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AMERICAN CONSTITUTIONAL LAW, THE GLOBAL MARKET-STATE, AND THE FUTURE

(Quotes are from “Shield of Achilles” by Phillip Bobbitt, unless otherwise noted)

“The ‘modalities’ of American constitutional law are the ways in which we characterize a proposition of that law as true or false.” Mr. Bobbitt lists six modalities of “constitutional interpretation”:

1. Historical, that is, the Original Intent of the Founding Fathers;
2. Textual, that is, how does ‘Joe the Plumber’ understand it;
3. Structural, that is, how the Constitution mandates the relationship between the branches of government;
4. Doctrinal, that is, rules set by precedence;
5. Ethical, that is, the ethos invoked by the Declaration of Independence, the Preamble, etc.
6. Prudential, that is, using a parameter outside of the Constitution to balance the costs and benefits of a particular rule.

Mr. Bobbitt then correlates these ‘modalities’ with the six philosophies of government that he previously identified:
1. Historical = Consensualism
2. Textual = Nominalist
3. Structural = Neo-Realist
4. Doctrinal = Legal Process
5. Ethical = New Haven School
6. Prudential = Perspectivist

Without going into detail on each of these philosophical approaches to government, one can readily see that the good of each of them is already embodied in the Constitutional Republic designed by the Founding Fathers under inspiration from God. Why mess with a good thing? The minor errors, already corrected by the Amendment process, were errors of comprise of the Original Ethic—compromising the basic principle of “All Men Are Created Equal” by lessening the humanity of the First Nations People, and by continuing the enslavement of descendants of African slaves.

When listening to Prime Minister Brown of Britain speak before a joint session of the United States Congress, I was amazed at how well received his proposal that we do away with borders in all aspects of life—banking, commerce, law, science, etc., in favor of a global community of nations who globally work to solve global problems like climate change, poverty, economy, every aspect of life be changed into a global market-state. It is a good goal to eliminate want and deprivation, to have a clean environment, but it is the method which reveals the madness. Whenever bureaucratic government is proposed as the solution of our problems, whenever top down management is proposed, we know there is trouble on the way, for the man who has never farmed does not know farming, the woman who has never been a fulltime homemaker and mother cannot know what is best for another woman’s home and children. In time, after much trial and tribulation before us, Mankind will return to an understanding of simplicity—that the best government is the government that governs least. Joseph Smith, founder of the Church of Jesus Christ of Latter-day Saints said it best when asked why the city of Nauvoo (Illinois), which he founded, was so clean and the jail was empty, “I teach them correct principles, and they govern themselves.” That is our answer.

Phillip Bobbitt quotes Graham Greene, “Once in a while a door opens and lets the future in.” Mr. Bobbitt sees this as being the New World Order of the global Market-State. Mr. Brown of Britain would agree with him. I say, we are the future, family by family, community by community, refusing to partake in a system designed to turn us into good little consumers and placated worker bees, placated with PlayStations and IPods, placated with satellite television and cell phones, placated from thoughtful independent thinkers into mindless drones responding without will to subliminal advertising and mind manipulation into ever buying and never knowing satisfaction. Just say NO!

THE CASE FOR SELF-DEFENSE

(Quotes are from “Shield of Achilles” by Phillip Bobbitt, unless otherwise noted)

While discussing the philosophy of Neo-Realism, the doctrine of Dean Acheson, Mr. Bobbitt says “…international law is created by a society of states that draws its constitutional power from its constituent members, and thus cannot impose rules that undermine the constitutional vitality and survival of the states themselves.” Also “a state always has the right to act on behalf of its vital interests”. He defines “vital interest” as that “without which [the state] would cease to be able to perpetuate its society’s way of life.” What does that mean to me, the sovereign citizen?

