*Authors Note: I knew from the onset that this was going to be lengthy and quite detailed. I realized that due to this fact that it would preclude it being read by many people. I also no longer care. I write for those who are willing to take the time to educate themselves, not for those who are too lazy to turn off their TV’s for an hour or two to read something that may teach them something they didn’t know. I also write solely for the purpose of staying at a certain level of proficiency at the actual act of writing. Writing is a skill, that unless practiced, is lost. So I write as much for myself as I do for you. That being said, if you wish to learn something, then please continue reading.*
I fully realize that probably around 90% of the people in this country could care less about the law or legal terms and definitions. It seems that people simply do not care to learn what the law says, the reasons laws are written for, or whether or not certain laws are being violated. It isn’t until the criminal acts of another person directly affect them that they care. Then what do they do? They call for assistance from a law enforcement officer.
We Americans put faith in our lawmakers, those who enforce the law, and those who uphold justice believing that they are doing right by us by their actions. But then again there is the legal maxim contained in the title of this article, “Est autem vis legem simulans.” A legal maxim is an established principle or proposition; a principle of law universally admitted, as being just and consonant with reason.
This particular legal maxim translates as “Violence may also put on the mask of law.” What does that mean? What it means is that we are human beings and not all of us are just, honest, and virtuous. If one lacking in those qualities is put into a position where they are given the authority to create, or enforce law, then the law may end up being adverse to the purpose for which laws are created, i.e. the protection of our rights.
I know most people for whom this is being written won’t take the time to read something, but nonetheless I would recommend Frederic Bastiat’s book The Law. But for those of you who won’t read it, here is probably the most important quote in the book, “What, then, is law? It is the collective organization of the individual right to lawful defense.
Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?
If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right—its reason for existing, its lawfulness—is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute.”
People today confuse our system that produces and enforces the laws we live under. They call it the legal system, but that is not entirely correct. It may very well be a legal system, but there is a difference between a legal system and a system of justice. A legal system is simply a system which creates and enforces whatever laws are enacted. In a legal system there is no attention paid to rights or freedoms, it is simply enforcing the law. Nazi Germany had a legal system, as did the former Soviet Union. But in both those instance the rights our country was founded upon did not exist.
However, according to Merriam Webster’s Dictionary, one of the definitions of justice states, “the administration of law; especially : the establishment or determination of rights according to the rules of law or equity”, and, for those who aren’t familiar with the word equity, it is the quality of being fair and impartial.
To understand law you must ask yourselves two questions. First you must ask where does law come from. Secondly you must ask by what authority does one group of people have the power to create laws which are binding upon all society.
Bastiat touched upon both questions when he said, “… it follows that a group of men have the right to organize and support a common force to protect these rights constantly.” But if you really want to know, and understand the answer to those two questions than you must read John Locke’s Second Treatise on Civil Governments. Of all the things that I have read that book gave me a clearer understanding of not so much the how, but the purpose for which our government was established. And in understanding that I understand the purpose for which laws were to be created.
I could go into great detail regarding the specific details regarding our government, but I have done so repeatedly in previous articles and do not wish to cover old ground. I will say that it was created for two specific reasons. The first was to manage the very basic administration of the Union, and I mean the very basic. If you were to read Article 1 Section 8 of the Constitution you will see the only powers our government has. They are specific, they are enumerated, [listed], and they are very general in scope. It was never intended that the government get down into the details of protecting and providing for the people. The government was to be an administrative body to handle the general needs of the country as a whole. The second reason, which is relevant to this article, was to protect and secure the rights of the inhabitants of this nation.
You must understand that at some point in the existence of human beings on this planet there was no government. Therefore government, in whatever shape it takes, is a creation of man. You must also understand that some sort of rules must have existed for man to live by.
Now I’m not talking about Neanderthal man, I’m talking about man as a being who has at least developed some form or reasoning and communication. As a reasoning being man is either guided by a set of ethics by which he lives by, or he isn’t.
If man has some sort of moral ethics by which he lives by then he will respect others and not rely upon them for anything for his own sustenance. If he isn’t, on the other hand, then he will plunder, murder, and live by survival of the fittest.
This is known as the state of nature and Locke explains it as being, ” TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”
In a state of nature man is free to do as he pleases. In a state of nature there are no laws which govern man’s actions. In a state of nature the only thing stopping one man from taking from another, or bringing harm to him, is the ability of the other man to defend what is rightfully theirs.
Therefore, in the beginning when the first laws were created, they were created to establish some sort of rules and guidelines by which societies, or groups of men, could live together peacefully. As Bastiat said, “What, then, is law? It is the collective organization of the individual right to lawful defense.”
