- See, e.g., Randy Barnett, “Foreword: Guns, Militias, and Oklahoma City,” 62 Tennessee Law Review 443 (1995); Col. Charles J. Dunlap, USAF, “Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment,” 62 Tennessee Law Review 643 (1995); Andrew D. Herz, “Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,” 75 Boston University Law Review 57 (1995); David C. Williams, “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” 101 Yale Law Journal 551 (1991).
- Testimony of Ted Almay before House Judiciary Committee, Subcommittee on Crime, November 2, 1995 (explaining connection between the militia movement and, what I will call, the Common Law movement).
- See, infra, text accompanying notes 251–283.
- Robert M. Cover, “Bringing the Messiah Through Law: A Case Study,” Religion, Morality and the Law, NOMOS XXX (New York: New York University Press, 1988), p. 204.
- “[T]he natural understanding for a court confronting a gap between what is affirmed as right and the world as perceived, is that the world will be changed. Courts exercise power to that end.” Id., at 209.
- Id., at 202 (explaining how Professor Cover had supposed that Messianism was the antithesis of lawful transformation and how he no longer believed that to be true).
- Id. (postulating that the tendency of law was to aspire to that which could be realized, but confessing that he was no longer confident that that was so).
- Id.
- Id., at 206.
- Id., at 210.
- See, infra, text accompanying notes 37–47.
- Cover, supra note 4 at 204.
- Id., at 203–204.
- Robert M. Cover, “The Folktales of Justice: Tales of Jurisdiction,” 14 Capital University Law Review 179, 182 (1985)(“I believed and still believe that…emphasis [on law maintained apart from the State] is a necessary corrective to the imbalanced character of almost all contemporary legal theory”).
- Cover, infra note 48 at 33.
- See, e.g., Paul Kahn, “Community in Contemporary Constitutional Theory,” 99 Yale Law Journal 1, 63 (1989) (emphasizing that Covers theory imagines a world of competing sects instead of interacting individuals and stating it is “no accident that Cover s central example of a meaningful political life is the Mennonite community” as if to imply that non-interactive groups were somehow Cover's models).
- Estimates vary on the precise number of states with such courts. Michael Reynolds of the Southern Poverty Law Center's Militia Task Force, which monitors this movement, reports that these courts exist in at least 21 states: Katherine M. Skiba, “Renegade Courts Issuing Threats,” Journal Sentinel, October 29, 1995 (quoting Reynolds as confirming that such courts exist in Arizona, California, Colorado, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Nebraska, Ohio, Oklahoma, Oregon, South Dakota and Texas). They also exist in Wisconsin. see Richard W. Jaeger, “Militias, Protesters Form ‘Supreme Court’ in Western Wisconsin,” Wisconsin State Journal, July 1, 1995, which makes 22. Other newspapers have reported lower numbers. See, e.g., Michele Cole, “‘Courts of Justice’ Spring Up Across State,” The Idaho Statesman, December 15, 1995, at 1A (at least 13 states); Thomas Heath, “A Law of Their Own,” Newsweek, September 25, 1995, at 75 (at least 11 states); Mark Potok, “Common-Law Courts Take on Legal System,” USA Today, August 28, 1995, at 1A (11 states). However, my research has confirmed Reynold's much higher estimate, and indeed, as my citation to the Wisconsin court demonstrates, I believe Reynold's count is, if anything, too low.
- See, infra, text accompanying notes 37–47 on the origin of this movement.
- Testimony on the Common Law movement has been presented in Congressional Hearings: “Hearings of Crime Subcommittee of the House Judiciary Committee,” November 2, 1995. Legislation has been introduced in Wisconsin to respond to the rise of Common Law courts. 1995 Wis. Sen. Bill 437.
- “Moyer, ‘We Cannot Ignore’ Common Law Movement,” Columbus Dispatch, September 22, 1995 (reporting that Chief Justice Thomas J. Moyer of the Ohio Supreme Court sent a letter to Ohio judges asking them to report to him threats made against court personnel by Common Law adherents).
- The endnotes in this article attest to the press attention this subject has received. Moreover, as I contacted people to collect information about this movement and word spread that I was writing on this subject, I had press inquiries on the subject from publications as diverse as The American Lawyer, The New York Times and Playboy Magazine.
- While I have found numerous newspaper articles (many of which I will cite later) on the private law I will describe, I have found no mention of this law or this community's court system in the law reviews. On the other hand, I have found some implicit criticism of our inattention. “The legal establishment has been slow to react to the movement's underground growth. American Bar Association officials are dimly aware of the movement but say they are confident that public education campaigns are the proper antidote.” Stephen Braun, “Their Own Kind of Justice,” Los Angeles Times, September 5, 1992.
- Id. (“The details of Common Law ideology—as opaque and shifting as quantum theory—require hours of study.”)
- During my research for this article, I was encouraged by Mike Reynolds of the Southern Poverty Law Center and Dick Jaeger of the Wisconsin State Journal to contact several members of the Common Law community, who Mike and Dick thought would be particularly knowledgeable about the finer points of the group's doctrine. Both men assured me that I would not be running any serious risks by contacting those they identified. Having successfully collected original source material produced by members of the community, I decided that whatever additional information I could gain from contacting community members directly was not worth the risk that I perceived in making such contacts, assurances by Mike and Dick notwithstanding. I think of myself as relatively brave, so I was surprised that I felt uncomfortable engaging in conduct that others undertook and had assured me I could undertake with relative safety. Having thought about this, I believe that my reaction is directly attributable to the importance I attach to being Jewish. I could not imagine speaking to these people without revealing that I was a Jew and thus that I was particularly and personally offended by their anti-Semitic beliefs, but I also could not shake the feeling that such a conversation would be risky to me, if not physically at least emotionally. I did not call or write.
- Cover, infra note 48 at 31.
