’s theory that freedom from and doubt of human law is the “indispensable” beginning of the search for natural law.  Strauss, Natural Right and History, pg. 84, U. Chicago Press, 1953.  This means “thinking outside the box” about law, rather than civil disobedience – although that may come later.  Strauss goes on to differentiate between the “classical” view of the law as espoused by Socrates, Plato, Aristotle, and Saint Thomas Aquinas and the “modern” (17th century and on) views held by Locke, Hobbs, and more contemporary thinkers.

Some of these differences are obviously products of their time and the accumulation and interpretation of previous work.  Others are matters of opinion, albeit well-reasoned opinion.  St. Thomas’s observations along with those of other Christian theologians are influenced by Biblical and Church teachings; however, this concept would not be wholly lost on ancient Greek or Roman philosophers.  In their time, those ancients usually attributed the law to nature itself, with perhaps a whimsical nod to Olympus.  As Juvenal quipped: “The wrath of the gods may be great, but it certainly is slow.”  Satirae, XIII, 100.

I will go no further, directly, with Strauss’s differentiation.  This is the interpretation of Perrin Lovett and is mostly concentrated towards a modern, American view of the law and how it applies to our societal relations.

Before we get back to our America we still need a bit more history.  An exhaustive examination of natural law was one of the central themes of St. Thomas Aquinas’s great Treatise on Law, part of his larger Summa Theologica.  Expanding upon Plato and Aristotle’s “outside the box” approach, Thomas concludes, with reference assistance of Saint Augustine that law “which is not just seems to be no law at all.  Hence a law has as much force as it has justice.”  St. Thomas, Treatise on Law, R.J. Henle, S.J., editor, pg. 287, U. Notre Dame Press, 1993.  St. Thomas goes on to say that a civil or earthly law with conflicts with natural law is a perversion rather than a law.  Thus, did Walden and others, claim a basis for civil disobedience to repugnant laws.

Saint Thomas notes that natural law may be divined directly from principle (i.e. a law against murder would be based on God’s commandment not to kill or the principle that each human has a right to live).  The other more subjective method is through examination of generalities.  Enter, here,  the fuzziness of the human brain.  A natural law-compliant statute which prohibits murder may also prescribe punishment for murder; what the punishment should be and how it is applied is a matter of determination based on assessment of the factors of the case, with natural law as a field guide.  See: St. Thomas, Treatise, supra, pg 288.

Seemingly, most of the core laws of our nation and our states derive (or did derive)from Biblical or other ancient sources.  Most are straightforward in definition.  Murder is prohibited in Georgia the same as it is in California (and just about every jurisdiction worldwide).  The procedure governing a murder case and punishment following a conviction are also dictated by law.  In keeping with natural law, a criminal defendant should be accorded all protections of Due Process, else his conviction, if any, is tainted with perversion.  In name and theory at least, American laws and courts have erected elaborate barriers to protect an accused citizen from state malfeasance.  Consideration of possible punishments, as well as any type of considerable sub-crime (manslaughter, for example) have been designed (again in theory) to assess the factors and circumstances of each particular case.

Often voices arise in a society, particularly regarding emotionally charged cases, crying for “justice” at all costs.  These voices essentially call for lynchings based on such novel theories as: “Everyone knows so and so is guilty!” and “Some people just need killing!”  On our quest for natural law, we must put aside emotion and observe the larger picture.  That picture encompasses the possibility that even a seemingly guilty criminal may still be innocent; our procedures of justice are the mechanisms for definitive (though imperfect [humans again]) adjudication.  “It is better that ten guilty persons escape, than that one innocent suffer.”  Sir. William Blackstone, Commentaries on the Laws of England, 1783 (this sentiment has been echoed by Benjamin Franklin and Voltaire to name a few).

Blackstone commented that nothing is more essential to the “common good” than the protection of individual liberties.  Blackstone, Commentaries, supra.  This reasoning was shared by Thomas Jefferson and John Locke, etc.

Jefferson, of course penned the Declaration of Independence.  In its first paragraph our great severing/founding document based the authority of the American people on the “Laws of Nature and of Nature’s God.”  The second paragraph is (was) well known: “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights…”  (italicized emphasis added).  Those rights are the natural rights enjoyed by every human, which need not be necessarily acknowledged by any document and can never be legitimately infringed upon by any government.  The rest of the Declaration was dedicated to addressing King George’s abuse of those rights and the implementation of the natural law recourse – secession.

