Sui Juris – Constitutional Democracy, The Unknown Ideal
by John E. Wolfgram, JD (*)
[Ed: With minor editing to Format and HTML text and correct links.]
How the Judiciary Stole the Right to Petition
The Official Blacklisting of a Patriot Philosopher Lawyer
Democratizing the Judiciary
We often refer to the United States as "Republic" or a "Democratic Republic." While this is a "correct" description in a loose sense, "Republic" also refers to the states of the former Soviet Union; and the quasi independent states of Yugoslavia, and literally to any state that is not ruled by a monarch, including the "Republic of California." Indeed, when it came to interpreting the word "Republican" in the Guarantee Clause (1) the Supreme Court has pretty consistently held that questions arising under it are political and not judicial in nature and that it rests with Congress to determine the "republican" character of state governments, what ever that is. (2)
The same with the term "Democracy." The term has several meanings including "government by the people exercised either directly or through elected representatives" or, "the people considered as the source of political power." In that sense, many countries that are not democracies in one sense call themselves democracies or "The People's Republic" of this or that nation, including China, Cuba and North and South Korea.
We are left with a question: What does it mean to be a "democratic republic" such that it meaningfully distinguishes one form of government from another?
A "constitutional democracy" has a more definite meaning. The term immediately carries all the connotations of a "democratic republic" but of a specific type: One where the sources of political power are prescribed in its constitution.
That is an important difference. The United States is not a (pure) democracy in the sense that it is government by the people or by their elected representatives, because the Constitution limits what the people, or their elected representatives can do in governing, and how they can do it. It is not true, in America, that all political power resides with the people, as either a factual matter, or a legal matter. While it is true that the people, can amend the Constitution, to cover most of the range of things that a pure democracy can, at least one of the things that neither the American People nor their government can do, is to change the fundamental law of the land without following the due process of law as laid down for amending the Constitution, by the Constitution in its very own Article V.
So, for instance, neither the government, nor the people, can "suspend the Constitution" and declare "martial law" or "mob rule" or its equivalent, legally. What the Congress can do is declare a state of emergency in cases of rebellion or invasion, and suspend the Privilege of the Writ of Habeas Corpus pursuant to Article I, Section 9, Clause 2. There is an important difference. If the Constitution is suspended, you have none of the legal rights and remedies under it. But if only the right to the Writ is suspended, you still have constitutional rights and remedies, but they must wait until after the emergency.
We should distinguish between "legal" rights and remedies and "unalienable" rights and remedies. Many people believe that the Constitution does not give rights; that rights are "unalienable" and the Constitution only recognizes them. In a way, this is true, but it blurs the distinction between "legal" and "moral" rights. Morality brought the Constitution into existence, and our cultural morality safeguards its application and interpretation, but, The Constitution, as it is written, is the LAW. Those rights and remedies that it, and laws made pursuant to it, but not in derogation of it, specify, are the legal rights, remedies, powers and duties of all persons subject to its jurisdiction.
In a legal sense, The Constitution is a "done deal", like a contract made. It declares itself, and the laws made in pursuance thereof, to be the supreme law of the land, and it does so according to the agreement made by a free people after they won their independence in the Revolution of 1776. At that time and place, with arms still smoking and hot from battle, and owing allegiance to no one but to themselves and their posterity, The Sovereign People of the Thirteen Colonies came together through duly appointed (and duly ratified) representatives, and through a written constitution, divided up their sovereign political powers, once and for all time.
Those laws, and only those laws that are made pursuant to it are the supreme law of the land, according to the terms of that "done deal." If all of the people were to get together, say on the internet, and declare a certain thing the law, such would not make it the law. If Congress should pass an act, but not submit it to the president for his acceptance or veto, it is not a law. If the president declare a matter to be binding on the people, but it has not been duly enacted by the Congress, it is not a law. And if the Supreme Court declare things and processes to be the law, or lawful or unlawful, that, by itself, does not make them the law, or lawful or unlawful.
That we should perceive our Constitution in that light, as a written and complete embodiment of the lawful division of all political power, is according to the first moral principle of civilization: For a free and moral people to get along together, they must be free to enter into binding agreements and arrangements among themselves, and live according to those agreements. The creation of a comprehensive binding written constitution, is the ultimate act of sovereignty and civilized morality. It is not only a present agreement, but it is also a promise of future resolution of disputes arising under it, according to its terms.
A part of the magnificence of our Constitution, is that it is in writing. Perhaps, given the birth of our Nation, in Revolution and separating from our parent nation, Great Britain, that is the only way that it could be. But it is not the way of our parent nation. Great Britain has what it calls a "Constitution" that is not written. It is an accumulation of documents (such as the "Magna Carta") and adopted legal principles and legislation which in effect, forms the "legal conscience" of the British People. But as a legal matter, in Britain, the Sovereign is the Parliament sitting with the consent of the Crown. It is not so in America. For so long as we have the Constitution, the Sovereign is divided with both lawful governing powers and rights to the people, and to government, according to its terms.
What may be surprising to you, is that under our Constitution, the People retain unto themselves, an ever present important function in the governing processes. They can, as a legal matter, sitting in their official capacities as juries, veto on rules of their own conscience, any application of coercive law; and they can, sitting as grand juries, stop or redirect the inquisitional powers of government; [See Trial By Jury - Spooner] and they can, in their capacity as individual petitioners, bring any wrong to the attention of government, and seek and obtain just redress therefore; and in their capacity as electors, they can throw scoundrels out of office and put honest citizens in their place.
A second and more troublesome part of the magnificence of our constitution, arises out of the uncertainty of our written language which may, or may not, reflect the uncertainty or lack of specific agreement among the framers. The Constitution is written in terms of generalities and principles. It requires in many cases, "interpretation" both as to what it means and how to apply it to specific cases.
The point here, is that the actual wording of the Constitution, its articles and clauses, reflects the agreement of the people that made it, in that language: "The Supreme Law of the Land" is "The Constitution as it is written" and the laws made pursuant thereto. Its interpretations are not the supreme law of the land. They are mere interpretations that may or may not be correct, or even dishonest and treacherous. When ambiguity of words or context appears, and the Constitution can mean different things to different people and its binding force can no more rightly be assumed one way, than it can be assumed the other, for the fact that reasonable people disagree on its meaning or application under specific circumstances must also mean that there never was any agreement as to that particular application, and the politics of negotiating agreement within the parameters of the dispute starts anew.
It is this process that is sometimes called "a Living Constitution." Have no doubt that it is a magnificent process, and it is also subject to much abuse, for he who can claim the correct interpretation, has the power of the supreme law of the land on his side.
A Big Problem Emerges: Who shall interpret the "Living Constitution"? It is the Supreme Law of the Land that we are talking about, and in some contexts, its meaning or application is ambiguous and may apply one way depending on one interpretation, and another way if interpreted differently, but no less reasonably. Who, or what process, shall decide the meaning to be given?
It seems reasonable that since we are talking about ambiguities that arise in specific circumstances, that the Judiciary should decide how the Constitution and positive law applies to the wide range of differing circumstances. But are there alternatives designed right into the Constitution suggesting a more reasonable approach to the ultimate issue between government and governed: Who shall decide what the Supreme Law of the Land is in all the various circumstances to which it must apply? If there are alternatives, what are they? Are they important; and what are the implications, immediate and long range, of disregarding them.
These are among the questions that we will examine in this book.
We, the most powerful nation the world has ever known, have a Written Constitution and that, after the development of the written word, is the most important application of that development in all of man's history on this earth. How we regard that writing, and its proper and moral interpretation may well set the course for all of man's future civilizations, on earth, and into the heavens, as he begins his journey to the stars.
It is that important, because it is the written rules dividing all political power between man and his government. On the one side, is abject tyranny. On the other is anarchy. Down the middle, under the rule of the written constitution, is a moral civilization, ordered liberty, and human dignity.
The only lawful way out of the constitutional restraints on power, both as to the people, and as to the government, is by and through its own amending processes. Changing the Constitution by force and armed rebellion, is not lawful. Of course, that does not surprise you. But what should surprise you is a mainline theme of this book: It is the Government of the United States that is in open armed rebellion against the constraints of the Constitution, and that is no more lawful than a gang of thugs rebelling against the duly established authority of the Supreme Law of the Land.
Let us begin our journey to understanding The Philosophy of Constitutional Law.
Forward to the Philosophy of Constitutional Law: Philosophy, especially the philosophy of constitutional law should be a fun subject because we are not hindered by the "law" that is, but can discover the "law that ought to be" and the reasons to make it so. The philosophy of constitutional law covers a lot of territory and while there is a lot of room for mind expanding thought, it is a still a discipline and we are not free to simply proclaim any thing that seems right to be a "law that ought to be." There are parameters, legal and logical.
The legal parameter is the Constitution itself. If a proclamation is inconsistent with the Constitution, it is neither a law nor a "law that ought to be" within the meaning of this study. There is only one way to make a proclamation that is inconsistent with the Constitution, a law, and that is by amending the Constitution according to its own terms. Short of that, no proclamation that is inconsistent with the Constitution, is, or ought to be law.
The logical parameters have to do with disparity between the "legal reality" we actually live in, and the legal reality prescribed by the Constitution. With respect to the Constitution, we live in a "legal state" or more accurately, a "legal quagmire" that can be described in terms relevant to the Constitution and where and how our state of the law has come to deviate from constitutional requirements. We can sort through this quagmire of laws and determine which are key proclamations that are inconsistent with the Constitution, and what damage those proclamations do to a hypothetical legal reality where the Constitution is followed, and we can describe constitutionally relevant logical ways and means to move the legal reality we live in to become the legal reality under the Constitution.
