Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

The Perversion of Our Laws

Posted on 10/13/2006 11:09:53 AM PDT by Rurudyne

First let me say that the legal profession HAS inflicted an incalculable harm on this nation in the manner in which they have exercised stewardship over our laws.

Part and parcel of the problem with our legal system is that it no longer happens in a language that is actually English. Sure, it uses words and syntax that are similar to ordinary speech, but the usage and logic form a specialized jargon that only lawyers tend to have mastery of.

The use of this jargon, this legalese, was justified by the stated desire for precision in legal matters; however, it would seem that the current use of language was adopted to HIDE the fact from the public that the political and legal class were imposing Administrative Law forms on this nation in place of our rightful Common Law forms, it is actually more true to say that legalese was internally justified as a pretense to obfuscate the whole transition.

The language of law is a language of legal deception.

For example, when a judge in a court of Administrative Law ask a person “Do you understand the charges?” they are not actually inquiring if the person UNDERSTANDS the charges per se, but is actually offering a legal bait and switch.

The bait is the use of seemingly ordinary language which hides the fact that the charge is being brought under Administrative Law in clear defiance of the 7th Amendment which states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Given what $20 will buy these days it should be clearly seen that Persons have a right to stand before a court of common law; however, our federal courts (even criminal courts) are administered differently, so before any person can be made to stand before such a court they must first agree to be dealt with as strawmen, legal entities over which courts of Administrative Law have jurisdiction.

In this case when charges against a Person are read out in a court of Administrative Law and the Person is asked if he or she “understands” these it is accepted that if they indicate their “understanding” then they have AGREED to STAND UNDER the authority of THAT COURT.

In other words, they have been tricked into being reduced by our legal system to be mere legal entities no different than any artifice like “Exxon” or “IBM” ... a creation and a ward of the law.

Now, I suppose that all of this deception and trickery could be tolerable if it had been the case that those who perpetrated it and those who have sustained it had made an effort to educate the People about the necessity for the transition and thereby equip them to deal with the new language (in other words ... to not be deceivers).

Instead, the language was further specialized so that it was even farther removed from ordinary usage.

Simply put, the power and wealth of the legal class resides on several pillars: chief of which is their virtual monopoly over the language by which our court's operate.

People do not understand (in the current usage) the language of law so they NEED lawyers to speak to other lawyers for them.

This is a monopoly of the worst sort, for it is with the full blessing of the government a self sustaining one. The legal profession is fascist in the ontological sense (i.e. a partnership between government and a profession to sustain and support each other).

Many have at various times joked about killing lawyers. Such a course of action would be disastrous since it would give the surviving lawyers or those who came up in the place of lawyers EVEN MORE power individually.

The ONLY WAY to break a monopoly over the language of law is to educate ordinary Persons about its nuances, say, by making a rough equivalent of prelaw with a heavy emphasis on language and theory an integral part of public education.

Only by effectively FLOODING the “market” with “lawyers” can their power over the language of law, and over the law itself, be broken.

Still, the question remains: to what end did men such as Oliver Wendell Holmes, Jr., undertake this transformation of our laws, especially since it is quite clear from the language of the DoI and the Constitution as amended that our was intended to be a nation of Laws where the laws were Common Law (specifically, “the free System of English Laws”)?

The answer lay in the transformation of our nation from a Federal Republic where the authority to govern was localized as much as it was deemed possible to a ‘simple Republic’ where the authority to govern is to be centralized as much as it is practical.

Our legal system was perverted for a purpose.

Persons under Common Law have far too much liberty and the federal government far too little regulatory power to effect such a change. The transformation to Administrative Laws, in achieving the demotion of Persons to strawmen, allows the federal government (and state governments too) the leeway to perform a greater role because legal entities, be they corporations or strawmen, are creatures of the State.

This has many implications. For example: the federal income tax is not levied against Persons but against financial entities that represent those persons.

Still, enough of that for now lest I start ranting.

Another of the pillars that supports the power of the legal profession, one which is further strengthened by the organization of the various Bar Associations, is the methodology of interpreting the laws of our land, be it the Constitution of the United States of America or one of the several State constitutions. The easiest way to express how our legal profession has perverted our laws I will go back to the beginning, to the opinion that has been singularly ABUSED towards these ends.

It is logical for SCOTUS to possess the right to examine acts of Congress, an Administration or even of the several States to determine if these fall under their enumerated powers / forbidden powers respectively (it MUST be noted that the Constitution demands that the federal has only enumerated powers and the several States are restrained only from forbidden powers ... quite unlike the lawless practice of same at this time).