- Comments made by official judges who have listened to arguments based on this community's law demonstrate how preposterous that law looks in our legal world. See, e.g., United States v. Green street, 1996 U.S. Dist. LEXIS 677, *14–16 (N.D. Tex. Jan. 18, 1996)(describing a community member's arguments as “bizarre,” “[of] absolutely no legal value,” and “irrational”); Peth v. Breitzmann, 611 F. Supp. 50, 54, 56 (E.D. Wise. 1985) (describing some of plaintiffs' claims based on this group's law as “ludicrous” and stating that “No reasonable person could seriously think that, for example, the revenue laws can be avoided, and the government's tax collection efforts…brought to a standstill by the contention that wages are not income”); Terstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 751 (Ind. App. 1985) (“[T]he common denominator for all of the issues before us is Terpstra's failure to grasp the legal principles germane to this lawsuit”).
- See, infra, text accompanying notes 152–180.
- United States v. Mosat, 948 F.2d 923, 934 (5th Cir. 1991), cert, denied 113 S.Ct. 108 (1992); United States v. Schmitt, 784 F.2d 880, 882 (8th Cir. 1986); Green street, 1996 U.S. Dist. LEXIS 677 *11–12.
- Erin Hallisey, “Lien and Mean,” San Francisco Chronicle, July 16, 1995.
- See, e.g., Terpstra, 483 N.E.2d at 757 (declaring such liens “a nullity”); United States v. Hart, 545 F. Supp. 470, 475 (D. N. Dak. 1982) (declaring these liens “fraudulent, void, and of no force or effect”); Shutt v. Moore, 26 Wash. App. 450, 455 (1980) (such liens “invalid”).
- See, e.g., United States v. Greenstreet, 1996 U.S. Dist. LEXIS 677 *19 (N.D. Tex. Jan. 18, 1996) (permanently enjoining Common Law adherent from filing liens against employees of the federal government without prior approval from a United States District Court); United States v. Lutz, 1994 U.S. Dist. LEXIS 9966 *8–9 (E.D. Ky. July 1, 1994) (permanently enjoining filing of liens against employees or officers of federal government without prior court approval); United States v. Brown, 1988 U.S. Dist. LEXIS 17352 (D. Ore. May 3, 1988) (same); United States v. Van Dyke, 568 F. Supp. 820, 822–23 (D. Ore. 1983) (same); North Dakota v. Jensen, 331 N. W2d 42, 47 (1983) (upholding injunction that prevents defendant from “filing any liens that have no basis in law”).
- Almay, supra note 2 (explaining quiet title proceeding as understood in these Common Law Courts). See aho Handbook, Constitutional Court of We the People in and for the United States of America, Our One Supreme Court, Common Law Venue, Original and Exclusive Jurisdiction, A Superior Court Sitting with the Power of a Circuit Court and United States District Court for the People in and for Franklin County, Ohio State Republic, United States of America (Oct. 1995) [hereinafter Ohio Handbook] at 15 (urging people to file quiet title actions to expatriate themselves from federal and state government control).
- Almay, supra note 2 (noting also that two witnesses must swear to the birthplace of the applicant).
- Ohio Handbook, supra note 32 at 8.
- See, e.g., Terpstra, 483 N.E.2d at 757 (discussing quiet title action recognized in Indiana).
- Mark Ballard, “Paper Terrorism,” Texas Lawyer, December 18, 1995, at 1; Eileen Dempsey, “Common Law Tactics are Condemned,” Dispatch, December 9, 1995 (reporting that Chief Justice Thomas J. Moyer of the Ohio Supreme Court labels these tactics “soft terrorism”).
- Michael Reynolds explains that the common law courts first appeared during the farm crisis of the 1980s. “All Things Considered” (National Public Radio), January 12, 1996.
- James Corcoran, Bitter Harvest, Gordon Kahl and the Posse Comitatus: Murder in the Heartland (New York: Viking Penguin, 1990), p. 39.
- Id. This seems a fitting place to acknowledge how indebted I am to Professor Corcoran. Without his book, and the encouragement and help he gave me, I would not have been able to write this article.
- Id., at 8–9.
- Id., at 9.
- Id.
- Id., at 10–11.
- Cover, supra note 4 at 206.
- Id.
- Corcoran, supra note 38 at 11.
- Id., at 40
- Robert M. Cover, “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,” 97 Harvard Law Review 4, 5 (1983) (“This nomos is as much ‘our world’ as is the physical universe of mass, energy, and momentum. Indeed, our apprehension of the normative world is no less fundamental than our appreciation of the structure of the physical world”).
- See Braun, supra note 22; Potok, supra note 17.
- Kriemelmeyer vs. de facto corporation state of Wisconsin, et al., (Edict from Our One Supreme Court in and for La Crosse County, Wisconsin, U.S. of A. July 17, 1995) [hereinafter Kriemelmeyer Edict] (Common Law court papers on file with author); Braun, supra note 22, at 1A (referring to Ohio Common Law Court as Our One Supreme Court); T.C. Brown, “Justice for the Common Man?,” The Plain Dealer, December 11, 1995 (same).
- The community's documents often refer to Black's Law Dictionary as the source for definitions. The Ohio Handbook, supra note 32 at 6, states that Black's Law Dictionary defines Common Law as follows: As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and the security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The “common law” is all the statutory and case law background of England and the American colonies before the American revolution.
- Ohio Handbook, supra note 32 at 9 (listing attributes of their United States and ours) (on file with author).
- Id.
- Kriemelmeyer Edict, supra note 50 at 1.