From the very beginning, man has had the ‘individual right’, that is the right for each person to defend themselves against attacks upon their lives, their property, and their freedom to enjoy both. In Locke’s Second Treatise he states it as follows, “And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i.e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a foundation of all the rest; as he that in the state of society, would take away the freedom belonging to those of that society or commonwealth, must be supposed to design to take away from them every thing else, and so be looked on as in a state of war.
This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.”
But what happens when men form societies? Now by societies I do not mean governments. By societies I simply mean groups of men who gathered together to protect and provide for themselves as a unit instead of as individuals. Or, to put it in words that many are familiar with, there is strength in numbers.
Before I go any further I must touch upon the idea of property. In 1792 James Madison wrote the following regarding ‘property’, ” This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
I will return to Madison’s writing later, but for now you have a basic understanding of what is meant by the word property. Locke, however, went further, by saying the following regarding property, “It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.”
Now that we have that covered let’s continue. So, when men created civil societies it was for the common defense of their lives and their property, and for the advantage that numbers gave them. By that I mean that it might take a single man months, even years, to build a dwelling to live in. But with numbers that time is reduced dramatically. Therefore civil societies offered man not only the strength of numbers, but the combined labor and assistance to create communities wherein he could live.
Government, on the other hand, is an entirely different creature. Governments are groups of men, or single individuals, who have either been given power to create laws which will bind all men, or who have risen to power through coercion and violence who wield absolute power over those they rule over. If you look at a dictatorship, or even a monarchy, the ruler has absolute power. Also under these types of government there is also some means of ‘enforcing’ the absolute will of the ruler.
Now I won’t waste too much time on the varying forms in which government may exist, but I will take a moment to discuss this ‘enforcing’ element by which rulers may impose their will. When our Founders lived in the colonies they were considered subjects whose loyalty was to the King of England. Being such they felt that they were entitled to the same rights and freedoms which were enjoyed by citizens living in Britain. Among these were the right to representation in Parliament so as to participate in the creation of laws which ensured their rights in the colonies were protected.
It could be said that by the King sending massive numbers of troops to the colonies to enforce his will and keep the peace that the seeds of revolution and independence were planted. When our Founders finally obtained their independence the idea of a ‘standing army’ was repulsive to them. They felt that a standing army could be used by a tyrant to enforce unjust laws upon the people. As James Madison said, “A standing army is one of the greatest mischief that can possibly happen.”
Our founders did not want to see a tyrant or an oligarchy, [a small group of people having control of a country, organization, or institution] having control over a standing army it might use to enforce their will upon the people.
Not since the dawn of man, and the existence of the first simple forms of government, has a people been given the opportunity to establish the system of government which would rule over them. However, our Founders had centuries of history to learn from. They all could look back to history and see what forms of government provided the best means of protecting the rights of the people. They also had the writings of men like Sir Thomas Aquinas, Montesquieu, and most importantly, John Locke to draw from. It was from these men that the Founders concepts and beliefs regarding our rights came from, and it was upon their beliefs that they created our system of government.
Our Founders, almost to a one, all believed that our rights were inherent, that they were inviolable, and unalienable. Those words mean little to people today, but in the period between 1776 when the Declaration of Independence was written to 1789 when the Constitution was ratified, they meant everything.
Inherent means that they are part of our human nature, that we are born with them as equally as we are born with arms, legs, a face and all the other parts of our body. Inviolable means that they are sacred and unbreakable. And unalienable is the most important of all. Unalienable, depending upon where you look, means something which cannot be sold, transferred or relinquished…even if you are willing to do so. That means that although you may choose not to exercise an unalienable right it never ceases to exist should you later choose to exercise it.
Bouvier’s Dictionary of Law has the following to say about unalienable, “Things which are not in commerce, as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in the law forbidding their sale or transfer, as pensions granted by the government. The natural rights of life and liberty are unalienable. ”
And what is liberty? Returning to Bouvier’s Dictionary of Law, liberty is defined as, “Freedom from restraint. The power of acting as one thinks fit, without any restraint or control, except from the laws of nature.”
However, Bouvier goes on to say, “Natural liberty is the right which nature gives to all mankind, of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and that they do not in any way abuse it to the prejudice of other men.”
That, right there, is the sole power our government has over our lives. It is not ensure that we are provided with security and sustenance, but to secure to each person the ability to exercise their rights and to provide a means to settle disputes when one person infringes upon the rights of another.
Government, at least those created under written constitutions, are not the sole deciders of what powers they have. To understand what a constitution is you must understand the root word from which it comes. The word constitution is derived from the word constitute. To constitute means to empower, to authorize. That is why the Preamble to our Constitution declares that “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
The Preamble is not a grant of power, it is a declaration of intent. It lays out the reasons why our Founders wrote the Constitution and the purpose for which it was to exist. At the time our Constitution was written our nation was suffering because the Articles of Confederation did not, among other things, provide the existing government sufficient authority to collect revenue and provide for the common defense. So they wrote a Constitution creating a bigger, stronger government, making the Constitution the Supreme Law of the Land once it was accepted by a majority of the states. That is why they say “…to create a more perfect union.” They realized our union was flawed and weak and sought to strengthen it.
