Basic Fundamental Principles – 101

To the Utah State Legislature:

At the beginning of the 2014 legislative session Senate President Wayne Niederhauser  introduced Article I, Section 27 on recurring to fundamental rights, I have asked several times from several of the legislators, especially those on the taxation and revenue committee to identify some of those fundamentals.  Over the almost 2 years since then there has been no response.  It indicates to me that the legislature does not know, which is unfortunate.  Knowing and understanding the fundamentals of government are crucial as they are a guide not only in deciding cases, but also is developing legislation.  By failing to respond, the conclusion is that the Utah State Legislature does not relate to the fundamentals of government.  As such, much of the legislations coming from those chambers fails to measure up to the State Constitution.

These principles and usages I have addressed to the legislature are just not me talking.  In previous correspondence sent to your attention, my conclusions are documented from respectable sources:

“Section 27 is composed of four basic elements: frequent recurrence, fundamental principles, individual rights, and free government.  Section 27 designates fundamental principles as the means to secure individual rights and perpetuate free government.  As an abstract proposition, however, section 27 offers little guidance to the practitioner.  To effectively incorporate section 27 into Utah jurisprudence, practitioners need to understand the fundamental principles that define the scope of individual rights and free government.  Once the term “fundamental principles” is given substance, and its relation to individual rights and free government is identified, section 27 can be more extensively incorporated into Utah jurisprudence.”  (Adapted from a Washington Law Review article, 1992, suited to Utah’s section 27).

Circuit Judge A.H. Reid of the 16th Judicial Court, commented on this principle: “. . . [I]t (fundamental principles) impressed with force the great truth that sound government must proceed upon sound, unchanging principles of justice and moderation, to which reference should be always made in deciding upon the wisdom of any proposed legislative policy.”  (Marquette Law Review, Vol. 1, issue 4 (1917) p. 186)

“That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.” (Marbury v. Madison, 5 U.S. 137, 176;  Chief Justice Marshall)

“One provision in Utah’s Constitution, Article I, Section 27, seems by its terms to be more important than any other part of the Constitution. . . . No other provision in the Constitution claims to show an essential key to freedom.  Yet strangely, virtually no jurist or scholar has commented on Section 27. . . .  The Utah Constitution can and should be used to protect rights and to perpetuate a free government during Utah’s second century. . . .”  Paul Wake’s article on Do Utahns Remember How to Be Free?

On July 29 of this year, I completed the administrative process with the Tax Commission,  Article I of the Utah State Constitution and the fundamentals are a bar to their deciding the issues.  As of this date, I have not received a final determination, quite possibly because some of the records were destroyed by the Tax Commission.  This makes three (3) times over the past three decades that the Tax Commission has called me on the carpet and accomplished nothing.

Companied with the fact that the Tax Commission had no evidence that of an amount owing to the Internal Revenue Service, as no 1040 forms were in evidence as being submitted and no assessment was made by the IRS for the years in question.  Evidence was submitted showing this and the fact that the IRS had released all liens filed against me with the County Recorders office.

A lot of this has to do with the legal professions efforts to reconcile the fundamentals our constitutional documents with the civil law.  They are not compatible. The legislature thinks it can abolish the Common Law.  As long as our Constitutions stand, you will find the fundamentals that are referred to in Article I, Section 27 in the Common Law, which is the “law of the land.”

Justice Baldwin, Bains v. the James and Catherine, (1832) “It is therefore a self evident proposition, that the jurisprudence of the United States is not founded in the civil law, . . .  Where the common law was the law of the land, the civil law was held to be the law of admiralty.” (Law of the sea)

One of the most respected commentaries on Admiralty Law are the volumes by Erastus C. Benedict, LL.D.  In the preface, the author acknowledges the “ignorance of this branch of legal learning” by the legal profession.