Conceptual Tools: Like any science legal philosophy has a language that speaks about ideas and relationships that are tools that both explain and explore its subject matter. Getting a hold on these basic concepts, and how they relate to each other, is for the novice, the most difficult, and I say apologetically, the driest part of the discipline.
To both get meaning from, and add meaning to philosophy, you have to have an idea, conceptually, of where the topics you are studying are in relation to the rest of the philosophic world that you already have a firm grasp on. That's what this "Prelude" tries to do: To relate concepts that we will be dealing with in depth, to others that you are already familiar with.
So, for example, the next bold typed topic, "Morality and Law" brings to your attention that law does not occur in a vacuum, and it isn't simply the dictates of a "sovereign." Probably the most accurate observation about law is that it evolves, but it doesn't do that in a vacuum either. It has a social, cultural, moral and legal context.
From there, I try to relate the topics to each other and to matters that have common sense meaning to you, until after a few pages we begin to build into a meaningful dialogue about what to expect in this book as we delve deeper and deeper into The Philosophy of Constitutional Law in America.
With that, let's get some of the dry material behind us so that we can have more fun getting into the real subject matter of The Philosophy of Constitutional Law.
Morality and Law: The Philosophy of Law is intimately connected to ethics; both as personal morality, and as cultural morality. But as an objective study of "what the real law is and what makes it so" it is also closely related to the philosophy of science as a branch of epistemology: The study of knowledge: How do we know what the law is? Obviously, it is important to distinguish real law from false law, because that distinction affects your life, virtually every day.
Law and Science: It is no more true that all that is called "law" is law, then it is true that all that is called "scientific fact" is either science or fact. To be law, a directive must be logically connected to the source of law, the "sovereign", in such a way as to emanate from it, or to be "pursuant to the sovereign's authority." In our case, and in the case of all states that have a comprehensive written Constitution, "the sovereign" is determined by the Constitution.
Unfortunately, we will find that there are many very critical directives that government insists are law, even though they are inconsistent with the Constitution. The problem is not in the Constitution, but in our government's treatment of it.
The basic method that we use to determine what the law is, or ought to be, is the same method that science uses to determine what is or is not true in the physical world. We will apply and follow the "Law of Non contradiction." If, in science, a proposition can be shown, directly or by implication, to contradict firmly established physical laws, then we know that either there is something wrong with the physical law that has withstood an immense amount of testing, or the proposition is false. Sometimes, but very rarely, scientists do reexamine accepted basic physical principles in the light of new experimental data that suggests results that are inconsistent with the basic principle, but by far almost all of the time, the basic principle withstands the test and the propositions inconsistent with it, are shown to be false. The rare occasion where new data really brings into question an established scientific principle, is in that field of science, considered to be "earth shaking."
At this point, the philosophy of constitutional law has an advantage over science generally: The Constitution IS the law. There is no such thing as proving a constitutional clause false; because its clauses are commands, telling all who are legally bound to support it, what the law shall be.
A constitutional clause may lead to bad government or even an inoperable system of government, in which case we might consider amending the Constitution, but unless and until that is done, the commands of the Constitution stand as the Supreme Law, against which the legality of all other "laws" are measured. Propositions about Constitutional clauses may be true or false as descriptions of a clause, or what it does, but that they are law is not open to dispute.
Thus, our advantage is that any legal proposition that is shown to be inconsistent with the Constitution, is by that inconsistency, shown not to be the law because, unlike in the physical world, the truth or falsity of the Constitution is not open to question: It says what it says, and requires all who are subject to it, to obey and support it. A law or its application that is inconsistent with it is not in support of it, but in derogation of it, and therefore, is not only not law, but ever person owing a duty to support the Constitution also has a duty to refuse to support those proclamations or directives that are inconsistent with it.
How to Find the Correct Interpretation: While that simplifies application of scientific methods to the Constitution, that is merely the beginning of our philosophic inquiry. While it is axiomatic that the Constitution is the "true" law, there are two other major problems that require analysis, and testing.
First, is the problem of determining exactly what the Constitution is. Every clause of it is the subject of interpretation, and it must be interpreted to be applied. So, virtually, every clause of the Constitution is subject to varying interpretations concerning when, how and where it is to apply, and what is the meaning of its application. How are we to determine which of competing interpretations is correct? Thus, while there can be no dispute that the Constitution is the law, there is always a question of what, exactly, is the Constitution in view of varying interpretations.
Second, is determining whether past interpretations, proclamations and practices at a very basic order of "law", immediately above the constitutional level, are real or true law. In this sense, we have some basic American legal practices, customs and proclamations upon which vast American Legal Institutions are built, that are not lawful. Chief among these unlawful institutions is the Judiciary and its Supreme Court. How are we to treat such institutions that issue unlawful proclamations and directives as law?
It is one thing when we didn't know that they were systematically creating and propagating anti-constitutional dogma and passing it off as "the supreme law of the land."
Exposing Judicial Fraud: But after the publication of this book, they, the judges and justices of the American Judiciary will know that what they are doing is unlawful; and you will know that too, and they will know that you know. Suddenly, the charade is in the open and everyone knows that what the judiciary is doing is unmitigated "institutionalized treason."
How are we, the American People, then to treat those judges and what that are doing? If we ignore it, they will take that as the consent of the people for the judiciary to whisk what remains of the Constitution away. If we face them down, it means at the least, the greatest mass impeachment of judges and justices the world has ever seen, or is ever again likely to see.
Constitutional Democratic Processes: Our Constitution not only gives limited authority to the government that it created, but generally not observed is that it gives specified over riding authority to the people through four different mechanisms: The Rights of Habeas Corpus and of Petition, The Jury, the Grand Jury, and The Electorate. In that sense, our Constitution reflects a studied effort by the framers to avoid vesting sovereign power either in government as a whole, or in any of its branches.
We will examine the first three of these democratic protections against governmental "sovereignty" in detail. They are such an important and integrated part of the law of the land, that if they break down, what we have left are the "edicts of government in the name of a non existent "sovereign" and such edicts are not law. They are more like a part of what would be law, but which to be law requires another part, like an act of congress that is not submitted to the president for his signature or veto, with a twist. Just as the President's actions require. Where government precludes the effective operation of those democratic processes, it prevents the people from "legitimizing its edicts" and what results is not law, but merely government's coercive force imposing its will upon the people.
A part of that coercion is government's monopoly on organized force. When government uses that force against the people, that by itself does not determine who is the "outlaw" or "rebel." Where government uses its organized force against the people outside the law, as it did, for instance, at Waco in 1993, it is government, and not the people, that is in rebellion against the Constitution. We will see a lot of government in rebellion against the Constitution, in this book.
A philosophy of Constitutional Law that distinguishes false from real law, must apply the same tools that science applies to penetrate the mystique and separate the two according to principles found in the Constitution itself, as it is written.
That is what we will be doing. Developing a philosophy of constitutional law that is a foundation for the eventual development of a science of constitutional law, which in turn, is a necessary and sufficient foundation for developing civilization into an unlimited future.
False Law: One of the major differences between real and false law is the impact of another branch of philosophy: Politics, as the art of governing. False law may sometimes be described as the difference between a moral political reality and an immoral coercively enforced political wish list. This description fits because a major function of law is to prescribe the relationship between government and governed; and generally, the same government that declares what the law is, systematically defines that relationship according to its more or less expedient desires (wishes) in governing. Inevitably, government's "wish list" is based on a false major premise: That government, and government alone, makes, applies and interprets law.
Time and again, we will see the folly of this false premise, as we examine the systems designed into the Constitution to protect the people from the tyranny of "government, by and for the government."
Politics and Law: I want you to notice early, the relationship between politics and law. To be sure, politicians run for office on planks and platforms to make this or that political contention "the law of the land." Until it becomes law, such planks or platforms are the subject matter of moral and political debate: Would this or that law be moral and beneficial?
All of this presupposes that the plank or platform in question can become the law. That is, does the fountainhead authority for law, (The Constitution) allow such and such to be made law? So, for example, we might decide that it is good to make a law that no one may speak evil about anyone else's religion. But, by turning to the Constitution, and its First Amendment, we find that such is not a lawful subject for lawmaking; that it violates three First Amendment Clauses: The establishment and freedom of religion clauses, and the freedom of speech clause.
At another point, politics has an even closer relationship to law. The Constitution is sometimes vague, and requires interpretation. So long as it is vague and debated, that is the stuff of politics. But once an interpretation is settled, that interpretation becomes the law. How is that transition from politics to law to be determined under the Constitution? And specifically, is the Supreme Court, as a branch of government, the appropriate or lawful master of that transition?
Substantive Due Process: If, as in the case above, the Constitution does not allow the particular law in question, there are only two recourses: The first is to turn to the closest thing there is to a sovereign under our Constitution; The People, lawfully assembled for the purpose of amending the Constitution. The second is rebellion, and except that we will refer to that option from time to time, it is generally outside the scope of both the law and this book. We will, however, discuss government's rebellion against the Constitution in some detail.
