WHERE HAVE AMERICANS LOST THE “RIGHT OF JURIDICAL DEFENSE?”
Juridical defense is the principle that no government may act upon an individual or his property or fail to act upon it, without right to court and jury.
Of course the IRS is the best example. Where else?
LAW MUST APPLY TO ALL PERSONS EQUALLY.
Where have americans lost the protection from universal applicability?
Two common abuses:
First is that all individuals within any governance structure must be personally liable for their actions. This means we must be able to sue individuals in all bureaucracies for damages. Including delays.
Second is taxation. Flat income and sales taxes guarantee minimum taxes. However, I’m not sure progressive taxation is anti libertarian. ( involuntary transfer ). I am sure that misuse of taxes is anti libertarian. ( I’ve written about this elsewhere. )
The philosophical problem is not so much a tax but the governments ability to increase taxes.
IF THERE IS NO LAW THEN THERE IS NO CRIME AND THEREFORE LEGISLATIVE LAWS MAY NOT BE RETROACTIVE.
Where have Americans been subject to retroactive law?
[T]here is only one law, and that is property.
If the different forms of property are understood: life, private property, common property, norms as property, and if the forms of theft are understood: risk transfer, indirect involuntary transfer, direct involuntary transfer, theft, fraud and violence, then no other law need exist, and people need be educated to confirm to no other laws.
But once the principle of property is violated, so that we allow various forms of theft, we must create a multiplicity of artificial laws the same way that by telling one lie we must tell a dozen to hide it, and a dozen for each of them, and a dozen for each of them.
Complexity in life comes from lies in all their forms. Telling the truth makes for a simple life. Complexity in the politics of life comes from abuses of the one law of property. Respecting property in all its forms makes for a simple life, and a simple government.
All else that we need can come from contracts and not laws. Contracts exist within the one law of property, in all its forms. Contracts can be fulfilled, they have a definite time period, they require specific performance, and specific When you move to an area, you can sign the contracts that are currently in place, or not move to that area. And the contracts may not violate the one law of property, and judges can resolve conflicts over them easily.
The problem judges face is largely to do with the complex network of ‘commands’ and institutionalized thefts masquerading as laws that distort or violate the law of property.
The second problem judges face comes from the complexity that arises by justifying the monopoly of the state: the artificial scarcity of judges, the necessity of taking cases rather than taking cases on merit, and the inability to specialize.
And the side effect of violating the law of property, is that we MUST degenerate into totalitarianism of commands: the lies and the impact of the lies, the commands masquerading as law, the thefts masquerading as contracts. We must degenerate, because there is no longer a common principle that these laws share. And it is the commonality of principles which determines the habits of the population that must make judgements day in and day out over generations. People who must memorize overlapping complex commands, will soon abandon them.
There is only one law, and that is property. The rest is lies masquerading as law. The purpose of which is to empower government with the ability to enslave.
[D]oes this mean that redistribution is not warranted, and that we must rely on voluntary investment? Or that the unfortunate must be left to charity? No. It does not. If we have contracts that require performance there must be a return on that performance, otherwise it is not an exchange, but a theft. Markets must have consumers and providers: buyers and sellers just as do shopping malls. just as the mall obtains profits for its shareholders, so do the marketplace’s investors obtain profits for their investment in their market: their geography.
To become an investor in that market one need only respect property, and the contracts that are required of the participants in that market. And as an investor, one is due returns on it. Since we all take the same actions to join the market, by adhering to contract, and the one law of property, which are payments in the forgone opportunities for theft, we are equally due returns on our investment in that market. Since we unequally take commercial risks in that market we are unequally due returns from our commercial risks, even if we are equally due returns from our investment in forgone opportunity, which we call respect for the one law of property: which makes the market possible.
The commission that investors make on transactions in their market – commissions which can come from sales transactions, or rental fees that come from uses of the commons, can vary, and can be progressive. Otherwise there is an involuntary transfer from the market. However, the contracted terms must not be open to alteration. Because if they are, then there is an opportunity for the majority of shareholders to steal from the minority of shareholders through the act of fraud that we call ‘bait and switch.’