“. . . [W]here the common law was the of the land, the civil law was held to be the law of the admiralty, and the course of proceedings in admiralty closely resembled the civil law practice.  Browne Civ. and Adm. Law. 348.”  Benedict on Admiralty, 7th Ed., Vol. 1,§15. The Civil Law

*The right to proceed in rem is the distinctive remedy of the admiralty and hence administered exclusively by the United States courts in admiralty: no State can confer jurisdiction upon its courts to proceed in rem, nor could Congress give such power to a State, since it would be contrary to the constitutional grant of such power to the Federal Government*. The saving clause of the Judiciary Act and of the Judicial Code does not contemplate admiralty in a common law court.” 1 Benedict on Admiralty (6th ed.) 38, section 23.

Terms used by many individuals such as “law of the land” and “the rule of law” are only properly understood and applied with an understanding of the Common law.  The three expressions are synonymous as they are unchanging, “designed to be permanent.” Both the Constitutions for the United States and the State of Utah are only understood and interpreted by reference to the Common law.  As early as 1799 it was understood that the jurisprudence of the Union was to be centered around the Common Law.  Thomas Jefferson’s letter to Edmund Randolph spoke extensively on the subject:

“I think it will be a great importance, when you come to the proper part, to portray at full length the consequences of this new doctrine, that the common law is the law of the U.S., & that their courts have, of course, jurisdiction co-extensive with that law. . . .”

Justice Matthews, Smith v. Alabame (1888): “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Justice Gray, U.S. v. Wong Kim Ark, 1898): “In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.”

Justice Day, Kepner v. U.S.  (1904): “In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. . . .The  language  of the Constitution,  as has been well said, could  not be  understood without  reference to the Common Law.  1 Kent. Comm. 336.”

Justice Bradley, Moore v. United States (1875): “. . .[W]e know of no system of law by which it should be governed other than the common law. That is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University: “The Constitution is a legal document and many terms are legal terms of art whose meaning was refined over preceding generations of the common law.  To ignore the common law background of these terms is to discard valuable information that can give a more precise and definite meaning to language that may otherwise might seem vague or confusing.”

Professor James R. Stoner, Jr. (Ph.D., Harvard University, 1987)  He has taught at LSU since 1988 and has chaired the Department of Political Science since 2007: “But without understanding common law, you cannot understand either the original meaning of the Constitution or the way that meaning has been adapted to remain effective in our own time. Moreover, there is much about the common law that is alive today and plays no small part in supporting our lawful liberty.  Finally, common law has been a means by which natural law or the law of reason has retained authority in American life.”

Joseph Story, (1833) General Review of the Colonies, Chapter XVI:  §73. “There is, however, a difference between these two species of colonies in respect to the laws, by which they are governed, at least according to the jurisprudence of the common law.  If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject.  So that wherever they go, they carry their laws with them; and the new found country is governed by them. . . .

§  79.    “And so has been the uniform doctrine in America ever since the settlement of the colonies.  The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation.  The whole structure of our present jurisprudence stands upon the original foundations of the common law.”

16 American Jurisprudence 2d, §113: “An important canon of construction is that constitutions must be construed with reference to common law, since, in most respects, the federal and state constitutions did not repudiate but cherished the established common law . . .  It has been said that without reference to this common law the language of the federal constitution could not be understood.

Justice John Catron concurring in Waring v. Clark, (1847): “I agree with my dissenting brethren, that the constitution of the United States is an instrument and plan of government founded in the common law, and that to common law terms and principles we must refer for a true understanding of it, . . .”

Utah can change its constitution, however, there are certain principles that cannot be altered, two being the “republican” form of government and the “common law.”  The attempt by the Utah State legislature to abolish the Common Law (UCS 76-1-105) has no legal effect on the Common law and its legal effect on the judicial system of the State.  As long as Article I, Declaration of Rights, of the Utah State Constitution, is in force the Common Law lives.

The difficulty with many of the court decisions today, stems from the lack of understanding of the Common Law and Admiralty Law by the past three generations or so of the law graduates as they move into their profession.  Legal minds of the late 1700’s and early 1800’s understood the relationship of the Common Law to the governing of society.  And to understand the decisions handed down by Chief Justice John Marshall and his generation, those fundamentals of the Common Law must be understood; and they are not.

