[This was posted by Dave Lyons on May 18, 2001 in the What If? forum at Sierra Times. Mr. Lyons' posting starts at message 132 in the thread. I invented the title. Some of his references will be unclear until you read the preceding 131 messages.]

At first, I wasn't going to get into this discussion; it seemed to be going along fine without my participation. Then 'puter problems (more like AOL problems) plagued me for a couple of weeks. I'll be going over to USWest DSL in a week or so. That should solve my problems and impatience.

But, then I saw posts presented by one "the Witness," (are you still here? You might be interested to read my comments). His posts May 4 & 5 outlined his view early. The remainder seemed to present an intention to agitate, strum and cause folks to question their own positions.

Sometimes posts, as the type presented by 'the witness' can be redirected from perceived intended destructive impact toward a beneficial end. Leaving for the moment comments presented after May 6th, which were mostly derogatory, we can concentrate on his own view. In his own words, the witness recommended (May 6); "I replied early on regarding my view, go back, reread the postings and you will see."

His approach is quite evident. It is an approach and view common in the British parliament of the 1700s. From the book, Redcoats and Rebels. The American Revolution Through British Eyes I quote; "Bibbon's fellow-member of The Club, Samuel Johnson, was even more forthright. His pamphlet, Taxation no Tyranny, An Answer to the Resolution and Address of the American Congress, stated the government's case in the most uncompromising terms. Johnson maintained the 'he who accepts protection, stipulates obedience', and that, since 'we have always protected the Americans, we may, therefore, subject them to government'." The method of enforcement used by the British in the latter 1700s was to send in its armed troops. So, we can see, Mr. Witness presents a view very similar to that exercised by the British, a view that eventually ended in armed revolution and a Declaration of Independence. To be fair, I'm not sure if the Witness presented that view as real, an attempt to create constructive debate, or a foundation for subsequent insult.

The Witness wrote:
May 3) "Mr. FreedomFighter. Your parable of young bangers is not a good comparison of what the police might do. What the court does through its enforcement officers is certainly legal. It may be unconstitutional, but it is legal until proven otherwise."

There remains little necessary to prove that unconstitutional acts are illegal, rather than legal. Few thoughtful men or woman would agree with Mr. Witness once the following considerations are thought through.

Consider first what Black's Law says about unconstitutional. "That which is contrary to or in conflict with a constitution. The opposite of "constitutional." Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178." Black's Law continues: This word is used in two different senses. One, which may be called the English sense, is that the legislation conflicts with some recognized general principle. This is no more than to say that it is unwise, or is based upon a wrong or unsound principle, or conflicts with a generally accepted policy. The other, which may be called the American sense, is that the legislation conflicts with some provision of our written Constitution, which it is beyond the power of a legislative body to change. U.S. v. American Brewing Co., D.C.Pa., 1 F2d 1001, 1002. (Also see Unlawful)"

It is evident that Witness subscribes to the British sense, a generally accepted policy. Black's Law disagrees with Witness as revealed in the American Sense.

Referring to Unlawful: "That which is contrary to, prohibited, or unauthorized by law. That which is not lawful. The acting contrary to, or in defiance of the law; disobeying or disregarding the law. Term is equivalent to "without excuse or justification." State v.Noble, 90 N.M. 360, 563 P.3d 1153, 1157. While necessarily not implying the element of criminality, it is broad enough to include it. Term as applied to agreements and the like, denotes they are ineffectual in Law, for they involve acts which, though not positively forbidden are disapproved by law and are therefore not recognized as ground of legal rights because they are against public policy. Conine v. Leikam, Okl., 570 P.2d 1156, 1159"

Black's Law reveals that 'unlawful' may not imply the elimination of criminality, but it does not, by any means, eliminate an element of criminality -- it specifically includes the possibility. But Black's deals, in this case, within the level of general law and cases to support its position. One may wonder if it should also consider more fundamental law. The Constitution, Bill of Rights which was made a part of it, and the contracts of Union just such fundamental law. Therefore, let's expand to that level to see if unconstitutional acts are, or not, criminal.