But it is an abuse of SCOTUS’ power for that court, or any court of the federal government, to act beyond the enumerated sorts of case laws as provided by the Constitution as amended.

But Madison v Marbury has been abused to create two mutually agreeable conditions.

First, the principal of legal review is no longer limited to the enumerated authority of the court, this despite the fact that the 11th Amendment makes it very clear that the founders quickly realized that they had granted too much to SCOTUS (to insist that SCOTUS had first right in other lands really WAS presumptuous ... even though today some judges seem to want to insist that laws of other lands should be considered first here before even our own laws). This means that the federal court can undertake ANY case a judge desires, even one in which the federal has no standing to undertake.

Second, the principal of Stare Decisis has been transformed into something quite beyond the idea of looking to the past. The key to this transformation lay in the pretend power of the courts to consider their own opinions synonymous with the writ of law. So where before it was the case that there were logical inferences within the law for it to be able to operate as intended, it is now the case that OPINIONS too are deemed to have logical inferences.

Thus the courts have built not a tower of law but a bridge of supposition and they have done so about a whole range of matters over which they shouldn't have had any authority in the first place.

I know that last half should be at least briefly addressed, because many will maintain that there is no case in which SCOTUS doesn’t have final authority ... after all, it IS the Supreme Court.

But it is ONLY the Supreme Court of the United States and by the terms of its institution it isn’t even the Supreme Court over the several States (nor over international disputes involving American citizens as per the 11th Amendment).

How can SCOTUS not be the Supreme Court over the several States?

Consider Article 3:Section 2 which defines the suitable range of jurisdictions over which the Federal courts have power:

The judicial Power shall extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

––to all Cases affecting Ambassadors, other public Ministers and Consuls;

––to all Cases of admiralty and maritime Jurisdiction;

––to Controversies to which the United States shall be a Party;

––to Controversies between two or more States; between a State and Citizens of another State;

––between Citizens of different States;

––between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects,

The portion in Italics was negated by the 11th Amendment

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentional, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such trial shall be held in the State where the said Crimes shall have been committed within any State, the Trial shall be at such Place or Places as the Congress may by law have directed.

This section has a structure.

First observe that it is a list of defined (and therefor limited) jurisdiction. If this were not the case then it would have been unnecessary to provide any clarification beyond “The judicial Power shall extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;”.

This idea is in full keeping with the fact that the Constitution had, as its purpose, to define the enumerated powers of the Federal with respect to the People and the several States ... powers beyond which the Federal has no constitutional claim to possess (the very sum total of the meaning of the 10th Amendment).

It would not make sense that Article 3, which established the Federal Judiciary, should be any different: that it would simply be highlighting those extra special jurisdictions that the supreme Court possessed among all the other powers it possessed.

Yet is no mystery that this is how this section is currently applied. After all, the whole of the rest of the Constitution is now seen as the paltry few limits on Federal Power rather than the full enumeration of same.

Now that I’ve established (I hope) that Article 3:Section 2 represents an enumeration of powers, please observe the structure of the article.

First, the subject matter of WHAT is being defined and enumerated is addressed––namely, “The judicial Power”.

Second, the general range of this Power is defined––namely, “all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;”.

This last isn’t a declaration of the enumeration of that authority because, if it had been, then what follows wouldn’t have been necessary.

What follows, from “––to all Cases affecting Ambassadors” to the portions reversed by the 11th Amendment, is what constitutes the actual enumeration of the jurisdictions of the Federal Courts. These are the specific and limited ranges over which even the supreme Court should have authority to consider a case.

Finally, within the structure of the article, it is addressed which kinds of Cases that the supreme Court shall have original jurisdiction AND the sorts of proceedings suitable are defined (Trial by Jury in almost every instance).

Thus when the text says: “In all other Cases before mentional, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”: this clause is a subordinate clause to those previous clauses which enumerated the jurisdictions of the supreme Court (and all Federal Courts by extension). It IS NOT the case that this clause established the supreme Court as the Supreme Court over ALL LAWS, Federal and State alike. The Constitution doesn’t “capitalize” the term “supreme Court” to indicate that it is just such a definitive institution ... maybe it is time we stopped doing so.

So, that having hopefully been established, I’ll provide a two examples of when something IS NOT or SHOULD NOT HAVE BEEN viewed as a matter for sCOTUS’ final authority.

