I am sure that a goodly number of you have noticed the road signs telling you to “buckle up . . . it is the law!” Some of you may have even had the maxim “ignorance of the law is no excuse.” We are flooded by the media commercials about obeying the law! From my youth and up until a few years ago I was educated and felt that our legislative representatives made the law which would we should live by. Starting in 1980 I started giving my legal up bringing careful scrutiny.
The more I studied some of the principles of law, which included a course in paralegal studies, I found that the principles of law did not support what my government was teaching me. My research led me to some interesting information on the meaning of the phrase “law of the land.” It is at this point which I would like to start our journey through the land of the law . . . . .
This phrase is use quite frequently in legal decisions which address one’s compliance to the “laws of the land.” I am not certain what images arise in your mind when you hear this word, but most likely it brings forth the conclusions that most people conceive being: “… The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of general rules which govern society.” (Black’s Law Dictionary)
To this we add the language of a recent Supreme Court opinion rendered by Justice O’Connor which exemplifies the loose language of many who speak without thinking. In talking about the “law of the land” she makes the declaration “partially” quoting the Constitution: “. . . , the Constitution provides that “the laws of the United States . . . shall be the supreme Law of the Land . . .”
This definition and Justice O’Connor’s “cite” from the Constitution appears to be the foundation for our thinking, it would appear that any legislative act passed by the legislature would, by implication, require obedience. This is what the government and legal profession would have us believe.
Now, when we read the scriptures or any of the ancient works, there are words and phrases which if read with the current understanding would mis-direct our thinking and lead us to the wrong conclusion. I doubt that there is one student of history that would deny this. Is it not only reasonable then to use the same yard stick in reading any early document? If we don’t apply the same measure in this instance, this could very well end the discussion.
Now there are those who would tell us that if we have a problem with the law we should obey the law and seek to change it through the system. This does not always work, because in this particular instance the problem is understanding, education, administration, etc. It is essential to apply the principle of original intent, or the “original” meaning of the words and phases of the time. For our purposes today the phrase “law of the land” has a history which dates back to the Magna Charta in early England (Magna Charta, chpt. 39, Blackstone I, 138). It had a particular meaning then and when the Framers of the Constitution used this phrase in Article Six, they had a definite meaning in mind.
It should be borne in mind that: “If I can control the words you use, I can control what you think. If I can control what you think, I can control your actions. If I can control your actions — I can control you!”
Let’s go back to the definition found in the legal professions’ dictionary (Black’s) because it only refers the individual to a small portion of the meaning of the phrase “law of the land.” When read in full the individual gets a different understanding.
LAW OF THE LAND: Due process of law.
By the law of the land is most clearly intended the general law which hears before it condemns, which proceeds upon inquiry, and renders judgement only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of general rules which govern society.
Now this part of the definition they want you to know — the rest of the definition however is most enlightening.
“. . . Everything which may pass under the form of an enactment is not the law of the land.”
Interesting — did you catch that conclusion? Not everything passed by the legislature is the law of the land!!!
Now let’s go to the quote by Justice O’Conner. Looking at the cite in the Constitution more closely . . . a different conclusion is apparent. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . . shall be the supreme Law of the Land; . . .” (U.S. Constitution, Article VI, cl. 2)
The framers of the Constitution, however, were not content to let the matter rest here, but provided explicitly-‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land.’ (Const. art. 6, cl. 2.) The supremacy of the Constitution as law is thus declared without qualification. That supremacy is absolute; the supremacy of a statute enacted by Congress is not absolute but conditioned upon its being made in pursuance of the Constitution. (Carter vs. Carter Coal)
“What a difference a day makes . . .” seven little words, which the Justice failed to include. The statement takes on a whole different light. Are all the laws passed by Congress to be considered the “law of the land?” NO! Only those which are made in pursuant to the Constitution are legitimate laws!
Returning to the definition of the phrase in question; “. . . When first used in Magna Charta, the phrase probably meant the established law of the kingdom, in opposition to the civil or Roman law. It is now generally regarded as meaning general public laws binding on all members of the community. It means due process of law warranted by the constitution, by the common law adopted by the constitution, or by statutes passed in pursuance of the constitution.”
