Tag Archives: Lysander Spooner

Yeah, About that Constitution Thing…

05 Wednesday Apr 2017

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Butler Shaffer explains the painfully obvious about the “rule of law” and the Constitution in America:

The true test of civilization is, not the census, nor the size of cities, nor the crops – no, but the kind of man the country turns out.

– Ralph Waldo Emerson

In case any reader still clings to the platitude that the American political system is based on the proposition that ours is “a society of laws, and not of men,” I urge you to pay close attention to the events of recent years. Political behavior does not exist in abstractions, such as the “state,” or the “government,” or a “constitution,” but is activity engaged in by such men and women who find the machinery of state power a useful device for accomplishing ends that they value. Those who desire to control others through access to the tools of violence that define the state, have rationales to convince their intended victims of the “rightness” of their rule. From explanations such as “God’s will” to the “divine right of kings,” the authority of some to enjoy coercive power over others – along with their subjects’ duty of obedience – is so engrained into the minds of people as to seem as self-evident as the forces of gravity.

…

The Constitution, itself, should remind us that “laws” do not exist in a vacuum, but are the products of human action which, in turn, is behavior driven by people pursuing their self-interests. With legislation created by a political system that enjoys a monopoly on the legal use of force, it is clear that laws are but the means by which some people pursue their ends at the expense of others.

From the very creation of the national government, to how its different branches would act, there has always been a fuzziness as to the meaning of words used in the Constitution. This is due to the fundamental nature of all words. Being abstractions, their application to real-world events inherently depends upon their interpretation. When the Supreme Court tells us that it will have such authority, it is telling us that the government thus created by this document will be the interpreter of its own supposed “limited powers.”

…

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Tommy Kaye.

Some lament that “we should just get back to ” the system as originally established by the Constitution. I agree that would be preferable to the way things are now. However, it was that Constitution, that stronger central government model, that set in motion what we currently endure. It was a monster designed to grow and concur. And it did.

Spooner observed, long ago: “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.”

Sad but true. And, at this time, it’s all a moot point.

 

Powers Vs. Rights

16 Wednesday Dec 2015

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This post concerns the force and effect of the United States Constitution and similar documents. I’ll stick with the U.S. version for simplicity and because most state and many foreign constitutions are based on the federal version.

The old parchment is divided into several articles and subsequent amendments. Each of these deals with different legal concepts. Article One grants certain powers to Congress. Article Two does the same for the executive. Amendment Three prohibits the government from sheltering soldiers in your house during peacetime. There are seven primary articles and twenty-seven amendments.

Aside from formal division the Constitution may be properly divided into two parts. Good Constitutional Law professors cover this in first year law school. The notice is generally lost amid a mad scramble to interpret Byzantine case-law and make a living as an attorney. The lesson is almost completely unknown outside of law and political theory education.

The first effective feature of the Constitution is that is allows powers for the government. In fact the Constitution created the federal government. In 1789 those seeking strong central political control replaced the Articles of Confederation which had loosely united the several (and wholly independent) states for a very few mutually beneficial purposes. The first ten amendments, the Bill of Rights, came along two years later as almost an afterthought.

The anti-federalists were concerned that certain fundamental rights needed official recognition and legal protection. Their theory was that a strong government, even of republican nature, could run roughshod over the freedoms of the people – like a dictatorial monarch. The amendments were added without much fuss as it was then concerned the new government, its keepers, and their successors would never seek to abridge such rights as freedom of speech, bearing arms, or freedom from illegal arrest and punishment. No one saw any harm in the additions.

The inclusion of those additional protections proved both prophetic and pointless. Those ten amendments and a few others comprise the other practical function of the Constitution – protection of individual rights.

In an ideal world government would only exist to protect people from those things they would be otherwise vulnerable to. The proper function of law and politics would be a careful balancing of the power of the government and the rights of the people. Powers versus rights. Some legal scholars still wax elegantly about the concept. Their conceptualization is largely just conceptual.