Black's Law writes about 'unconstitutional' with these words: "That which is contrary to, prohibited, or unauthorized by law." According to Black's then, an argument must be presented to support the idea that a constitution is indeed law. So, let's do it.

Black's writes: "Constitution. The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people of the Union (e.g. United States Constitution) or of a particular state, as the absolute rule of action and decision for all departments (i.e. branches) and officers of the government in respect to all the points covered by it, which must control until it shall be changed by the authority which established it (i.e. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void."

So, Black's declares that our Constitution is 'the absolute rule of action' and that all branches including the officers of such are subject to its rule as fundamental and organic LAW. It also implies strongly that their own departments (branches), and Union, are dependent upon the points covered by the document.

It is interesting, in the context of this general discussion, to note two things. The Constitution grants specific powers to federal government. It is a document of granting, and granting limited yet ample powers. These powers represent certain rights the citizens were willing to surrender for the benefit of society in general, and they are listed. The Bill of Rights was made a part of the Constitution, and are bans upon government powers.

The Bill of Rights, however, is a document, stated in different words, declaring rights never intended to be surrendered to government. The concept of the Bill of Rights was well understood in the early days, and that understanding was reflected in the Resolution submitted to the States for ratification. It reads: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." In addition, the first six words of Article one enforces the understanding. Everyone should memorize these words and extend them to the purpose of the Bill of Rights in your discussions. They are: Congress shall make no law respecting..." Where are there more forceful words available, (other than John DeWitt's discussion), to prove the force and intent of the document?

Black's law indicates an extended authority of the Constitution when it writes: "The written instrument agreed upon by the people of the Union (e.g. United States Constitution) or of a particular state, as the absolute rule of action and decision for all departments (i.e. branches) and officers of the government in respect to all the points covered by it.." ...."The people of the Union or of a particular state".... Union is the States; the States are dependent upon the people; the federal government is dependent upon the States and the people. More specifically, the federal government is dependent upon the *contract* and the contract is the Constitution, and by contract law answers to the States-in-Union as grantor of the contract and agent of the people.

What most people, and Constitutional attorneys miss in their musings is the contracts of Union. By-in-large, the contracts of Union are printed in documents known as Enabling Acts; To Provide for the admission of -a State- on equal footing with the original States. The Enabling Acts are contracts with provisions that must be conformed with to be admitted. The original States were, even under the Constitution, were independent government and territorial entities. The independence of each were equally modified by the Constitution, surrendering certain, listed and limited powers to a central government, but only with the consent of the people. Among the provisions of the Contracts States were required to 'adopt' the Constitution, (which we understand includes the Bill of Rights). In other words, all levels of our governments are beholding, as Law, to the provisions of the Bill of Rights. Those provisions are bans upon government powers, as they includes individual rights never intended to be parted with. Finally, the Enabling Act provides, "That all acts or parts of acts in conflict with the provisions of this act, (- the Contract of Union -), whether passed by the legislatures of said Territories or by Congress are hereby repealed." That agrees with what Black's Law said about acts in opposition with the Constitution.

So what happens when a government, federal, state, county legislate then enforces Acts in opposition with the Constitution? It becomes de facto! And a de facto government is despotism and tyranny! So view what Black's Law says about de facto.

"De facto government. One that maintains itself by a display of force against the will of the rightful legal government and is successful, at least temporarily, in overturning the institutions of the rightful legal government by setting up its own in lieu thereof."

De facto judge. A judge who functions under color of authority but whose authority is defective in some procedural form.

De facto. In fact, in deed, actually. This phrase is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate. Thus, an office, position or status existing under a claim or color of right such as a de facto corporation."