- Id. This remarkable document of 34 pages is filled with Biblical quotations. Most of the document is dedicated to Biblical exegesis that purports to demonstrate that white Americans are the people of Israel; America is the new “Zion;” women are subordinate to men; “colored people,” beasts of the field; and “jews,” “the descendants of Cain.” See also Public Notice, Wisconsin state, Country of Wisconsin, Common Law venue Supreme Court, United States of America, Wisconsin state (organic), La Crosse county, Trempealeau county et al., To: Office of Supreme Court clerk in Juneau County, June 13, 1995 (containing rules of Wisconsin Common Law Court and quoting from Matthew 5:33–37) [hereinafter Wisconsin Rules], reprinted in Manawa Advocate, June 8, 1995, at 2; and Citizens Rule Book (on file with author) (including on cover quotes from Leviticus, Isaiah, Hosea, II Chronicles, and Acts, along with quotes from George Washington and Edmund Burke); Braun, supra note 22 (“Court officers consult the Bible as often as they flip through Black's Law Dictionary”).
- Wisconsin Rules, supra note 55, Rule 7. Another document from the Wisconsin Common Law Court system proclaims that the court takes “judicial notice” of the following law: Magna Carta; The Holy Bible; “The common Law as existed in this country before the Civil War and contained within our national Constitution at that time;” The Articles of Confederation; The Northwest Ordinance; The Negotiable Instruments Law; and The Uniform Commercial Code “in ‘pertinent’ parts.” Civil Habeas Corpus (non-statutory) by Precept in Affidavit Form, Frederick J. Kriemelmeyer, dated July 17, 1995 [hereinafter Kriemelmeyer Habeas].
- Those rules do mention the Montana Constitution, specifically adopting as binding in the Wisconsin Common Law Court “Article V, Section 26” of Montana's 1889 Constitution. Wisconsin Rules, supra note 55, Rule 23. Those rules also adopt the an 1864 statutory source for the format of pleadings. Id., at Rule 17 (adopting “the Banna [indecipherable symbol] Statutes of 1864, AD., for pleadings as a format with special expectations as granted by our Justices from time to time in purview of our Supreme Court Rule 1”). I do not know to what statute this rule refers.
- Ohio Handbook, supra note 32 at 9.
- While the Ohio Handbook does not specifically define the term “Basic Constitution,” the Citizens Rule Book, supra note 55 at 25, denotes the first 10 Amendments as “Common Law” and the remaining Amendments as “Equity Law,” a term of derision within this nomos. Further, the Citizens Rule Book distinguishes between the first 10 Amendments, which are labeled as “ratified,” and the next 16 Amendments, which are listed with a date preceded by either the word “adopted” (the 11th and 12th Amendments) or the words “took effect” (the 13th through the 26th Amendments). Id. The Rule Book explains:
- Took effect is used as there is a great deal of suspicion as to the nature of these Amendments (common law vs. equity), also whether these last sixteen Amendments are legal, how many were ratified correctly, do they create a federal constitution in opposition to the original, etc. For further studies a good place to begin is with the article by the Utah Supreme Court on the 14th Amendment, 439 p. 2d 266–276. The Utah case referred to is a remarkable opinion in which Justice Elliet of the Utah Supreme Court sets out his view that the 14th Amendment to the Constitution was not validly adopted and thus is not part of the Constitution.
- The Ohio Handbook begins with a copy of the first 10 Amendments to the Constitution. Ohio Handbook, supra note 32 at 2–3.
- See, supra, text accompanying note 53 (describing our United States derisively as legislative as opposed to judicial, i.e., one that operates with the Common Law as supreme).
- See, infra, text accompanying note 65.
- Ohio Handbook, supra note 32 at 14 (explaining that lawyers hold tides of nobility that are recognized by official courts in violation of the Constitution).
- The Ohio Handbook describes the community's United States as embodying, inter alia: “The Basic Constitution, The First Ten Amendments (Bill of Rights); Three Branches of Government…; Article III Courts (Constitutional Courts); A Republic (Republican form of Government of the 50 Union States)….” Id., at 9.
- Id., at 13.
- Judiciary Act of 1789, 1 Stat. 73.
- Id. “The U.S. Supreme Court was ordained and established on September 24th, 1789 by act of Congress when it passed a Judicial Act that created the U.S. Supreme Court and ignored the Constitutional Court provided for in the Constitution.”
- The Ohio Handbook is of the “CONSTITUTIONAL COURT OF WE THE PEOPLE IN AND FOR THE UNITED STATES OF AMERICA….” Ohio Handbook, supra note 32 at 1.
- On the cover of the Citizens Rule Book, supra note 55, readers are advised “The Fireworks are in the Document itself: READ THE CONSTITUTION!” That book also emphasizes that no law in conflict with the Constitution is valid. Id., at 7 (citing and quoting, inter alia, Marbury v. Madison, 5 U.S. (2 Cranch) 137, 174, 176 (1803).
- Professor Cover noted that while “[i]n our normative world, there is no obvious central text,” the Constitution was “a center about which many communities teach, learn and tell stories.” Cover, supra note 48 at 25. He thus would not be surprised that the Constitution plays an important, although not exclusive, role in this groups nomos. Id. (noting that “the Constitution must compete with natural law, the Declaration of Independence, the Articles of Confederation, and the Revolution itself for primacy in the narrative tradition”). For this group, it must compete also with the Bible and Common Law.
- See, infra, text accompanying notes 147–149.
- See Peter Larsen and Teri Sforza, “Common-Law Believers Go Their Own Way,” Orange County Register, May 18, 1996; Willson Cummer, “Jurors Convict Montville Driver Who Doubts Laws,” The Plain Dealer, April 27, 1996.
- Dennis B. Roddy, “Conspiracy Theories Are Group's Lifeblood,” Pittsburgh Post-Gazette, April 30, 1995 at, A1.
- Kriemelmeyer Edict, supra note 50 at 23; Ohio Handbook, supra note 32 at 15. See also text accompanying notes 152–170 (giving a complex legal justification for this position).