One of the clearest possible examples comes from the very first test of the provisions of the 14th Amendment in the landmark Slaughterhouse case. Now, it is very clear from the debates over the adoption of this article that prior to its adoption neither of these conditions existed:

a) The Bill of Rights were not authoritative over the several States.

b) Congress had no enumerated authority to respect Civil Rights.

The adoption of this article enabled the first 8 Amendments to be considered authoritative over the several States (as it was the stated purpose of the Amendment’s framers to respect the enumerated rights, the 9th Amendment was never so extended) AND it enumerated to Congress the Power to respect Civil Rights of its own defining.

The issue in Slaughterhouse really was one where Persons (the Butchers of New Orleans) were insisting that their common law right to work was being denied by the legislature. In this they were seeking to get the supreme Court to agree that the full scope of unemunerated 9th Amendment common law rights––which is or should be a limit on the Power of the Federal––was in fact also the full scope of limits of the powers of the several State.

They had to do so, since prior to that time Congress had not sought to define a Federal “right to work” under their right to do so under the “privileges or immunities” clause of the 14th Amendment. Thus there was no relevant grant of civil right by which the supreme Court’s enumerated authority over “––to Controversies to which the United States shall be a Party;” because on Federal civil rights laws (which would draw “arising under this Constitution, the Laws of the United States” into play).

In Slaughterhouse the majority strongly rejected the idea that there was a legitimate civil right to work, and by extension should be explicitly seen as strongly rejecting the notion that the 9th Amendment has anything to do with the several States.

So with respect to civil rights, or unenumerated rights, it should be seen that the proper estate of any Court had been preserved: that Courts could only REACT to those with the right to act and may not ACT on its own (as the butchers of New Orleans were asking them to do).

This is part of where our modern Court has gone so very wrong and comes back to the notion that their own OPINIONS are now deemed to have logical inferences (“emanations and penumbras”). By means of this bold faces assertion, the Court now claims the privilege to ACT as if its previous decisions were factual legislation.

This brings me to a second example in the same vein as Slaughterhouse ... Roe.

Prior to 1973 the Congress had never sought to define any civil right to an abortion (as they had, say, divorce through the establishment of “No Fault Divorces”); therefore, under the clear intent of the applicable laws sCOTUS had no place to determine that there is in fact any such privilege.

However, by means of the assumption that a mere opinion can be later assumed to be functionally the same as legislation, the supreme Court was able to sidestep the idea that the 9th Amendment doesn’t apply to the several States by simply finding in their own case files all that was needed to establish abortion as a fundamental reproductive right.

Thus it is now the case that courts, State and Federal, need only continue to pretend that their past REACTIONS now constitute a valid basis for current ACTIONS and they may do anything they wish given any whim of social theory or preference.

This asinine doctrine is so deeply woven into our misapplication of the laws (what they should be) that no less than Justices Scalia, Thomas, and Chief Justice Roberts (the strongest “originalist” on the court) are unwilling to contradict the basic notion and consider it “settled law.”

Instead of a written law––a Constitution––in an ordinary language that can be understood, we now have governance based on what we have gotten away with in the past ... a government based on unwritten (or uncodified) traditions.

In short ... we have no law at all––only the pretense of law under a Constitution no one truly respects––and are functionally lawless as a nation.

And all of this can be considered a result of the transition from common laws to administrative laws for the purpose of creating of the Federal government a national government just like all the other insipid governments of the other nations.

What good does the legal profession produce that is worth all of this bad?

Better a law that People can understand and know how to live under without an excessive need for lawyers than a law that such as this!


TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: commonlaw; constitution; lawyers; scotus
A version of this text first appeared in response to the question of who did more harm or good: Lawyers or Oil Men. It was one of those random post that got written because of something which someone else posted which, frankly, I thought to be just plain dumb.

At the time, I really wasn’t even out to address the question of if Oil Men as a class did more good than harm (as should soon be evident) and my arrows were only aimed at the legal profession in America.

1 posted on 10/13/2006 11:09:55 AM PDT by Rurudyne
[ Post Reply | Private Reply | View Replies]

To: Rurudyne
You might post a source for this before it's yanked.

FMCDH(BITS)

2 posted on 10/13/2006 11:13:29 AM PDT by nothingnew (I fear for my Republic due to marxist influence in our government. Open eyes/see)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne; Admin Moderator

Activism/Chapters not!


3 posted on 10/13/2006 11:14:24 AM PDT by bmwcyle (Only stupid people would vote for McCain, Warner, Hagle, Snowe, Graham, or any RINO)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne

Going to read this...


