Saturday, September 05, 2015

The "Rule of Law" Question

Grim at this post and AOSHQ at this post have begun to ask the right question.

To wit:  Exactly WHAT law is to be followed?  And why do politicians, the judges, and a lot of other people, including various churchmen, flee from the question as though it were made of Kryptonite?

Grim begins at the beginning, the Declaration, which clearly states that 'the laws of Nature's God' are the basis for the Revolution and the subsequent governing document(s) for the US.  At this juncture, the Constitution is the document.  If so (and that's become a very big "if"), then, properly, the law of the land must follow 'natural law.'

AOSHQ takes it from a different perspective, simply iterating a few of the cases in which the Left has blatantly and joyfully trampled "law" to achieve their ends.  (Too bad that he didn't mention the "law" of abortion in the process, but...)

The refutation to Grim's argument will be this:  "The Declaration is NOT the Constitution."  That will be delivered in solemn condescending tones, as though instructing a third-grade child.

Cutting through all of that, and not being very nuanced, the Great Fear of the politicians in this mess is that they will actually address moral imperatives regarding sex.  Why is it Fearsome to do so?  Because the political class retains its position by giving something away to its voters.  In some of the cases, they give away money.  In others--such as the instant case--they 'give away' moral injunctions, or, as Grim would have it, the law of nature. In both, of course, hypocrisy plays a large part. 

(It is interesting that neither of those--the money or the natural law--is 'owned' by the politicians and the judges in the first place, eh?)

How to foretell which "law" emerges victorious--at least temporarily? Based on the last 100 years of evidence, the battle will be won by those who cry, loudly, that 'the State is not a church,' and that 'we will not be ruled by a theocracy,' and they'll point to Islam or make up more Scary Stories about the Inquisition.  Some may even point to Israel--but only the Lefties, of course.  Similarly, the money will continue to flow to the "crony capitalists" or to the underclass (depending on who controls the spigot.) 

In short:  the Kim Davis case, for all its flaws, is a marker, but it is not a marker which those who love America want to have happened.  It is, rather, a marker exactly like Roe, and we should have the same feeling of sadness.

For even more, see Hayward's essay.  While he avoids the moral question which is at the center today, he does make another very good point:

The rule of law is a virtue defined by the consistency of its exercise.

I might write that differently; 'the validity of the 'rule of law' increases as the consistency of its exercise increases, and vice-versa.'  And, like Grim and Thomas Aquinas, I would add that said rule is void when it clearly violates the laws of nature's God.  But you get the idea.


Grim said...

Well, I stand by what I said: the Constitution is either a product of the Declaration, or it's subject to the Declaration's critique. If the state it sets up becomes destructive to natural rights, the people have the right to alter or abolish it.

It's a strange thing to think about, in a way. According to the Constitution's 14th Amendment, people born in the United States and subject to its national jurisdiction are United States citizens. But you can't really be an American if you reject the project that the Declaration staked out. In an important way, then, there are United States citizens who are not American citizens: their nationality and ours come apart. For now the separation is conceptual, but I wonder how long it can remain so.

Dad29 said...

You'll be derided for your linking of the Declaration with the Constitution. Join the crowd.

As to the 14th, let's look hard at the second qualifier: "...subject to the jurisdiction..." which SCOTUS/Brennan mangled to nothingness in his decision. But one expects as much from Brennan and his coterie, which now includes Kennedy.

Rational thinking is so passe, Grim.

Saint Revolution said...

Part One Of Three

Ya know, sheople better start understanding where their Rights REALLY originate from.

When you are arguing with some 90 IQ frontline son-of-a-bitch Customer Service slut, male or female, and such slut is arrogantly demanding that you must do such-and-such because it is either "Company Policy" or "The Law", whether you are arguing about an mortgage payment, an telephone bill, whatever, you must understand that, unless it is in writing, AND can be proven such by producing such written documentation AND the making of such written documentation available to you, such "Policies" and/or "Laws" simply "don't exist" unless proven.

Unless "The Law" or "Policy" is legally written (legalise), such physical documentation available, IT T'AIN'T matter who says what. This includes bureaucraps and Judges.

Historically, government bureaucraps came up with the bullshit catch-all that, "...ignorance of The Law is no excuse nor does it usurp The Law..." to cover their own greedy conniving lawless revenue-catching asses...nothing other words, to lawlessly and illegally win against you...whatever fight you are in with them at the judicial moment.

So here is the TRUTH regarding the incarceration of Kim Davis by an Federal Judge on Contempt charges...i.e., very possibly an ABUSE OF JUDICIAL DISCRETION:


"...Contempt And Coercive Detention

There is no power delegated in The US Constitution for an Federal Judge to prosecute anyone for Contempt Of Court, except on Federal Territory, under Art. I Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone indefinitely to coerce him into doing something. It was anticipated by The Founders that all Federal CourtHouses would be sited in Federal Enclaves, but not all of them are, and The Orders and Contempt Actions are often extended beyond the territorial limits of such Enclaves, where Federal Courts have no such jurisdiction..."

