Arbitrary law and you!

My friends. I am an idiot... a total idiot, one of those creatures wondering entire at the world around him, incapable of doing aught save absorbing those things which I study and pondering upon them for the myriad hours my mind is idle. Whilst turning a wrench or writing a program, whilst doing dishes or traveling in the desert or mountains, my mind is busy pondering uselessly upon the many things which concern me.

I however, submit a question. Should we allow arbitrary law, law determined, not by court and jury, not by standards of fairness, but by positions written by bureaucrats, attorneys, and pandering politicians for their own gain?

Did we not fight a war to end arbitrary law, and prohibit ourselves from those same seizures by attainder of the properties of the Tories and British citizens? Did we not argue, eloquently, even at the Boston Massacre for the rights of the individuals who fired those rounds? Did we not consider the natures of government, past and present, ponder upon their fall, and judge those things to be put aright that we might have a lasting peace and prosperity?

Did we not fight another war, in 1861, to establish and preserve that nation, to try to end the arbitrary rule of slavery in the south, and the equally arbitrary and unconstitutional tariffs between the North and South? Was it not the purpose and the intent of the constitutional 'commerce' clause to preserve the free, and regular flow of commerce between the states, not by regulation to terminate certain commerce disapproved by persons in the federal government?

How may we lawfully do those things by the power of the state and federal government that we may not lawfully do as private individuals? Are not those powers engaged, created, and then passed to the hands of the states for those uses that are best preservative of the rights of those very individuals?

The states act in several manners... the legislative, the judicial, and the executive branch. They may also act by their federal representatives in the Senate, and by the representatives of their people in the House, but such are still actions by the state, under the state mandate. There have been myriad court cases over these last two centuries, attempting to establish both what the law is, was, and may be.

The ultimate foundation, and intent of law was to preserve to the people that which is their own. It is from this intent that criminal law arises, to punish those who worked against the rights of property, against the rights of persons to not be maliciously harmed. It was for these purposes the criminal and civil courts arose, to preserve the rights of the people, to punish and to restore, respectively.

We fought in the courts in Yick Wo, to attempt to remove that arbitrary law by selective enforcement, we fought in Cummings v. Missouri and Ex Parte garland to remove that power from the hands of the state governments, for the moment that they may target the law to the detriment of any, they may target the law to enrich the few at the expense of the many.

The battlefield has been wide and varied, covering centuries, some steps forward, other steps back. We gain hope when our rights become more important than the agenda of false and designing men, only to despair when prosecutors may not be punished for falsifying evidence, or withholding exonerating evidence. We hold our breath, waiting and wondering what abomination or hope might come from the court next... but yet, the rule of ethical law is very simple.

One should never establish a law under which the whole of the society will not be equally affected. If a thing is to be made a crime, it must be made a crime for all in the jurisdiction, from the judge to the governor to the president. Exempting anyone from the law is the fastest way into tyranny.

It takes an honest man to vote against a law which will not affect him. It takes an equally honest man to vote against a law that will benefit him, or to abstain from such a vote. It costs a tyrant nothing to vote for a law that is to his benefit, or to vote for a law that will affect others.

For the past two centuries, we have seen laws designed to divide upon race, upon religion, upon socioeconomic status, upon past acts, upon all the myriad excuses our government could find.

We find ourselves here today due to the deliberate creation and manipulation of schism, created by law designed to benefit some at the expense of others. We find ourselves here not because of malicious intent, in most cases, but because of strongly-held, intimate beliefs upon what is right and wrong, and upon the belief of those same individuals that they are strong enough to tame the lion that has slain so many good intentions.

We would not need limits in law, were we governed by angels. We are not so governed, however, so the law must lay limits as to the power of the grasping, the greedy, and the aspiring, to prevent them from laying down the law in such a manner as to deliberately interfere with the rights of the minority.

The only means by which this may be done, in instances with men of poor character or good, with persons both well-intentioned and malicious... is to ensure that not only must they live under the same law that they create, so must all their friends, their benefactors, and the whole of society, and to impress upon their minds that should they attempt to legislate beliefs, be they ever so noble, that go against the beliefs of others, that their own beliefs may be next to be legislated against.

It has ever been true that in the marketplace of ideas, only errors require force to ensure their continued and repeated purchase. That same force exists when law is used to enforce ideas against the rights of individuals, due to the beliefs of others of their unworthiness to use those rights... or an inaction is taken in enforcing the law preservative of those rights.

Should we not, rather than enforce that belief, enforce the existing laws wherein active trespasses against rights are punished, and otherwise, where there is no crime, those individuals are left alone?

Or should we continue, by creating artificial classes and schisms, the feudal insanity that led our nation to schism from its parent country in the eighteenth century?

I am an idiot... I will only and ever be an idiot, for I believe in things that may be impossible. Indeed, I make it a habit and a philosophy to engage in the mental debate of the impossible, for it is only in that way that, in truth, we may discover if it is truly impossible... or merely a cover for the desires of others.

I may be an idiot, but rights are what they are, a form and function of personal property, an essence and nature that cannot be seized without execution of the possessor. One may be a slave, one may be bound to the cart but that does not negate the right to be free... only acts as an eternal condemnation of those who would deny that right for their own benefit.