The question of whether The Constitution allows a particular subject matter to be made law is often called the "substantive due process of law." That refers to the substance of legislation. It is a different concept from "the due process of law" by which is usually meant the "Procedural Due Process." Substantive due process inquires as to whether the Constitution(s) substantively allow the legislation in question. In the hypothetical First Amendment case above, it would not allow the legislation, or such legislation would be void or invalid. In a well known case, Roe v Wade, the issue was whether the substance of the Constitution allowed states to make abortion illegal. Until that case, the question was a topic of political debate as to the states, and in those states that did not pass such laws, it was a topic of political debate as to the people, and each person was free to choose abortion or not. In Roe v Wade, a majority of The Supreme Court decided that the 'Right of a Woman to Choose' whether to have an abortion, was a protected right within the prenumbra or shades of the First, Fourth and Ninth Amendments, and then decided how and to what extent to protect women from state invasion of that "right." That is the "Substantive Due Process of Law", vis a vis The Supreme Court, at work.
Understand the significance of the relationship between law and politics in the context of the philosophy of law. Political subject matter is still in popular debate and adherence to its moral or political principle is optional. If it becomes law, the issue is no longer political or moral adherence to principle, but compulsory adherence under penalty of law. In other words, a "process of law" steps in between the political/moral contestants, and takes one side of the issue, and by its authority, resolves it as a matter of law. In this way, that which was politically and morally contentious becomes compulsory under the law.
Notice what is happening: Matters that were unsettled and still being debated, are settled by the "force of law", whether they otherwise meet the requirements of legality or not. Note well the power that is involved, to transmute that which was a matter of political and moral contention, into a matter of law binding on every person in every state.
If any one person, say the president or king, had that power, is there any doubt that we would call it a "dictatorship" enforcing tyranny upon those who disagree with his commands? Why is it different if that one man is a justice of the supreme court who changes sides in 5 to 4 decisions like in the Roe v Wade decision, or for that matter, all nine justices voting the same way on any particular subject?
The Due Process of Law: Notice above that a "process of law" stepped in between the political or moral contestants, and, in effect, took sides to make one side the law. That is fair, if, but only if, that "process of law" is the "due process of law" for that purpose. So, taking the abortion issue again, suppose that you approach the President or King, and say to him: "Hey, Mr. President. Years ago I saved your mama's life, and you owe me a favor. So what I want you to do to make things right, is make a law that abortion is illegal through out the United States." And so, by "executive directive" the President outlaws (or makes lawful) abortion through out the United States.
That is a "process of law", but is it The Due Process of Law? If it is not, it is without any legal authority to make the law that it proclaims to make. Again, we have a false, or void "law."
Suppose instead of the President doing that, it is the United States Supreme Court. Is such law making by the Court, a "due process of law" to make law? No! Article I of the Constitution, clearly vests all law making powers in the Congress.
Suppose Congress makes the same law. Is that the Due Process of Law. Yes, it is the procedural due process of law, but it violates the substantive due process because Congress' powers to make law are limited to those specified, and regulating abortion is not one of the powers specified.
Does that mean that we cannot lawfully have a uniform law through out the United States regulating abortion? No, it doesn't mean that at all, but it means that the Nation must follow the correct "due process of law" to bring regulating abortions within the ambit of federal power. That can be done by amending The Constitution.
That's not impossible. An amendment concerning similarly politically and morally contentious subject matter was ratified pursuant to The Constitution's due process requirements for amending it, in 1919: The Eighteenth Amendment outlawing the manufacture, sale or transportation of intoxicating liquors in the United States. That gave Congress the substantive power to create and enforce the prohibition acts.
Whether we personally approve of it or not, the prohibition acts met all of the substantive due process and procedural due process requirements, and they were the law of the land. When it came about that we, as a nation, saw that prohibition did not achieve the desired result, but instead created a crime wave and general contempt for the lawful powers of government, we, again as a nation, went about changing that law in the procedurally correct way by again amending the Constitution to repeal the Eighteenth Amendment and reposing primary authority for regulating alcohol in the states, and making it federally unlawful to transport or import intoxicating liquors into any state in violation of the state's laws business.
Notice, where a subject matter is not clearly within the ambit of federal authority under the Constitution, amending the Constitution to bring it in (or take it out) is both the Due Process way of going about it, and it is the practical way, because thereafter, whether or not a person likes the law, he cannot (reasonably) dispute whether it is the law. Now, compare this result to:
It violates federal law to smoke marijuana. Where is the federal substantive authority for drug laws? It took an amendment to make intoxicating liquors federal business. How come drugs automatically become federal business without that due process formality? Most states have drug laws that are similar to the federal laws, and there are not (presently) many big conflicts (because the Federal Government induces or coerces states to make drug laws similar to its own). But recently, California adopted by its constitutional referendum process, a law authorizing the use of marijuana for medical purposes. Clearly, if the right to choose abortion is within the ambit of the Ninth Amendment rights reserved to the people, the right of persons to choose to smoke marijuana, and the right to regulate or deregulate its use is within the Ninth and Tenth Amendments, which means that it is not federal business.
It violates federal law (ostensibly protecting individual rights) for any state to regulate abortion during the first trimester of pregnancy. The power exercised here is even more interesting. States are prohibited from making such laws, by federal "law", even without an act of Congress. While such a prohibition, or the authority to make it, is not contained in the Federal Constitution, we are all ordered to imagine that it is, but by the same token, as a non sequitur, we are ordered to imagine that regulation of drugs is not within the ambit of the Tenth Amendment, while clearly, it is.
What I am suggesting here, is that we need to develop a doctrine of that speaks the same language as Federal Supremacy. Namely, where the federal government acts pursuant to the Constitution, and not in derogation of any part of it, there is federal supremacy. Where the State acts pursuant to its own Constitution, and not in derogation of the federal Constitution, then, by implication it is also acting pursuant to the Tenth Amendment, and there is State Supremacy. And where the individual acts..
I want to point out here, that what we are doing in this introduction is getting acquainted with some elementary concepts necessary to begin to penetrate into the Philosophy of American Constitutional Law. Our primary interest is in the notion of "legality", not morality or politics directly. Yet, as evidenced by the Eighteenth Amendment, moral and political concepts have an immense impact on what the law is or shall be, and in that sense, we are interested in politics and ethics, as they impact law, both in the present and in the future as "law coming into a state of being"; as a force in the evolution of law.
I am not saying, in a moral sense, that drugs or abortion, or sex among consenting adults, or any particular of an infinite variety of morally or politically contentious matters, should or should not be federal legal business. It is not that such questions are not a proper subject for the philosophy of law. Clearly, at some point, they are. It is just beyond the scope of this book to delve into issues of morally right or wrong law.
Rather, the interest of this book is the due process question of whether the federal government may regulate such matters without appropriate constitutional amendments, and, in any event, may it do so through its Supreme Court; and equally important; that issue includes a prudential issue:
Even if we concede that a philosophy of law could allow the judiciary to create constitutional law under the guise of interpreting the Constitution as a legal matter, (i.e. by Constitutional Amendment) as a prudential matter is it workable, or would it lead to the same kind of folly that the Eighteenth Amendment led to; namely, a breakdown in respect for the law?
This latter prudential issue is addressed in the context of the existing mechanics of the Supreme Court's "law making" abilities, and its uses and abuses of power. It is my underlying argument that what the Court and the judiciary are doing, is not lawful, in fact, it is outright unlawful, and with any real understanding of what is actually going on in the judicial system, no sane person would want what the Court is doing to be lawful.
Part and parcel to our consideration of both the legality and the prudence of vesting such power into the Judicial Branch, are the Constitutional Alternatives.
In addressing the issue of the Constitutional Alternatives, I take NO liberty. To be sure, we could amend the Constitution to eliminate the evil of judicial usurpation. But that is neither a theme of this book, nor a philosophic idea I have in my head. For the purposes of this book and my philosophy of Constitutional Law, the safeguards to liberty and a constitutional democratic government respectful of the rights of the people, are either in The Constitution, as It is Written, or they are not. And we will look very hard to find them, and to understand them.
The Journey to Understanding: The journey to understanding those "law making" judicial systems and the judicial uses and abuses of power is long and arduous, and it is not for the weak of spirit. Every step of the way is wrought with hidden danger for those who seek to find out what is really going on in such an important public institution as our judiciary. The subject matter that we are examining is often the difference between the real law and what "the powers that be" wish the law was and coercively enforce as if they cannot tell the difference between real and false law, and, as a matter of fact, don't even care about that difference.
When you are toe to toe with a government that does not care about what the real law is; treats the word "Unconstitutional" as if it is a "four lettered" word, and is not accountable to anyone for its judicial abuses of power, you either walk very softly, or suffer the fate that I suffered: Blacklisting, police beatings and repeated imprisonment without a crime.
The case in point demonstrating the extent of usurpation that confronts us, that you will be reminded of through out this book is that the Constitution contains the terms of the basic governing contract between government and governed; (3) Yet, according to government, only it, through its judicial branch, can interpret that contract. How come only one party to a contract gets to interpret it? It surely does not say that in the Constitution, as it is written.
Do you see the manifest unfairness of government, the organized representative of the people, being the final arbitrator of what the Constitution means? It inevitably make law for its own benefit and convenience in governing, instead of according to the Constitution and for the benefit of the People. What we shall see is that through this "interpretive process", government through its judicial branch, has become "a law unto itself."
Finding the Real Law of the Land: The problem is that it is government with all of its coercive power that propagates both real and false law, and insists with the "force of law" that there is no difference; that all that comes forth from its mouth is the law; it is the duty of every citizen to obey that "law"; and whether it is good, bad, or false, makes no difference: It is the LAW and "THE LAW MUST BE OBEYED."