4 posted on 10/13/2006 11:26:35 AM PDT by Edgerunner (The greatest impediment to world peace is the UN and the Peaceniks)
[ Post Reply | Private Reply | To 1 | View Replies]

To: bmwcyle
Sorry, it's been a while since I've posted here so maybe I made a mistake. Since I'm agitating against the perverse and unlawful standards of practice of our so-called legal profession (forced on us post Civil War) I reflexively checked "activism" from the list.
5 posted on 10/13/2006 11:27:01 AM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 3 | View Replies]

To: Rurudyne

marked for later reading


6 posted on 10/13/2006 11:36:52 AM PDT by frithguild (The Freepers moved as a group, like a school of sharks sweeping toward an unaware and unarmed victim)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne
Good post!

Unfortunately, 90% of FReepers will show up to tell you how crazy you are.

The majority of Americans no longer understand the different types of law that we have in our country.

Probably because government has spent the last several generations trying to meld it all into one big lump o' law.

7 posted on 10/13/2006 11:37:52 AM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: MamaTexan
Yes, for all the recent specials run about the American Revolution on the History Channel, you'd never imagine that one of the things the Founding Fathers were most worked up about wasn't taxation without representation BUT the effort by the Crown and Parliament to prevent the residents of newly organized colonies (i.e. Canada ... won with Colonial sacrifice BTW) from living under English Common Law.

The Founders were rightly concerned, just as they indicate in the DoI, that this was a prelude to doing the same within the older colonies.
8 posted on 10/13/2006 11:48:47 AM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 7 | View Replies]

To: Rurudyne
The Founders were rightly concerned, just as they indicate in the DoI, that this was a prelude to doing the same within the older colonies.

They were articulate and brilliant men. The birthright they gave Americans is woefully underappreciated, IMHO

-----

Speaking of jurisdiction of the judicial branch of the federal government, here's a little gem from Madison:

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
James Madison, Report on the Virginia Resolutions

The original intent was to allow the federal judiciary to decide cases that concerned the federal government, NOT the States.

9 posted on 10/13/2006 12:06:34 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 8 | View Replies]

To: Rurudyne

I agree with you in parts, but your take on legal language simply does not ring true.

I don't blame my plumber or my electrician because I don't understand how the pipes or wires in my house work. I hire a professional to do that for me.

I have no idea what you are talking about on the administrative law business. There can be civil and criminal reprocussions for a single act (i.e. drunk driving) and you may be confusing the two.

Good lawyering is an art and skill, and is no different than any number of professions that have grown more complicated over the years. (i.e. auto repair)


10 posted on 10/13/2006 12:11:14 PM PDT by Loyolas Mattman
[ Post Reply | Private Reply | To 1 | View Replies]

To: MamaTexan
Bingo!

Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens OR disparaging specific civil rights which Congress had both defined and legally respected (whew! that's a run-on sentence!) could sCOTUS lawfully get involved.

For example, in a Roe-like case the only "lawful" similar decision that sCOTUS might have made (assuming Congress had first acted) would be to find that their created "fundamental right" would henceforth prevent Congress from respecting a Civil Right to life for the unborn.

Even then, sCOTUS could not prevent any of the several States from doing the same. Nor should they be able to now.
11 posted on 10/13/2006 12:20:38 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 9 | View Replies]

To: Rurudyne

". . . our legal system . . . no longer happens in a language that is actually English."

Sure saying you're not what I'm.


12 posted on 10/13/2006 12:21:44 PM PDT by tumblindice (Si Hoc Legere Scis Nimium Eruditionis Habes)
[ Post Reply | Private Reply | To 1 | View Replies]

To: EdReform

real later


13 posted on 10/13/2006 12:22:56 PM PDT by EdReform (Support Free Republic - Become a Monthly Donor today! -- * NRA *)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne

Get your local Freeper chapter together and get out and kick some butt.


14 posted on 10/13/2006 12:35:00 PM PDT by bmwcyle (Only stupid people would vote for McCain, Warner, Hagle, Snowe, Graham, or any RINO)
[ Post Reply | Private Reply | To 5 | View Replies]

To: Loyolas Mattman
The language of English Common Law is English ... even if somewhat stilted in usage. Thus under our rightful common law, our courts would operate in a language which more people functionally knew and could comprehend.

Legalese is not truly English, but rather a convention or dialect or jargon whose factual effect––issues of intentions aside––is to render ordinary speakers of the English language in the dark once the lawyers start doing their thing.

You say that lawyering is an art and a skill and you are right; however, the art is largely in applying a language that seems like English but isn't really English. Elsewhere, I've written that "Precision at the expense of clarity is tyranny." when considering the effects of this use, or abuse, of the language.