The new federal government lost little time in enacting various laws which curtailed individual liberty. The trend continues to this day in addition to the habit of constantly expanding the realm of federal authority light years beyond what the Constitution allows. The courts, allegedly the arbiters of the balancing test, have largely consented to this gross shift. They too wasted no time in inventing new authority for themselves – “judicial review” for example.

Any review usually ends up empowering the state. They are on the same team after all. The people, now bereft of representation and appellate avenues, are on the outside looking in. Lawyers gleefully await court decisions to tell them what laws really mean. The public, largely fat and ignorant, continues to support this corrupt system with astounding zealous patriotism.

As a result of all this what we are left with is a central government of unlimited power ruling over a nation of peasants who are happy to receive whatever liberty the rulers confer upon them. Every once in a while one or another branch kindly reaffirms some right. These are usually in trivial matters. However, the march to greater control never ceases. It works well as most do not favor freedom. Under the faux two-party system, most go along so long as their side wins on a somewhat regular basis.

In truth, they lose. We all lose. All except for the corrupt politicians and beaurocrats and their corporate crony enablers. The system is wrecked and bears nearly resemblance to even that central authoritarian regimes of the late seventeen Century let along an ideal state.

In modern reality ignorance abounds. Some speak of the right of the government to do some thing or the other. Governments have no rights as they are artificial constructs. Only human individuals have rights. These rights are natural, God-given. Governments can only protect or (more often) abridge those freedoms.

Others decry freedom outright. They declare the people have too many rights. For them, in their simple lives, they may be right. Argument for order and justice is lost on them and a waste of time.

There are those who indulge in the fantasy that a return to the original text and intent of the Constitution would usher in utopia. If this myth was anything but, I could agree with them. The federal government of 1791 would be infinitely better than what we suffer today. That of the Articles would be better yet.

The myth lovers assert the Constitution established a national government of limited scope. Maybe they are correct in theory. In real life no government worth its salt stays limited for long. Geometric growth of government is an iron law of political science.

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So it is with freedom and central authority. Mencken.

Lysander Spooner said it best of the lost war of Rights versus Powers: “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.” He elaborated: “A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, (or by any other name indicating his true character,) or by millions, calling themselves a government.”

I find my view of anarchy criticized at times as belief in fantasy. It is said that men, by their very nature, cannot be trusted for long to maintain free, peaceful association and mutual respect. This, sadly, may be true. It, then, is also true that an honest man, desiring to remain free, cannot trust a government, any government. Belief in central authority is thus misguided. Tell you what, you have your fantasy and I’ll have mine. The rest of you have a choice to make: support powers or support rights.

Reading The Law: The Ancient Alternative to Law School

07 Monday Dec 2015

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A few days ago I wrote a column about the trials and tribulations of a beautiful, talented young woman enrolled and embattled at the Moritz College of Law at THE Ohio State University. I’ve also written about my legal education.

Law schools have become a collection of expensive but houses where, if one can tolerate the boredom and foolishness, one is allowed the honor of applying for a state license to practice law. The courses studied in these schools bear little resemblance to the actual law. Graduation does not guarantee admittance to the Bar. Bar test preparation is left to the student once he graduates.

Many determined and intelligent students will succeed on their own merits. A few law schools do a fair job readying students for the profession; most are dismal in their attempts. Alan Watson, of whom I have sung praise before, is the preeminent expert on legal philosophy. He wrote a book, The Shame of American Legal Education, which should be required reading for any American giving serious thought to attending law school.

Watson decries the lack of intellectual rigor and dependence of the case method (religious study of court interpretation of the law) which plague American law colleges. He praises the system of his native Scotland where students attend school for a shorter period of time and actually learn both the letter of and the ideas behind the law. Following graduation the Scots apprentice under established barristers to round out their education and transition into the field.

It’s a far better approach than we Americans use. It is similar to our old system which we adopted from the British. They had adopted it from the Romans and the Greeks.