However, the very next thing the Preamble declares is “…establish justice…”, and we already know what justice is. But then the very last purpose the Preamble states this Constitution was being written for was to “… secure the blessings of liberty to ourselves and our posterity…”
The Constitution was written to create a government that handled the affairs of the union but left to each of us our individual rights and freedoms. However there were still those who felt that this Constitution did not do enough to secure those rights, and they refused to agree to it unless it was amended somehow to further protect our rights.
This is why our Bill of Rights came into existence, because those who supported the Constitution realized that without further safeguards for our rights then the Constitution stood a good chance of never being ratified by the required number of states. But once it was ratified, and the Bill of Rights added, it became the supreme law of the land, and each and every person who works in any government position swears an oath to support and defend it.
It would behoove you to read, and understand, the Preamble to the Bill of Rights. Yes, the Bill of Rights also has a preamble, declaring why it was written. It states, “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
Let’s take a moment to examine what this says. It begins by saying, “…in order to prevent misconstruction or abuse of its powers…” What it are they talking about? Well they are talking about the Constitution itself. It, therefore, could have been written as follows, “…in order to prevent misconstruction or abuse of the powers granted by this Constitution…”
It goes on to say, “… that further declaratory and restrictive clauses should be added .” These clauses, these first ten amendments to the Constitution restrict our government from enacting laws regarding the rights spoken of in each amendment. They simply cannot limit, restrict, or prohibit us from exercising them. It is that simple. And since the Constitution is the Supreme Law of the Land, then these rights are protected from infringement by, not only, the federal government, but the state and local governments as well.
So where does this leave us? It leaves us understanding that our rights are ours and that government was established in this country to protect them. And how does a government protect our rights? It does so by enacting law. Thus, we return almost full circle to what I spoke of at the beginning of this lengthy missive. What do we have in this country at the current time? Do we have a system of justice, or do we have a legal system?
It is my belief that we no longer have a system of justice in this country. Why do I say that? I’ll try to explain from what I’ve learned regarding law.
There are many types of law. If you have ever been called for jury duty you may have been witness to either a civil or a criminal case. What is the difference? Well it depends upon what type law is being argued in the courtroom. Yes, there are many types of law, and these are but a few of them.
According to Bouvier’s Dictionary of Law, “In its most general and comprehensive sense, law signifies a rule of action…” He goes on to say, “In its more confined sense, law denotes the rule, not of actions in general, but of human action or conduct.”
But law is subdivided into even more categories. There is positive law wherein law is not always written down, but is commonly accepted, more akin to a custom than law. Positive law requires that all people understand and that most choose willingly to obey it.
Then there is Common Law, which is similar to Positive Law. Common Law derives its force and authority from the universal consent of the people. It has never been sanctioned by an action of a legislative body, but has the common consent of all.
Then there is Natural Law, from which our Founders drew from in establishing our Constitution, and declaring our rights. Natural Law, according to Bouvier is, “The law of nature is that which God, the sovereign of the universe, has prescribed to all men, not by any formal promulgation, but by the internal dictate of reason alone. It is discovered by a just consideration of the agreeableness or disagreeableness of human actions to the nature of man; and it comprehends all the duties which we owe either to the Supreme Being, to ourselves, or to our neighbors; as reverence to God, self-defence, temperance, honor to our parents, benevolence to all, a strict adherence to our engagements, gratitude, and the like.”
There are so many categories of law that one can quickly become overwhelmed. There is civil law, corporate law, maritime law, international law, ad nauseum. But it is imperative that you understand that our Founders believed in creating a system of government based upon natural law in which our rights were to be protected at all costs.
Therefore, if we the people, not ourselves, but our forefathers, established a system of government, constituted, [authorized], it to act on behalf of the people, for certain defined purposes, both limiting its power and authority, and safeguarding our rights, and this government no longer acts for the reason for which it was instituted, what would you call it?
I call it tyranny. Tyranny, according to Bouvier, is defined as, “The violation of those laws which regulate the division and the exercises of the sovereign power of the state. It is a violation of its constitution.”
When our government seeks to usurp powers, or limit us from exercising our rights under natural law, then it has become tyrannical. Usurpation is defined as, “The tyrannical assumption of the government by force contrary to and in violation of the constitution of the country.” There we have that word tyranny again.
So, if a government enacts a law which is in violation of the Constitution it is thereby designated as an unconstitutional law, and no one is bound to obey an unconstitutional law. NO ONE!