As to the fundamentals, Jefferson in a letter to Major John Cartwright (1824) called his attention to the fact that: “Nothing is unchangeable but the inherent and unalienable rights of man.”  Or, our unalienable rights are unchangeable.  Our legislature and Governor need to understand just what an “unalienable” right is.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Supreme Court Justice Field, Butcher’s Union v. Crescent City:  “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 action, 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 their 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, . . .”

Vocabulary.com:

“What’s unalienable cannot be taken away or denied. Its most famous use is in the Declaration of Independence, which says people have unalienable rights of life, liberty, and the pursuit of happiness.

“To find the origins of the word unalienable, we can look at the root, alien, which comes from the Latin alienus, meaning “of or belonging to another.” This provides the basis for our word, with the prefix un- providing the turnaround “not,” and the suffix -able providing the idea of capability. Therefore, we get “not able to be denied.” Oh, and if you are wondering about the common argument as to whether it is “unalienable” or “inalienable,” either is correct.”

Black’s Law Dictionary:

Unalienable Rights:  Rights which can never be abridged because they are so fundamental.

Abridge:  To reduce or contract; to diminish or curtail.

Fundamental rights:  Those rights which have their source, and are explicitly or implicitly guaranteed, in the federal constitution.

Merriam-Webster:

Unalienable: impossible to take away or give up.

Chief Justice Warren, Miranda v. Arizona, (1966): “As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us, and it is our responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”

Much of the legislation passed by the state, counties and local communities constitutes a burden on our fundamental rights and equal protection of the law.  Compelling citizens into administrative proceedings, violating due process of law; seat-belt laws violating a right to travel; taxing the fruits of our labors, violating a natural right to own and control property, among a few.   “That to secure these rights, governments are instituted among men, . . .” (Declaration of Independence).  “. . . [S]ecure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  This is the contract;  this constitutes the sole responsibility of government.

As to the forgotten Republic, Article IV, Section 4 of the United States Constitution guarantees that the States of the Union will provide for its citizens a Republican Form of Government.  It has been made known to me as I have studied and interacted with several State legislators and town council members that a knowledge of just what constitutes a Republican Form of Government is totally unknown to them.  This stems largely from the lack of education provided for up and coming lawyers in our legal system.  It is known as “word control.”

“If I can control the words you use, I can control what you think.  If I can control what you think, I can control how you act.  And, if I can control how you act, I can control you.”  They have by the inattention of our educational institutions to teach the fundamentals, confusing the terms “republic” with “democracy.”  Notwithstanding the many statements made by noted individuals concerning the difference between the two systems of government, the people are indifferent as to this difference.

Recently I have been introduced to a new term “constitutional democracy.”  This was brought to may attention by Douglas Jeffrey of Hillsdale College as the term was used by U.S. Senator Tom Cotton in an address on Foreign Policy (Oct. 2015).  As I explained to Mr. Jeffrey:

“Senator Cotton’s remarks, however, like many on both sides of the political spectrum, make an assumption that continues the myth about our government.  He states that “Our Founders gave us a constitutional democracy.”  This is not true.  They organized a “constitutional republic” and the States are to provide a “republican” form of government for their citizens (Article IV, Section 4).  When talking about our government the word “democracy” should not enter into the discussion.   Thinking like this misleads the people toward socialism and the will of the people at the expense of our inalienable rights.”

Hillsdale College spins this very well:

“In America, the rule of law is embodied in the Constitution, and specifically in such constitutional mechanisms as representation (election of representatives), separated powers, and federalism. Thus America is a republic as opposed to a simple democracy. But that doesn’t mean, nor did the Founders or the best subsequent American statesmen ever suggest, that America is not democratic. In America, the people rule — which makes us democratic, rather than aristocratic, oligarchic, or monarchical — but they rule in and through a constitution rather than directly and unchecked.

