Saturday, November 21, 2009

First Notes from The Old Sage: the Whole of the Law

Another post from The Old Sage as we await his official arrival ...



There is an old saying, "A man who is capable of deceiving only others is not nearly as dangerous as a man who is capable of deceiving himself". Truer words were never spoken.

I thought of this when I heard Supreme Court Justice Ruth Bader-Ginsburg endorse the use of foreign law by American judges to interpret the Constitution that they were sworn to uphold- that would be the "American" Constitution" of course. Speaking about this recently at Ohio State University's Moritz college of Law, she said, "I frankly don't understand all the brouhaha lately from congress, and even from some of my colleagues about referring to foreign law when handing down court rulings".

You know what? For once, I believe her. She and her fellow conspirators really "don't understand". They don't get it; they don't know the correct legal interpretation of their jobs well enough to understand how to do their jobs the way they are supposed to. Notice that I call it "correct" for good reason. It implies that other positions are incorrect, most especially the so-called "living document" legal philosophy that the courts have been trying to shove down our throats in respect to interpreting the Constitution of late. To accept these categorizations is to say that we just have perspectives on Constitutional law, and no one can say which one is correct (except for them). We have descended to where the Constitution can be interpreted loosely by a sort of "legal relativism".

She continued in her speech at Moritz College by adding, "That the failure to engage in foreign decisions had resulted in diminished influence for the American courts, and that the Canadian Supreme Court is probably cited more widely abroad than the US supreme Court." The reason for that is, "you will not be listened to if you don't listen to others".

This is quite a "wow" statement, and it addresses something that I have long feared to be true. The problem with our judges is that they are not content to be just judges. They want to be something more. A judge is much like a referee in a baseball game. His job is to determine whether an existing rule has been violated. It's not his call to make or alter the rulebook (Constitution) no matter how he personally feels about it.

Yet today we have judges who are king wannabes. They are not satisfied to just referee the game; that’s too small a role for them. They want to be activists - the movers and shakers of social parameters, and they want the ego satisfaction that comes with this status. Recently confirmed Justice Sonya Sotomayor was quoted as saying, "The courts should be the creators of social policy". This does not sound like the role of a referee to me.

So why would Ginsburg care if the Canadian Supreme Court is cited more than ours? Could it be that she wants the respect of her peers around the world as fellow members of a global judicial class more than she wants to "just do her damn job" as a Supreme Court justice for the people of the United States as the appointment dictates? Or is it now more important for American justices to conform to a world standard? Most Americans that I have posed this question to care not a pinch whether foreigners listen to the decisions of American courts or not. Foreigners are not governed by American law, and thus our judges’ rulings are irrelevant to them. The reverse should also be true. Ginsburg, like Sotomayor wants respect, and prestige. She wants to be a trendsetter in world policy, America be damned!

"Living document" justices are comfortable in the non-performance of their jobs by the rationalizations that they use to justify them. Ginsburg is one of those whose criticism of the Constitution includes the view that the Constitution is "stuck in time". She is wrong. The Constitution is not stuck in time, but rather it is stuck in law. Law can be changed by legal measures - the amendment process - but until that happens it is supposed to be "stuck". The alternative to being stuck in law is to be subject to the whims of the latest tyrant to hold power. In other words, this thinking is no different from the rule of kings where a George III could "tax without representation". G.K. Chesterton said it well, "There are only two ways of governing: by a rule, or by a ruler." It thus determines whether we live by a rule of law, or a rule of lawyers.

This is why some of us, me included, have likened our present Supreme court to a "de facto oligarchy". An oligarchy makes decisions guided by nothing more than the dictates of their own consciences. Put as much lipstick as you want on this pig, but at the end of the day it still all boils down to might makes right. When justices depart from constitutional protocol, they cannot be removed from their office. This is one of the certifiable weaknesses of the document. Thus, the only thing constraining them then is the dictates of their own consciences, just as it with an oligarchy.

The affairs of the world are governed by one of only two existing designs of anarchy; overt, and covert. There are no others. That is how God made it. Both designs can bring order to chaos. Overt anarchy favors the strong, covert favors the weak. They are much the same in their intent; it is their application that sets them apart. Covert was created by the weak to bring them to a level of parity with the strong because they could not rise to the role of dominance otherwise. Nature favors the strong. One need only observe with intention the trees of any local woods to understand this truth. That is why I have far more respect for someone who overtly defies the law (think Thoreau and civil disobedience) and simply refuses to comply. He is not deceiving either himself, or others. He is saying that the law is wrong, that it violates a higher law, and it is thereby the duty of all honest citizens to defy it. The distinction to be seen here is between an open declaration of war, and the use of deceit, subterfuge, and subversion. Covert anarchy is just such a design as this. The weak cannot openly declare war against the strong as they would be destroyed. Therefore, in acknowledgement of this ineffable truth, they have chosen to resort to underhanded tactics to achieve their end. Supreme Court justices can wrap their "living will" legal junk in a fistful of pseudo-intellectual arguments, but in the end they have done nothing more than to transfer the rule of law to the rule of lawyers (them). In so doing, they have not only violated the rule of man, but the rule of God as well.