That is the "philosophy of law" that every government wants its people to accept unquestionably; to live, and to die by. But it is not THE Philosophy of Law of Our Constitution, nor is it my personal belief in the law; nor is it a logical foundation upon which to found the science of law, or one's belief in it. It is merely the government's wish list, enforced by its police power; and a wish list, no matter how strenuously enforced, is still a wish list, and not the real law of the land. To find The Real Law, we must look beyond what government proclaims for its own self interests, to be the law, and we must adopt objective criteria by which to find and recognize it independently of what government says that it is.
One Law: We shall learn, in these pages, that false law, its instruments and fruits, is rule by arbitrary and capricious government; and that is the rule of barbarians. Our hope for civilization is to bring government, all of government at all levels, under the same rule of the same law that it applies to us, to be enforced against government by the same mechanisms that it uses to enforce law against the people. To accomplish this, we, as individual intellectuals; as a nation, and as a human race aspiring to become civilized, must be morally willing and intellectually able to stand toe to toe against all of the organized forces of government, on an intellectual and moral battle field, and make our stand for all of mankind's hopes and dreams of civilization to come.
On the one hand, we, the intellectuals of our day, must implement the constitutionally designed systems by which the government must enforce the real law of the land, and only the real law of the land. On the other hand, we as cultural moralists aspiring to see the good in man mature and prosper, and the evil systematically eliminated, must secure for ourselves and our descendents effective feedback systems between government and governed, by which better law survives and evolves, and bad law stagnates and dissolves.
What we will strive for in this book is to see and understand the difference between real and false law; and good and bad law, so that as a civilized democratic people, we can direct our intellectual energy to creating and guiding real, good law as the foundation of civilization, for ourselves, and for our children and for their children.
But just try telling the government and its judges that they are bound by the same law by which they judge us. They get violent! They throw you into jail and you sit without a rational criminal charge pending, and you learn that the unthinkable is, in America, the effective "law of the land": Here, the government blacklists and imprisons its intellectual opponents because they are "enemies" and whether it is for real crimes is irrelevant to our systems of law enforcement.
A Thirty Five Year Journey: This is the story of my thirty-five year journey to understanding and recording the difference between what government claims and enforces as law, and the real law of the land. That journey started in Vietnam, in 1965, with questions about the war that wouldn't go away. When I got back to the "World" to take up my life where it had left off five years earlier when I dropped out of high school to join the Marines, the Anti war movement was just picking up steam, and I was plagued with the question of whether the war, and my part in it, was right or wrong, good or evil, moral or immoral.
The more that I became convinced that the war was wrong, the more haunting the questions first raised in Vietnam became, compelling me to deeper and deeper levels of inquiry: Through junior college, through two philosophy departments at the University of Wisconsin at both Milwaukee and Madison; through law school at Southwestern University at Los Angeles, and through twelve years of law practice.
Then, in 1989, the mystery of the United States Domestic Power to force the people to make unjust war, begin to unravel and I begin to see the internal contradictions of our legal system, that at home, in these United States, were the root causes of gross systematic injustice to the American people, and which, at the other end of the legal spectrum, gave our government the power to wage unjust war with impunity.
That's when the real journey to understanding began. I had to learn enough about constitutional clauses and meanings that were systematically hidden from the people, to formulate theories, and then to test them and record the results, to actually perform experiments in constitutional law before the courts of this land, to confirm or disprove the theories I was developing, to get the information to write this book.
Needless to say, our government, at all levels, did not exactly appreciate what I, as a licensed attorney and would be judge, was doing, and saying, and thinking. Yes, thinking. That was the worst of it. You didn't know that the purpose of licensing attorneys was to control their education. Well, you did know that, but you always thought that it was to ensure "quality legal talent." But that's not it at all. The real reason for licensing attorneys, is to make sure that they all have the same basic legal philosophy (called "Judicial Supremacy") indelibly imprinted on them so that they accept it without question and never question it, and never assist or allow you, as their client, to question it, as the basic legal/political structure of the United States.
You think that we are a "Constitutional Democracy" and that the Constitution and laws made pursuant to it, are the supreme law of the land. And I thought so too, and I thought, that when I went to Vietnam I went as a Marine defending our Constitution and our Democracy under it. But I was wrong, and you are wrong if you think that our government is the government created by our Constitution. It is not.
The Constitution is Not the Effective Law: This is what I began to unravel in 1989. The real effective law of our land is not the Constitution "and laws made pursuant thereto." Rather, it is what the Supreme Courts, and inferior courts say the Constitution says, and what the Court says that the laws made pursuant to what they say the Constitution says, says; and even worse, what the Court ignores about the Constitution, is systematically ignored as law.
Naturally, you think just as I thought then, that there is nothing new about that. The judiciary is charged with interpreting the law, it is the "final interpreter of the law", so the applied law, the "effective" law, must be what the judges interpret it to be. Right? And if the Court makes a mistake in interpretation, then naturally, that mistake is passed along.
No, no, no! You missed the point. But I don't blame you for missing it because once I became aware of the issue, it still took me more than two years to figure out its implications. And that was the beginning of understanding THE Philosophy of Law.
Let me ask you a question. Is it or is it not true, either literally or metaphorically, that The Constitution is the basic instrument between government and governed that sets the legal parameters for government by which it governs?
That's not a trick question. The Constitution sets the terms governing the basic relationship between the people and their government. It is a well accepted principle of law, that if "law" is not pursuant to the Constitution(s), it is not law. (4)
So far, I've told you nothing you really didn't know. So, let me ask you one other question. Its not a trick question either.
Is it or is it not true that the judiciary is a branch of government?
Of course it is. We learned in elementary school civics that the Judiciary is the Third Branch of Government. Nothing, in all of these years has caused us to question that.
Our Basic Method of Philosophic Research: Perhaps you are thinking that if all there is to the philosophy of law is this kind of simple proposition, then you are disappointed. And you should be, because the fun comes in thinking about all of the implications of often very simple and non controversial propositions. So let me ask you one more very simple question, to see if we can get to something more interesting.
If, as we have agreed, The Constitution sets the terms between government and governed pursuant to which government governs; and
If, as we have agreed, the judiciary is the final interpreter of the Constitution, and
If, as we have agreed, the judiciary is a branch of government, then,
Doesn't that make the government the final interpreter of the terms of the contract between it and the governed pursuant to which its powers to govern are determined?
Now, just think about it for a while. Have you ever, in all of your life, seen a written contract that gives all of the powers of final interpretation to one party?
The Power to "Interpret" is the Power to Rewrite: Think about what could, and would undoubtedly happen to any contractual arrangement over time, where one party had complete power to interpret the meaning of all its terms and the by laws made "pursuant" to it, and determine whether its own acts are pursuant to it, and by its acts, control your conduct, punish you for that which it finds disagreeable, and then still be the final arbitrator of whether its control over your life is "pursuant" to your original written agreement. He would progressively stretch the meaning of words and clauses, as favorable to himself, until eventually, the "contract" meant what ever he wanted it to be.
Think about it. From a few simple non-controversial propositions, we have logically come to one that has lot of hidden meaning. Think about the "Pandora's Box" we have just opened. Because we have followed a logical implication of certain commonly accepted propositions about government, to one that is significant and observable, (that the government through its judiciary claims with the force of law, to be the final interpreter of the Constitution) to another that is implied by the former, but is very questionable, (that the Framers intended the government to determine the limits of its own powers).
That is argument by reduction to the absurd that raises a serious question.
No one familiar with constitutional concepts really believes that the Framers intended the Judiciary, or any part of the government, to be the final arbitrator of Constitutional meaning.
"Judicial Supremists" cite Marbury v Madison (5) for the proposition that "Judicial Supremacy is not derived from any specific constitutional provision, but rather, it is a necessary consequence of our system of government."
Such "American Ingenuity" the Founding Fathers had so that the only system of government they could design was a government that had the right, and even duty, to interpret the Constitution away? That is not very complementary of those who earned such honor.
But, to say it is a "necessary consequence of our system of government" subjects the issue to objective examination and logical analysis by first identifying exactly what our "system of government" is under the Constitution, and then demonstrating that there are reasonable alternatives to Judicial Supremacy that more closely fit the actual constitutional design, as it is written, not to mention the generally accepted proposition that those who fought the Revolution and designed our Constitution were jealous of liberty and fearful of sovereign government. (6)
That in turn suggests where we might look to find the evidence to disprove both the dubious proposition that the Framers intended any form of governmental supremacy over the Constitution, as well as the assertion that "Judicial Supremacy" is a "necessary consequence" of our system of government." Obviously, if we went to the Federalist Papers, we would find much information suggesting very strongly that the Framers did not contemplate any form of governmental supremacy over the Constitution. But the "necessary consequence" argument avoids that kind of evidence, for if it is not specifically mentioned who is to be the final interpreter, (as in the case where there is not to be one) then the "necessary consequence" argument, if a logically sound argument, is very persuasive; albeit, also suggesting that those who designed the Constitution, and got the Bill of Rights amended to it, didn't have the foggiest idea that of what thy were really doing: Creating an unlimited government by virtue of the "necessary consequence" of its judiciary being the final interpreter of Constitutional Meaning.