“Understood in this way, “American democracy” means constitutional democracy, and “constitutional democracy” is synonymous with “republic.””

From my studies, until now I have never read where the Founders used the term “constitutional democracy.”  This term is not introduced in the letters of Jay, Madison or Hamilton in the Federalist Papers.  Mr. Obama likes to use this term as he ignores the “constitutional” part of the term.  And this is the fallacy of calling our Republic a constitutional democracy, as our government forgets the Constitution.  We have an element in our society who enjoy the power and money they receive while in office and in time, if not already, dismiss the Constitution altogether.  Some of our respected individuals in and out of government, use the term “democracy” without thought.  How often have we heard the phrase, “making the world safe for democracy”.  You very seldom hear the elected authority refer to the Union as a “Republic.”

There are divergent opinions on this term.  One cite outlines the advantages of a constitutional democracy.  I note the absence of the protection of the citizen’s property.  The author does reference freedom and rights.  The other item identified is “popular sovereignty: The people are the ultimate source of the authority of the government which derives its right to govern from their consent.”  Here the author fails to identify the limitations of the citizens sovereign authority, for the citizens can only delegate those powers they have; e.g.; the right to property.  I do not have the right to take another’s property, therefore, I cannot delegate to government the authority to take anther’s property.

This “popular” sovereignty, in my view is a major difference between a “constitutional democracy” and a “republic”.  In a republic, the only thing “popular” is the election of governing officials.  Nothing else is up for discussion.  As I will touch on later, our natural rights to life, liberty and property are not up for the vote and depend upon no election.  Both the Founders and the Supreme Court have made this clear.  (Current Chief Justice John Roberts has forgotten this).  I am not sure as to the origin of this new term, but it appears to have been introduced more to confuse than to clarify what our system of government is to be.

James Madison

The Federalist Papers, No. 10.

“Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Those elected by popular sovereignty are obligated to understand the fundamentals which should govern their legislation.  In case they do not understand the principle stated:

Alexander Hamilton

Federalist Papers No. 84

“For why declare that things shall not be done, which there is no power to do it?”

Chief Justice John Marshall

M’Culloch v. Maryland [1819]

“The right never existed, and the question whether it has been surrendered, cannot arise.”

These comments by Hamilton and Marshall, point to a very basic fundamental that is ignored by present-day government, including the Utah State governing body.  That is the fundamental doctrine of “delegation”.  This fundamental principle has been treated several times, however, dealing with powers delegated within the frame-work of the government system.  In a Cardozo Law Review (1999) by law professors Gellhorn and Verkuil, this principle is laid out in clear english:

“Until Congress delegates specific powers to an agency with a reasonable degree of clarity, there is no basis in law for an agency to claim such power.”

If we do the genealogy and move one step back, the same is true with the source of authority granted by the people to the government powers.  It is “We the People of the United States, . . . [that] . . ., do ordain and establish this Constitution for the United States of America.”  As such we can paraphrase the law review’s point; “until the people delegate specific powers to government with a reasonable degree of clarity there is no basis in law for any government to claim such power.”  This is a common law principle developed in antiquity, “For I came down from heaven, not to do mine own will, but the will of him that sent me.”  (John 6:38)  Ezra Taft Benson, appointed Secretary of Agriculture in the Eisenhower administration understood this principle very well:

“Suppose (individual) ‘A’ wants another horse for his wagon. He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.

“If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)? No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago;

“. . . Nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, . . ., to take away the life or property of another.”   Two Treatise of Government, Book II

Letter to the Compiler, Dean Russell (1964):  “Whenever government is doing anything that is forbidden to the citizen, that function is illegitimate, according to our theory of government . . .  Our government is founded sparely on this ‘theory of delegation’.  One cannot delegate what he doesn’t have.”

Justice Matthews, Yick Wo v. Hopkins (1886): “. . . The governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them.”