For ages attorneys were educated men who studied the law under the tutelage of a practicing attorney. A few had a short period of standardized class time at a college. This formal lecturing range from a few weeks to a year. Upon completion of the apprenticeship the budding lawyers were either certified by a local court or eligible to sit for Bar examination (if any) or they just started working on their own.

The institution was known as “reading the law.” Most of the greatest attorneys of history were produced this way. Their ranks include: Solon, Cato, Cicero, St. Thomas More, William Blackstone, Thomas Jefferson, John Adams, John Jay, Lysander Spooner, Abraham Lincoln, James Byrnes, and Robert Jackson. All of these men were accomplished attorneys. Some were titans of the field.

Marco_Porcio_Caton_Major

Cato the Elder.

In America this was the standard of legal instruction from colonial times until the early 20th Century. The College of William and Mary was the first American school with formal law lectures. These were designed to enhance the student’s apprenticeship. Jefferson attended lectures at William and Mary.

Young men were encouraged to read the law, to understand theory and application:

If you are absolutely determined to make a lawyer of yourself the thing is more than half done already. It is a small matter whether you read with any one or not. I did not read with any one. Get the books and read and study them in their every feature, and that is the main thing. It is no consequence to be in a large town while you are reading. I read at New Salem, which never had three hundred people in it. The books and your capacity for understanding them are just the same in all places.

Always bear in mind that your own resolution to succeed is more important than any other one thing.

Abraham Lincoln, 1855

Things began to change in the late 1800s. It was then the newly formed American Bar Association began to lobby states to restrict licensing to those who had attended law schools. Later the ABA commenced its practice of certifying the schools. This cartel approach of command and control protected the monopoly of the existing bar members. The results, from a quality viewpoint, were mixed. Blackstones and Jeffersons are hard to come by these days.

The radical expansion of law school power coincided with the massive growth of government. Both resulted in the growth and increased complexity of the laws. As Cicero noted, more laws means less justice. Of course, justice had nothing to do with these trends. They were premised entirely on control and money.

Nonetheless a few states still adhere to the reading tradition although it is frowned upon. Those who stand to lose prestige and tuition frown a lot.

California, Maine, New York, Vermont, Virginia, and Washington still allow reading in place of law schooling. Each has its own standards and in some a period of law school attendance is required. Out of over 80,000 new lawyers minted in 2013, less than 100 read the law.

The surviving process of reading has been lauded of late by Business Insider and the New York Times. Both note the difficulties faced by a reader.

“The A.B.A. takes the position that the most appropriate process for becoming a lawyer should include obtaining a J.D. degree from a law school approved by the A.B.A. and passing a bar examination,” said Barry A. Currier, managing director of accreditation and legal education for the group.

Robert E. Glenn, president of the Virginia Board of Bar Examiners, was less circumspect. “It’s a cruel hoax,” he said of apprenticeships. “It’s such a waste of time for someone to spend three years in this program but not have anything at the end.”

NY Times.

Of course, anything but the cartel’s way is a hoax. The frowners frown. Never mind the vast number of students who drop out of law school or graduate but cannot pass the bar. At least they paid tuition.

A few organizations exist to perpetuate the old tradition. Sterling Education Services is one. “What if, instead of a traditional law school degree and six-figure debt, you could take the bar exam and achieve your goal through hands-on legal experience?” – Sterling. These groups offer study aids and seminars. They’re looking to cash in on the alternative. Then again, these are the exact same bar prep services law school graduates turn to immediately after law school.

Though frowned upon this ancient alternative is viable. If a lawyer reads the law in a reading state and passes that state’s bar, he can then apply in other states. It would certainly warrant examination by those considering the legal profession. Those who follow this path follow in the footsteps of giants.

Piracy, Counterfeiting, and Treason

23 Monday Nov 2015

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This article was featured on The Perrin Lovett Show (with usual amateur production, etc.).