But the argument is neither factually based nor logically sound. The Supreme Court, in describing our "Tripartite form of Government" that justified, even required the judicial power to veto legislation on the basis of unconstitutionality, emphasized the separation of the three branches of government; but it totally ignored and eventually obscured the vertical separation of government from ultimate power by the democratic processes they designed into the Constitution. There are four separating "democratic powers" of the People, three of which are expressed largely through the judiciary. They are what we will call:
"The Four Horsemen of Constitutional Democracy."
Horseman One: The First Amendment Right to Petition the Government for Redress of Grievances through the compulsory process of law. That First Amendment Right can be expressed in a number of ways, but there is only one way by which a person can petition the government for redress, as an equal under the law where just redress must be granted according to the law. That is through a law suit against government, hauling it into court, and before a jury, under the compulsory process of government's own courts.
Horseman Two: The Right of Trial By Jury in All Criminal Cases, and in all Civil Cases wherein the value in controversy exceeds twenty dollars. The jury is a limitation on judicial power, and that makes it a limitation on government power expressed through the judiciary. But more importantly, the right to a jury extends to Petitions for Redress of Grievances with Government, and that combination holds all of government in check, as accountable before a jury for any unlawful injury government causes to one of the jury's citizen peers. We have a right to a jury, but it is so watered down as to destroy its effectiveness as a bulwark for liberty. [See The Rights and Duties of Jurors in Trial By Jury to try Both the Law and the Fact]
Horseman Three: The People's Right to a Grand Jury to stand between them and government in all criminal matters, and, no less important but totally ignored, is the People's Right to form grand juries to probe into government for crimes and other violations of the Constitution, including the oath to support it. What we have instead, at the federal level, are "rubber stamp" grand juries completely controlled by the prosecutor with the participating consent of the judiciary, and there is no access to the federal grand jury by the people, and no system by which a federal grand jury can investigate government corruption on its own. At the state level, many states like California do not even have state grand juries; and at the County level, the grand jury is almost completely controlled by the prosecutor in criminal matters, and by the judges in civil matters and matters concerning corruption in government.
Horseman Four: The People's Right to Elections of the President and all Legislators.
In point, the first three Horsemen, when operating freely, so limit government to the Constitution, that it does not have a lot of arbitrary power, and that means that government officials do not have a lot of political favors to trade, or to sell. That in turn means that there are no real big money reasons for big money players to back this or that candidate. In effect, tone down arbitrary government power, and that tones down the political favors politicians can trade, and that tones down the amount of big money to be "invested" in elections, and that returns the elections process to the People, instead of to big money.
Today, it is no secret: Big money buys elections. What is a secret, are the political favors politicians trade for "Big Campaign Money." The big money reality even qualifies candidates before they decide to run for office. Those who are willing to sell political favors for campaign money have a distinct advantage over those who believe intellectual integrity in support of the Constitution; basically, their oath, is important. [See Oath of Office and The Missing Thirteenth Titles of Nobility and Honors Amendment that "disappeared" from the Constitution in 1876.]
By undermining the first Three Horsemen, the judiciary has undermined the right to elections and turned them into "political favors for big campaign money" feeding frenzies.
When we examine the Constitution, as it is written, we will find that the Framers wove these democratic protections from government usurpation and overreaching, right into the Constitution itself. We will find and discuss them in detail, but here the point concerns our research methods: When we find potentially democratic protective systems to limit government power, we will ask how they should work and compare that to how they do work, and then we will see if judges didn't redesign the Constitution by interpretation, to cause the difference.
Now, having found reason to question the judicial supremacy premise, and in so doing, having found clear and convincing evidence in the Constitution that the Framers designed four powerful democratic processes to limit government and hold it accountable directly to the people for its abuses of power, we are faced with another reality, and another question leading to a whole new source of research, and evidence.
Namely, if our findings are correct so far, then something is happening within the judiciary to systematically undermine the democratic protections designed into the Constitution.
Now, our philosophic developments are put to the real test of reason. We have found systems designed into the Constitution the obvious purpose of which is to protect us from government over reaching, and we have made a leap in logic (formed a theory) to conclude that they are not working, but now we have to fill in the pieces to find if it is true that those systems are not working properly, and, if they are not, to find out exactly why they are not working properly; and that explanation has to account, mechanically, for how government has usurped power to rewrite the Constitution, by government, for government, according to its convenience. Three Points to Remember:
First, whenever you hear or see the contention that: "The Judiciary Interprets the Constitution …" in evaluating it, automatically think: "Aha! Is this a Con Job or what? I know that the judiciary is a branch of government, and that means 'The government interprets the Constitution …,." You want to be real cautious about conceding that the government, and only the government is the final interpreter of the Constitution. The issue is nothing less than the cause of systematic corruption in government, and it is also the cause of unjust wars by our government against other nations.
Second, whenever you hear or see the contention that: "The judiciary defends the Constitution;" or "the judiciary defends rights;" interpret it to be an assertion that government limits itself and defends the constitutional rights of the individual. That is absolute nonsense that the government wants you to believe while it goes about redesigning the Constitution to be what it wants it to be, for government's own convenience in governing, one case at a time. By that assertion, it is intending to quiet you and put you to sleep, while it systematically steals all that is important to life, liberty and the pursuit of happiness.
Third, whenever you hear or see the contention that: "The Constitution creates three separate but equal branches of government that balance against each other to protect liberty;" You automatically think that is plain government propaganda to mislead the people into believing that the Founding Fathers believed that if they kept the branches separate, they would be worthy of trust in guarding liberty. Separation of the Branches of Government is plain poppycock. They are created by one Constitution, and the only basis for the separation theory is that each branch is created and addressed under a separate Constitutional Article. Far from that being a design of "Separation of Powers", it is simply the conventional way to address separate subtopics of one topic: The Creation and Powers of Government.
The Separation of Powers Fallacy: In fact, in the same Article I where it creates and empowers Congress that begins with: "All Legislative Powers herein granted shall be vested in a Congress …" it goes on in Section 2, to grant the House the "sole Power of Impeachment"; in Section 3, the Vice President is the President of the Senate; and the Senate has the "sole Power to try all Impeachments" including that of the President and all judicial officers. Section 7, requires before any bill becomes law, it be presented to the President, who may veto it. Under Section 8 Congress controls the purse strings for all of government, and it alone may "constitute Tribunals inferior to the supreme Court;"
A similar design appears in the other "separation" articles: The President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, …" He "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers, and Consuls, Judges of the supreme Court, and all other Officers of the United States, "He "may, on extraordinary Occasions, convene both Houses, or either of them,"
In Article III, Section 2, "In all the other cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
That is not "separation of powers" nor is it a design for equality of branches. It is a design for a general interdependence of government under congressional supremacy. Notably, Congress is the only branch that is granted any kind of immunity at all, in Article 1, Section 6. Likewise, in Article I, Section 5, "Each House shall be the Judge of the Elections …" and in the next clause, each House determines its own rules and discipline for misbehavior.
Thus, while Congress is answerable only to itself and the electorate, the other two branches are answerable to Congress. That is not "equality."
The Point: Separation of Powers is not, and logically cannot be designed into the Constitution; nor can "equality of the branches" be designed into it. They have different governing functions and that is both why they are addressed in separate articles, and why they are not "equal." Being that they have different governing functions, the concept of equality does not apply. They each are to do their jobs, subject to the regulatory processes the Constitution provides, and generally, the primary controlling process is by Congress; and that is as it should be, because only Congress is the representative body of the States, and of the People.
The Judicial Theft of the Constitution: As we go forward, you will join me in exploring many of the interpretations the government has made of our Constitution, mainly but not exclusively, through its judicial branch. As a general direction for study, the fault of Congress is in abdicating some of its key powers to the President and to the Judiciary. The fault of the President is in the issuing and enforcing administrative directives that have the binding force of law on the people and abridge Constitutional rights. But, we will see that it is the judiciary that has really stolen the Constitution: Far from either defending it, or the rights enshrined, the Judiciary provides a systematic defense of government against the governed.
It is not possible to document all of the usurpations, or even most of them in one book, that have combined to render the theft of the Constitution a "done deal" But we will find the real clauses in the Constitution and compare them to many of government's major anti constitutional interpretations so that by the time you have read this book, you will be as outraged as I am at a system of government that can only be called: "Institutionalized Treason."
In examining the material, you will see that your instinct about what happens to a contractual arrangement when only one party has the right to interpret the agreement, is an accurate analogy of what has in fact happened over two centuries of law in the United States where government, through its very own judiciary, has determined itself to be the final interpreter and arbitrator of what the Constitution says and means.
Did the Framers of our Constitution, actually intend that government should be the final arbitrator of all of its powers and the limitations thereon? If they did, there is no indication of it in history. But if they didn't, because we credit them with dedication to freedom, then perhaps we should look for systems within the Constitution designed to prevent exactly that result.
The Doctrine of Judicial Supremacy: Government's "right" to be the final arbitrator of the Constitution has a name. It is called the "Doctrine of Judicial Supremacy." It is not designed into the Constitution; nor is it a part of it, nor does it underlie the Constitution's design. Any serious legal thinker who really thinks that the Framers did, or would design something like that into the Constitution, only deludes himself by thinking that he has any thoughts for himself at all. Yet, Judicial Supremacy is the one and only philosophy of law taught in the law schools, and it is taught subliminally, as if there is and can be no other legal philosophy.