Let us look at the United States of America first. It would appear that, as a sovereign state, the United States of America has a pre-existent right to self-defense. It can take action to prevent attacks upon its people, its infrastructure, and its sovereignty. That action can include a myriad of actions including sanctions, tariffs, border control, and military action, just to name a few. But the key is self-defense, not annihilation of another State. Indeed self-defense is a sacred right which is embodied in the Oath of Office administered to its leadership and military members, an oath to “protect and defend the Constitution of the United States against all enemies foreign and domestic.” Therefore every State MUST provide for its self-defense or it ceases to be a State. The question must be asked, is warring in foreign nations self-defense or self-deception? Are open borders self-defense or self-destruction? To answer these questions we must ask a third, since the United States government exists as a Sovereign State because its sovereign citizens created and perpetuate it, granting it only the rights they wished to grant it, self-defense being the number one reason for government, to protect life—does that State cease to exist when it fails to fulfill its sacred duty?

Self-defense, Gun Control and the Second Amendment
We have now established that a State has the right to self-defense, recognized by international law. It logically follows that the sovereign citizens of that state who have granted that State the right to self-defense on their behalf, must first have had a pre-existent unalienable right to self-defense. Whether that right is perceived to be God-given or nature-given, it exists independent of any political structures created by Man. One can defend one’s life because one lives. Mr. Bobbitt’s statement above could be paraphrased thusly “an individual (or his duly and freely elected representatives) cannot impose rules that undermine the survival of the [sovereign citizen himself].” Under this theory, it could be posited that gun control laws violate the basis for international law—that is, the right of self-defense. A sovereign State cannot remain sovereign if its individuals are not sovereign. If a State, or an international body of States , seeks to destroy the right of self-defense within any given state, it is not a collection of sovereign States working together to solves international disputes, it is a dictatorship seeking to disarm sovereign citizens so they are unable to defend themselves against the tyranny. It is the entire point of the Second Amendment, which has nothing to do with hunting, and everything to do with self-defense against tyranny. I refer you again to the Declaration of Independence. Read it slowly and thoughtfully. You will be amazed at the correlation to the situation in which we find ourselves today. Think hard and think twice before you vote for another candidate that believes in gun control and open borders. He or she is not interested in personal or State self-defense.
Declaration of Independence (1776): www.ushistory.org/Declaration/document/index.htm.

IN FAVOR OF CIVIL DISOBEDIENCE

(Quotes are from “Shield of Achilles” by Phillip Bobbitt, unless otherwise noted)

During a discussion about Consensualism, described as one school of thought on international law, Mr. Bobbitt says “Because states are the only entities capable of endowing international law with authority (on this view), only law created by states can legitimately bind them; and because states are sovereign, they can only be bound by that law to which they consent.” He also says “Consensualists share a fundamental premise: because international law is made and implemented by states, the consent of states, as manifested in their original intention memorialized in explicit or implicit agreements, is the only basis on which rules may legitimately be said to govern state behavior.” This idea, that states are sovereign, that they are only bound by international laws to which they consent, according to their Original Intent, led me down a thought path to the idea that if individuals are sovereign then they are bound only to those laws to which they consent, according to their Original Intent. What does this mean to an individual citizen of the United States of America?

First, some definitions are in order, since we are discussing the concept of Original Intent, I will use the 1828 American Dictionary of the English Language by Noah Webster (1818) and Black’s Law Dictionary (BLD).
Sovereign: one who possesses the highest authority above all (1828); a person, body, or state in which independent or supreme authority is vested (BLD).
Civil: that which is natural or proper to a citizen of a free political community (BLD); that which is between citizen and citizen, not criminal which is between state and citizen (1828).
Disobedience: non-compliance (definition 2 – 1828)
Original: first in order, preceding all others (1828); primitive, first in order, bearing its own authority, and not deriving authority from an outside source (BLD).
Intent: a design, a purpose (1828); design, resolve, or determination with which a person acts.