The United States Constitution sets forth a very few enumerated powers for the federal government – 18 to 30 or so, depending on how one reads the text.Several others could be imagined given a certain degree of lucidity. The modern law and political crowd obviously has a very vivid imaginations.

“Our” government now involves itself in literally everything. The pretense of following the Constitution was long ago dropped in favor of a do-all, end-all, all things for all people nanny state. This proves, as Lysander Spooner noted toward the end of the 19th Century, the abject failure of the Constitution. Either it enabled the growth and development of the current system or it was powerless to prevent it. Either way a lost cause for the liberty-minded.

Amongst those few, ancient powers were the prohibition and prosecution of but three specific crimes. Others, a few, could, again, be imagined based on the surrounding text.

Insanity, rather than imagination, best describes the current vast expanse of federal criminal “justice.” Today there are something like 10,000 crimes in the federal code – not all of them are even contained in Title 18, criminal laws. If you have a system where laws escape their designated place, you then have a problem. Worse, the various federal administrative agencies – none of which are found in the Constitution – write a bazillion regulations every year. Many of these carry quasi-criminal penalties.

One gets the idea that any and everything is illegal in America. It is. Possessing a “short” lobster is illegal. Owning a flower banned by a foreign government is illegal. Installing a toilet with a decent sized water tank is illegal.

Few of these laws were enacted to preserve order or to protect the public. Rather, they are intended to promote the government’s over the populace. The people seem to approve. That is, until they find themselves on the wrong side of a federal courtroom.

The average American commits three felonies a day – usually with no intent. Most of these go unprosecuted. Most are never known. Even if a violation is disclosed it is rarely acted upon. It would be impossible to persecute 300 million citizens on a regular basis. Unnecessary too. Prosecution is selective at best. It’s designed to make examples to keep the people in line.

Again, it started out with but three crimes. All the rest were left to the states for enforcement by statute or under our English heritage of common law. While a few cases of the three original varieties occasionally come up, these crimes are almost completely committed, these days by the government itself.

Counterfeiting

“The Congress shall have the power …To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.” U.S. Const., Art. I, Section 8.

You, dear reader, must be familiar with the concept of the counterfeiter. It’s some dude in a basement with a press and green ink or a high-end color copier, who manufactures fake twenties for use at the supermarket. This does happen. However, it is dwarfed by the scheme enacted by the government in 1913 through the Federal Reserve Act.

That Act created the modern central banking system. One of those thirty or so enumerated powers in the old parchment authorized only Congress to create currency. Said currency was to be based only upon the determined value of gold or silver. It was thus real money, linked to something of intrinsic value.

Via the Act Congress abdicated its authority to a private banking cabal. They were literally given a monopoly to print money. A tenuous link was, then, in place which, on the surface, to the Constitution and the gold standard. The Act’s original language stated the new federal reserve notes could be redeemed at any time for either “lawful currency” or precious metals. It was a sly admission the new notes were something other than lawful. Funny almost but deadly.

This cozy arrangement allows the government an endless supply of debt by which to prop up its income tax scheme and bottomless spending. The tax also, conveniently, came along in 1913. Like a plan or something.

The cabal benefits by being able to loan themselves and their friends an infinite amount of money. You may read all about this process, dubbed the “Mandrake Mechanism” in G. Edward Griffin’s The Creature from Jekyll Island.

The downsides for you are several. First, you endure the loss of Constitutional government – lost to a despicable gang of criminals. Second, you loss buying power to inflation. The more of something there is, the less each individual unit is worth. The more money the Fed prints, the less the money you have buys. Prices rise accordingly. Incomes are always the last to increase; they are perpetually behind the curve.

The Treasury still has the ability to print real money in addition to the Fed’s funny notes. The last time it did so was in the 1960s in a bid to boost currency circulation. The gold link was weakened during the great depression (by a Democrat administration) and severed entirely in the early 70s by Richard Nixon (a Republican) (2 parties, remember…).