To best understand this last portion of the definition one needs to understand that there are two (2) fundamental jurisdictions that pertain to this earth, they are: 1) The Law of the Land; and, 2) The Law of the Sea. The Law of the Land is known as the Common Law and the Law of the Sea is known as Admiralty. The Common Law is fairly straight forward and easy to follow, it encompasses two divisions which are: 1) Do all that you agree to do; and, 2) Do not encroach upon other persons or their property. This was summarized by the Savior in the “Golden Rule.”
Admiralty on the other hand can be very complicated, but to keep it simple, this law operates under contract. It deals with agreements and events upon the sea including insurance, paper money, debt, and etc. The captain of the ship was and is in reality, the Master. His word was final.
In talking about these two different legal systems, J. Reuben Clark, Jr., former ambassador to Mexico and noted attorney, in his book “Stand Fast by Our Constitution”sets the stage: “The sovereign power rested in the head of state, who granted to the people, his subjects, the rights he decided they should have, reserving all other rights in himself, as likewise the right to extend, alter, add to, or withdraw the rights already granted…. The Common Law system of government, … as developed in the United States … is completely polar to the Roman or Civil Law system as to legal origin and the sovereignty behind it….
“In the last years (1935), we in America have gone a long distance towards the adopting of the Roman concepts, and the abuses against property rights and human freedom and liberty which are possible under that system.”
Ezra Taft Benson, former Secretary of Agriculture under President Eisenhower, comments on this; “… There are only two governmental systems in the world today. One system recognizes that the sovereign power is vested in one person or a group of people who serve as head of state. This kind of government rests on the premise that the ruler grants to the people the rights and powers the ruler thinks they should have. This system is wrong, regardless how benevolent the dictator may be, because it denies that which belongs to all the people inalienably — the right to life, liberty, and property.”
The struggle has been since the beginning, the attempt of Admiralty coming on to the land. Think of this as you read the Declaration of Independence where Jefferson, in itemizing the reason for separation, stated that England was subjecting the colonies to a “jurisdiction foreign to our constitution.” The Revolutionary War in part was to eject the “foreign jurisdiction” (Admiralty) back to the sea.
The Federal Court in an 1832 case the “Bains vs. The James and Catherine” decision went through a lengthy discourse on the Common Law vs. the Civil Law, concluding: “It is therefore a self evident proposition, that the jurisprudence of the United States is not founded in the civil law, …” 2 Federal Cases, Case No. 756 (pg. 419)
The Common Law or, as I would call it, the Law of God, is the foundation for the Constitution of the United States.
Notwithstanding the many different cultures and faiths now finding safe haven in this Nation, the government of this Country was founded upon “Christian” principles. Principles, I might add that are common to many faiths. The only laws that can find legitimacy and protection under the Constitution are of Common Law origin. Without the Common Law we cannot have the Constitution. If you check your State Statutes you will find that like State of Utah they think that they have effectively abolished the Common Law and replaced it with the Civil Law (law of the sea “Admiralty”). However, the Common Law is not dead, it is still there, but only the individual who is willing to force the issue will bring it back. Unfortunately, there are many legal minds who have given up hope for changing the status quo. Some one, some where, some time will have to make the stand.
If you haven’t yet done so, take a tour through the State law library. Observing the myriad of legal books produce by the legal profession, even King Solomon would have abdicated the throne. This is because Admiralty jurisdiction not only recognizes that “sovereignty” rests in the ruler, but that the “ruler” knows what is best for the “subjects.” Statutes and regulations now become a code of conduct for the “subjects.” “. . . Buckle your seat belt . . . its the law!” Equality of outcome is now the goal of socialists as observed by Milton Friedman, a well know economist; “In the early decades of the Republic, equality meant equality before God; liberty meant the liberty to shape one’s own life. . . . (after the Civil war) . . .The debate then moved to a different level. Equality came more and more to be interpreted as “equality of opportunity” . . .
“. . . a very different meaning of equality has emerged in the United States in recent decades — equality of outcome. Everyone should have the same level of living or of income, should finish the race at the same time. Equality of outcome is in clear conflict with liberty. (Free to Choose) “If I can control your thinking . . .”