Those were core values on display to the whole world in perhaps the most stunning social experiment in human history.  Natural law gave life to the Articles of Confederation, an entity devoted to mutual aid and protection for the betterment of all member states and their respective citizens.  Shortly thereafter, the Constitution came into being.  Again, some attempted to forge a stronger union with the steel of natural law.  Certain of nature’s rights were expressly set forth in the Bill of Rights.  This was a case of core values mingling with the fire of powerful government – a dangerous combination.  As the two plus centuries have made clear, one government is as capable as another is usurping power for its own ends while concurrently infringing on the rights of its people.

It is when we consider statutes and rules outside of the “core” of our natural human experience that real problems are confronted.  Imagine, if you will, a man alone on an island.  He is his own society and, if he wishes, his own government.  His natural rights are as intact in the middle of the uncharted Pacific as they would be in mid-town Manhattan.  He has, for instance, that right to live or for self-preservation.  Absent some new addition to his little society, a rule against murder would prove difficult to adhere to; murder is the unlawful, unreasonable, and voluntary killing of a human being by another human being.  Absent another person our Islander need not fear murder.  He might find himself facing suicide or starvation though and then his rights to his own person would become his chief concern.

This simple Robinson Crusoe example should translate form a desert isle to any more complex society.  However, some laws deal with issues not conducive to reason in any circumstance.  A bill or statute proposing farm aid to certain large corporations based on their stated financial needs, the aid to come from either taking directly from the rest of society or by decreasing the value of that society’s currency (if the currency be fiat in nature) is a completely different, non-core matter.  However, politics, financial tricks, and smoke and mirrors aside, such a dilemma may still be decided along natural lines.  Governments today generally do not have legitimate money to give away nor are they capable of productively earning such monies.  A giveaway scheme necessarily involves taking from someone else.  Is this not theft?  Is theft not forbidden by the Creator’s Law?  Heaven aside, the earthly consideration here is one of justice.

“All virtue is summed up in dealing justly.”  Aristotle, Nicomachean Ethics, 325 B.C.  Justice would seem to forbid stealing from one group to pay off another, no matter how well-connected the recieving class might be.  You, the reader, must know that our government has long since abandoned this rational debate.  As a result we have those laws innumerable.  Sadly, this has been a long-standing problem.  “The more laws, the less justice.”  Cicero, De Officies, 44 B.C.

As mentioned earlier, the wisdom of the ancients was once of common knowledge and practice in our Western world.  George Washington wrote, “The administration of justice is the firmest pillar of Government.”  Geo. Washington, Letter to Edmond Randolph, 1789.  After his visit to America, Alexis Comte de Tocqueville stated: “When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind.”  de Tocqueville, Democracy in America, 1835.

Common sense even protruded into the Twentieth Century.  One who knew best, Dwight Eisenhower said, “Peace and justice are two sides of the same coin.”  Eisenhower, radio address, 1957.  Universally speaking: “Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr., Letter from the Birmingham, AL Jail, 1963.

Unfortunately for us, the voices of justice and reason have been growing steadily fewer and father between.  Today our American government bears almost no resemblance to that which was established long ago while memories of tyranny were still fresh.  Rather than engage in justice, let alone its quest, our politicians constantly engage in vote-buying schemes of unimaginable proportions.  Solon’s observation has never been truer: “Laws are like spider’s webs which, if anything small falls into them they ensnare it, but large things break through and escape.”  Quoted by Diogenes Laertius, Lives and Opinions of Eminent Philosophers, 3rd Cent. A.D.

For a final example, this analogy to a spider web is demonstrated time and again in the new Amerika.  When greedy bankers make horrible, criminal (but foreseeable) mistakes and risk the financial ruin of the world, they are bailed out and pass freely through our laws.  The poor, middle class, and average citizens are caught, seemingly forever, in a legal cesspool of debt and oppression.

treewater

(Natural law is as common as the beauty of Nature itself)

I will not end on a sour note.  Rather, I offer a humble solution.  If we are to be free as God’s children are supposed to be, we must cast off the burdensome trappings of our current governments.  For that process to begin our citizens must each commence their individual quests throughout their spirits for natural law and justice.  In particular, our lawyers and law students need to demand formal classical education, or else, they must take it upon themselves to learn what has been lost.  While all of you have great deal of research and reflection to do and I may follow-up with more reasoning and explanations, I hope this article starts the process.