Chief Justice Waite, United States v. Cruikshank (1875): “The Government of the United States is one of delegated powers alone.  Its authority is defined and limited by the Constitution.  All powers not granted to it by that instrument are reserved to the States or the people.”

The court records are full of cases where the court has called administrative agencies on the carpet for extending their authority beyond their lawfully delegated limits.  There is always a “false” government usurping a pretended authority.  We elect supposedly “wise” individuals to watch for these encroachments into our freedoms and reject them, but they seem to be incapable of both recognizing and rejecting them.  In our Union, we have destroyed the fundamental of delegation by combining our three branches of government into one as the political parties seek to control all three branches of the Union.

Just because we elect individuals to our legislatures, does not demonstrate the existence of a “republican” form of government.  There are “representative democracies” and there are “representative republics.”  There is a striking difference between the two systems in their approach to the fundamentals of government that lay at the foundation of government.

Chief Justice Waite, United States v. Cruikshank, (1875): ” For this reason, the people of the United States, “in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty”  to themselves and their posterity (Const. Preamble), ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rule of action. . . .

“Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. . . .”

Justice Field, concurring in Butcher’s Union . Crescent City (1883): “[C]ertain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained.  (Speaking of fundamental principles)  These inherent rights have never been more happily expressed than in the declaration of independence, . . .  We hold these truths to be self-evident’ . . . ‘that all men are endowed’ – not by . . . acts of congress, . . .’ but ‘by their Creator with certain inalienable rights.’ – that is, right which cannot be bartered away, or given away, or taken away, . . .

“It has been well said that ‘the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property’. . . .

Chief Justice Earl Warren, Lucas v. 44th Gen. Assembly of Col., (1964): “As stated by this Court in West Virginia State Bd. of Educ. v. Barnette, 319 US 624, 638,  ‘One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’

“A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”

During the Utah Constitutional Convention, Heber Wells reminded the convention;

“. . . [B]ecause the tendency of the times might be as it has in the past, not to recur very often to fundamental principles.  When the people are oppressed and do not get their rights, it may be necessary to recur to fundamental principles.”  (Do Utahns Remember How to Be Free? Paul Wake)

Continuing from the Marquette Law Review, Judge Reid goes on to give some noteworthy advise to the legal division:

“The lawyer who depends merely on decided cases as authority for the position he takes in argument, and who, as it often occurs, is bewildered and in doubt when without an authority to direct him, is indeed but poorly prepared for the service he should render.  But he who tests every case as it comes to him by the touch-stone of fundamental principles may, and generally does, know the law applicable to the case, . . .  This is always assuming that the legislative fiat has not arbitrarily interfered with the natural course of reasoning.”

Other terms and phrases confused by the legal profession are found in the use of “common law,” being the “law of the land” and the “rule of law.”  These terms are found in the Republican system of government. Civil (admiralty) law, is the system of government found in a democracy as being the “law of the land,” or the “rule of man.”  Black’s Law Dictionary explains it as well as other sources:

“A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition.  Called a “rule,” because in doubtful or unforeseen cases it is a guide or norm for their decision.  The rule of law, sometimes called “the supremacy of law”, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.”

The best thing to say about “the rule of man” is that it is absent the rule of law.  Under the rule of law, the law is constant, unchanging founded upon fundamental principles of inalienable rights to life, liberty and property.  The rule of man is ever changing as a new power structure is elected into office.  The maxim that “ignorance of the law is no excuse” is fine for the “rule of law”, however, under the rule of man, it is a very good excuse for citizens as the legislature writes new laws, repeals old laws or rewrites existing laws.

The State of Utah has chosen the path led by the civil law, which is the rule of man conforming to the “will” of the people, or majority rule.  At one time these fundamental were highly regarded and protected.  Written into the Utah State Constitution, in the first position are the “Declaration of Rights.”  Although the authors of the Utah State Constitution made a “list,” this list is not inclusive.  There are others that stem from the Common Law, which in turn is founded in the “Golden Rule,” a fundamental espoused by Christ.