“Equality of Outcome,” reflect upon the push for “big government.” The social programs that “take” from one and give to another who has not earned it. Redistribution of the wealth of this nation.
In the Dec. 12, 1994 edition of U.S. News and World Report there is an article by Michael Barone on “A brief history of taxes.” In here he admits that one of the major purposes of the Income Tax is to “redistribute” money from the haves to the have nots. Hawaii’s former member of Congress, Patsy Mink, admits the redistributive qualities of the Income Tax and supports them (Democrat); “I fully support a progressive tax code which seeks to fairly redistribute wealth between the rich and poor by collecting a ‘fair share’ of taxes from upper income individuals and corporations. . . .” (Letter to the author)
Taking the bread of the laborer and giving it to the idle. Mr. Beardsley Ruml, past chairman for the Federal Reserve Bank of New York, out right declares the purpose of the income tax is to “express public policy in the distribution of wealth and of income, . . .”
Ezra Taft Benson has stated that “government does not have the “power to redistribute money or property, . . .” This declaration by Mr. Benson is supported by former Supreme Court Justice Chase; “An act of legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. …; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B. It is against all reason and justice, for a people to entrust a legislature with such power; and therefore, it cannot be presumed that they have done it.
… To maintain that our Federal, or State, legislature possesses such powers, if they had not been expressly restrained; would in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
… With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice.” (Calder vs. Bull, 3 Dallas 386, 388,389)
I am starting to leave the subject at hand. . . . . The point that can be made here is that a legislative act “contrary to the great first principles of the . . . Constitution . . . cannot be considered a rightful exercise of legislative authority. IT IS NOT THE LAW OF THE LAND! The Income Tax Law is a constitutional act of Congress as originally drafted — but — today, because the socialists have “changed” the meaning of words we have allowed our government to educate us in a polluted meaning as to the administration of the tax law.
Back to Solomon . . . . . with this legal mess, even he would be lost and confused. BUT! Under the Common Law and the two basic laws; 1) Do all you agree to do; 2) Do not encroach on other persons or their property, or the Golden Rule . . . Solomon’s task is not so hard. (Credit for the two kinds of laws goes to Mr. Richard Maybury from his book “Whatever Happened to Justice?” Good reading!)
How are we to determine which of the legislative act of Congress (or the States) apply to us? The simplest principle to understand in respect to this is found in the principle of “delegation of authority”. Meaning, since the authority comes from the people,. . . if I can lawfully do it . . . the government can do it. The French writer, Frederic Bastiat (1850), in his treatise on “The Law” sets forth his understanding on the proper scope of law. “What then is law?. It is the collective organization of the individual’s right to lawful defense.
“. . . It is substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do.”
“. . . We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force.
“When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. . . . They are defensive; they defend equally the rights of all. “. . . It ought to be stated that the purpose of law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent. . . . .
“It is not true that the legislator has power over our persons and property. The existence of persons and property preceded the existence of the legislator, and his function is only to guarantee their safety.
“It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.
“Since law necessarily requires the support of force, its lawful domain is only in the areas where the use of force is necessary. This is justice.”
Individual rights are not the subject of government regulation. This interesting principle comes from the Supreme Court: “One’s rights to life, liberty, and property … and other fundamental rights may not be admitted to vote; they depend on the outcome of no election. A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” (Lucas vs. The Forty-Fourth General Assembly, 377 U.S. 713
Mr. Leonard Read, in his Book, “Elements of Libertarian Leadership” observed; “This, quite obviously, is a political concept with tremendous spiritual overtones. Indeed, this concept is at once spiritual, political, and economic. It is spiritual in proclaiming the Creator as the endower of men’s rights and , thus, as sovereign. It is political in the sense that such an acknowledge implicitly denies the state as the endower of men’s rights and, thus, the state is not sovereign. And this is an economic concept because it follows from the man’s inherent right to life that he has a right to sustain his life, the substance of life being nothing more nor less than the fruits of one’s own labor.”