"...Habeas Corpus And Quo Warranto

Any person has The Right to petition for release of an prisoner if The Official holding him does not prove sufficient authority to do so. An Writ Of Habeas Corpus is an subspecies of an Writ Of Quo Warranto, The Right to have an Official cease or refrain from some action unless he proves sufficient authority for it. Only the first is explicitly protected in The US Constitution, but the latter is implied by The Due Process and NonDelegation Clauses and Amendments. The Principle involved is the presumption that an Official lacks authority for an Action unless he can prove he has it, so that an Petition for either Writ does not imply an Right to both OYER (Fair Hearing) and TERMINER (Decision On The Merits) for The Petitioner, but only TERMINER. The Right Of OYER belongs to The Respondent for such an Petition. If The Response is inadequate, or The Court does not have time for OYER, then its duty is to grant The Writ. The problem is that Judges, especially Federal Judges when The Respondent is an Federal Official, are too often failing to act on Habeas Petitions, on various pretexts, thereby reversing the presumption in favor of The Official and his actions. Petitions for Writs Of Quo Warranto are systematically ignored or dismissed, sometimes on the grounds of lack of legislative authority, but no legislative authority is needed. There is no appeal from such inaction. Law provides Petitioners only the option of trying again with another Judge, thereby encouraging forum shopping. Complaints of judicial misconduct for such denial or inaction are also being systematically ignored. This should not really be called an abuse of Judicial Discretion because by Law a Judge has no discretion on TERMINER, but it has emerged as a practice that undermines all the other protections of The Constitution..."

Saint Revolution said...

Part Two Of Three

"...Jury Selection

Both Petit and Grand Juries are supposed to be selected at random from the community, a process called SORTITION, with some screening out of Jurors who cannot be impartial or who have some hardships or critical duties. However, Judges too often abuse their discretion to pack juries with persons who are partial in various ways. One way is to demand that Jurors take an oath to "follow The Law" AS GIVEN BY THE JUDGE!!! That enables The Judge to misinstruct The Jury as to what The Law is..."

"...Trial Jury Access

In the early Republic, the standard practice of Due Process was to argue all issues of Law in the presence of The Jury, which enabled them to learn what the legal issues were along with The Judge, that is, the presiding Magistrate, and we can presume that this practice was part of what The Founders meant by "Due Process" in The Constitution. However, Judges have abused their discretion by adopting the practice of requiring Pleadings to be submitted to them by The Litigants in writing, and not allowing copies to be provided The Jury, nor allowing the attorneys to make legal arguments in the presence of The Jury. This has given Judges control over The Trial in ways that largely subverts the protections that The Jury is supposed to provide, because it does not allow Jurors to hear argument, in a criminal trial, that The Court does not have jurisdiction, or that The Charge is not authorized by an Statute, or The Statute by The State or Federal Constitution, or that The Statute is misapplied to the facts of the case, or that The Rights of The Accused were infringed by investigatory, prosecutorial, or judicial misconduct..."

"...Grand Jury Access

The problem is often revealed by the old Prosecutor's joke that he could get The Grand Jury to, "indict a ham sandwich". Originally, in the early Republic, there were no public Prosecutors. Criminal prosecutions were conducted by private attorneys, either paid by the victims, by subscription, or appointed by The Judge to serve Pro Bono. When public Prosecutors began to be appointed, they soon assumed an undue influence over Grand Juries, with the support of abuse of Judicial Discretion by The Judges. This is aided by a lack of civic education of the public concerning the duties of Grand Jurors, or by packing Grand Juries with cronies of the judicial establishment..."

"...Prosecutor Selection

In almost every State and in The Federal Courts it is within Judicial Discretion for The Judge to grant access to The Courts to any person to conduct an criminal prosecution, but except in Texas, such Petitions are systematically ignored or dismissed. This is a special problem when the suspects are public officials, cronies of The Prosecutor or Judge. Barring private criminal prosecutions without Just Cause is an abuse of Judicial Discretion..."

Saint Revolution said...

Part Three Of Three

"...Lawyer Protection

The other side of controlling lawyers with threats of Contempt or disbarment is systematic protection of them from being sued, by abusing Judicial Discretion to punish persons who might have the temerity to do so, and their lawyers if they can get any to represent them. Violators of this "unwritten law" find all their Motions thereafter being ignored or denied, regardless of merit..."

"...Absolute Immunity

It is appropriate for Judges to have a limited immunity from being sued for their judicial decisions if they are merely the result of error or incompetence. The remedy for that is Appeal to an higher Court. The problem is that Judges abuse their Judicial Discretion to protect themselves and other Judges from civil and criminal liability for being unduly influenced, such as by bribery, intimidation, or cronyism..."

"...Pro Se Litigants

Instead of accommodating to the lack of legal knowledge of lay persons who either cannot afford a lawyer, or who don't trust lawyers who are subject to the control of The Courts, Judges and Court personnel systematically discriminate against Litigants who appear Pro Se or in Propria Persona, often dismissing their Petitions or Motions out of hand, regardless of their merits. That is abuse of Judicial Discretion..."

"...Mens Rea Defense

In criminal cases, by original Constitutional standards, the elements of proof of an criminal charge are Mens Rea, Actus Reus, Concurrence, Causation, and Harm. The first, Mens Rea, is "criminal intent", and Judges are allowing criminal prosecutions to proceed without proof of it, especially when The Statutes prohibit acts that are Malum Prohibitum instead of Malum In Se. In this Judges are aided by abuse of discretion by Legislators, but it is still abuse of discretion..."



This Judge should be made to PROVE, via physical documentation (production of actual, and references to, Ordinances, Statutes, and/or Mandates, etc.), he has the authority he took upon himself to commit this atrocious abomination.

STUPIDITY (i.e., self-induced complete loss of Rights) defined:
the complete ignoring and/or dismissal of the evidentiary without any or proper investigation whether legal sanction authority even exists, such investigation otherwise leading to PROPER righteous resolution.