To interpret what Mr. Bobbitt states above as Consensualism’s creed, using these definitions, in any international organization capable of making law, states are only obligated to comply who have consented to the laws. For instance, if all the Pacific States, i.e., United States, Chile, Mexico, Indonesia, etc., except Japan consent to the Law of the Sea Treaty (aka LOST), then the signatory states would no longer harvest sea life from the designated areas, but Japan could. In this case, the Original Intent of the LOST would be to cease all harvesting in designated areas, but it would not achieve this aim if a state harvesting sea life in those areas did not sign the treaty. Japan would be asserting its sovereignty which pre-exists the treaty and is therefore Original. The international community could then impose sanctions against nations who purchase Japanese sea foods with in its member nations, but Japan could sell inside its own nation or to other states not members of the international community, that would be Civil Disobedience.

How would this apply to the average citizen in the United States of America in the 21st Century? Suppose there is a voluntary National Animal Identification System (NAIS) program. Under this program all livestock and domestic animals enrolled would be required to have an RFID implanted, would be subjected to spot tracking, movement of animals off or on an identified and registered premise would be mandatorily monitored and registered online or by phone. This would prevent all disease from being passed from one animal to another, thereby ensuring the safety of the food supply. Since this is a voluntary program, only the signatories would be bound to obey its regulations. However, if a livestock producer or a domestic pet owner does not wish to become a signatory to the NAIS, that producer would still be free to sell, trade, or move its animals whenever or wherever they choose to. This would mean that some animals would be unmonitored and therefore perceived to be potential disease carriers. The United States Department of Agriculture (USDA) could then issue sanctions against them by requiring all meat packing houses and stock yards to only handle NAIS stock or lose their license for all animals, which would close these businesses down. These businesses would tell no NAIS producers that there is no market for their product, thereby forcing compliance on pain of death when the producer can no longer provide for his or her own family. Remember NAIS purports to be a method of preventing the spread of disease within the food supply chain, yet the USDA will not allow private packing houses to check each animal for mad cow disease, even when it costs the taxpayer nothing, but USDA approved packing houses only check randomly, if at all.

How would Civil Disobedience work? Japan and other nations could simply say we will write our own treaties with each other and we do not recognize your right to exclusive ownership of the Seas resources. We think they should belong to all and we have a need for them. The livestock and domestic animal producer could say, this is a voluntary program and we will not comply. Meat packing houses and stock yards could create a coalition that would simply say, “We will not comply”. We will produce and process with each other, label our product as being non-compliant with NAIS and let the consumer decide which is preferred. If everyone, or a significant majority, just said “no” to laws and regulations designed to control or inhibit freedom of choice, then the government, “ deriving [it’s] just powers from the consent of the governed.” In other words, we are the government and we are sovereign and we are bound only to obey those laws to which we have consented, not regulations which change at the whim of an administrator, and un less we come to this conclusion and exercise those rights to civil disobedience, we will have to declare our independence a second time and fight to restore the Constitution on the streets rather than in the halls of Congress.

Declaration of Independence (1776): www.ushistory.org/Declaration/document/index.htm.

Philosophies of Georg Jellinek, Hans Kelsen, Carl Schmitt

(as described in the “Shield of Achilles” by Phillip Bobbitt)

JELLINEK
“Only a valid law is part of the legal order; the test of that validity is the ability of a norm to motivate compliance by engendering a sense of obligation, and because we only feel a sense of obligation to those laws we believe are valid.” And “A valid law is simply one that is accepted as valid.” Jellinek thought that social norms determined the validity of a law.
While listening to Senator Diane Feinstein this morning on C-Span discussing an amendment which would, in her mind, undermine the Heller vs. District of Columbia in the case of private citizens owning weapons in the District of Columbia, I realized an application of Jellinek’s idea of a valid law being simply one that is accepted as such. In the case of the Second Amendment, which was at issue in Heller vs. District of Columbia, a valid law is the right of self-defense. We feel a sense to defend ourselves against all enemies foreign and domestic, i.e., criminals, etc. So laws which punish persons who attack others for reasons other than self-defense should be enforced. These are also valid laws. But when laws are proposed which inhibit the right to self-defense against all enemies foreign and domestic, these laws are opposed in the streets and in the courts because they are not considered valid.
Civil Disobedience is the key here. If your state is an Open Carry State, please feel free to exercise your right to uphold a valid law and openly carry your firearm. The general principle being, that, if a right is exercised it is recognized by society at large as a valid right to be supported by valid laws. When we do not exercise our rights under valid law, we run the risk of losing them by virtue of lack of exercise of those rights, kind of like when we do not exercise our physical muscles, we lose them and have to rebuild them at a greater cost than it would have taken to maintain them.