Piracy

“The Congress shall have the power … To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations…” U.S. Const., Art.I, Section 8.

This was a serious issue for the young Republic, being tied to European trade. It’s still an important issue. Ask Captain Phillips about piracy in the 21st Century. Again, however, the actions of the central government eclipse anything done by the hook and parrot set.

The government does not roam the seas looking for vessels to raid. Well, actually, they do. Most of their pillaging and plundering is conducted on land though. Piracy is synonymous with stealing. What doesn’t the government steal?

They get your money through taxes, fees, and insidious inflation. They get your flowers, short lobsters, milk, and produce. They get your arms, legs an lives through their endless wars. They get your children with their mandatory non-education system. They get it all. Pipe up too loudly about this theft and they bring out the guns – piracy. Everything, everywhere, everyday.

Treason

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason…” U.S. Const., Art. III, Section 3.

With the exception of the “Civil” war the government does not conduct military operations against itself. Sometimes one wishes the opposite. They do occasionally make war on us: whiskey tax protesters, poor coal miners, displaced veterans, Indians, those of Japanese ancestry, churches, etc.

The real crime they commit – constantly – is giving aid to our enemies. Any enemy they can find so long as the free people suffer. Piracy and counterfeiting (see above) are two good examples. Another example is the absolute infidelity to the limits of the Constitution. Yet again, the majority of the people seem okay with the ridiculous overextension of state authority – so long as they get (or are at least promised) some goodies.

A great example from the news of late is the American warfare/welfare policy concerning Islamic terrorism. The military trots around the globe in search of crazed radicals. Rather than defeating them, they stir the boiling pot. This allows for wholesale spending of the fiat money. It also gives them graft to loot. It also angers the hell out of already dangerous peoples.

As if that isn’t bad enough Washington then imports as many “refugees” to the States as it can locate. Screening be damned, they have a Civilization to wreck.

If any outsider attempted such unimaginable terror, it would be considered an act of war. As is, I view it as an act of Treason. The people may not go along with this one much longer. Not when Paris-style theater and sporting outings become the norm. Not when Sharia law emerges from the 7th century into places like Dearborn and Omaha.

What if anything can be done? I think reform is not an option. Many of my conservative friends want a “return to the Constitution.” That means going back to a document that was roundly ignored the first time. At best, it would reset the clock. This time around there’s no assurance the demise (eternal) would take so long to happen. They could just use history as a blueprint.

Congress, the President (any President), and their friends in beaurocracy and banking are non to eager to give up all that power and fun. The Courts have long since rubber stamped the insanity. It’s all okay because of the Necessary and Proper Clause, or the Welfare Clause, or the Santa Clause, or … Just because it just is.

Years ago, during a federal firearms case, I asserted the government’s lack of authority over firearms law as a defense for my client. I moved the court to dismiss the charges for lack of standing. I reminded the judge about Article One enumeration. I waived a copy of the parchment around like a fan. As I spoke there was a stunned silence. Attorneys are not supposed to uphold the law as I did literally.

My motion was denied instantly. My client took a plea deal and voided any chance of an appeal. Any appeal would have failed anyway. Law and order minus the law part.

These are not only my experience. Ted Cruz, whom I’m told is running for President, accessed the White House of ‘Counterfeiting Immigration Documents’

Given what we know about government, they probably did. They’re obviously getting away with it. This was a story about immigration too. Perhaps the merging of Treason and counterfeiting.

Speaking to Fox News following a federal judge’s decision to temporarily halt President Barack Obama’s executive action on immigration, the potential Republican presidential contender said the commander in chief is ignoring federal law.

“One of the things it points out is the president has claimed, rather absurdly, that the basis of his authority is ‘prosecutorial discretion.’ That he’s simply choosing not to prosecute 4.5 million people here illegally,” Cruz told Fox News. “But what the district court concluded, quite rightly, is they’re doing far more than that. The administration is printing work authorizations. It is affirmatively acting in contravention of federal law. Basically, what its doing is counterfeiting immigration documents, because the work authorizations its printing are directly contrary to the text of federal law. It is dangerous when the president ignores federal law.