It is not the same as with a plumber or an electrician since, speaking clearly and "disgronificator" issues aside, you don't need another plumber to talk to plumbers for you.

A comparable example in my own experience can be found by a study of optics I took up some time ago just for funsies.

At that time I discovered that optical engineering and theory text written before the late 1930s to be genuinely useful and relatively easy to read. The few text from the war era were harder to read because of a developing jargon which presumed that you knew it (the jargon) before you tried to read it. Post war text (even those written by the very same persons) were useless––being constructs of the jargon. Even placing the comparable older text besides the newer was little help. I would like to point out that neither the substance of the engineering nor the theory had changed in the least ... the math was no different except for a few issues with refraction at asymmetrical surfaces and the like (where the math had been improved marginally). The only functional differences between 1920 and 1950 were new materials, better manufacturing methods and the like ... none of which should have caused later text to become unreadable.

Similarly, the Constitution and all our founding documents are products of English Common Law and are therefore readable and understandable by ordinary persons; however, the use of legalese has made the law very difficult to understand so that only a fool now appears in court without a lawyer to speak to the other lawyers on any matter that isn't explicitly clear cut under the laws as they now exist.
15 posted on 10/13/2006 12:42:16 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 10 | View Replies]

To: Rurudyne

Outstanding, thought-provoking post. Thanks.


16 posted on 10/13/2006 12:52:21 PM PDT by PGalt
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne

That was great!


17 posted on 10/13/2006 1:03:39 PM PDT by dljordan
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne

What do you mean "legalese?"

Most of my work is very much in plain English, albeit through the use of (sometimes) carefully parsed words.

I'd dare say that your problem is more with legal reasoning and problem solving than with the language used.

Have you ever seen a pro se litigant in action? In my experience, they have extreme difficulty because they lack the ability to adequately analyze their issue from a legal perspective. In short, they don't think like lawyers. No knock against them - I don't think like a mechanic or an electrician.

It's not that they don't understand the jargon, it's that they don't know how to separate themselves from their problem on a personal level and how to look for and prove the elements necessary to advance their case. Just like I don't know how to "talk to" my pipes and find out why they are leaking...

Legal language has evolved out of necessity in response to the skill of lawyers to frame issues, apply language, and make distinctions.


18 posted on 10/13/2006 1:05:23 PM PDT by Loyolas Mattman
[ Post Reply | Private Reply | To 15 | View Replies]

To: Rurudyne
(whew! that's a run-on sentence!)

LOL! I've been known to create those my self. Some of these concepts can get quite lengthy. :)

-----

Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.

-------

disparaging specific civil rights which Congress had both defined and legally respected

As I understand it, no.

Congress' civil jurisdiction is defined by Article 1, Section 8, Clause 17:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square)"

Ten miles square is the extent of the area the federal government is allowed to legislate for. This area is theirs and theirs only. They have no more right to legislate for the States in civil law the the State would telling Washington D.C. how IT was going to do things.

Out side of that area, it becomes a purely administrative authority.

To do it any other way negates the rights of the States to legislate for themselves.

Congress is supposed to decide how it's going to fulfill its obligations, not become the country's dictating authority.

-----

For example, in a Roe-like case the only "lawful" similar decision that sCOTUS might have made (assuming Congress had first acted) would be to find that their created "fundamental right" would henceforth prevent Congress from respecting a Civil Right to life for the unborn.

The SC should have declined the case since they had no jurisdiction to even hear it, IMHO.

Roe 'legalized' abortion, but it existed long before that. It's even mentioned in Blackstone's Commentaries

COMMENTARIES on the LAWS OF ENGLAND
Sir William Blackstone
1765
BOOK THE FIRST - OF THE RIGHTS OF PERSONS
CHAPTER THE FIRST - OF THE ABSOLUTE RIGHTS OF INDIVIDUALS

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
(snip)
An infant in ventre fa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.

-----

I have to admit I'll have to reread your original post. We seem to agree on the basics at least!

Its been rough going trying to explain to FReepers that the 'law' isn't whatever the government say it is while being flamed the entire time. :-)

19 posted on 10/13/2006 1:06:27 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: MamaTexan
"Speaking of jurisdiction of the judicial branch of the federal government, here's a little gem from Madison..."