KELSEN
Kelsen’s basic idea is that Law is relative, that it is valid only when it is in its proper legal place “if X occurs, then Y ought to follow”; that law is within a “legal order as a hierarchy of norms.” Coercion is legal when it has been ordered by the judicial system; it is valid because it conforms with a criminal statute, which statute is valid because it is in conformity with the constitution of a society; which is valid because the sovereign says so be the sovereign “We the People”, or a king or God, which sovereign can change things at Will. How does this apply to the State? “The State has the juridical status of a corporation: it exists by virtue of a superior legal order that endows it with validity. Because the validity of a legal order is a matter of its correspondence with a norm, it follows that a state can be legitimated by its correspondence to those rules that are the product of interstate norms. In other words, the state is legitimated by the norms of international law, not constitutional law…All legal formations may be arranged as a continuous line of formations gradually passing into one another. This continuous line starts with the contractual community of private law, leads to association, the municipality, the country, then member-state, the federal state, the unitary state, unions of states, treaty communities of international law, and ends in the universal international community.”
So let’s look at this a bit differently, suppose the family unit is the contractual community, next is the physical community, say a town ship in which several family units reside. Now these townships are gathered into counties, which are gathered into States, which become a union of states thereby creating a federal state, with the power to be a party to treaties which create regional communities like the European Union, which then coalesce into a universal international community, such as the United Nations. This would be the precise situation unfolding in the world today.
Let’s look at it from an LDS religious point of view. The Family becomes a ward, several wards form a stake, several stakes form a region, all the regions coalesce under a universal international governing body with a central headquarters. Kelsen’s pattern is correct, but the different between the secular structure and LDS structure is one of homogeneity vs. heterogeneity and that is the discussion of Carl Schmitt.

SCHMITT
Carl Schmitt was a socialist who was instrumental in developing the philosophies which led to the rise of fascism and Nazism in Germany. He postulated that in order for a true democracy to work it must be based “on the principle that equals are treated equally and….unequals are not treated equally.” This would require homogeneity—that is, the “assemblage of equals”, which might include the “eradication of heterogeneity.” This is just a sterile way of saying genocide and ethnic cleansing may be considered justifiable means of attaining a true democracy. It is critical in our day and age to understand that this idea did not die with the Nazis. Certain Islamic regimes will insist upon Shari a Law which promotes homogeneity. Certain Christian schools of thought would not be necessarily opposed to the idea of creating a theocracy in which all those who do not accept Jesus Christ as Lord and Savior should be banished. The Inquisition against Jews and heretics should be proof of that.
Another of Carl Schmitt’s ideas that was embodied in the Nazi regime was the idea that the exception proves the rule. We’ve all heard this as justification for many things. What he meant by this was that there are times when a constitution should be suspended and a dictatorial martial law should be enforced. In the United States of America we have see this happen when hundreds of people were rounded up without due process, held incommunicado, or tried in absentia, or captured and spirited away to secret prisons in countries which were not sensitive to the idea of torture, all in the name of security and peace for the homeland. At the risk of being bold, may I suggest that we are falling for some of Schmitt’s Nazi philosophies? Indeed, Nazism created a world view myth of Aryan superiority that is not unlike the American principle of Manifest Destiny, corrupted into a world view in which the American view is the only view and more importantly, the only right view, not matter what principles and natural laws are violated.