…

“We’re not going to disregard this federal court ruling,” Obama said, but he added that administration officials would continue to prepare to roll out the program.

We’re not going to ignore the law, we’ll just not abide by it. To hell with it… That, in a nutshell, is the government. What can be done? Not much right now. For starters though we could all cease to hold the state up on a pedestal of honor. The gallows would be more appropriate. Stop legitimizing the monsters. Shun the long enough and maybe they will go away.

Peterpan2-disneyscreencaps_com-1915

Arrrrrrr. Ye taxes and short lobsters I shall have! Disney.

The United States Constitution

08 Friday Mar 2013

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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 Make A Federal Case Out Of It!

23 Saturday Feb 2013

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The title of this column is a common phrase, the equivalent of “don’t make a mountain out of a mole-hill.”  It is an admonishment to not blow things out of proportion.  I use it, here, as a legitiment plea.  Too many cases, particularly criminal cases, go through the federal court system.  “The more laws, the less justice!” remarked, Cicero, perhaps ancient Rome’s ultimate statesman.  I echo his sentiment as one of my favorite quotes of all time.

In general, in Amerika today, too many things are against the law.  In the old days you have to harm someone or actually threaten them with harm to find yourself in court.  Now, any excuse will do for a persecution .. prosecution, rather.   Owning certain plants is illegal, and not only the ones some people smoke to get high.  “Short” lobsters are illegal.  Not reading a contract in full is illegal.  Everything is illegal.  By the way, I write “Amerika (with a “K”),” like many commentators, to lament the decline of my country, America.  I have watched it change completely during my life, I’m sure you’ve noticed it too.

Back to federal criminal laws.  There are somewhere on the order of 10,000 criminal laws inside and outside of Title 18 of the U.S. Code.  Add to that the innumerable regulations which carry criminal-like penalties and the ways to criminally control and extort the people are almost limitless.

Remember that old rag called the Constitution?  It seems most people have forgotten it, especially those charged with defending and upholding it.  I am one such sworn defender who keeps it in mind more than most. 

Stock Photo of the Consitution of the United States and Feather Quill

(Birth of a government… Source: Google Images).

Oddly, I am not the greatest fan of the Constitution.  This shocks many people who know me as an ardent proponent of the document.  The Constitution was drafted for one reason – to create a new government.  Not being a fan of government, and not being able to find sufficient fault with the previous version under the Articles of Confederation, I view the Constitution and its child as unnecessary, dangerous even.  However, since we have it, one would assume we should use it.  The problem is we don’t.  “We” is misplaced.  The problem is the government’s complete abdication of the limits placed on it by the Constitution.

Lysander Spooner observed, over 100 years ago, “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.”  And, that was before the exponential growth of the present government. 

As is, I have sworn several oaths to support and defend the Constitution; therefore, I do so.  I read the Constitution literally (adhering to the “strict construction” view) and only put credence in what is actually listed therein, no more.

Back to federal criminal laws, again.  Do you know how many crimes are designated for federal prosecution?  The number is a little less than 10,000.  The Constitution authorized congress to make and allow prosecution of THREE crimes!  Those, all found under Article I, are: 1) counterfeiting money; 2) piracy and; 3) treason.  Most of these are almost exclusively committed by the government these days. They obviously don’t prosecute themselves absent exigent circumstances (political payback, etc.). 

Actually, there are other crimes acceptable as federal crimes.  The great Ron Paul, speaking in the House Floor, noted four federal crimes.  I would not dare dispute the Honorable Doctor.  Thus, I defer to his number, though I will question exactly what the fourth crime is.  There are a few possibilities.  I do not read expansively, as some do, that the other legitimate functions of the government authorized in the Constitution might lead to hypothetical or extrapolated crimes.  That reading is how we got to our present state of insanity.