If services are privatized, so that they are not run by a bureaucracy, and contracts cannot be violated by that bureaucracy, and all relations outside of those contracts are voluntary, then we do not create the problem with government: bureaucracy and regulation which manufacture commands and organized thefts masquerading as law. If we do not have ‘elected representatives’ but hire professionals who must respect that law of property, then we do not create the opportunity for government to be a vehicle by which individuals and the artifice of bureaucracy can be purchased by special interests whose entire function is to violate the one law of property and the contracts that have been established.
Elected representatives were only necessary because of a lack of ability to communicate preferences in time and space, and the lack of education in the population. If it is not possible to violate the law of property, only to issue new contracts as old one’s expire, and if these contracts are marketed like any other good or service, then they can be purchased by investors who vote their shares. There is no need for the system of theft and corruption we call bureaucratic government.
[T]here may indeed be a need for a judiciary. And a record of the common laws which illustrate the means by which knowledge of property evolves over time. And there is certainly the need to hire administrative talent to manage the investment that all members make in their market by their forgone opportunities for fraud theft and violence. But there is no need to allow them to create laws, rather than to administer contracts. There is no need to grant them that special ability to violate the law of property. To create an opportunity for individuals to be purchased by special interests – which we call corruption. There is no need to create a vehicle for our enslavement.
Because we are no longer limited in our ability to communicate. So we no longer need to delegate our decision making to anyone.
Society is the market. Property is required to make the market. And legislative representative government is the means by which we destroy the institution of property which makes that market possible.
It is not a government that protects people. It is the judiciary and the common law, under the one law of property. If all people are possible to sue, and no person is given special protection from it, and the court has the ability to enforce the one law of property, and punishment is limited to restitution, then the institution of property will naturally prevail.
We only have problems of abuse within capitalism because the government engages in corporatism: granting thefts we call privileges. SO this is not an appeal to anarchy. It is not an appeal to the absence of government per se. It is government by law: the one law, that no one can violate. Where we do not ask mere human beings to both respect the one law, the rule of law, while at the same time, create an institutionalized means by which their sole purpose is to violate that institutions of property.
That we even engage in so foolish a conflict of motives is confirmation of our ability to use the power of myth to deny the obvious.
Society is easy to construct with the one rule of property.
It is easy to destroy without it.
“Because the possibility of effectively supervising government varies inversely with government’s size, so does government’s lawfulness.” – George Will
Justice Scalia Explains Textualism And Originalism Without Explaining WHY We Must Rely Upon Them. http://www.capitalismv3.com/2012/07/31/justice-scalia-explains-textualism-and-originalism-without-explaining-why-we-must-rely-upon-them/
http://www.economist.com/blogs/democracyinamerica/2012/07/gun-rightsFRUSTRATINGLY POOR UNDERSTANDING OF LAW AND SCALIAS COMMENTS
The economist demonstrates its own ignorance.
The purpose of textualism is to force the government to legislate changes explicitly and to prevent the court from becoming a tool of law-creation that circumvents the democratic process. THAT is the point he is making. We have a process for making laws. And a process for altering the constitution. The court should not be in the process of making laws. And the government should not be in the process of incrementally altering the constitution by non-amendment means. THAT’S THE PURPOSE OF TEXTUALISM.
Scalia’s only mistake was overestimating the intellectual capacity of the audience.
Every class is unfit to govern. That’s why the english, and our american classical liberals created a house for each of the upper and middle classes. The mistake they made was in not creating a house for the proletariat, and instead handing the house of the middle class of business owners over to the proles by democratic process. Houses allow classes to cooperate without falling victim to mob rule by the proletariat, necessitating corporatism by the rest.
Scalia is a bit of a personal hero. I adore his clarity.
He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.
Now, I’m sure that’s because it’s obvious as the summer sun to him.
But to the average person, it isn’t.