If you really want to get depressed go back an read Federalist Paper #11. This is the chapter from the Federalist Papers on the dangers of factionalism in a democratic government. In my day, most High School students were required to read this somewhere along the line. In it Madison acknowledges the dangers of faction in a pure democracy and explains all the safeguards contained in the Constitution to avoid these dangers. Thus, the reasoning behind our Democratic Republic. If you go back and read this you will see that every saftguard noted by Madison is now gone. (Seperation of power between States and Federal government, limited government, independent, non political judiciary, etc, etc.)

20 posted on 10/13/2006 1:11:12 PM PDT by joebuck
[ Post Reply | Private Reply | To 9 | View Replies]

To: MamaTexan

What about federal jurisdiction over interstate commerce, "necessary and proper" and the like? Where does that fit in?

I really believe that someday state governments will cease to exist as anything other than branch offices of the federal government - It seems that the public is being drilled into believing the feds are the "real government," and that state government is something less.


21 posted on 10/13/2006 1:14:35 PM PDT by Loyolas Mattman
[ Post Reply | Private Reply | To 19 | View Replies]

To: Loyolas Mattman

I tell my clients: don't look at me, look at the judge. And don't lose your temper. Each time you do, well, there's a hundred bucks off your claim. Only the judge loses his temper in this room. Ya da ya da ya da.
So what do they do? They stare at me and lose their temper.

Ooops, I almost forgot, let me re-do the above.

With the utmost delecation and self-abasement, I admonish my constituent to view the arbiter, not moi. And I urge self-restraint, sine qua non, so as not to impinge upon possible emolument gratification, the res, ipso facto, enraging the arbiter amounts to res ipsa loquiter.

35 of the Founding Fathers, the largest group, were lawyers. They were concerned about `leveling', possibly because (then as well) good citizens were making noises about . . . . tossing them in the harbor.
There's nothing new under the sun. ;^)


22 posted on 10/13/2006 1:43:13 PM PDT by tumblindice (Si Hoc Legere Scis Nimium Eruditionis Habes)
[ Post Reply | Private Reply | To 18 | View Replies]

To: tumblindice

Too funny. Thanks for a break from the DC Industrial Safety Act.

It never ceases to amaze me how non-lawyers view what we do as some form of trickery or witchcraft.


23 posted on 10/13/2006 1:53:54 PM PDT by Loyolas Mattman
[ Post Reply | Private Reply | To 22 | View Replies]

To: joebuck
This is the chapter from the Federalist Papers on the dangers of factionalism in a democratic government. In my day, most High School students were required to read this somewhere along the line. In it Madison acknowledges the dangers of faction in a pure democracy and explains all the safeguards contained in the Constitution to avoid these dangers.

We studied it as well.

That's the main danger of having the federal government in control of public education. Teaching selective facts instead of actual knowledge leads to an ignorant populace.

24 posted on 10/13/2006 2:47:22 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 20 | View Replies]

To: Loyolas Mattman
What about federal jurisdiction over interstate commerce, "necessary and proper" and the like? Where does that fit in?

The administrative authority's power 'to regulate commerce among the several States' means commerce that affected more than one State. It's talking about the legal entity of the State, not everything that crosses State lines.

Gibbons v. Ogden
The subject to which the power is next applied, is to commerce "among the several States." The word "among" means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

------------

Joseph Story, Commentaries on the Constitution
§ 1075 The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited.

-----

It seems that the public is being drilled into believing the feds are the "real government," and that state government is something less.

Agreed. And that misconception is killing us. :-(

25 posted on 10/13/2006 3:08:02 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 21 | View Replies]

To: MamaTexan
Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.
Actually, the BoR should not be considered without also taking into account the Preamble to same, the relevant portion of which reads:
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 insure the beneficent ends of its institution.
Without belaboring the point, please note that States––which preexisted the Constitution––were concerned about the abuse of "its powers"––and not "their powers" as one should expect if the BoR were intended at the start to be applied to the several States. Examination of the rest of the preamble and some of the articles themselves will bear this out.

For example, the 2nd Amendment:
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.
This article exist mainly within the context of Article 1:Section 8, the relevant portion of which reads:
To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organization, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The important function of the 2nd Amendment may be summed up in that context as follows: it PREVENTS the Congress from so regulating the formation of the Militia as to PREVENT it and further prevents the Congress from disarming the People from whom the Militia would be comprised.

Without the 2nd Amendment, and prior to the establishment of the National Guard (which is arguably an army-in-repose rather than a militia), it might have been the case that Congress could have so restricted the formation and calling out of State Militia as to effectively eliminate them; also, they might have regulated the quality and caliber of weaponry available to the People who might have formed any then possible Militia so as to render them impotent even by what might have been possible.