The Constitution authorizes punishment for violation of the “law of nations.”  I’m not sure what that means but it is written.  The 13th Amendment outlawed slavery (I have a new series coming on the subject!) and provides for punishment.  That would be a federal crime.  It’s possible there are others but the number thereof is very short.

All other crimes, legitimate crimes, are left for state or local prosecution.  That’s what the Constitution says.  You can read the whole thing here and I recommend you do, frequently: http://www.archives.gov/exhibits/charters/constitution.html.

The federal government was never intended to be all-powerful, though it has assumed that god-like position.  Blasphemy, I say!  I have never thought of any easy way to reverse the course of tragedy in our laws.  Therefore, I have resolved myself to faithfully do what I can, individually, to maintain true allegiance to the Constitution, flawed though it may be.  I have met with little success.

Over my professional legal career I have undertaking criminal defense matters with great enthusiasm.  I have worked and tried many cases, including many in federal courts.  During my tenure I have never defended anyone charged with piracy, counterfeiting, treason, or slavery.  One client was close to counterfeiting – accused of identity theft which robbed people and banks of money, kind of like printing the stuff from scratch – like the Federal Reserve does with Congress’s illegal blessing.

Most of my clients were charged with any and everything else, though usually the cases involved firearms and narcotics.  Most of these defendants chose to enter pleas in exchange for reduced sentences.  Most (like 97%) of federal defendants do this.  This is a sad statistic.  Very few cases go to trial and the government wins most of those by a similar margin.  I have successfully had cases dismissed outright.  That is rare in any court system.  I also negotiated better than most attorneys for my clients and any reduction in punishment they might receive.  I am not really proud of that last part and I have found it difficult to accept.  The lesser of two evils is still evil.  I don’t like evil.

The last case I tried to a jury involved charges of terroristic threats against a government agency.  Such vague “threats” as they were probably would not have supported a prosecution had they been leveled at me or you.  Directed towards the government they were unforgivable.  The nefarious methods employed by the government to obtain an indictment and a conviction were similarly outrageous. 

The jury did not hesitate to convict my client, a truly helpless man who had done harm to no-one.  He was released with “time served” with the government’s blessing.  Frequently, they just like to remind people they are in charge, and no more.  I must admit most of the local officials I deal with are more honest and compassionate than the average.  Still, that does not change the system.  My client declined my suggestion of an appeal and even my offer to seek a Presidential pardon (those of usually reserved for “buddies” and campaign contributors).  My guy just wanted to get back to life as normal.  I understand his plight and decisions.

During the trial, before the jury was sent to deliberate the case, I made a legal motion to have the case dismissed for purely legal reasons.  Juries consider all facts in conjunction with the law.  Judges consider matter purely legal in nature.  My motion was three parts, the last being reference to the lack of Constitutional authorization for the charged offense.  The motion was denied completely.  The denial would have survived appellate review.  The courts have consented to Congress’s massive expansion of the criminal laws and the President’s prosecution thereof.  So much for separation of powers.

I have made the same argument before.  To my knowledge I am the only attorney in the area (maybe the nation) who still dares to do so.  I care not for erroneous appellate decisions.  Recall, if you will, that once the Supreme Court said slavery was a-ok.  It never was.  Likewise, honesty and justice compel me to recite the legal truth about law, Natural and statutory, over and over regardless of the ultimate outcome.  When I make such arguments the Courtroom usually goes dead silent and I have gotten used to icy stares.  I have also learned not to push my luck and that these arguments do not work.  Making a simple point is enough, I never argue to the point of being held in contempt.  I have heard others have done that.  I am too much of a coward to risk jail over moot points.   

Some have told me these concerns are better taken up with Congress.  All things being equal, that is correct.  Congress is supposed to be there to hear grievances.  Have you tried communicating with Congress lately?  It was largely a pointless endeavor in days past; almost no members of the assembly cared for truth.  With the departure of Dr. Paul, there is no point now. 