That official propaganda system is the foundation of Institutionalized ignorance of and arrogance to The Constitution, as it is written. It teaches otherwise good and intelligent people that they need have no first hand thoughts about the Constitution at all; that government by and through its priests and high priests, its lawyers and judges have thought it all out and they speak with infallible wisdom on the meaning of our Constitution. In America, "Constitutional Law" is the practice of presenting to lower judges what higher judges have said about the Constitution. It is that, and that is all that it is, and because today, our judicial benches are manned by judicial cowards, it isn't even that. Judges refuse to hear constitutional arguments, period.
Arguing Judicial Supremacy to the Absurd: If one wants to test the proposition that "judicial supremacy is the necessary consequence of our system of government" for truth, one hypothetically accepts it as true, and then reasons to what that logically means, and compares that to the provable world. If the consequences of accepting the proposition as true are absurdities, then the proposition is false.
If it is true that judicial supremacy is a necessary consequence of our system of government then either our Founding Fathers intended that government shall be the final arbitrator of its own powers, or they didn't know the "necessary consequence" of their design of government, and thus, did not intend that result. If they intended that result, then either they would speak and write of it openly, or they meant to keep it a secret. It is provable that they didn't speak or writ of it openly. Thus, if they intended that result, they meant to keep their intentions secret from the people who had a right to know what they were proposing. Given their position, that is a fraud on the people. Thus, either the Founders didn't intend that result, or they intended to implement the Constitution through secrecy and deceit.
We can reject out of hand that the Founder intended fraud for two reasons. The first is that e do accept the historical account, that they were honorable men and there is not sufficient reason to doubt that. Second, there were divisions among them, about what they wanted to obtain, and if to any of them, let alone a majority of them, it had occurred that there was something in the system they were designing that, as a "necessary consequence" implied that government would ultimately be the arbitrator of its own limits on constitutional power and on whether it violated rights or other constitutional principles, some of them would have made an issue out of it, both arguing for, and against that particular design. But, not a word about judicial supremacy is spoken in the debates, or in the Constitution, or in the bill of rights.
That is "argument to the absurd." Sure, you can still believe that those who fought the Revolution against the arbitrary power of Great Britain, turned around and intentionally gave the same arbitrary power back to the government they created. But I refuse to believe that our Constitution was founded by crooks and cheats on lies and deceits. Or, you can believe that the founders were stupid, and didn't know what the "necessary" implications of the system they designed and hashed out, were. But if you believe that, then you will have a lot to deal with in this book, because the thing that I will teach you is that The Four Horsemen of Constitutional Democracy are written into our Constitution, and those horsemen and their powers are the Constitutional Alternative to what Chief Justice Marshall called a "necessary consequence" of our system of government.
Thus, as you read on, you will come to understand that Judicial Supremacy is not a "necessary consequence" of our system of government at all, but a "bamboozle to make us think that the judiciary, in the midst of the biggest political power grab of all time, was merely doing its job. After all, if judicial supremacy was a necessary consequence of our democratic system, who could blame the judiciary for usurpation, when it merely assumes its proper kingly role?
Once the puzzle it put together, and, you will see the Four Horsemen of Constitutional Democracy in the perspective of their Constitutional Role, and then you will understand why the Framers didn't see the threat of judicial supremacy: Not only is it not what they intended, but they intended counterbalancing forces to be focused against judicial usurpation. Three of the Four Horsemen are focused in the Judiciary, and they (are supposed to ) work together to limit judicial power to reasonable interpretations of the Constitution, and laws made pursuant to it.
The Most Magnificent Document The World Has Ever Seen: When seen in total, as the three branches of government and the Four Horsemen are designed, to work together in the governing process in the absence of Constitutional Controversy, and balance against each other in the face of such controversy, what the founders designed is the most magnificent document the world has ever seen: The Constitution of the United States of America, As It Is Written.
They designed an integrated system of government and self government, pegged to the written Constitution in such a way that every controversial interpretation of it would stimulate political debate until it was resolved.
Two Themes, Side By Side.
The Theme Designed into the Constitution, is: If we disagree on the meaning of its clauses, then let there be free, open and heated debate; and let there be politics, until either the meaning become so clear that there be no longer any real debate, or until one side of the controversy gains enough political power to amend the Constitution to clearly state their view.
The Theme Designed by Judicial Supremacy, is: If we disagree on the meaning of its clauses, the judiciary shall decide its true meaning, and that "true meaning" shall be the law.
Do you see the nature of the problem? Under judicial supremacy, the government takes the essence of political debate over constitutional meaning, and transmutes it into law. With each such interpretation, the political life of the nation is, by that much, impoverished; and the compulsory process of law, is by that much, broadened. And little by little, all that was politics morality, becomes law: That is the definition of tyranny. That it be "judicial tyranny" does not change its nature: When all that was political and social morality becomes law there is no longer any room for morality or politics. There is instead, a new religion called "statism" and you have no choice but to belong to that religion, and to obey its commands, because it is the law.
Control of Legal/Philosophic Thought: Judicial Supremacy is America's Official Legal and Political Philosophy that dominates all of American political and legal life. It is taught as basic propaganda to the pool from which most legal and political thinkers come, (lawyers and legal scholars). Membership in that pool is further controlled by state licensing so that if such a would-be-thinker begins to think thoughts that the system has not programmed into him, his license can be pulled and he, as a legal thinker, is officially discredited and blacklisted so that no new legal/political thoughts can ever enter the system.
In effect, America's legal system is a closely monitored closed system based upon a dogmatic anti-constitutional principle: That the Government has a Legal Monopoly on interpreting the Constitution and Laws of the land; and that includes a legal monopoly over all educational and law practice systems out of which legal philosophers may come.
Do you think that it is even remotely possible that the Framers designed the Constitution so that government would be the finale interpreter of its own power, even to the extent that it controls all systems that may stimulate questioning the legality of such control?
Do you see the nature of the philosophic problem? Government's thought control network has been carefully established over 200 years. When you look at all of the pieces manufactured by the Judiciary, they generally seem to fit together in a logical way, and very few of them, by themselves, seem to be totally outrageous until you compare them to the Constitution, as it was written.
Obviously, the Court cannot change the actual words in the Constitution. And by and large, it can only change the meaning of those words when it interprets a "technical meaning" and that is not often, if at all. Beyond that, the Constitution means to us what its words and clauses say to us, and now the question becomes, are we, the people, allowed in our official capacities as juries and grand juries, and as First Amendment Petitioners, the right to interpret the Constitution, as it is written, according to its plain design and meaning.
Now, you are beginning to penetrate into the real Philosophy of Law. But be careful. If questions like this grab you the way they did me, you are in for the intellectual journey of your life as we begin to untangle the constitutional and political mess that government's one sided interpretation of the Constitution has made through 200 years of the Reign of Judicial Supremacy, and return it to the people, in their official capacities, for their interpretation, according to the plain meaning of its content, as it is written.
Balancing Forces Designed into The Constitution: Underlying our inquiry there is an assumption: That the Framers did not intend it to be this way. That, just as they designed the government with "three separate branches balancing against each other" they designed balancing forces between government and governed so that government could not interpret the Constitution arbitrarily for its own benefit and against the liberty rights of the people.
The People, under the Constitution, have a veto power over its interpretation. (7)
What are the Constitutional Balancing forces against government usurpation. How are they supposed to work? What went wrong? Why? What are the implications to domestic justice? What are the implications to international law and war and peace? How can we fix it, if we should, if we can?
These are the practical issues that underlie our philosophic inquiry.
These are the questions which, by 1990, began to dominate my law practice. (8)
You can now see the problem that Judicial Supremacy has.
What would happen if legal scholars began to think for themselves and compared the written commands of our Constitution to what the government does, and began asking real questions, like "Just exactly, from where does government get its authority to do many of the things that it does with impunity?"
Indeed, how dare the Government act with impunity to the written Constitution? How can it get away with it? Those are the kind of questions that led the French Pre-Revolutionary Philosopher, Voltair to observe:
"In these troubled times, it is very dangerous to be right, when government is wrong."
Blacklisting of a Wayward Lawyer: Over the last ten years of my personal journey to understanding the subject matter of this work, I have been blacklisted, stripped of my profession, jailed over thirty times, brutally beaten by police and run through phony kangaroo trials, and denied ordinary rights to appeal by appeals courts that refuse to address the constitutional issues placed in front of them: And I have neither committed, nor been convicted of any crime; or indeed, of any civil wrong.
My journey to understanding how our Constitution had been stolen, actually begins in Vietnam in 1965. It is a journey I have so many times wished I'd never began; and at the same time, it is a journey which, if I had to, I would do all over again. The short to the point reason:
When, after my part in the war was over, I began junior college and was tossing around, hopelessly trying to understand the reasons behind the Vietnam war. Almost by accident I sat in on an Introductory Philosophy Course at the University of Wisconsin taught by Philosopher David Hull. It was an incredible stroke of luck; but good or bad luck depends upon how you look at being bitten and infected by the "philosophy bug." After a few hours in his class, I knew that I'd search for the answers for the rest of my life, and I'd find them, or die trying.
Dr. Hull was no ordinary philosopher. Oh, he had studied the ancients, to be sure; and he taught what they conjectured about, but he, himself, was a scientist, a biologist, and he taught philosophy from a scientific point of view. By his method of teaching, myths, dogma and social taboos were all just superstitions which, like ripe plumbs, were just waiting to be plucked by philosopher scientists applying scientific methods of inquiry: "There is nothing in the entire universe, not even God, Himself, that cannot be examined and explained by systematic scientific methods inquiry."