- “If there existed two legal orders with identical precepts and identical, predictable patterns of public force, they would nonetheless differ essentially in meaning if, in one of the orders, the precepts were universally venerated while in the other they were regarded by many as fundamentally unjust.” Cover, supra 48 note at 7.
- Id., at 5–9.
- Corcoran, supra note 38 at 37 (describing how members of certain racist and anti-Semitic groups associated with the law at issue here have attempted to disguise their views to build a bridge to mainstream America and win converts more easily).
- But see id, at 80 (describing the non-racist position advocated by some members of this community in a setting that strongly suggests the non-racist views were sincerely held and vigorously advocated).
- Cover, supra note 48 at 11–12.
- Id., at 12 (“The universalist virtues that we have come to identify with modern liberalism, the broad principles of our law, are essentially system-maintaining ‘weak’ forces”).
- “The unification of meaning that stands at [the center of a nomos] exists only for an instant, and that instant [in which group members are completely united in their understanding of what must be done and why] is itself imaginary.” Id., at 15. If the moment of true unity is itself imaginary, the event in time that this moment supposedly occurred might easily be imaginary too.
- “[T]he very ‘jurispotence’ of such a vision threatens it.” Id.
- Id.
- Kriemelmeyer Edict, supra note 50.
- Here I am using the term “white people” to mean Caucasian Christians and to exclude all others, which is how I understand the term to be used in this edict. See, infra, text accompanying notes 85–86.
- E.g., Kriemelmeyer Edict supra note 50 at 3–4:
- The “Ammonite and the Moabites,” which are a different race of People to that of the ‘white race’, “Israel”; will never be able to enter into the assembly of the Lord.
- The one main issue is that this new ‘form of “man” [Adam] is separate from all the other races….’
- Remember that the Bible was written for only one race of people….
- E.g., Id., at 6:
- In the Jewish Talmud, Yebamoth 103a-103b, it says that the serpent “copulated” with Eve.…[I]n Leviticus 20:15–16, “If a man lies with a beast, he shall be put to death. If a woman approaches any beast and lies with it, you shall kill the woman and the beast; they shall be put to death, their blood in upon them.” Here, most, if not all preachers of the Judeo-Christian [preachers mixing the jew's laws (Talmud) with that of the Biblical Law] churches will say that this means that man nor woman are to lie with a beast, such as a cow, horse, etc., which is true, but this is not the ‘beast’ that our Lord was talking about. It is the colored people, and the jews, who are the descendants of Cain. (Emphasis in original.)
- Id., at 7–13. Justice Donald G. Montaban, of the Common Law Court, is shown to be from the tribe of Dan. Id., at 15.
- Id., at 17:
- “…the four hundred and fifty prophets of Baal…” represent our so-called congress and/or the state legislator [Satan] of today, creating and passing man made laws, regulations, codes, rules and policies under “color of state law.”…
- *****
- How many of the People of Israel [Adam/white race] have rejected the words of Almighty God, and rejected their “faith” [surety] in Almighty God, to worship man made laws; “color of law”…. (Emphasis in original.)
- Id.
- Id., at 17–18:
- Once you have applied for these benefits, via your “application forms,” i.e., “social security card, drivers license, marriage license, etc., from your “new gods,” you have voluntary [sic] become their new “slaves,” to “tax” at their will, for you are no longer “Free,” i.e., a “freeman.” (Emphasis in original.)
- Corcoran, supra note 38 at 38–39 (locating the roots of Christian Identity in British Israelism and the roots of British Israelism in John Wilson's Our Israelitish Origins [1840] and Edward Hines' Identification of the British Nation with Lost Israel). Corcoran claims that a form of British Israelism is practiced today by the Worldwide Church of God. Id., at 38 (stating that the Worldwide Church of God, established by Herbert Armstrong, is the largest group of believers in British Israelism in the United States with a membership of 80,000). While the Worldwide Church of God's version of British Israelism includes the notion that those of European ancestry are the descendants of the Ten Lost Tribes of Israel and thus God's Chosen People, its founder believed “Jews were entitled to grace.” Id See, generally, Michael Barkun, Religion and the Racist Right (Chapell Hill: University of North Carolina Press, 1994) (providing a detailed history of the origins of Christian Identity and an analysis of how Identity replaced British Israelism's paternalism toward the Jews with bitter anti-Semitism). It is the Christian Identity version of British Israelism that is retold by the Common Law Court in Wisconsin.
- Michael Reynolds explains that the common law courts are “closely aligned with the militia movement and white supremacists” and “are partly based on a religion known as ‘Christian Identity.’” see “All Things Considered,” supra note 37. Leonard Zeskind, a researcher and analyst for the Center for Democratic Renewal, an Atlanta-based group that monitors racist and anti-Semitic activities in this country, states that the Christian Identity movement has been able to create, what was heretofore lacking among competing and geographically separate American hate groups, “a practical working unity.” Corcoran, supra note 38 at 38 (quoting Zeskind). Michael Barkun, a professor of political science at Syracuse University and author of a book on religion and the radical right [see Barkun, supra note 91] explains that while the radical right is made up of many subgroups (“[s]urvivalists, militias, Klans, neo-Nazis, Christian identity churches, skinheads and Christian constitutionalists”) their “views find their fullest expression in the Christian Identity movement,” which Barkun calls “the most significant religious manifestation on the extreme right.” Michael Barkun, “Militias, Christian Identity and the Radical Right,” The Christian Century, August 2, 1995, at 738. See also John Kifner, “The Gun Network,” New York Times, July 5, 1995, at A1 (“There is a common religious thread, called Christian Identity, running through many of these groups…, according to studies by the Anti-Defamation League of B'nai B'rith and others”).
- See, infra, text accompanying notes 138–142.