This is affirmed by legal doctrine found in the 16th American Jurisprudence, an Encyclopedia of legal terms and concepts. In Section 177 of this Encyclopedia of law we find, ” The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”
So once again here comes the question, do we have a legal system or a system of justice? In a legal system the law is whatever those who write the law says it is, regardless of the rights it was originally designed to protect.
Many courts, or judges in particular, will not even allow you to mention the Constitution or Bill of Rights in your defense. Law enforcement agencies enforce law without ever stopping to question if the law is constitutional or not. On top of all that we have untold number of government agencies, all having the power to enact regulations and the power to enforce them with force and violence against our persons should we refuse.
Ask the Weavers of Ruby Ridge if we have a justice system in this country. Ask any survivor from Waco. Ask the Bundy’s in Arizona. All these people, and untold others, have faced and dealt with, many times costing them their homes and their lives, the might of our government because they dared stand up to what they considered unconstitutional acts…for merely standing up for their rights.
Remember that standing army I spoke of earlier? What would you call the fully militarized units of the ATF, the DEA, and the many other government agencies who treat you like a subject and not a free man? Then there are the local SWAT teams that respond to crimes where there is no reason for such an excessive exhibition of force.
Now I’m not saying every government agent, every cop is bad. But more than not if they wish to keep their jobs they remain silent to the abuses of power by their peers. Just look at what happened to Frank Serpico when he spoke out against corruption in the New York Police Department. If you don’t know, then maybe you ought to rent the movie or Google his name and find out what happens to those who seek to rock the boat.
The truth is that we no longer have a system of justice in this country. Our rights are only as protected as we are willing to stand up for them.
Before I close I would like to touch upon how our right of property is also under attack. Remember, I went into pretty good detail explaining what property was. As I have stated numerous times, our government was one of limited power. To take from one and give to another, or cause one to be taxed to provide for others, [which are essentially the same thing], is not one of its powers.
So when we are taxed to provide programs like welfare, food stamps, WIC, or assistance for the mentally ill, it is a violation of our right to property. If you make more than I do does that give me the right to come to your home and demand that you give a portion of your earnings to provide for my family the things which my salary does not allow me to provide? No, that would be theft or coercion.
Well, remember those legal maxims I spoke of? Well here’s another one, “Nemo potest facere per alim quod per so non potest.” That means “No one can do that by another which he cannot do by himself.” That also means we cannot ask government to take from those who have, and distribute it to those who have not.
Our Founders understood this and held to it. In 1794 Congress appropriated $15,000 for relief of French refugees who fled the insurrection in San Domingo to live in Baltimore and Philadelphia. James Madison, as president, vetoed the appropriation stating, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”
Two years prior, in a letter to Edmund Pendleton, Madison wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”
Our government has far exceeded the powers granted it by the people in 1789. It has assumed powers it was never intended it possess. It has trampled upon the rights it was designed to protect. And we the people have sat back and done nothing.
We argue back and forth over whether the Republicans or the Democrats are going to hold the reins of power but in reality both parties are equally guilty of expanding government and diminishing our rights.
When are the people of this country going to awaken to that fact?
In Section 201 of Locke’s Treatise we read, “It is a mistake, to think this fault is proper only to monarchies; other forms of government are liable to it, as well as that: for wherever the power, that is put in any hands for the government of the people, and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it; there it presently becomes tyranny, whether those that thus use it are one or many.”
In Section 219 of Locke’s Treatise it states, “Where there is no longer the administration of justice for the securing of men′s rights, nor any remaining power within the community to direct the force, or provide for the necessities of the public, there certainly is no government left.”
Then finally, in Section 222 Locke declares, “The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who. have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.”
That is what our Founders did in 1776. They sought to dissolve the bonds which bound them to a tyrant and resume their original liberty.
I am not saying we need a revolution, but we need something. We need for the people to assert their rights and demand, or hold accountable, those who violate them.
There can be but one outcome if this country remains on its present course. With each succeeding change of administrations, every shift of power between the R’s and the D’s, our rights continue to be limited and the fruits of our labor, [our property] is diminished by inflation and by redistribution.
America cannot survive like this forever. It would behoove you, whatever your excuse is for not understanding these things, to take the time to do so. I don’t care if you really don’t care about the future of this country or not. You live here and, should you to remain living here, the future will affect you just as it will affect me.
Therefore you can choose to start learning about your rights and the laws that have been passed to violate them, or you can sit back and ignore the fact that shackles of slavery and servitude are being forged for you by those you place your trust in to do what is right and just.
Your choice…But don’t for a moment fool yourself into thinking that there is any justice left in this country. You are left alone because you pose no threat to them. But one of these days they will come for your, unless you wake up now and put a halt to their evil machinations.