This prompts a question: If Supreme Court Justices can rule contrary to the letter and spirit of the supreme law of the land on the basis that the Constitution is not "stuck in time", why can lower courts not apply the same reasoning to what is referred to as "settled law" (areas where the Supreme Court has interpreted the Constitution definitively)? How can law be "settled" without being "stuck"? Why can a lower court not say, “Well, the Supreme Court ruled that way five years ago, but that law has a different meaning, and application today”? If the men in black won't be constrained by the Constitution, why should others be constrained by their unconstitutional decisions?

It is obvious that the "living law" philosophy is not for all of us. It is not for the citizen; for him it is "stuck in time". It is not for the cop on the beat; for him it is to "do or die" without the luxury of "reason why". It is not even for the president, at least not this one, for the laws he signs on to are subject to Supreme Court judgments. And judgments based on what? Not the Constitution obviously, but rather again on the judgments of the justices themselves.

So, my question is: Why should we respect the rulings of usurpers, and tyrants? I can see the ghosts of Patrick Henry, and Thomas Jefferson rising from their graves on this point. If the court will not view the Constitution as being "stuck in law", why should we view the law as being "stuck in courts"? Are the commands of these Corvid oligarchs to be accepted as the only unchanging elements in an ever changing universe of law? Their tacit response to this is to say that, "ignoring court rulings would lead to a breakdown in the rule of law" ... my point exactly.

Activist judges undermine the law by demonstrating their contempt for it. They beg the question of what adherence to the rule of law really means. Should we defer to court decisions made by those who view themselves as above the law? Or should we use our own judgment - as these justices are doing - as to what the real meaning of the Constitution is. This is what is bred by making "living will" document legal rationalizations of the type that we are seeing coming from the courts of late.

There are no such things as "constructionist", and "pragmatist" as designations for justices. There are only good justices, and bad justices. Good ones do their "damn jobs", and follow the Constitution. Bad ones lawyer the law by rationalizing it.

Ginsburg, and Sotomayor should just be honest by saying that to "do what thou wilt shall be the whole of the law" and leave it at that.

First Notes from The Old Sage: Lexington Green

The Old Sage is still going through the process of getting on, so his first couple of posts will be put up by me in his proxy.



Lexington Green does not merely remind us of a historical event that took place there on April 19, 1775. More importantly, like any good history lesson, it also teaches a profound philosophical concept that must be understood, in this case, in the practice of popular self-government. When you observe the statue at the head of the green, and then the one at North Bridge in Concord, you see that each depicts but a single individual. Yet, in both, that individual represents many more than himself alone, for they are single Minutemen that represent ALL of the Minutemen.

The Minutemen were no haphazard gaggle of dispossessed individuals that gathered by accident to these hallowed grounds on that famous day. They were not merely a group of farmers, artisans, and merchants who stumbled into each other without purpose or resolve. To the contrary, they were members of an organization which included all free, adult, able-bodied men throughout Massachusetts, along with other like-minded men and organizations throughout the other twelve American Colonies, an organization that had existed in the colonies for almost 150 years prior to that date, an organization with legal, governmental authority: The Militia of Massachusetts.

They assembled there that day not to break the law, but to bear witness to it, and if necessary, possibly enforce it against British troops who were, they believed, breaking the laws of the colony of Massachusetts and violating the colonist's rights as English citizens - rights that the Declaration of Independence would later call "the laws of Nature, and Nature's God".

They did not intend to fight that day there in Lexington. They meant only to voice their disapproval of the presence of General Gage's troops in their town, and to embody that disapproval through the muster of their own physical presence and strength of numbers on the Green. Outright forcible resistance was not to be their first order of business. In the words of Pastor Jonas Clark, "The militia of Lexington was alarmed, and ordered to meet at the usual place of parade not with the design of commencing hostilities upon the King's troops, but to consult what might be done for the people's safety; and to be ready for whatever service providence might call us out to upon this alarming occasion, in case overt acts of violence, or open hostilities should be committed by the British."