- See, e.g., Dennis St. John v. Tom Kocourek, acting sheriff, Petition for Writ of Habeas Corpus, Manitowoc county Court, In the district court of united States of America, Article III, Justice or panel, Common Law venue, original and exclusive jurisdiction, Sitting with the powers of a circuit court in and for Manitowoc county, country of Wisconsin, June 6, 1995 at 1 [hereinafter St. John Petition] (on file with author) (“Dennis St. John was born to Free parents, as “Natural born Free People” and therefore is a Freeman Character, ‘a state,’ 28 U.S.C. 1251, and One of the United States, and he is not a Federal Emergency citizen of the U.S. nor [of] any of ‘its’ subdivisions, statutes, rules, regulation [s], tribunals, unrivaled benefits, contracts, agreements….”) [emphasis added].
- See, e.g., Id., Kriemelmeyer Edict, supra note 50 at 23.
- See, infra, text accompanying note 142.
- Ohio Handbook, supra 32 note at 9.
- See, supra, text accompanying notes 32–35.
- See, infra, text accompanying notes 214–220.
- Of course, most of those other communities do not share the understanding of the Bible presented above. Nonetheless, the fact that the source of law claimed by this community is one recognized by other communities gives the community an advantage both in recruiting members and in gaining some sympathy from those in other communities who place the Bible above official law, however different their particular understanding of that document is. “The principles that establish the nomian autonomy of a community must, of course, resonate within the community itself and within its sacred stories. But it is a great advantage to the community to have such principles resonate with the sacred stories of other communities that establish overlapping or conflicting normative worlds.” Cover, supra note 48 at 33.
- Id., at 26–40 (discussing insular and redemptive legal communities and contrasting them). Professor Cover reserved the term “redemptive constitutionalism” for those groups whose vision of reality and norms were radically divergent from those accepted by the State's authoritative legal institutions to distinguish “redemptive” communities from “reform” movements. Reform movements are those that basically share the State's vision of reality and norms but seek through State sanctioned means some correction in the ongoing nomos, which group and State share. Redemptive movements seek radical transformations: they view the world created by the State's ongoing nomos as unredeemed, construct a new nomos to take its place and are committed to the substitution. Id., at 34. One can picture a continuum with reform movements at one end of the spectrum and redemptive movements at the other. But, at some point on that continuum, there is a break between those communities that accept the State s law as law and those that do not, having fully constructed a law that they believe exists and commands their obedience and their resistance to that which the State mistakenly calls law.
- Id., at 34.
- Id., at 35.
- Id., at 24.
- Eugene Schroder with Micki Nellis, Constitution: Fact or Fiction (Cleburne: Buffalo Creek, 1995), pp. 13–14. Mr. Schroder is the movement's most important legal scholar. See, e.g., Eileen Dempsey and Jim Woods, “Outside the Legal system an Uncommon Approach on Common Law,” Columbus Dispatch, September 10, 1995, at 1A (“In June, 1,000 common-law supporters from 32 states gathered in Witchita, Kan., where they heard Schroder [lecture on the Common Law]”).
- Schroder begins his book with a reference to this tale and places this “proof” before stories that suggest the illegitimacy of the current order began much earlier in our history. Schroder, supra note 105 at 1, 25–86.
- Id., at 26.
- Id., at 26–27.
- Id., at 24 (quoting Senate Report 93–549 on the continuing state of declared national emergency).
- Id.
- Id., at 2.
- Id.
- Id., at 178 (“We have both the right and the duty to reclaim our country”).
- William C. Banks and Alejandro D. Carrio, “Presidential Systems in Stress: Emergency Powers in Argentina and the United States,” 15 Michigan Journal of International Law 1, 45–46 (1993). William Banks is Professor of Law at Syracuse University and Alejandro Carrio is Professor adjunto de elementos de Derecho Penal y Procesal at the University of Buenos Aires, who was Visiting Professor of Law at Syracuse when this article was published.
- For another example, an article by my friend and colleague, Jules Lobel, “Emergency Power and the Decline of Liberalism,” 98 Yale Law Journal 1385, 1385 (1989), begins:
- In 1987, The Miami Herald broke two major news stories…. [The first concerned] Gary Hart's sexual meanderings. The second revealed that Lieutenant Colonel Oliver North and the Federal Emergency Management Agency (FEMA) had drafted a contingency plan providing for the suspension of the Constitution, the imposition of martial law, and the appointment of military commanders to head state and local governments and to detail dissidents and Central American refugees in the event of a national crisis.
- The revelation that FEMA had drafted such an emergency plan attracted much less public attention than Gary Hart's sexual adventures. Major newspapers…did not even run the FEMA story…[and Congress did not investigate it in open sessions during the Iran-Contra hearings].
- The FEMA plan may have failed to arouse attention because we have grown accustomed to the substantial and steady increase in the scope of executive emergency power during this century.
- There are, however, some in “our” legal world that interpret these events as signaling the end of constitutional government. For example, Professor Lawson of Northwestern Law School speaks of these events as the death of constitutional government. Gary Lawson, “The Rise and Rise of the Administrative State,” 107 Harvard Law Review 1231, 1233 (1994). Nonetheless, however similar Professor Lawson's narrative is on the surface to that embraced by the Common Law community, that similarity does not place Professor Lawson's work outside “our” legal world and within the alternative nomos I have been describing. The Common Law narrative is embedded in a legal world that associates the Constitution with the Common Law and the Common Law with the word of God. Further, it is embedded in a legal world that ascribes the Constitution's demise to a conspiracy of evildoers who stand in opposition to “the people.” None of this is part of Lawson's narrative, which instead portrays the Constitution as a “choice” that may or may not be “correct,” and the New Deal “revolution” as one accepted by, and not imposed on, the people. Id., at 1254. Both those aspects of Lawson's narrative (“choice” and “acceptance”) locate it within “our” legal world and outside the Common Law nomos.