Reduced to its common denominator the Common Law, or rule of law is the “Golden Rule”  We are a Christian Nation, however, there is a constitutional prohibition against a “state” religion.  Other faiths are recognized and respected.  The only prohibition I can see is the attempt to remove Christian-Judaeo principles from the foundation of our government.

Noah Webster

“[O]ur citizens should early understand that the genuine source of correct republican principles is the Bible, particularly the New Testament, or the Christian religion.”

John Adams (1735 – 1816)

“Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Thomas Jefferson’s letter to Major John Cartwright, 1824.

“Lord Mansfield, . . ., in Evans’ case, in 1767, says that ‘the essential principles of revealed religion are part of the common law.”

These principles are not a violation of the first amendment that “Congress shall make no law respecting an establishment of religion, . . .”  I think you will find that the christian principles are common to all of the major religions of the world, to do unto others as you would have others do unto you.  For example:

  • Confucius:  “Never impose on others what you would not choose for yourself.”
  • “Do not do to others what you do not wany them to do to you.”  Analects 15:23
  • Buddhism: “. . . a state that is not pleasing or delightful to me, how could I inflict that upon another?  Samyutta NIkaya v. 353
  • Brahmanism: “This is the sum of Dharma [duty]: Do naught unto others which would cause you pain if done to you.”  Mahabharata, 5:1517
  • “If people regarded other people’s families in the same way that they regard their own, who then would incite their own family to attack that of another?  For one would do for others as one would do for oneself.”  Mozi
  • “Regard your neighbor’s gain as your own gain, and your neighbor’s loss as your own loss.”  Laozi (500 BC)

Islam:  A Bedouin came to the prophet, grabbed the stirrup of his camel and said: O the messenger of God! Teach me something to go to heaven with it. Prophet said: “As you would have people do to you, do to them; and what you dislike to be done to you, don’t do to them. Now let the stirrup go!  The Prophet Muhammad

“None of you [truly] believes until he wishes for his brother what he wishes for himself.”  Number 13 of Imam “Al Nawawi’s Forth Hadiths

Judaism: “What is hateful to you, do not to your fellow man.  This is the law: all the rest is commentary.”  Talmud, Shabbat 31a.      (See Wikipedia: The Golden Rule:  Also, Religious Tolerance.org;  The Golden Rule in 21 different faiths)

This fundamental of the “golden rule” is the basis for good government because it is a principle or “common law” to all and easily understood.  It takes away the mystic of the “wisdom of Solomon.”  What is the Common law?  What is “common?”  Understood by all?  Familiar to all?  As demonstrated, the Common law as founded upon the principle of the golden rule is common to all.  Even those individuals who profess no faith in a creator can understand this principle.  Granted there are those who do not believe as the majority of the world population, in a Creator and there for the inalienable rights of the people are only a figment of the imagination.  We have identified them and they are in government.  People need to understand this and bring this back into our legal system.  We need to legislate, enforce and judge under the guide lines of this one fundamental principle.

We should require individuals in all three of our government divisions to understand this, and remove those who have forgotten the fundamentals.

Other fundamentals not listed in the Declaration of Rights, Article I, also includes the sovereignty of the individual, delegation of authority.  With these two fundamental principles we can determine the functions of government because in a Republic, the bureaucracy can only exercise that authority delegated to them by the people, and the people can only delegate those powers they hold in common.

As I have studied the various court cases, I find that for the most part the Supreme Court rely on the fundamentals of our Constitution, relying upon case law to show a consistency.  The lower courts rely principally upon case law to justify a position which shows an inconsistency in the outcome.   Reading through the early decision of Chief Justice Marshall (1819), a well respected jurist, several fundamentals were delivered in M’Culloch v. Maryland, to wit:

Fundamental Principles of Taxation

[1].  “The government proceed directly from the people; . . .

[2].  “This government is acknowledged by all, to be one of enumerated powers. . . ;  that principle is now universally admitted. . . .  We admit, as all must admit, that the powers of government are limited, . . .