"De facto Doctrine will validate, on grounds o public policy and prevention of failure of public justice, the acts of officials who function under color of law."

And then, there is 'Color' of law. Black's clears the word up.

Color. An appearance, semblance, or simulacrum, as distinguished from that which is real. A prima facie or apparent right. Hence, a deceptive appearance; a plausible, assumed exterior, concealing a lack of reality; a disguise or pretext."

Under our contracts with government, the terms were written, clarified and defined by those who signed the document, the States ratifying it understanding its provisions, and the people authorizing its ratification, sensible of the limited rights so surrendered. As with any contract, the provisions are binding until changed by those authorized to change it. The ones authorized do not include the president of the United States, any congressman, a single State, or a judge including the Supreme Court. To think otherwise is to accept de facto despotism.

May 4th, Witness declared to FreedomFighter, "It is still up to the courts to determine if an act is unconstitutional, not you. If the court says it is, then it may include the whole of the process but until a court of competent jurisdiction so rules, it is not illegal." Well, what can I say? This is nothing less than a de facto view.

First, consider the term used by Witness "competent" but extend it to a legal consideration relating to a court. To be competent, a court must conform to Black's definition. It must be, "Duly qualified; answering all requirement; having sufficient capacity, ability or authority; possessing the requisite physical, mental, natural or legal qualifications; able; adequate; suitable; sufficient; capable; legally fit." And a Competent court; "A court, either civil or criminal, having lawful jurisdiction."

What court, I ask, has 'Competent jurisdiction" to redefine the Constitution for the benefit of colorable law? None, I say! When it does, it is substituting itself in the place of the real authority, we the people. That's de facto and illegal.

Then, what about "Jurisdiction?" In part, Black's Law offers: "Jurisdiction defines the powers of courts to inquire into facts, apply the law, make decisions, and declare judgment." And: "The legal right by which judges exercise their authority."

So we finally get to the specific conclusion of a courts ability to cover for unconstitutional acts of government.

First, laws violating the Constitution and Bill of Rights are color of law, de facto and void. Enforcement of such is de facto, acts of despots, and illegal because they are null and void from inception. Law must be in compliance with the Constitution and not violate rights never granted away. Judges must apply the law. The first law a judge must apply is the Constitution as defined by those who agreed to it. A judge, therefore, must declare in support of the document, not the infraction of it. To do otherwise, the court becomes de facto; the judge becomes a feudal lord with armed officers from another branch available to enforce such judgments.

And finally, Witness wrote May 4th: "To listen to all of you, one would think you had just come in from whacking your demonic opponents. All you have done is exhausted your frustrations. All we have is only air from your bagpipes."

Frankly, Witness, I'm grateful that venting of frustrations and hot air from imagined bagpipes is the present situation. You should be relieved that hot bullets are not already being expended. I think it speaks greatly of the honor of those whom you seem to take pleasure in castigating with remarks like the one above. I believe everyone here understands that there remains a few avenues available to find redress of grievance. Those avenues are just as preferable as they were in the days the colonists were dealing with the British parliament. The problem is, when those avenues continue to be narrowed, frustration sets in as evidenced in this board. Pray that those avenues begin to open once again, and hope that government returns to de jure relationships before it is too late.

...

You're certainly welcome to keep (actually it turns out to be a mere 4.5 pages when you switch to the printable version, highlite it and print) the post. Anyone wishing to keep it, expand upon it, relate it as foundation for further study, clarify anything in it, or use it for wall paper is perfectly welcome to do so. Most of it is out of Black's Law Dictionary, Sixth Edition. It has been one of my reference books for quite a while. Others I use are:

The only thing that is not dog-eared is my keyboard.

As for ending up in court? I hope there is no danger of that happening, unless it is as a jurer. If that happens, just remember that you have a historical duty to judge the law, and the facts of the case. If the law is bad (color of law) the defendent should be found not guilty even if he is in violation of it.

Dave
"Molon labe"