May 26, 2017

American Individualism is a Product of Much Work by our Founders

American individualism is a product of much work by our Founders, a meeting of the minds of Federalists and Anti-Federalists, and its many centuries’ old principles are embodied in the US Constitution. The Magna Charta is about 800 years old and still very relevant. American individualism forms the foundational basis of our government and therefore cannot be anti-government. But it is clearly anti-Communist, anti-fascist Nationalist and anti-consolidation-of-power found in similarly in the Communist Manifesto, the Koran and the bureaucratic administrative states in America.

Drunken Karl Marx, responsible for nothing, created distinctions without differences. Part of his psycho-babble was “I stroll through the destruction a creator.” Setting classes against each other, that is, creating distinctions without differences, is an established tactic of the Communists, so said FBI’s J. Edgar Hoover, a loyal, trustworthy and moral American if there ever was one.

Von Mises’ 1951 refutation of the class divisions of Marxist Socialism entitled “Socialism” at page 299 states that, “Once it has been perceived that the division of labour is the essence of society, nothing remains of the antithesis between individual and society. The contradiction between individual principle and social principle disappears.”

In other words, not only is American individualism not antagonistic to society’s government, its miracle of freedom created the strongest government in the world in the history of mankind. And, the highest per capita income in the world ever since the 1830’s, as the late British economist Angus Maddison observed.

But for too many decades now, America has been moving away from founding principles of limited government and individual freedom.

So what are the common characteristics between Communism, the Koran and the administrative bureaucracies that destroy the fundamental Constitutional freedoms of individualism?

In short, each consolidates power. Both the Communist Manifesto and the Koran advocate gangs of indoctrinated who roam society and mete out “social justice”, if you will, as they find it. Bureaucratic agencies use Investigators who roam about or are tipped off by anonymous contacts. These three types of consolidated power get rid of the role of pesky lawyers, but they also combine a number of divisions of labor that are prohibited in our history by English Common Law as expounded by Wm. Blackstone. Only the administrative process attempts to hide the consolidation of power by having law-trained administrative law judges rubber stamp the steam-roller process in kangaroo court. But substantive (authentic) due process requires more. Much more.

Everyone can inherently understand the reasoning behind the common law’s prohibition of the Sheriff also serving as the Judge as a conflict of interest. It is obvious that the Sheriff will not accuse and arrest unless the Sheriff is convinced of guilt. And the Judge is supposed to be impartial. If not, a Jury will stand between the individual and the government. Add the requirement that the laws be published in writing and come from an elected legislative body, and you describe the requirements of the Magna Charta.

But when Communists or radical Muslims grab, accuse and execute you, they act as Sheriff, Judge, Jury and Executioner. It’s more complicated than that in the administrative state. The agency Investigator, sees the offense, sends in the information, and by letter, the agency tells the accused of the fine for the violation. So the agency acts as both the Sheriff and the Judge. The agency has another agent contact the accused to work out a deal. Many times, a deal is struck because the agency offers to settle for a lesser amount now, but more if you exercise your Constitutional rights. But everyone in the agency acts as One on behalf of the agency.

The agency accuses you, sentences you, tries to work a settlement with you, then enforces the sentence. As a general rule in the legal system, the initial accuser cannot be anonymous. And the administrative rules are not created the same way a law is.

And as a general proposition in court litigation, there are ethical rules regarding attorney communications with the opposite party that do not apply in agency settlement “talks”. But with agency actions, you get no jury trial right, even on appeal to the Judicial branch. In fact, changing the process from an appeal to the Judicial branch to a review by the Judicial branch simply makes the Judicial branch an extension of the administrative law judge function.

Such is more than a lack of niceties. It is a consolidation of power. But the consolidation does not end there.

Prof. Hamburger in his 2014 legal treatise “Is Administrative Law Unlawful?” from which much of the foregoing is exquisitely detailed, summarizes the consolidation of power at page 323 thusly: “In other words, administrative law harks back not merely to the time before the adoption of the United States Constitution, but all the way to the early Middle Ages. It then was commonplace to imagine that government power belonged to a single person or group that would be sufficiently wise, forceful, and judicious that it could be entrusted with all government power.”

To further describe the consolidation of power in bureaucratic agencies (the administrative state) in more detail, Prof. Hamburger makes the analogy of the human “intellect, will, and force” to the three separation of powers being the “lawmaking will, executive force, and judicial understanding…”. Id at pages 326-327.

He further points out that in the exercise of legislative will, the legislature is divided into two houses, and made up of elected people who represent individual interests. And the result of that legislative will must survive the Executive’s veto. Then there is the Executive who may be removed by the Legislature and Judiciary under certain circumstances. And the Judiciary is made up of three divisions of courts beginning with the trial court and two appellate courts to review decisions.

But Executive’s agency rules evade all of those safeguards by consolidating its rule-making process to a publish and comment process that, frankly, seems to operate more as a “should we go slower or faster” military-style after-action report.

And that is not the worst of it. Judicial deference to rule making, deference to rule interpretation and deference to the agency’s facts is an inexcusable abandonment of the duty of the Judicial branch to expound upon the law, or in this case the administrative rule. The most powerful point supporting that assertion is the fact that the Judicial branch does not allow even Congress to interpret its own laws, but it defers to the administrative state’s interpretation of its own rules. And the administrative state agency is a party in the litigation.