- Moreover, whatever the similarities in the narratives, the Common Law story is insistent on its prescriptive point, while Lawson's narrative is not. The former is thus “law,” the latter, mere discourse. See, infra, text accompanying notes 189–191 (on the importance of commitment to law). The Common Law narrative demands commitment to a course of action, redeeming the world. In contrast, Lawson's narrative forswears the power to dictate what anyone should do. Lawson at 1253–1254 (pleading incompetence on the question of what should be done and asserting that “only the best of moral philosophers” can explicate what, if any, action is dictated by the tale told therein).
- See aho Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990), pp. 158–159 (explaining that the modern administrative state born in the New Deal is unconstitutional, but refusing to sanction judicial activity to restore the Constitution); Peter B. McCutchen, “Mistakes, Precedent and the Rise of the Administrative State: Toward a Constitutional Theory of Second Best,” 80 Cornell Law Review 1 (1994) (agreeing that the administrative state is unconstitutional, but accepting that it is here to stay and advocating that the Court [and others] accept institutions, like the legislative veto, that approximate the “first-best” world, however unconstitutional they would be standing alone in that world, to create a “second-best” world”); Richard A. Epstein, “The Proper Scope of the Commerce Power,” 73 Virginia Law Review 1387,1443–54 (1987) (arguing that New Deal legislation is unconstitutional, but accepting that it is the result of “political forces,” i.e., rejecting the Common Law position that the government has been hijacked).
- Professor Epstein, a prolific and powerful writer, has contributed mightily to the literature, proclaiming the unconstitutionality of the present order. See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985) (arguing that the New Deal is inconsistent with principles of limited government and that the original Constitution would not support many 20th century reforms, such as zoning, rent control, and progressive taxation); Id., “A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation,” 92 Yale Law Journal 1357, 1357–58 (1983) (proposing that New Deal labor laws be replaced by a common law regime of tort and contract).
- See, e.g., Cass R. Sunstein, “Constitutionalism After the New Deal,” 101 Harvard Law Review 421, 448 (1987) (asserting that the New Deal “altered the constitutional system in ways so fundamental as to suggest something akin to a constitutional amendment had taken place”).
- But see sources cited supra note 116. As I explained in the note just cited, I consider the narratives told by legal scholars like Judge Bork, Professor Epstein and Professor Lawson, as narratives within “our” legal world as opposed to the “Common Law” world. Whether those narratives can plausibly be described as “mainstream,” however, is a much more complex matter. Within legal academia, whether a narrative is considered “mainstream” depends in no small measure on the credentials of the narrator. The credentials of the academics listed above are formidable. I thus feel relatively comfortable suggesting that within the academy their work is now considered within the “mainstream,” while recognizing that others might think I use that term too loosely. Outside of the academy, however, I believe that “mainstream” is defined more narrowly. Or, at least, it was by many at the time of Judge Bork's confirmation hearings.
- See Lawrence Lessig, “Understanding Changed Readings: Fidelity and Theory,” 47 Stanford Law Review 395, 446 (1995):
- By far the dominant view about the New Deal transformation is this: the changes effected by the New Deal were certainly significant; relative to the Constitution as interpreted for the fifty years before, they were certainly on the level of a constitutional amendment. But, this view asserts, it was the Constitution of the prior fifty years that was in error, not the Constitution given us by the New Deal. Instead, the New Deal restored the original Constitution, after a period of constitutional usurpation by an activist conservative Court.
- See also Morton J. Horwitz, “Supreme Court Forward: The Constitution of Change, Legal Fundamentality Without Fundamentalism,” 107 Harvard Law Review 32, 56 (“The victorious New Deal majority sought to portray its triumph not as constitutional revolution, but as constitutional restoration.”); Mary Cornelia Porter, “That Commerce Shall Be Free: A New Look at the Old Laissez-Faire Court,” 1976 Supreme Court Review 135, 140 (“[T]he Court returned in the early 1940s to the principles of the Granger Cases.”); Stephen A. Siegel, “Lochner Era Jurisprudence and the American Constitutional Tradition,” 70 North Carolina Law Review 1, 3 (1991) (discussing other scholars' view of the Lochner era as a deviant period); Robert L. Stern, “That Commerce Which Concerns More States Than One,” 47 Harvard Law Review 1335, 1348–49 (1934) (describing the New Deal as Constitutional restoration).
- See, e.g., Laurence H. Tribe, American Constitutional Law (New York: Foundation Press, 1988, 2nd ed.), pp. 308–315; Lessig, supra note 119.
- Bruce A. Ackerman, “The Storrs Lectures: Discovering the Constitution,” 93 Yale Law Journal 1013, 1056 (1984) (“Rather than a confession of legal sin…the Court's capitulation [to the New Deal was] the final point in the process of structural amendment. It is the moment at which the judges recognized that a new constitutional principle had indeed been ratified by the People”). For a more elaborate account of this theory, see Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991). See also Sunstein, supra note 117 at 447–78 and n.114 (discussing Ackerman s amendment theory).
- Professor Ackerman's announced project is to replace the traditional narratives that legitimize the adoption of the Constitution, the Reconstruction Amendments and the New Deal, which he claims are “built on sand,” with new and more solid legitimating stories. Ackerman, We the People, at 44. According to Ackerman, “modern law-talk” assumes that the Reconstruction Amendments “owe their legality to their conformity” with the demands of Article V of the Constitution, a proposition he disputes. Id., at 42. The traditional narrative on the New Deal, according to Ackerman, is the restoration tale. Id., at 119. As explained by Ackerman, the restoration story goes like this: when the Supreme Court finally accepted the constitutionality of the New Deal it restored the constitutional vision of Chief Justice Marshall (and the Framers)—a vision which had been wrongfully abandoned by Justices who had “imposed their laissez-faire philosophy on the nation through the pretext of constitutional interpretation.” Id., at 42–43.