I had never doubted that the journey I'd started in Vietnam, must be completed, and recorded by "philosopher pathfinders" who, like the sixteenth century scientist Galileo (9) sought to understand the "celestial stuff" of the heavens through a telescope he invented for that purpose; as he recorded his findings in letters later to be published.
By 1971, I was twenty six years old and had served five years in the Marines and my last year was as a combat Recon Marine in Vietnam. After that I was an armed guard, a taxi driver, a a police officer, an automobile salesman and small business manager. But I was constantly troubled by questions I first asked in Vietnam, and I was troubled even more by my inability to find answers, and by the growing anti war movement. The things that activists like Jane Fonda and William Kuntsler were saying, and doing; I didn't believe that they were right about the underlying corruption they said caused the war, but I didn't think they were totally wrong either: I knew absolutely, that it was a war we should not be fighting, and that it was being maintained for ulterior motives. If anything was for sure, the reasons for the war were not those that the government was telling us about. But that's really all that I was sure of.
By the time I sat in on Dr. Hull's philosophy course, I had almost given up any hope of ever fulfilling the vow I'd made in Vietnam. How could I ever begin to understand, let alone teach others to find and understand, and to expose the causes, here in the United States, of unjust wars like Vietnam. I didn't even know where to begin.
Dr. Hull inspired me: You start with learning the foundations of reason. That is what the history of philosophy is about. Then you build on that, and learn from the ancients, to observe and ask questions; and commit to finding and understanding the answers according to the rules of reason that are taught in a branch of philosophy called "logic." Logic is closely related to mathematics. Follow the rules, and you can reason with the precision of a mathematician.
These were tools, he was teaching about; basic skills to be applied to any field of inquiry, and absolutely necessary if you were to blaze trails on the cutting edge of science or philosophy where no other scientist or philosopher had ever gone.
I was not a Galileo. I doubted that I could ever be so committed to finding the truth, that I could endure the kind of condemnation, ridicule and blacklisting that he endured to challenge the religious dogma of his day. But I didn't think that such a challenge to intellectual integrity would ever befall a modern day scientist or philosopher for simply inquiring into and exposing our own political and philosophic dogma. This is the day of science; I reasoned. This is America, the well known "Land of the Free and Home of the Brave." We didn't have to be brave to live here and seek political truth. It was a part of our heritage; or so I thought.
The greatness of Galileo was that he founded the scientific method that gave birth to the age of science, at a time and in a place where only fools dared to speak a version of "truth" that contradicted the official dogma of the Dark Ages. We, I thought, are enlightened, and the powers that be will greet political and legal truth, with open arms.
So, like Galileo, I set out to find and examine the "celestial stuff" of "modern" law in America, and to expose whatever corruption that I may find along the way, hoping that someday, I might come face to face with the real reasons for that war; and for any unjust war. (10)
I compare, in many ways, my work in legal philosophy to what Galileo did in science and astronomy. It is not by any means, a finished product. As with Galileo, it is just penetrating the official dogma of our day to get a glimpse of the world of Constitutional Law that is buried beneath layers of official government dogma. By the same analogy, but for those who, like Galileo and Darwin went before me to establish the scientific method of truth determination against all odds, there never could be an intelligible philosophy of Constitutional Law.
The Last Vestige of the Dark Ages: Existing official dogma of Constitutional Law is the last vestige of the Dark Ages. Judicial Supremacy is "The Divine Right of Kings" under a different name. I could never intellectually penetrate it, but for the methods of experiment and reason that other frontiersmen of science laid. They brought ideas of objective truth determination to an intellectual world dominated by alchemists, astrologers and the superstitious belief that God played dice with the Universe. He doesn't; and He never ordained the Supreme Court to do so either.
Those are the tools of reason Dr. Hull described, but you need one more, sometimes called "Intuition", the ability to distinguish the false and insufficient answer, from the real answer, often hidden under layers of mystique. Some philosophers teach that "intuition" is something mystical. But that's not what Dr. Hull taught, nor what I understand it to be. Intuition comes from the intensive study and hard work necessary to learn the subject matter so well, so thoroughly, that you get a "feel" for what is true or right, and what is false, and how to prove it.
The real world, he said, even that of science, and especially politics, is shrouded in dogma, mystique and superstition designed to protect secret vested interests and ulterior motives from exposure. The only way to penetrate them to get to the real answer, is to determine that the obvious answers are false and designed to deceive and mislead. The only way to distinguish one from the other, is, from a deep familiarity with your subject matter, to follow the rules of reason, no matter where it leads, until each false answer and each false trail is exposed: Then, only the truth remains. No matter how improbable it is, that is the reality you have to deal with.
When you have done enough following of dead end trails and exposing of false answers, than the real answers that at first seemed so improbable, begin to take shape in both logic and reason, and far from improbable, they now appear as "The only reasonable explanation" that accounts for all of the phenomena and leaves no loose ends dangling.
That is how you know that you have finally unwound all the false dogma, and you have found the truth.
Scientific intuition, he said, is really such a commitment to reason and integrity of rationale, that it becomes second nature to you.
You see, he pointed out, each answer leaves a trail of logic, both before and after it. You follow those trails according to the rules of reason, and soon the false answer will expose its own falsity, because at some point, its logical trail comes from nowhere, and flows to the ridiculous. In logic, that's called "reductio ad absurdum", or "proof by demonstrating the absurd consequences of accepting a particular proposition as true.
About Lawyers: Today, thanks to the efforts of scientific frontiersmen, our world is largely demystified, and because of that underlying appreciation for science, the "revolutionary ideas" that I present here will, by and large, appeal to your own common sense; unless you are a lawyer. If you are a lawyer, my findings will challenge your most basic beliefs in law to the core; and if you are serious about what you do, you will never see your profession in the same light again, and in many ways you will come to despise it.
I hope that you will come to despise it enough to change it; and it can be changed.
The subject matter of the Philosophy of Law is so resistant to scientific exploration because it is the means by which government controls the governed, and those who have vested interests in the means of controlling the people, have the same vested interests in maintaining their mystic authority over the means of controlling them. Scientific inquiry into the basis of the government to governed relationship threatens to replace that elitist control with a new understanding of the constitutional processes through which the government's control mechanisms are less authoritative and dogmatic, and more reasonable and democratic.
The Judiciary is the elitist control system of government over the people. It teaches its own propaganda to each new generation of lawyers, through law schools and enforces it through state bar systems. By the time a lawyer graduates from law school, he is a duly indoctrinated priest of a mystical philosophy of enforced political beliefs called: "Judicial Supremacy."
The Proper Relationship of Government to Governed: The basic subject matter of this book, is: Under our Constitution, what is a proper relationship between the government(s) and the people it governs? That is the single most important relationship all Americans have.
If I am the first to describe some of the important parameters and principles of a proper relationship between government and governed, and if I teach what I have learned to others no less committed to understanding the nature of man, his ethics and his laws, I, like my hero, Galileo, will have earned a place in man's history of the philosophy of his laws.
The First Rule of Reason: That is what real philosophers live, strive and die for. To us, there is only one test of truth: That it makes sense to us now, in view of all that we know; and in a relevant way, that it still make sense to the intellectuals of future generations; that they may be awed by our discoveries at a time that seems to await us. But in the larger sense of history, if the discoveries revealed in these pages were not made and recorded by me, they would be by my son, or your daughter. The times are such that, Man must subject his governing processes to scientific understanding. The basic rule of law and of science are the same: The Rule of Reason.
The first rule of reason for civilized man is that he must know what controls him; and to the extent that civilized man is controlled by his government, he must know what controls his government; what really controls it, under all of those layers of false dogma.
In a historic sense, our journey to understanding those control systems is way over due.
The Credibility of This Book: If there is one lesson I have learned about real philosophers, it is that they do what they do, not because they want to; nor because they receive an immediate reward for their effort; but because something out there has grabbed them so powerfully, that they have no choice but to find the answer to a question that they cannot live with unanswered. Finding fundamental answers to the political quagmire created by 200 years of anti constitutional judicial supremacy is messy business. There are times when I did not expect to come out alive. That after 25 years of studying the problem, and ten years of what can only be characterized as hand to hand combat with the combined forces of local, state and federal governments, all trying to conceal the fundamental systematic corruption that I was trying to expose, that I am now emotionally injured and scarred, should surprise no one familiar with the emotional effects of government blacklisting.
I am a Philosopher of Law; but for all of the world, I am a blacklisted lawyer, and I have the credibility of a lawyer who the State Bar has defamed and blacklisted as "mentally incompetent." That is not, of course, very much credibility.
That fact created the problem that it was intended to create. How can I write a credible book so fundamentally critical of the legal profession and the judicial system, when they have blacklisted me, soviet style, as being "mentally incompetent."
We, both I and my family, have paid a very high price. I have risked so much to unravel layers of dogma to find the real Constitution, and its meaning, as it is written, and it is all meaningless unless I can teach it to another generation to carry on. I went ahead to explore what I had to explore, as an act of faith that once I had what I wanted to write about, nothing could stop me from writing about and teaching the truths that I had paid so dearly to find.
I had paid the price and did what it took to win, according to the "rules." Then, out of no where, the government cheated, and said "checkmate." I was stymied. It wasn't a real "checkmate" of course, but it took me a very long time to figure out what to do, and how to do it.