The 2nd Amendment prevents this.

Thus the 2nd Amendment doesn't exist to be binding ON the States, but rather, it exist for the States and to be a shackle on the Federal.

In the same vein, consider the 3rd Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Please consider, a "Soldier" is not the same thing as a militiaman. For one, he is a definitive article ("Soldier" nor soldier) and thus relates to belonging in a standing Army as governed by Article 1:Section 8. A militiaman, being part of the Militia, is not properly a "Soldier" in that sense.

Again, this is an article that exist to restrain Federal power (States possessing Militia and not national Armies) that benefits the several States and could not have been properly restrictive on the Militia prior to the formation of the National Guard, which IS an Army and which subsumed (perchance illegally) them (the Militia). The next five articles also appear in a very specific context with respect to each other and could be thought of as a procession of points of law rather than an independent assertion of same.

They appear in this order:

––the gathering of evidence;

––the accusation of wrong doing and the assurance of Due Process;

––the prosecution of Trial;

––the sorts of proceedings that shall constitute a proper Trial;

––and the restriction of the government to impose arbitrary pre-Trial restrictions of post-conviction punishments.

Following this careful arrangement we find (in addition to the Preamble to the BoR) clear indication as to which sort of entity was to be restrained by these five articles in the 7th Amendment where it states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
It was the "due process" and "equal protection" clauses of the 14th Amendment that extended the Amendments in question to be authoritative over the several States. A careful reading of the Slaughterhouse opinion will demonstrate that the 1st Amendment (among a few other essential rights) was already held applicable apparently because––ours being a representative Republic––it was imprudent to distinguish between the activity of a political party at the State level and the activity of same at the Federal level THUS the assurance given in Article 4:Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
... was called into play.

You can find the text of the Slaughterhouse opinions here at:

www.law.umkc.edu/faculty/projects/ftrials/conlaw/slaughter.html

It is written is approachable language. I would, in particular, point you to Justice Field's dissenting opinion to help highlight so much of what is wrong with our legal system:
Mr. Justice FIELD, dissenting:

I am unable to agree with the majority of the courts in these cases, and will proceed to state the reasons of my dissent from their judgment.

The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it....

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always, controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right "to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property." That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and they have been the subject of frequent consideration in judicial decisions.

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.
Please understand the sections I've highlighted.

First, or rather second, in the second bit I highlighted it was Justice Field who MOST CLEARLY described the motivation for the adoption of the 14th Amendment––Congress had in 1865 passed the very first Federal Civil Rights Act only to find that they did not have the enumerated authority to respect any form of civil rights that the several States could not disparage. Thus in the "privileges or immunities" clause of the 14th Amendment the empowered themselves accordingly and the reissued the 1865 law under the auspices of their new, legitimate power.

Which brings me to the first bit I highlighted.

Justice Field opines that this then new power for Congress to respect civil rights, the guarantee that the first eight Amendments do apply to the several States, AND the protection previously determined to be necessary for Article 4:Section 2 to properly operate ARE NOT ENOUGH!

He wants to do as the Butchers of N.O. demand and also find that the 14th Amendment can be intentionally misconstructed to empower the supreme Court to consider the 9th Amendment as ALSO being in force over the several States.

But doing so would have created a dramatic REVERSAL between the role of Congress and of the Court, or indeed any court, since IF sCOTUS were empowered to define inalienable rights from out of the mist of unenumerated rights (as per the 9th Amendment) and then enforce them on the several States, THEN the paltry "power" of Congress to define mere civil rights would be an insignificant thing indeed!

Had Justice Field and his companions carried the day all those years ago then the principal authority to ACT in all matters of rights would have been with the Supreme Court, and not Congress.

In light of that, we should be humbled and awed by the sheer arrogance and audacity of Justice Bradley to opine in his own lonely dissent that (essentially) the activities of a legislature DO NOT constitute a proper form of Due Process.

Indeed, one might see our courts presently acting on the basis of their previous opinions (which are not legislation) much as if Justice Field HAD carried the day.

That's probably enough for this post. ^_^
26 posted on 10/13/2006 4:11:21 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 19 | View Replies]

To: MamaTexan
Another bit from Madison, to go along with that

Document 19

James Madison to Joseph C. Cabell

13 Feb. 1829Letters
4:14--15
For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

How far afield we have strayed, on nothing more than specious sophistry.

27 posted on 10/13/2006 4:21:42 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 25 | View Replies]

To: Loyolas Mattman
What do you mean "legalese?"
Actually, the majority of what lawyers do isn't in any way disreputable and what little there is that should be, should by now be considered essentially "atmospheric."