To restate what Mr. Benson said: “. . . The proper function of government, then, is limited to those spheres of activity within which the individual citizen has the right to act. . . .”
So what about the Gun Laws . . . . does it take away a “right?”
What about Health Care Laws . . . . does it take away a “right?”
Most assuredly they do . . . . our right to choose, our right to self defence. Health Care again “redistributes” property; imposes mandatory responsibilities upon employers and employees. Most importantly, it takes away our freedom of choice. The Income Tax and other property regulations have destroyed our rights in property. As long as you “have to” pay “rent” to government on our property, can you really say you own property?
Now there is a lot to be said of the “good” that government regulations will do for the country as a whole . . . . . Equality of outcome! Does it follow that we should support a government that would destroy our liberty, our freedom? One that make “laws” as to what we can or cannot do? I like the comparison I use a lot by John Stuart Mill in his treatise “On Liberty;”
“He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties. He must use observation to see, reasoning and judgement to foresee, activity to gather materials for decision, discrimination to decide, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgement and feelings is a large one. It is possible that he might be guided in some good path, and kept out of harm’s way, without any of these things. But what will be his comparative worth as a human being? It really is of importance, not only what men do, but what manner of men they are that do it. Among the works of man, …, the first in importance surely is man himself.”
The importance of liberty and laws that support the concept of self-determination is explained by Mr. Robert Jones. His book “The Challenge of Liberty” was being taken off the shelf at the library in Cody, Wyoming when I came across it. I purchased what I feel is a wealth of knowledge for one dollar.
“The growth of the human spirit in its experience of truth is accordingly toward identity with the truth contained in (the) universal spirit. … This growth in knowledge is possible only because human spirit is of the same essence as universal spirit.
“. . . The human experience of truth is . . . the experience of liberty.
“. . . Freedom does not of itself assure acquaintance with truth; . . . The essence of the freedom is self-direction (free agency), … it is only when the self-imposed direction of development is toward identity (with God) that truth is experienced. Thus truth consists in liberty, and liberty is truth; . . . in the sense that liberty directed to self-realization in integration with universal spirit is the sole experience of the knowledge of truth. . . .
“. . . Without liberty therefore truth cannot enter into the human experience.”
Back to the law of the land — As I observe the many attempts to legislate a code of conduct for Americans, I am amazed at the attitude of some of the member of Congress, for example, I wrote a letter to the Senior Senator from Hawaii (1995) concerning the authority of Congress to legislate on the Health Care issue. His reply was that the authority of Congress to act on this matter was found under the “commerce clause” in Article I of the Constitution. Our Congress has over the decades used the “elastic” clause to expand their power. They forget that the government of these United States is one of enumerated powers. Congress has adopted the proposition that government is “supreme” or the “sovereign” in their dealings with the citizens of this country.
The “police powers” of Congress or any legislature for that matter find their authority or source in the concept of “sovereignty.” The passion for power has clouded the thinking of men who should know better. In addressing the Constitutional Convention Benjamin Franklin knew well that: “. . ., there are two passions which have a powerful influence on the affairs of men. They are . . . the love of power and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent affects. Placed before the eyes of such men, a post of honor that shall be at the same time a place of profit, and they will move heaven and earth to obtain it . . .”
The understanding about the proper scope of government and the law of the land has been effectively removed from the citizens by the legal profession via our government educational system.
What is the concept of “sovereignty” in our system of government? Truthfully, the term sovereignty does not have a place in our government. This word comes from the governments of kings and dictators. If we are to use this term one important principle should be remembered and that is, as expressed by Supreme Court Justice John Marshall (1819); “The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission.” (M’Cullock v. Maryland)
Today our government wants us to think that they are sovereign and therefore the police power which originate in sovereignty are legitimate. This loose thinking is flawed because the people created the government and are the rightful heir to the term “sovereign.” The Federal Government, being a creation of the people operates within a “limited” jurisdiction. Again John Marshall’s comments on this principle are clear: “This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.
In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.
“If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. . . . .
“But this question is not left to mere reason: the people have, in express terms, decided it, by saying, ‘ this constitution, and the laws of the United States, which shall be made in pursuance thereof,’ ‘shall be the supreme law of the land,’ . . . .