The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.
The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.
Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.
This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.
Of course, this makes no sense, because, that is the very meaning of the ‘rule of law’: limits on what laws can be enacted.
And it assumes, incorrectly, that we are wiser than we are.
Scalia is a bit of a personal hero. I adore his clarity.
He appeared on Fox the other day, and explained Textualism and Originalism. (See wiki.) But I was frustrated that he kept stating what he believed, and how these things SHOULD be interpreted, but now WHY they should be interpreted that way.
Now, I’m sure that’s because it’s obvious as the summer sun to him.
But to the average person, it isn’t.
The reason we should (and a new constitution should mandate) that we apply the original meaning to the precise text, is to prevent the court from circumventing the legislative process and effectively writing new law without the legislative process. Further, it prevents creative destruction of the constitution through reinterpretation, rather than legislation. And emphasis on originalism forces lawmakers to write clearer laws.
The constitution contains a process by which it can be modified. That process achieves it’s goals. But our nation has been lost through the reinterpretation and creative expansion of the law via the courts, where the majority would not have approved such laws had they been subject to the constitutional amendment process.
Any law that would modify the original intent of the constittuion, and the text, should be subject to the requrement that the amendment process be followed.
This violates the democratic socialist secular humanist proposition, that the legislature, endowed by the people with power, can enact any law that they wish.
Of course, this makes no sense, because, that is the very meaning of the ‘rule of law’: limits on what laws can be enacted.
And it assumes, incorrectly, that we are wiser than we are.
ATTEMPT TO USE A UN TREATY TO CIRCUMVENT THE CONSTITUTION AVOIDED
I really prefer to stick with political theory itself, rather than get involved in individual initiatives. But this is a great day to celebrate the avoidance of a terrible abuse of our system of government.
It’s not common knowledge that Treaties have the same legal power as the constitution. They are effectively amendments. The Obama administration has been trying to accomplish through the treaty process what it could not accomplish through the democratic electoral, or legislative process.
This is only one of the initiatives that the administration is using to circumvent the constitutional protections we enjoy. And it’s the first one to be defeated. Hopefully it will be only the fist to be defeated.
Congratulations to everyone who wrote letters, emails and made phone calls.
Democracy is, at best, a means of peacefully transferring power. If you mean, can representative democracy (a republic) or even a direct democracy (versus an economic democracy), serve the interests of everyone, the answer is apparently “no” for the following reasons. a) Majority rule is a means by which a group with similar moral codes and material interests can set PRIORITIES for the use of scarce resources. It is not possible to use majority rule for groups with competing moral codes and competing material interests to resolve conflicts over GOALS. Democracy is a means of obtaining majority rule. b) the lower, working and lower middle classes are and will always be, the largest pool of potential voters. Therefore elites with a variety of interests will simply compete for their votes. c) the protestant west was unique in that the church managed to break familial bonds by the long term prohibition of intermarriage, and by granting women property rights. Combined with germanic individualism, and the common law, this made possible the fairly low level of corruption in the west, that is endemic elsewhere. It also gave rise the the universalist ethic, which is contrary to the natural familial and tribal ethic. This is a very long topic on it’s own, but basically the west is fairly unique. China and India cannot solve the problem of corruption for example from different ends of the spectrum. India remains familial and china authoritarian. d) We have fairly good data now, that moral codes vary considerably, and that they are slanted toward the reproductive strategies of the two genders. Therefore those things that serve one moral code often violate another. Those things that violate some moral codes (famlilialism) are necessary for democracy to function. e) it appears that the philosophers were right, and that a population that can vote itself payments from others will create a fragile economy. This is a particular weakness of the western model versus say the Singaporean and Galveston models, whereby individual accountability is maintained. f) there are dominant cognitive biases on the left and right. the left is victim of the false consensus bias, and the right overestimates threats and risks, and the libertarians overestimate human beings. These cognitive problems are impossible to resolve by majority rule.
I have to rush so hopefully this brief outline will illustrate the problem.