And so, recalled Reverend Parker,
Alarm guns were fired, and drums beat to arms; and the militia were gathered together. Some, to the number of 50, or 60 were on parade, others were coming toward it. In the meantime, the King's troops, having stolen a march on us, seemed to come determined for murder, and bloodshed, and that whether provoked to it or not. When within about a quarter mile of the meetinghouse, they halted and were given the command to prime, and load; which being done, they marched on 'til they came in sight of our militia. Immediately upon their appearing, Capt. John Parker, who commanded the militia company, ordered the men to "disperse, and take care of themselves, and not to fire," upon this order, our men dispersed, but many of them not so speedily as they might have done, not having the most distant idea of the brutal barbarity, and savage cruelty that was soon to be experienced coming from the troops of a British king! For no sooner did they come into the sight of our company than one of their officers of rank was heard to say to his troops, "Damn them; we will have them!" upon which the troops shouted loudly, and rushed furiously toward our position. About this time, three officers advanced on horseback to the front of the body, and one of them cried out, "Ye villains, ye rebels disperse damn you, lay down your arms". The second of these fired a pistol toward the militia as it was dispersing. The third, who was foremost, and only a few yards from our men, brandishing his sword, and then pointing it toward them, said with a loud voice to his troops, "Fire, by God, fire!”, which was instantly followed by a discharge of arms from the said troops, a very heavy, and close fire upon our party that left eight dead on the ground, and ten wounded. The rest of our company, through divine goodness, were preserved unhurt in this murderous action."
We learn from this account that the militiamen were following orders pursuant to their commander's issuance of them. We learn too from this account that the issue at hand was "gun control"; which was the purpose of the King's troops’ little foray into the American countryside during the wee hours of that Spring morning. And, we also learn that the Militia of Lexington were in fact "dispersing" when the British opened fire on them. Dispersing yes, but not laying down their arms. They knew that by themselves alone, they could never hope to effectively resist the overwhelming force that the British had amassed against them in the field. Nevertheless, they refused to surrender THEIR LEGAL AND MORAL AUTHORITY which is what keeping and bearing arms is really all about. And later that day they, along with their comrades from Concord and other surrounding towns, combined that authority with sufficient force to "fire the shot heard 'round the world", and drove the British limping, and bleeding back to Boston.

This is a stirring story indeed - and still deserving of the front and center place of honor that it commands in the History books of our classrooms today. But what of contemporary value does it offer us? Is its value none other than to offer an excuse for a spring holiday in these New England states? To imagine only as much is to forget the warning that "those who refuse to learn from history will find themselves repeating it", and then re-learning it- usually the hard way. Most Americans have become forgetful, or complacent of the real meaning of the events that transpired on April 19, 1775. Today, except for the few ceremonial memorials here, "the Militia of the several states" have been disbanded, and all but forgotten. Disbanded in fact, but still extant under the provisions made for it in the Constitution which states that, "a well regulated Militia is necessary to the security of a free state". Indeed, a well regulated Militia is the one and only institution that the Constitution recognizes as being "necessary" for any purpose. The Constitution still incorporates the militia into its federal structure according to the principles of its founding in 1788. The Constitution still delegates to Congress and WE THE PEOPLE themselves, the power, and the duty to organize, discipline, and train the Militia. Yet, in open violation of this express command, there is nowhere in any state that this corporate body is presently in assembly. And this is not as a result of our country facing no grave dangers against which the Militia might be in fact the best form of "homeland security". Au contraire, today more than ever before a "well regulated Militia" is absolutely "necessary to the security of a free state" everywhere throughout the US. In fact, "the Militia of the several states" are effectively disbanded, and the Constitution ignored to the point of "homeland security" being imperiled because WE THE PEOPLE have not stood forth in the muster of our MORAL AND LEGAL AUTHORITY, as did the Minutemen on Lexington Green in 1775. Unlike those who mustered on that green, muskets in hand, to perform their possibly fatal civic duties, most Americans refuse to even acknowledge, let alone to fulfill, their responsibilities as self-governing citizens in a "free state". Can there be any wonder why tyranny grows "like corn in the night" in this wannabe place called the "land of the free"?

A "free state" is a state wherein people actually govern themselves. In that state, "a well regulated Militia" is comprised of every able-bodied resident of the state, regardless of wealth, or station, from sixteen to sixty years of age. The Militia is composed of the people, and thus is controlled by the people. And, more than that, because a "free state" is one in which the people govern themselves, which thus requires a "well-regulated Militia", without it popular self-government cannot, and will not long endure. This is what is plainly and openly declared by the Constitution. This is what History teaches. This is what is obvious to anyone who follows the history of the actions of government rather than the rhetoric of its ad copiers. And, this is what will soon be learned by all Americans to the everlasting sounds of their "wailings, and gnashing of their teeth", if they fail to follow in the footsteps of their forefathers from Lexington.

Recently, we have witnessed enthusiastic throngs of patriots gathering in various forms of protest against the illegal incursions of government into their lives. Yet, it is only a congregation, not an organization. Its participants sense their potential political power to bring about the necessary reforms that this nation desperately needs, for strength lies in numbers, and there are tens of millions of Americans that share their sentiments. But "potential" power is not actual power, and "actual" power is not available to this mass of Americans because its members lack not just the means, but more importantly, the legal authority to do so. That legal authority can be regained by the revitalization of the militia of "the several states", the very institution that is glorified by the monument on Lexington Green, and which it recommends to us today. And not just the solitary man with his musket, but the hundreds, and even thousands that should rightly respond to this muster as "the militia of the several states".

