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 doesnt 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 isnt 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;This section has a structure.
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.
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 Ive 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 addressednamely, The judicial Power.
Second, the general range of this Power is definednamely, 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 isnt a declaration of the enumeration of that authority because, if it had been, then what follows wouldnt 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 doesnt 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, Ill 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.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 Amendments 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.
b) Congress had no enumerated authority to respect Civil Rights.
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 rightswhich is or should be a limit on the Power of the Federalwas 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 Courts 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 doesnt 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 lawa Constitutionin 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 allonly the pretense of law under a Constitution no one truly respectsand 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!
At the time, I really wasnt 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.
Going to read this...
marked for later reading
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.
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.
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)
". . . our legal system . . . no longer happens in a language that is actually English."
Sure saying you're not what I'm.
Get your local Freeper chapter together and get out and kick some butt.
Outstanding, thought-provoking post. Thanks.
That was great!
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.
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
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 mothers 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.
An infant in ventre fa mere, or in the mothers 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 its 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. :-)
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.)