- Just as the accounts provided by some conservative scholars share common elements with the Common Law narrative [see citations supra note 116] so does Ackerman's account. Indeed, in some respects Ackerman's account more closely parallels the important features of the Common Law world. For example, it is Ackerman, not the conservative scholars, who asserts that the Civil War Amendments are legally problematic in a manner similar to the problematic New Deal legislation and who purports to judge the Constitutions legality from the vantage point of the Articles of Confederation [Ackerman, We the People, supra, at 40–50]—all features of the Common Law nomos, see, infra, text accompanying notes 136–142 (discussing Civil War Amendments), and, supra, note 56 (listing Articles of Confederation as an important source of precept in this nomos). Ackerman's narrative, which is intended as a new and improved defense of the administrative state, is, of course, no more a part of the Common Law nomos than are the accounts provided by conservative scholars. The point of his account is to mark the New Deal and Civil War Amendments as lawful, not the reverse. Nonetheless, his very undertaking suggests that there is room for considerable doubt about such matters. I make that last point, not to condemn Ackerman's project, but to point out that doubting the legitimacy of the Civil War Amendments or the New Deal, central tenets of the Common Law movement, are not in and of themselves proof that one lives in an alien legal world.
- In the Common Law nomos, The “People” is a powerful concept, both because it denotes sovereignty and because it conjures the community as a separate entity. See, e.g., Kriemelmeyer Habeas, supra note 56 at 10–15 (beginning almost every paragraph with “Our People,” as in “Our People have notice and knowledge that Our People are born Free and that there are no contracts where Our People have knowingly and willingly contracted their birthrights, state citizenship, or their Freemen Character away to anyone, foreign, state, or government, or otherwise.”); Citizens Rule Book, supra note 32 at 32 (reprinting the Constitution with an asterisk after “We the People,” to note that: “Originally, the Constitution had no tide but simply began ‘We the People’”). Moreover, “our” or “the” people resonates with the Christian Identity account that identifies the movement with the “chosen” people. See, supra, text accompanying notes 84–87.
- See, supra, note 116.
- Schroder, supra note 105 at 31, explains the significance of the Bank Conservation Act, 12 U.S.C. §§ 201–213 (1988), originally enacted in 1933 as an amendment to the Trading with the Enemy Act, 50 U.S.C. app. § 5(b), as follows:
- The American People were declared, in effect, to be the public enemy and were made subject to the total war powers of the government. A constitutional dictatorship of total control over the economic and social agenda of the US was established.
- Ch. 1 § 3, 48 Stat. 1, 2 (1933) [current version at 12 U.S.C. §§ 201–213 (1988)].
- Proclamation No. 2039, 48 Stat. 1689 (1933).
- This Act is central to the Common Law claim that the government is illegitimate. See, e.g., Almay, supra note 2 (“The concept [underlying this groups law] is that the federal government, by removing states rights, have influenced all law by forbidding the people to have a voice in government since parts of the Constitution have been suspended by the bank act of 1933“).
- 50 U.S.C. app. § 5(b).
- Schroder, supra note 105 at 28.
- Id., at 28–29.
- Id., at 32, 44–45 (describing Federal Reserve notes issued after March 9, 1933 as “emergency war script” that amounted to illegal seizure of “the people's gold”). For a mainstream narrative on Roosevelt's abandonment of the gold standard, see Kenneth W. Dam, “From the Gold Clause Cases to the Gold Commission: A Half Century of American Monetary Law,” 50 University of Chicago Law Review 504, 509–512 (1983). Mr. Dam, who was Deputy Secretary of State when he wrote this article, describes Roosevelt's reliance on the TWEA to legitimize these acts as “dubious.” Id., at 510. Thus, again we find that the factual assertions at the heart of the Common Law narrative are not what marks it as part of a different legal world. Rather, it is the manner in which these facts are interpreted. Dam explains Roosevelt's actions as an effort to “increase domestic prices, especially farm prices.” The Common Law narrative instead portrays these acts as intended to confiscate the people's property and reduce them to “serfdom.” Schroder, supra note 105 at 46. Moreover, Dam, who stops short of endorsing a return to the gold standard but has many nice things to say about the virtues of gold, Dam, supra at 531, sees the “polity” as standing in the way of returning to that standard, Id., and not some evil conspiracy in charge of the government and acting against the people.
- See, infra, text accompanying note 134.
- While the Bank Conservation Act takes center stage in the Common Law nomos, other New Deal and post-New Deal legislation play important supporting roles. In his book, Schroder goes through a host of New Deal measures to show how each contributed to the federal government's wealth and control over the people. see Schroder, supra note 105 at 47–51, 66–80. Schroder then moves on to post-New Deal developments, demonstrating how presidents from Truman to Reagan have continued to invoke emergency powers to maintain illegal control over the people and to plunge the nation into war. Id., at 87–112, 141–164.
- See, supra, text and accompanying notes 86–88.
- The Declaration of Independence, which links established God-given and constitutionally promised rights, provides this community (and others) with a method of uniting secular and religious narratives. For that reason and because in our country the Declaration is the text that legitimizes resistance to an established order, it is no surprise that that document occupies a revered place in the Common Law nomos. One text from this movement refers to three “original documents,” the Declaration of Independence, the Constitution and the Bill of Rights, reprinting each of them in full. Citizens Rule Book, supra note 55 at 1, 21. Another quotes liberally from the Declaration, pointing out that the colonists had been “very patient,” and “did not…lightly” take the step of declaring independence, and that some of the charges against King George can be made today against the current regime. Schroder, supra note 105 at 13–14. For a discussion of Lincoln's use of the Declaration to suggest the “unlawfulness” of the lawful established order that permitted slavery, see Garry Wills, Inventing America: Jefferson's Declaration of Independence (New York: Random House, 1978), pp. xvi–xxi.