"With their muskets?" Rightly and surely so, because armaments are the hallmark of a free citizenry and of a Constitutional militia. However, this call is not for the armed citizen alone, or even primarily, because the most important work of political and economic reform can be accomplished without arms and armament.

Today, what should be an enthusiastic throng of armed patriots gathered on the greens of small towns across the land is only a handful of disgruntled history buffs because "WE THE PEOPLE" are not doing our jobs as vigilant caretakers of the freedom that has been bestowed upon us by the citizenry of that celebrated day on Lexington Green.

Today, "WE THE PEOPLE" must immediately assemble to enact the important work of reform in the political and economic arenas of America while there is time. The armies of their "British Esquires" have already been ordered to march on the "green" nearest you! When they arrive, they will make the cry to "disperse, and lay down your arms"! Will there be a cadre of armed minutemen, and women to meet them this time, or will we simply "lay supinely on our backs until we are bound hand, and foot"(Patrick Henry)? To this we must reply with resolve: "forbid it almighty God".

Surely men and women with this resolve, properly supplied and organized, will prove themselves capable of performing the task set before them. The salient point here is: "if they are properly organized". We must now do as the patriots on Lexington Green did by "consulting what must be done for our own and the people's safety" and make ourselves "ready for whatever service providence might call us out to". And this must be done in and through the organizations that the Constitution declares to be "necessary to the security of a free state".

The proper means for the achievement of this end is through the State legislatures one by one. The good people of each state, and they are legion in spite of what the negative news service has to say, must enact statutes that will revitalize their Militia along strict constitutional guidelines for strict constitutional purposes. This must happen immediately, and should have happened yesterday. Proponents of this operative should seek and welcome the support of members and veterans of the Armed Forces, and of their State and local police forces, Sheriff's Depts., and emergency service agencies. One need only read the Constitution to understand that the Militia's responsibilities will overlap and be in support of these groups and agencies. Therefore, when the Militia are revitalized, they will be a complement and a supplement to the regular personnel that are already in place. They will NEVER be competitors or antagonists, but rather the closest of allies because they will all share the very same goal, which is the preservation of popular self-government against all common enemies foreign, and domestic. The enemies of a "free state" well know this. That is the reason that they belittle the movement for the revitalization of the Militia with the contention that it will be useless in the face of a fight with a trained army. This is dark propaganda broadcast to an uneducated populace in a shallow attempt to sow dissension, and engender defeatism. It assumes wrongly that there will be an inherent conflict between the Militia and the Armed forces. It also assumes that the people know nothing of what took place on Lexington Green in 1775. The Constitution says nowhere that the sole purpose of the Militia is to even be just a fighting force. The militia can and should have a non-military purpose that will be demonstrated in its ability to make preparations for the support of all emergency agencies in dealing with natural disasters and epidemics; and by providing security of food, medical supplies, and other provisions for the people in the form of "whatever service providence calls them to".

The enemies of a "free state" have also sought to demoralize patriots by claiming that the restoration of constitutional government in the US is impossible. But I believe that the restoration of such is ONLY possible by and through the revitalization of the "militia of the several states”. This will not only make restoration possible, but relatively easy if enacted properly. We know that this is true because the Constitution itself assures us that "a well regulated Militia are necessary to the security of a free state" which means that surely they will be sufficient for this purpose. We have further assurance in the fact that the laws of Nature and Nature's God will favor the big battalions of the legions of good people of America who outnumber the enemies of a "free state" by orders of great magnitude. Said simply, Americans will have in the organization of "the militia of the several states" both might and right on their side.

The "embattled farmers" of Lexington Green chose to stand firm against the British troops on this ground because it was THEIR ground that the British were invading, and their rule of law that the British were violating on that April morning. They were the ones in rightful possession; which, as the old adage has it, amounts to "nine tenths of the law". The other tenth, and perhaps the one that is decisive, is the enforcement of that possession. Who are, in the end, better able to enforce that possession than the rightful owners who actually hold that possession in decisive numbers, with right on their side, and who are "well organized" to convert their right into might?

The sum of this History lesson that is reminded to us in bronze and stone and set on this green is plain enough for any student of the truth to comprehend, and is compelling enough for any patriot to put into action. Americans will secure their constitutional freedoms, and rest in them only when they themselves (we the people) stand firm in those freedoms against all forms of tyranny through the "necessary" constitutional provisions, namely, "the Militia of the several states". Nothing less was sufficient on Lexington Green, and nothing less will do today.