To a lawyer, deference to a party litigant is a shocking discovery. The Judge is supposed to be impartial, neutral. But it cannot when it defers to one of the parties in the litigation.

In those ways, administrative law defeats America’s unique Constitutional individualism. And major reform must be done. One is that the Judiciary must be reminded of its duty. And laws designed to thwart the proper judicial role must be changed and or found to be unconstitutional violations of the separation of powers. Two, administrative law judges whose decisions approving agency actions are overturned on Constitutional grounds two times should become automatically disqualified to work for government for life. This two strike rule should not disbar the attorney, but put him or her out into the private sector to make a living.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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Should Beheadings Be Raised to Capital Murder?

As you may have seen, the US has a recent beheading. Oklahoma of all places.
http://www.foxnews.com/us/2014/09/26/woman-beheaded-at-oklahoma-food-distribution-center-police-say/

There may be a call to raise beheading murders to capital murder. I say, Why not consider it.
I’ve read pertinent portions of the Koran that speak to beheadings of Christians. The Koran’s justification is that Christians are considered polytheists and therefore the equivalent of heathens and atheists and may be killed if they do not convert to the Muslim faith after being given a chance to reform.

From reading a paper from the Catholic Church, the Muslim faith is powerful in the sense that Muslims believe no intercessor is necessary to communicate directly with or to God. I am given to understand that there may be a similar concept of direct communication with God that exists in at least one Protestant faith.

Problematic for Muslims and the rest of us, is that the Koran does not teach submission to the civil authority. It is a younger religion than Christianity by about 400 to 500 years, but it is old enough to have begun when civil authority was not as well developed as it is today. Civil authority is meant to include both the limitations imposed by legislative enactments and by the Constitution. (Is anyone in the administrative law process noticing this definition of civil authority?)(At least one now resigned federal level administrative type was talking about crucifying villagers as an analogous philosophy of agency enforcement.)

In fact, the Muslim concept of four or so Muslims wandering the streets looking to enforce religious standards as they find them is similar to Karl Marx’ notion of a core of committed Communists whose faithful indoctrination to chiliastic Marxist utopian principles guide their on-the-spot enforcement of party rules thereby purporting to eliminate the need for sheriffs, juries, lawyers, judges and executioners. In a way, that sounds similar to the current administrative state. Only in the instance of Muslims and Communists, they could have a senior cleric or party officer bless the actions instead of an administrative law judge.

We also see elements of civil disobedience, I suppose a form of sporadic refusal to submit to civil authority, in the various Communist liberation movements. Brezhnev referenced the existence of various national liberation movements in 1973. And the animal liberation movement got a push with the publication a book of the same name in 1975. Animal liberation papers on civil disobedience followed.

The various reprints of Blackstone’s on common law, adopted by Texas via Virginia, consistently make clear the prohibition of the combination of the office and duties of the Sheriff with the office and duties of the Judge as obvious conflicts. And authentic due process can only come from honoring the priority of individual rights to confront the accuser (who may be the Sheriff himself), put the accuser to the burden of proof in front of an impartial magistrate and have the benefit of a jury of fellow citizens in order to insulate citizens from overreach by both the Sheriff and the King’s orders.

Proceedings such as that described by the Koran provide for a process, but not authentic due process, and so that is why I say the Koran does not submit to civil authority. I am not saying that all practitioners of the Muslim faith do not submit to civil authority. But, I am saying that anyone who acts upon the literal meaning of ancient text, regardless of religious affiliation, that refuses to recognize the God-given fundamental rights of other individuals will lead to serious trouble.

So what would a capital punishment statute look like. I don’t know all the particulars at this early point, but one would think from the defense angle that an individual’s fundamental religious freedom does not extend to private executions.

In the instant Oklahoma case, it appears, so the allegations seem at this early point, not commenting on guilt or innocence, rather the mechanics of the alleged murder, that the act of beheading did not result in the death, instead occurred after the fatal stabbing.

If a capital murder statute had to allege the cause of death as beheading, then murder first by some other means and some sort of body mutilation afterwards might constitute a defense to capital murder by beheading. So, I would think that one might want to take that into account somehow, if possible, so that the death penalty cannot be avoided that way. Another aspect is whether the means (manual or mechanical) of beheading should be omitted from such a statute. If so, then some guillotine deaths might also fall under such a statute which would not be an automatically bad thing. But remember that in the past, some hangings accidentally resulted in separated heads.

At least one person suggests that the legislative banning of Sharia Law takes away the goal of the Muslims to conquer America ; that goal being to impose Sharia Law. That idea may be worthy of some additional thought. http://www.americanthinker.com/blog/2014/08/defeat_isis_in_the_comfort_of_your_own_home.html

Forever, I’ve heard the Catholic Church criticized for overreach during the Spanish Inquisition. After a little research I discovered that the Spanish Inquisition came at the end of a 450 year long struggle by the Spanish to rout the Moors (Muslims) from Spain. As in the beginning of any struggle, there is a lag time between the attack and the response. And after the defense is built up, there is lag time at the end of any long struggle, where the remaining vestiges of the forces used to oust the enemy continue to exist. Those remaining forces then seek purpose for its continued existence. So it must have been with the Spanish. In fact, the end of the ejection of the Moors from Spain was marked by Columbus’ voyage in 1492 to the Americas.

I think we should consider responding more quickly than any 450 years to recognize and respond to extralegal proceedings occurring inside our borders but that operate outside the limitations of the civil law and of the limitations imposed by the US Constitution.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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