“The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ” any thing in the constitution or laws of any State to the contrary not withstanding.”
Other supportive statements by the Supreme Court; “The government of the United States is supreme within its sphere of action.”
“The national government, though supreme within its own sphere, is one of limited jurisdiction and specific functions.”
Continuing with Mr. Benson’s remarks on this principle it is equally clear when he explained; “. . . The proper function of government, then, is limited to those spheres of activity within which the individual citizen has the right to act. . . . It cannot claim thepower to redistribute money or property nor force reluctant citizens to perform acts of charity against their will . . . No individual possess the power to take another’s wealth or to force others to do good, so no government has the right to do such things either. The creature cannot exceed the creator.” (The Constitution, a Heavenly Banner, BYU Speeches)
Yes, the government is supreme, but ONLY within its sphere of activity. The obsession with power can only be controlled by a watchful citizenry. Unfortunately, we have been kept well fed and the abundant life has made us fall asleep on our watch. We have been told that the courts are the protectors of freedom — not so! The last line of defence against government tyranny are the people! It appears that as a result actions of the present administration (Mr. Obama), some people are beginning to waken up.
What defines the bounds in which the government is “supreme” or “sovereign?” Simple! These bounds are defined by Article I, Section 8 of the Constitution. Authorities from the courts and the founders of the Constitution bear this out. The Supreme Court: “The federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted. In this respect we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members.”
James Monroe; “The Government of the United States is a limited Government, instituted for great national purposes, and for those only.”
James Madison; “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, . . .”
More recently Justice O’Connor, Supreme Court; “Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. . . .”
“. . . Our task would be the same even if one could prove that federalism secured no advantages to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. ‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.’” United States vs. Butler, 297 U.S. 1, 63, (1935)”
In his concurring opinion in the Butchers’ Union Co. case before the Supreme Court, Mr. Justice Field declares with clear description the purpose of government and its proper sphere; “As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all actions, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’ — that is so plain that their truth is recognized upon mere statement — ‘that all men are endowed’ — not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but ‘by their Creator with certain inalienable rights’ — that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime — ‘and that among these are life, liberty, and the pursuit of happiness, and to secure these’ — not grant them but secure them — ‘governments are instituted among men, deriving their just powers from the consent of the governed.’”
Constitutions from some of the States: Alabama –“The sole object and only legitimate end of government is to protect the citizens in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.” (Alabama State Constitution, Article 1, section 35)
Wyoming; “Absolute, arbitrary power over the lives, liberties and property of freemen exist nowhere in a republic; not even in the largest majority.”
We need to retake our position as the sovereign in our relationship with government. The laws passed by Congress for the most part are constitutional and have a legal effect upon the individual depending upon that individual’s legal status. If we enter into the “sphere” of government activity, then we become a “subject” and the myriad of statutes and regulations that are passed by Congress every year and these legislative acts are now the “law of the Land” to those who loose their sovereignty. And why is this? It is because of the “wickedness of your lawyers and judges . . .”
The fault is in the administration of the “law of the land” by government. For the legal profession has “change the . . . laws . . . and reduced the Constitution to toilet paper. I tell you this, if ever there was a time when our Constitution hung by a “thread” so to speak . . . it is now!
I would close with the warning of President Franklin Pierce, in a veto message to the Senate in May of 1854; “If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the . . . (individual) . . . shall bow to the dictation of . . . (government) . . . by conforming their . . . (lives) . . . thereto, when the power and majesty and honor of those who created shall become subordinate to the thing of their creation, I but feebly utter my apprehensions when I express my firm conviction that we shall see ‘the beginning of the end.’”
Our for-fathers gave us a Nation, not yet finished, but mostly free, and instead of following in their stead and improving upon their work, we have neglected our charge and enslaved a nation.
We are at the “fork” in the road. Our choice is to continue down the road traveled by other nations into debt and destruction or, we can alter our course, and it won’t be easy, by returning “. . . a jurisdiction foreign to our Constitution” back into the sea and returning this Nation back to the Constitutional principles that made it great. Recognizing the “natural rights” of individuals and the sacred nature of property.