POSITIVISM

A perspective on Law as defined by John Austin.
(Quotes are from “Shield of Achilles” by Phillip Bobbitt, unless otherwise noted).

Positivism is the idea that Natural Law is irrelevant. A sovereign could decide what is Law without regard to its origin. If a sovereign “denied authority to a ‘natural’ law, it ceased to have any legal effect.”
Positivism also redefines the concept of a “just war.” “Justice [is] a matter of morality, not of Law; therefore, war is lawful when the sovereign deems it so.

In the matter of the War in Afghanistan, the majority of the sovereign citizens of the United States of America deemed it to be a “just war” because the persons ultimately responsible for the attacks against them on 11 September 2001 were trained and harbored in that State. There was a moral justification—self-defense and retribution.

In the matter of the War in Iraq, the majority of the sovereign citizens of the United States of America were unsure as to pre-emptive war being a “just war”. For their own purposes, the State of the United States of America, as elected by the sovereign citizens, thereby creating a sovereign state, in the person of President George W. Bush, used Positivism, that is, it was decided that war with Iraq was lawful just because the sovereign State said so. There was no moral justification of self-defense and retribution for crimes committed against a sovereign State. Instead, there was a legal justification; it is possible that in the future the State of Iraq will do something somewhere sometime against someone somewhere. This was the premise of the movie “Minority Report”, in which the State prosecutes people before they commit crimes, thereby preventing crimes. Under this view of Positivism, that the powers that be decide what is Law and what is Out Law, Hitler could justify the murder of millions of innocent people, without due process or with due process, whichever he deemed best fit the circumstances of the moment. Under this view of Positivism, no one is safe in his life, liberty, or property. What’s mine is mine, and what’s yours is mine because you voted me into office, I believe we call this “eminent domain” at its worst.

I think we better start taking the Source of Law in this Nation seriously, whether as Thomas Jefferson say, “the Law of Nature or of Nature’s God”, as embodied in the Constitution or we will be subjected to the whims of an ever-growing tyrannical government with tentacles in every corner of our private lives under the guise of security and prevention. Welcome to the “Brave New World” of “1984” where War is Peace, Freedom is Slavery, and Ignorance is Strength. But that’s okay “Big Brother Is Watching” out for you.

MORE ON FREE WILL

Since Free Will is the basis for all human activity, then it follows that Free Will must also be the basis for the creation of, and legitimation of, the State. Expanding on thoughts from Phillip Bobbitt’s “Shield of Achilles”:

Dynastic Succession, that is, the automatic succession to leadership based upon lineage = “a blind allocation system” or “a choice by society not to actually choose.” Examples of blind choice – kings, juries, the Dalai Lama, and persons born to wealth and power.
Drawing Lots = a random choice, considered to allow God’s will to be done without Man’s influence.
Sufferage = voting by citizens, may be popular, electoral, or representative.

The question becomes, which method of choosing leadership provides for the greatest action of Free Will? It would have to be that method which provides the individual with the greatest possible influence on decisions directly and indirectly affecting his Life, Liberty, and Property, all of which he mush have to provide for the needs and wants of himself, his family and his community. Sufferage seems to best fit that criteria. However, there are questions that arise, such as:
Who can vote?
Only Heads of Households, only property owners, only citizens of majority age, everyone who is a resident, everyone regardless of position or property ownership or citizenship or residency?
How do we vote?
Only by mail, only at designated polling places, with identification papers or without identification papers, by computer or by paper ballot?
For what or whom do we vote?
How do we provide security and accountability at the polling place, and in the place where ballots are counted?
How do we prevent fraud?

Rules protecting sufferage must be simple, well-defined, and designed to best provide for each designated voter to have his or her say in the process of governing. We should exercise Free Will in working towards creating a Constitutionally Correct method of voting in our respective States.