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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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Hermetic jargon and the drift of understanding

I have read, with admiration, Tennekes letter on Hermetic Jargon, and it follows quite closely with some observations I had made, though states it far better than my own poor power to add or detract. It did, however, bring to this poor idiot's mind some febrile maunderings that wandered through unlit halls for a few moments, bouncing off dusty neural pathways, then tumbling to my feet, bruised and dusty from their long journey.

Tennekes, with his comparison of hermetic jargon to the tower of Babel, may have struck upon something curious, a meta-state of communication. As research grows more specialized, it also grows more separate. The mental act of 'reaching toward creation', or toward God,(to use the biblical term) requires that specialization, due to the sheer amount of knowledge that is required to understand the initial states of things from the present state. However, human nature throws up walls to communication, to protect their secrets, their research, and their understanding from others, to some extent, as well as to conceptualize and compartmentalize the ideas in ways that can be understood by others of the field. Specializations within the field do much the same, protecting their demesne with lines of language. Eventually the whole fractures under its own weight.

This was an interesting concept to me, and also lead into my fascination with history, language, and the nature of law. Contracts are designed in such a way that the terms of the contract are set 'in stone' without substantial alteration and renegotiation of the contract. The terms of the contract are written in such manner that all parties involved understand the nature of the terms, or are explained in ancillary documents that hold the common, or 'lay' explanation of the contract itself. In the case of the constitution, these would be the Federalist Papers.

Law, like science, has its own disciplines, its own trenched earthworks to try to keep the lay person at bay, its own language, its own concepts which, whilst easily understood, seem arcane to the layperson. The terms of replevin, fee-simple obligations, tortfeasance, lessors, and such seem like another world entirely. But each has concepts irrevocably imbued within them, and concepts that can usually be readily defined.

One of the curious studies my idiotic mind has wandered into is the drift of language within the legal profession itself. It's curious to me how the terms have evolved across the centuries, from the system under the Magna Carta and William and Mary of Orange, to the revolution, to today. We have evolved what is literally a monopoly over the law, with wandering priests (attorneys) trying to tell us what the law is, with unique terms and language to protect the higher orders, with its own internal hidden knowledge and a high fee for entry.

Was this always the way? I cannot say that it was. The founders intended that any person be able to both practice law, and to speak it, to interpret it, as it was written. The terms of the contract (for such the Constitution was, a contract between the people binding the states to a new federal government, setting down limits for that government, and establishing the powers thereof, and limits of the states under the government, the consideration involved being the preservation of rights preexisting the Constitution, in exchange for the powers to preserve those rights) were set down at the time in stone, with specific legal meanings, corresponding to the common knowledge of the meaning at the time, explained by those Federalist Papers and Blackstone's Commentaries on the Laws of England.

Why does this tie in with Hermetic Jargon? What happens when one controls the learning of the terms at the time, and maintains a monopoly over not just the law, but the practice and interpretation of law? Can one not, at that moment, cause a drift in definition, deliberate or accidental according to the whims and biases of the interpreter, far, far away from the original intent, as well as the original definition?

The purpose of the Constitution was to set down a single rule of law for all to follow, no matter their situation, their placement in life, their classification or circumstances. The term attainder at the time referred to any law, or act, or ruling or regulation that removed specific properties, including the property of life... the property of liberty, the property of property itself, and the property interest within the ability to defend all of those. From those four touchstones all rights arise.

Attainder was the process by which these were stripped away, by judge or by legislative fiat. Those property rights were sacrosanct, to be only taken where necessity and the public good demanded it, and then only with fair, just compensation at current market value of the property if the Government had not been involved at all. The original attainder took something deceptive.. the right to have property at all, and this was extended to the children under the Corruption of Blood. Without the right to have property, the property in life and liberty no longer existed. The person ceased to be, and was considered blackened, tainted, or stained under the law, and outside of its protection.

The founders intended to end this, forever. Under the laws of England, if the powers had remained, their own lives would be forfeit for attacking the Sovereign. Their properties could be seized, their livestock and chattel seized, or destroyed, and their homes and families disposed of as the crown saw fit.

They proposed a system of just and equal laws, laws which affected everyone equally, without regard for color, for race, or any of the myriad other considerations which affect our law today... but the ideal drifted. The understanding changed, and the interpretation.

Read through the Federalist papers. This idiot did, and it took a great deal of time to begin to understand them. The concepts are simple, deceptively simple.

One law for all, all under the law, all bound equally thereby, all bound not to remove the rights of their neighbors, bound not to cause them harm. For the purpose of those rights, and the preservation thereof, they bound themselves, their neighbors, the people, their friends, and the government to the same iron rule. No targeted law, no legislation designed to harm or benefit any specific class, and forever made sacrosanct those rights.

Crime was about harm. If harm was done, the neighbor had the right to defend against it by the appropriate force. If there were no recourse, and life were in danger, or believed to be, there could be no time to recourse to the law, and so a state of war existed. Once the state of war was ended, and there was time and place for recourse, that state of war ended.

It did not end, however, if the only available means for recourse was through the body of the one making the harm, for there could be no recourse if he were the means of appeal. No man can sit in judgment in his own case, and not be biased toward his own causes.

It leaves this idiot to ask... what recourse may we have against a monopoly on the Law itself, and the means to recourse? What is our recourse when the most interested parties control the gateway to the recourse? How does one obtain recourse when one does not know whom to address it against, or to?

Has hermetic jargon sealed away the Rule of Law from the hands of those that created it?
This idiot... wonders.
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