We have lost the greatest champion of Liberty since the passing of the Founders.  We have lost truth and justice.  At least we have 10,000 criminal laws to comfort us.  Enjoy!

The Shared Responsibility TAX: ObamaCare a hit with the Supremes…

28 Thursday Jun 2012

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On this scalding, 100 degree plus day, with wildfires burning ominously across the land, our friends at the U.S. Supreme Court have upheld the Patient Protection and Affordable Care Act of 20101 (a.k.a., It’s Just Another Tax Act).   Mind that they did not uphold it, Constitutionality speaking; they just upheld it.  It’s a hold-up, with real guns and all.  I reread the Constitution this morning and could not find any authority regarding patients or affordable care.  Maybe I missed something.

The case is National Federation of Something vs. Cerberus, Dark Lord of the Ministry of Health and Human Taxes.2  It’s a 193-page doozie and not worth reading.  If you must, skip to the final two pages wherein Justice Thomas throws up his dissenting hands and screams, “WTF?!”  Allow me to save you some time and tears.  The Court’s legal reasoning [SIC] goes like this – Congress can do whatever it likes and you have to pay for it.

Just the other day I predicted the individual mandate portion would be stricken.  I was right except I did not foresee the Court’s revenue generation angle.  I should have.  Since the time of Charlemagne the Court has (mis)interpreted the Constitution’s “commerce clause” to justify damn near any action undertaken by Congress no matter how idiotic or dangerous.  A few years back the Court tapped the brakes in a case called Lopez.3  Today’s ruling puts us right back on track to statist oblivion.  Hooray!  The Court decided that while the commerce clause can be used to regulate activity, it cannot be used to compel activity (or non-activity).  In other words Congress cannot force you to go out and purchase health insurance.  However, none of this matters anymore.  The Health Care Tax Act had an alternative provision: buy insurance or pay a penalty.  The Court held that the penalty for inaction is just a plain old tax and that Congress has all the authority it needs to levy taxes.  Thus, the individual mandate stands, alternatively, indirectly, at the point of an IRS gun.

The commerce clause has given way to or merged with the “tax clause”.  From now on Congress can pass any law and require anything of its subjects or, alternatively, just tax them for non-compliance.  Unfortunately, I did find Constitutional authority for taxes – potentially unlimited taxes.

The fallout today.  The intrepid Republicans have vowed to repeal the law.  They won’t.  Mittens has vowed to repeal the law and replace it.  Replace it with what I wonder.  A higher tax?  Lower tax?  A more Massachusetts friendly alternative tax care scheme?   Speaking of the Mittster, several of my “conservative” friends have tried to scare me into joining team Mitt on the premise that Little Barry’s re-election would lead to the appointment of liberal, Constitution-trashing Supreme Court justices.  Only Mitt will give us original intent guided, conservative judges –  you know, like when W gave us John Roberts.  Oops….

Seriously, the old Republic has at long last reached the point where the name and nature of the political parties (if there is more than one) just doesn’t matter.  It should now be painfully obvious to all but the dullest television watchers that the federal government wields unlimited power. As Lysander Spooner prophesied long ago: “[W]hether 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.”  And, in a sense, the Constitution now no longer exists.  This is unimaginably confounding to one who has sworn to support and defend the Constitution; it’s like a veterinarian swearing to care for dinosaurs, only to discover them long extinct.

Time will certainly cure the injustice done today.  In 500 or 1,000 years the Unaffordable TaxCare Act will be but a lousy footnote in history.  While there would appear no legal or political solutions left to those of us in the here and now, we may have a few options left.  Options with names like interposition, nullification, and secession.   More on those later.

1. 26 U.S.C. § 5000(B)(S), et seq.

2. Slip Opinion 11-393, June 28, 2012.

3. 514 U.S. 549 (1995).