What do you do, when you have spent your entire adult life learning something so difficult and obtuse that it would take anyone, even Galileo, most of his life to learn it, for the purpose of writing about it so that the next generation can build on it, and then, when you have learned what you needed to have something to writ about, the government steals your credibility?
You are an intellectual branded: "Mentally Incompetent." What do you do?
It took me five years to figure this out and to lay the foundations to over come it.
There are two parts to my solution:
First, the credibility of my work as discussed in this book, has to stand on its own. That meant that I could not write a strictly legal/philosophic work that appealed only to graduate and post graduate intellectuals, for they would look first to my blacklisted credentials. It would have to be designed to appeal to the common sense of patriotic people everywhere, in India, Vietnam Russia, and China, no less then to interested Americans. I still want lawyers and judges and politicians to study this work, but they won't if you won't. And they will study this work, if you scream to them, demanding to know what is happening to the American Constitution; what has the American Judiciary done to it? Because America is such a World Leader, the status of The Domestic Causes of War is everyone's business, whether they love America or not.
So, my design of this book had to include getting down to the basic causes of my inquiry, not just concerning domestic injustice, but as it concerns all Peoples and Nations on this Earth.
You have a right to know what started me thinking along these lines; and the logical progression of my thoughts and the influences on them, because that plays a part of your judgment of whether the questions are real, and important to you, to Americans, and to all mankind. Only by hearing the whole relevant story, can you judge whether my inquiry was really in depth; or whether I just imagine that I have made some real important discoveries.
So I will tell you not only about what I found, but how I went about finding it. Because that is a part of the meaning and validation of the significance of what I found.
So, for example, one of the things that I will tell you is that the judiciary systematically cover's up its own theft of our Constitution. That has grave implications. If you are going to believe me, I will have to show you the evidence that appeals to your common sense.
Second: This book contains major revelations of our government's systematic undermining of key constitutional protections necessary for any constitutional democracy. When I address those key undermining policies, in addition to the explanations, I will set out what the government has done, side by side to the constitutional provision that says that it can't do that, and I will cite you to the proofs that government did and does indeed, exactly what our Constitution says that it can't do, and I will show you exactly how what it is doing undermines Constitutionally mandated Democratic Protections of Liberty.
The object of redesigning this book is so that nothing in it relies on my credibility. You will not only hear the question, but you will know its importance and frame it yourself, because you are interested in knowing both the question, and an answer that you already understand, and wish that it wasn't true, while knowing to a degree of moral certainty, that it is.
The government has stolen my credibility, so the burden that I must accept, is to convince you from facts that you accept or cannot reasonably reject, beyond a reasonable doubt, that it has also stolen our Constitution, and exactly how it has done that.
Underlying the entire book, as it moves from chapter to chapter, is another issue that is as important to you at one end, as it is to me at the other.
You will see me, as a United States Marine fighting for a misconceived notion of American Liberty; as a wandering questioning student activist and Vietnam Veteran Against the War, as a philosophy student in a major university, as a law school graduate and as a lawyer/ philosopher, and eventually, as a blacklisted philosopher/lawyer searching for, finding and documenting answers to the most important constitutional issues of the 21st century.
But that is just my opinion and according to the rules I stated, as such, you may disregard it, but I promise to present in this work, the evidence to convince you, of the importance of those issues, and that I have correctly interpreted them.
If I even begin to deliver anywhere near what I promise, you know how impressive that must be, even for Galileo, who I admire as a real hero, but who I am not in any measure.
But then, if I have delivered on my promise, you think about what that means in terms of our government's unbridled power to blacklist and so totally discredit people like me as "mentally incompetent" because we dare to question the authority of government's official philosophy of Judicial Supremacy, and what it has done to our legal system.
I and my family have been terribly injured by what it did to me, but that is nothing compared to the injury our government has done to the American People, by systematically depriving them of new political and legal ideas that should be openly discussed in the world's market places of ideas. It has deprived you of your right to a working democracy of free flowing ideas on the most important subject there is: How mankind shall govern his governments.
If you are with me on that, that governments are created to serve man, and Constitutions are created to bind governments to that service, then go forward with me to Chapter I, where, to a young Marine who had just turned 21 in combat, the questions first arose that would eventually, bring him to do the research and experimental analysis necessary to write this book.
3 Some say that the Constitution is not a contract between government and governed; that it being the document that created the federal government, that government can not a party to it. There is a certain cogence to this argument. It's point suggests that there is a certain common law moral element to a contract that attaches to having made personal promises which does not adhere to a constitutional arrangement whereby the federal government was brought into existence. That argument has the social contract preceding the creation of both the federal constitution and the federal government, as if the Constitution was for the benefit of the Government it creates.
I personally don't' think that argument goes anywhere. The Thirteen Colonies were thirteen state governments representative of their peoples. They sent state representatives on Confederation business to hammer out a solution to Confederation unity problems, and they hammered out what is now our Constitution, and presented it to their respective governments for approval. When the "Framers" designed the Constitution, they spoke, collectively, for the Confederation When the Colonial Governments adopted the Constitution the Confederation presented, they did so both as government for, and representative of the People. The Federal Government thereby created is the successor of the Confederation of Colonies that existed from the Revolution to 1789. The Federal Government didn't just "come into existence" with the Constitution. Rather, it was the successor of the net of treaties that created the Confederation. Article VI, Clause 1 recognizes as much: It requires: "All Debts contracted and Engagements entered into, before the Adoption of the Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."
The actual "parties" to the Constitution as a contract are The Colonies, the Confederation and the People, and their successors, The States, the Federal Government and the People. But, just because we can characterize it as a contract, does not mean that it is merely a contract. It is the Supreme Law of the Most Powerful Nation on Earth, and more than any other single thing, it is the cause of its power and its greatness. That suggests something more than a "mere contract." As a contract, it is singularly one where to break an oath to support it, can also be treason.
4 "The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law." Chief Justice Marshall in Gibbons v Ogden, 22 US 210-211; (1824). A state statute that conflicts with either the federal or state constitutions, or deprives a person of a constitutional right, is to that extent void. Robinson v Bidwell (1863) 22 C 379.
5 Marbury v Madison (1803) 5 US 137, is the case, opinion by Chief Justice Marshall, that is credited with establishing Judicial Supremacy. But, the "judicial supremacy" authored by the Chief Justice then, is not the same doctrine that evolved over time. When he laid the foundations, the judiciary was fighting for its own "equal" dignity with the other two branches, under a rationale of "separation of powers." But what eventually emerged is actual supremacy over the Constitution, not as a matter of the Judiciary "vetoing" unconstitutional legislation as an expression of "separate but equal branches:, but rather, as a matter of unifying the government against the people. "Judicial Supremacy" fighting the rest of government to preserve the Constitutional Rights of the People, is one thing. But what we have is "Judicial Supremacy" as an enabling device for all of government to escape the confines of the Constitution. That is a big difference.
7 If you need an immediate explanation of how this is possible and necessary in our Constitution, see pages ___ to ___, infra. Otherwise, accept it presently on faith and it will be addressed later in detail.
8 I performed experiments with cases of fully informed clients, and with my own cases, to test these balancing forces before courts and courts of appeal, and before the Supreme Court. That is a part of the method of philosophic and scientific discovery. We shall discuss many of those experiments in detail.
9 Galileo Galilei, 1464 - 1542, was an Italian Mathematician and Astronomer. In 1509 he invented the telescope to see the heavens more clearly. At that time the orthodox belief enforced by the Roman Church was that the Universe was made of "celestial stuff" and was perfect, in the image of God. But he found that Jupiter had four moons similar to ours, and our moon, far from being made of "celestial stuff" had craters and mountains, ands it light was merely a reflection of the sun. He deduced that the Moon moved around the Earth and the Earth around the sun, just as Copernicus (1473 - 1543) had taught. He defended Copernicus model of the solar system with sun at the center and the planets moving around it. That was not very popular with the Powers of the Roman Church and he was persecuted for his "heresy" and tried by the Inquisition in 1633, found guilty of heresy and given a choice of death, or recant and suffer only house arrest. Remembering the fate of Joan of Arc, he recanted, verbalizing that the Earth was the center of the universe, but is said to have muttered under his breath, "But it does move."
10 Galileo is my personal hero. The truth that we seek has the same enemy: The vested interests of those who seek to control mankind through dogmatic false belief systems. To challenge the judicial dogma, as I have, is the same kind of "heresy" that Galileo was tried for by the Inquisition. For Galileo, the anti intellectual was the dogma of the Roman Church. For me, it is our dogmatic Judiciary. My hope is that when you finish this book, you will see the similarity between the dogmatic control the Inquisition exerted over belief systems, and the fundamentally like control over legal, political and philosophic thought in America, exerted by our Judicial Institution.
I am personally very thankful that they do not burn heretics any more. As we shall see, the thought police of official dogma have become "civilized." State judicial systems have replaced the Inquisition, and they do not burn heretics like Galileo and me at the stake for merely pointing out that their legal universe is made of firmer stuff than the official dogma they propagate. They label us enemies of the state and "mentally incompetent" to discredit us, rather than forcing us to "recant"; and they persecute us for acts that are not crimes and imprison us without conviction and without effective remedy, and they take away our professional ability to earn a living, but they do not burn us at the stake any more. I am very grateful for such advances in civilization these past 350 years. I do not wish to be burned at the stake, and I can't recant my peculiar brand of judicial "heresy." I simply cannot.
John E. Wolfgram, J.D.
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