[3].  “Though any one state may be willing to control its operations, no state is willing to allow others to control them.

[4].  “It is admitted, that the power of taxing the people and their property, is essential to the very existence of government, and may be legitimately exercised on the object to which it is applicable, . . . It may be exercised upon every object brought within it jurisdiction. . . . it is an incident of sovereignty, . . .  All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. . . .  Sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; . . .

[5].  “If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied.

From The Antelope (1825):

[6].  “That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will. . . .”

Republican Government and the Law

Supreme Court Justice Chase, Calder v. Bull (1798):

[7].  “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 punishes a citizen for an innocent action, or, in other words, for an act, which when done, was in violation of no existing law; 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 powers; and, therefore, it cannot be presumed that they have done it. . . .”

Sovereignty

Supreme Court Justice Matthews, Yick Wo v. Hopkins (1886):

[8].  “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. . . .   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, and being the essence of slavery itself.”

Supreme Court Justice Paterson, Vanhorne’s Lessee v. Dorrance (1795):

[9].  “Legislation is the exercise of sovereign authority.”

Citizenship

Supreme Court Chief Justice Waite, United States v. Cruikshank (1875):

[10].  “We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.”

Reading through the various fundamentals, and the list is still not complete, respect for another’s life, liberty and pursuit of happiness is at the foundation.

We have heard a lot about the “Rule of Law.”  Like throwing around the term “republic,” “democracy,” “common law” and “fundamental principles,” very little thought is given to the significants of their meaning and impact on our jurisprudence.  You have the opposites in knowing about the rule of law and the rule of man.  Terms confused by the legal profession conveying the understanding that any law passed by the legislature represents the “law of the land,” when in reality, the law of the land consists of the fundamental principles.  Here again the law of the land represents principles that are fundamental and unchanging – common to all.

Chief Justice Marshall

 Marbury v. Madison

“That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.”

The “rule of man” is what we are experiencing today, laws that are ever changing with each new legislative session, depending on the people in power.  The rule of law is guided by principles that are unchanging and common to all people. The rule of man shows its face in the form of the “civil law.”  In its inception the State of Utah was established as a Republic and the the jurisprudence of the State was founded upon the Common Law.  As part of the State’s withdrawal from a Republic the State legislature found it convent to abandon the Common law, placing the Civil law in its stead by passing the Utah Code Section 76-1-105 in 1973; “Common law crimes are abolished and no conduct is a crime unless made so by this code, other applicable statute or ordinance”.

One of responsibilities for the admission of our State into the Union requires an allegiance to the United States Constitution.  It is also demanded of civil officers from the Governor to the least as they take their oath of office to support and defend the Constitution for the United States.  It is a challenge for them to “support and defend” that which they do understand as the legislature abandoned the Common law.

Supreme Court Justice Day

Kepner v. United States, (1904)

“In ascertaining the meaning of the phrase taken from the Bill of Rights, it must be construed with reference to the common law from which it was taken.  1 Kent, Com. 336.  United States v. Wong Kim Ark, . . . in which this court said:  In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.  [cites omitted]  The language of the Constitution, as has been well said, could not be understood without reference to the common law.”

The Common law is unchanging and will always retain its position as the “law of the land.”  Legislative fiat will not hide it.

The problem with the civil law is that it changes with the ruling party.  Using only the law and facts, does not always equal truth.  The truth is found in the fundamentals.  To repeat what Circuit Judge Reid said about the common law:

“The symmetry and efficiency of our common law in producing justice has been a direct result of the fact that the common law is based upon the fundamental principles of right, from which fundamental principles the course of reasoning always begins, in preparing the way for the correct decision of the case in hand.”

BecauseWe have been cursed with a legal profession that has no knowledge of the common law, nor can they operate effectively in that system, or make legislation or decisions that protect our natural rights

 John Marshall

Virginia Constitutional Convention (1829-1830)

“I have always thought, from my earliest youth until now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary.”

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