Of course I'm referring to things like the bait and switch, bits of jargon that seem to mean one thing in ordinary usage but mean something else in a court.

Please note what I proposed as a curative:

I did NOT propose dumbing down the language.

I DID propose educating people about the language.

The "Law of Unintended Consequences" aside, the only way to redress this issue (short of a State Supreme Court properly overruling the Federal supreme Court on an issue which the Federal has no proper standing and sticking to its guns) is to reduce the need for lawyers ... if only by reducing the need to have them to talk to OTHER lawyers. Education of the people could do that.

It'd be a LOT better use of our education dollar than so much of the trash we DO spend money on. Also, if there was some level of legal education in all schools then one might expect the following to also happen:

––some kids with an unknown talent for law might get interested in actually being lawyers.

––other kids who've assumed they want to be lawyers might learn they'd be happier doing something else.

––law schools might have an easier time finding good candidates and turning out better lawyers.

––and literacy rates should go up (or illiteracy at least become more apparent) ... hard to read about essential legal theory and the use of legal language when you can't READ. ^_^

Also, I would suggest that the legal language has only evolved so far because of the transformation in our Federal government that was accomplished through this lawless substitution on the part of some disillusioned 19th century legal types (when has disillusion EVER been a good reason to do anything?).
28 posted on 10/13/2006 4:30:55 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 18 | View Replies]

To: tumblindice
35 of the Founding Fathers, the largest group, were lawyers.
And yet so few of them made a living at it.

Whatever their short failings, common laws are easier to understand and I guess I can dream of a time when a university level legal education is again seen as a proper way to round out a good education (as it was in the days before liberal arts ... much less illiberal arts) rather than the sole path to a career in law.
29 posted on 10/13/2006 4:36:11 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 22 | View Replies]

To: Loyolas Mattman
..."I don't blame my plumber or my electrician because I don't understand how the pipes or wires in my house work. I hire a professional to do that for me."

I agree, but it must be pointed out that when it comes to the constitution, bill of rights and the declaration - the framers were purposefully very clear and concise about what they were writing and proposing. Their ideas were meant to be read and understood by everyone. That's *not* what your modern politician/lawyer is going to posit however. "We're the experts, you can't possibly understand the complexities involved, so we'll interpret for you." This is classic bullshit of the highest order.
30 posted on 10/13/2006 5:03:57 PM PDT by Freedom4US (u)
[ Post Reply | Private Reply | To 10 | View Replies]

To: Rurudyne
Without belaboring the point, please note that States––which preexisted the Constitution––were concerned about the abuse of "its powers"––and not "their powers" as one should expect if the BoR were intended at the start to be applied to the several States.

That's one thing most people don't see. The States created the federal government, not the other way around.

The created can never be superior to the creator...period. The act of creation grants an inherent superiority.

That which you create, you have the right to control, and the federal government was given a very narrow area in which it had exclusive control.

-----

That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States.

In doing what the Judge suggests, it obliterates the Constitution. Nowhere does the federal government have the authority to reach outside its Constitutional boundaries.

It'll take me a while to sort through everything. It's been a while since I've read Slaughterhouse. I usually have to go through this type of things over and over....and I learn something new everytime!

:-)

31 posted on 10/13/2006 6:27:15 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 26 | View Replies]

To: tacticalogic
Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government,

Those men could write!

It amazes me how much of the protections put in place are there to prevent the States from jumping on each other just as much as they were to restrain the federal government.

Our ancestors were a pretty lively bunch.

LOL!

32 posted on 10/13/2006 6:39:02 PM PDT by MamaTexan (I am not a ~legal entity~, not am I a 'person' as created by law.)
[ Post Reply | Private Reply | To 27 | View Replies]

To: Rurudyne

Shameless bumpage! ^_^


33 posted on 10/22/2006 10:31:36 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 1 | View Replies]

To: MamaTexan; Loyolas Mattman; tumblindice; tacticalogic
Hi, this isn't necessarily shameless bumpage but I thought to see what you folks thought of an older post of mine on similar topics here:

http://www.freerepublic.com/focus/f-news/1647824/posts

http://www.freerepublic.com/focus/f-chat/1628444/posts

As a self-professed Standup Philosopher (all S.U.Pers are BS Artist even though not all BS Artist are S.U.Pers) I value getting learned criticism. ^_^
34 posted on 11/17/2006 1:51:08 PM PST by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 31 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson