Tuesday, May 18, 2010

Who owns the nation?

One of the stickiest issues of current legal thinking is that of sovereignty and ownership. The federal government maintains that it is the sovereign, and that the states and people serve it. The states maintain that the federal government and people are the servant.

Which view is correct? How do we determine it? Perhaps the best explanation was given in a very old court case, Chisholm v. Georgia.

The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject. No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.
— CHISHOLM V. GEORGIA, 2 U. S. 419 (1793)

The real answer, it appears, is neither of the above. The states and federal government belong to the sovereign, each of us individually holding that shared sovereignty.

We have no right to give it up, for ourselves or others. Sovereignty is not something that can be given or taken away, it is an inalienable property. It is something that holds itself outside of law, for it is the founder of law.

We are each lords, with sovereign powers in our own rights. This does not extend to the power to remove sovereignty from the persons of others, nor does it extend to the power to, with impunity, disarm and make war against others. It extends to the right to defend the self from any unprovoked attack, no matter who the aggressor is, and the right to maintain that sovereignty with any power that is at our disposal.

We cannot simultaneously own the government, and have created it, and have it own us. One or the other will struggle to dominance... and we are inattentive in our defenses against the government.

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth 'may be a government of laws and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

YICK WO v. HOPKINS, 118 U.S. 356 (1886)

Our rights are a property. They are our gifts, given from our ancestors, to be passed down, well-honed and ready for use, to our children, maintained for our neighbors, kept bright and in good repair for newcomers into the society. Those rights of sovereignty belong, not merely to American citizens, but to any person that enters the nation. Along with those rights come duties to respect the sovereignty of others.

One might ask why I say rights themselves are a property. A property, in the strictest sense, is not an object, but a right to an object. it is a right to dominion, and control of an object. While property may involve dimunition, severance, and dissolution, inalienable properties cannot have those powers justly exercised. The right to an object in which you hold value, if that object be tangible or an idea, is property. It was for this reason that the civil court system was established, to offer recourse beyond the laws of war, beyond the powers of men and courts.

That essence of recourse is what made our country prosper. For the first time in history, property was sacrosanct, not because of law, but because to seize a property without just recompense was prohibited. Outside of that recourse, where it was not available, is the state of war, where man reverts to his individual sovereignty.

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 nobody 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 design to take away everything else, that freedom being the 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 everything 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 everything 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.
9. And here we have the plain difference between the state of Nature and the state of war, which however some men have confounded, are as far distant as a state of peace, good will, mutual assistance, and preservation; and a state of enmity, malice, violence and mutual destruction are one from another. Men living together according to reason without a common superior on earth, with authority to judge between them, is properly the state of Nature. But force, or a declared design of force upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow subject. Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature; force without right upon a man's person makes a state of war both where there is, and is not, a common judge.
-- John Locke, Second Treatise on government, On the State of War.

Indeed, it was James Madison, one of the Framers of the constitution that stated:

In the former sense, a man's land, or merchandize, or money is called his property. In the latter sense, a man has 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 property very dear to him in the safety and liberty of his person. He has 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.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his possessions. Where there is an excess of liberty, the effect is the same, though from an opposite cause.

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and inalienable right. To guard a man's house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man's conscience which is more sacred than his castle.

That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property.
-- James Madison, property and liberty

And what recourses do we have? There, in the most fundamental term, are four.

The Soap Box, the Ballot Box, the Jury Box, and the Cartridge box.

This trite statement, sadly, has its accuracy in the blood with which it has been forged. The soap box, the right to convince others of the truth of your statements, and the power to speak freely of your ideas without reserve.

The ballot box, the ability to vote your just laws into existence, without diminishing the sovereignty of others.

The Jury box, the ability to nullify the law where it is outside the constitution, and act as the conscience of society. To try both the facts, and the law of the case, to remove disproportionate punishment, and abolish arbitrary legislation.

And the cartridge box... for when there is no other recourse, and any person attempts to get you bound down, helpless, for the operation of their arbitrary will.

Each of these are in danger.. the government claims the power to remove each of them for the commission of crime. It simultaneously determines what things are crimes within the nation.

Something to think about.

If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave.
-- Samuel Adams

Among the natural rights of the colonists are these: first, a right to life; secondly, to liberty; thirdly to property; together with the right to support and defend them in the best manner they can.
-- Samuel Adams.

... 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 ... [Power then] 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.
-- John Locke

If you think these things do not affect you... I pity you.

It is the good fortune of many to live distant from the scene of sorrow; the evil is not sufficiently brought to their doors to make them feel the precariousness with which all American property is possessed. But let our imaginations transport us for a few moments to Boston, that seat of wretchedness will teach us wisdom, and instruct us for ever to renounce a power in whom we can have no trust. The inhabitants of that unfortunate city, who but a few months ago were in ease and affluence, have now no other alternative than to stay and starve, or turn out to beg. Endangered by the fire of their friends if they continue within the city, and plundered by the soldiery if they leave it. In their present condition they are prisoners without the hope of redemption, and in a general attack for their relief, they would be exposed to the fury of both armies.

Men of passive tempers look somewhat lightly over the offenses of Britain, and, still hoping for the best, are apt to call out, Come we shall be friends again for all this. But examine the passions and feelings of mankind. Bring the doctrine of reconciliation to the touchstone of nature, and then tell me, whether you can hereafter love, honor, and faithfully serve the power that hath carried fire and sword into your land? If you cannot do all these, then are you only deceiving yourselves, and by your delay bringing ruin upon posterity. Your future connection with Britain, whom you can neither love nor honor, will be forced and unnatural, and being formed only on the plan of present convenience, will in a little time fall into a relapse more wretched than the first. But if you say, you can still pass the violations over, then I ask, Hath your house been burnt? Hath you property been destroyed before your face? Are your wife and children destitute of a bed to lie on, or bread to live on? Have you lost a parent or a child by their hands, and yourself the ruined and wretched survivor? If you have not, then are you not a judge of those who have. But if you have, and can still shake hands with the murderers, then are you unworthy the name of husband, father, friend, or lover, and whatever may be your rank or title in life, you have the heart of a coward, and the spirit of a sycophant.

This is not inflaming or exaggerating matters, but trying them by those feelings and affections which nature justifies, and without which, we should be incapable of discharging the social duties of life, or enjoying the felicities of it. I mean not to exhibit horror for the purpose of provoking revenge, but to awaken us from fatal and unmanly slumbers, that we may pursue determinately some fixed object. It is not in the power of Britain or of Europe to conquer America, if she do not conquer herself by delay and timidity. The present winter is worth an age if rightly employed, but if lost or neglected, the whole continent will partake of the misfortune; and there is no punishment which that man will not deserve, be he who, or what, or where he will, that may be the means of sacrificing a season so precious and useful.

It is repugnant to reason, to the universal order of things, to all examples from the former ages, to suppose, that this continent can longer remain subject to any external power. The most sanguine in Britain does not think so. The utmost stretch of human wisdom cannot, at this time compass a plan short of separation, which can promise the continent even a year's security. Reconciliation is was a fallacious dream. Nature hath deserted the connection, and Art cannot supply her place. For, as Milton wisely expresses, "never can true reconcilement grow where wounds of deadly hate have pierced so deep."

Every quiet method for peace hath been ineffectual. Our prayers have been rejected with disdain; and only tended to convince us, that nothing flatters vanity, or confirms obstinacy in kings more than repeated petitioning- and nothing hath contributed more than that very measure to make the kings of Europe absolute: Witness Denmark and Sweden. Wherefore since nothing but blows will do, for God's sake, let us come to a final separation, and not leave the next generation to be cutting throats, under the violated unmeaning names of parent and child.
--Thomas Paine. Common sense, 1775

So long as injustice exists within the society, it will come to your doorstep. The longer the wildfire burns, the more tenacious, the more powerful it grows. When fanned into the flames of war, can we stop it any longer, or are we but kindling in its path?

We all have the responsibility, the duty, and the right to stop this before it grows to that point. Have we failed in that duty?

I wouldn't know. I'm a total idiot.

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