- The 13th, 14th and 15th Amendments to the Constitution.
- See Citizens Rule Book, supra note 55 at 25 (referring to the dubious legality of these amendments); Schroder, supra note 105 at 133 (describing the Civil War Amendments as war amendments of questionable force during peacetime). For a mainstream narrative that relies on the same facts to show that the fourteenth amendment was not ratified in strict accordance with Article V of the Constitution, see Bruce Ackerman, “Constitutional Politics/Constitutional Law,” 99 Yale Law Journal 453, 500–10 (1989); Ackerman, We the People, supra note 121 at 44–47. Professor Ackerman describes how President Andrew Johnson encouraged the all-white governments of the Southern states to reject the 14th Amendment, which they did. The Reconstruction Congress of 1866 then moved to replace those Southern governments with military rule, and allowed them to rejoin the Union only upon their acceptance of the 14th Amendment. Ackerman, “Constitutional Politics,” supra at 500–507. Note, however, that the point of Ackermans narrative is not to deny the validity of these Amendments, but rather to use them to show that the Constitution may be legitimately amended through procedures other than those prescribed in Article V. Ackerman, We the People, supra note 121. His project casts doubt on these Amendments and the administrative state born in the New Deal only to reaffirm the legitimacy of both.
- The privileges and immunities clause of the 14th Amendment is the clause that purportedly created this new class of citizenship. That clause states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” [U.S. Const., amend. XIV, § 1]. Mainstream narratives explain this clause as a repudiation of the Dred Scott decision, which held that no Negro, free or slave, could be a citizen of either a state or the United States, 60 U.S. [19 How.] 393, 404–05 (1857), intended to secure state and federal citizenship for the freed slaves. Tribe, supra note 120 at 356. In “our” legal world, the Amendment did not “create” federal citizenship but only redefined it to cancel the restrictive definition given in the Dred Scott case. Id., at 355–56.
- Kriemelmeyer Edict, supra note 50 at 23 (“When this Nation was founded each of the individual sovereign States of this Union has their own Citizens (Capital “C”), a.k.a., Freemen characters…, but then came the so-called 14th Amendment, that added a second class of citizenship”); Ohio Handbook, supra note 32 at 9 (detailing characteristics of two United States, one “Home of the 14th Amendment Slave;” the other, “Home of the Sovereign Human Being”). Compare Tribe, supra note 120 at 355–56 (explaining that while the concept of United States citizenship was not defined in the original Constitution, the document acknowledges the existence of such citizenship by referring at various points to “citizens”). The Dred Scott decision similarly recognized the category of United States citizenship as implicit in the original Constitution. 60 U.S. at 404–05.
- Kriemelmeyer Edict, supra note 50 at 23; Ohio Handbook, supra note 32 at 15.
- This mainstream narrative is known as the incorporation doctrine. It explains that prior to the passage of the 14th Amendment, the Bill of Rights was interpreted by the Supreme Court to protect persons from infringements only by the federal government. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). After the adoption of the 14th Amendment, the Supreme Court gradually read that Amendment's ban on the states denying persons due process to mean that the states were prohibited from infringing rights guaranteed by most, although not all, of the Bill of Rights.
- Schroder, supra note 105 at 132. See also Laurie Goodstein, “Agents of God' Practice a Christianity Few Would Recognize,” Washington Post, May 20, 1995, at A12 (“The movement…divides the nation's population between white 'sovereign state' citizens with God-given inalienable rights, and non-white ‘14th Amendment’ citizens with illegitimate ‘Constitution rights’”).
- See, supra, text accompanying notes 55–86.
- See, generally, Schroder, supra note 105 (providing many such tales).
- Id., at 46 (“Farmers Enjoy New Status of Serfdom”).
- Id., at 77–78 (describing increase in federal land ownership and control during New Deal); Id., at 79 (describes adoption of “most favored nation” principle as further tampering with farm prices and imports); Id., at 105–107 (describing government “control over agriculture” from the 1970s until today as unlawful and designed to oppress farmers); Id., at 130–131 (describing confiscation of cotton by Lincoln during Civil War).
- See United States v. Kaun, 633 F. Supp. 406, 412–415 (E.D. Wise 1986) and United States v. Kaun, 827 F.2d 1144, 1146, 1149 (7th Cir. 1987) (describing the existence of these narratives).
- See Corcoran, supra note 38 at 51 (referring to this story and other stories popular in the so-called tax protest movement).
- I take this opportunity to emphasize that there are many important aspects of the Common Law that I will not touch on in this article. For example, the importance they attach to the jury system and to the concept of jury nullification, see, generally, Citizens Rule Book, supra note 55, which is primarily devoted to this topic; the belief that lawyers carry Titles of Nobility prohibited by the Constitution, see, e.g., Ohio Handbook, supra note 32 at 14; the meaning of the missing and true 13th Amendment, which strips citizenship from persons who claim Titles of Nobility, see, e.g., Mike Lafferty, “Disaffected Citizens, Trying to Take Law into Their Own Hands,” Columbus Dispatch, December 17, 1995, at 1A; and the significance of our abandonment of the gold standard, see Schroder, supra note 105 at 29–46. I simply do not have space, nor do I possess the knowledge, to cover all aspects of this complex legal world. My aim is more modest: to present enough information about this law to give my readers a sense of the unredeemed world that this law envisions, the “redeemed” world that it would put in its place and how it would get us from one world to the other.
- See, supra, text accompanying notes 65–68.
- The Ohio Handbook, supra note 32 at 13, demonstrates the connection between these two narratives on the demise of the Common Law and the New Deal narrative, we have just reviewed:
- The U.S. Supreme Court was ordained and established on September 24, 1789 by act of Congress when it passed a Judicial Act that created the U.S. Supreme Court and ignored the Constitutional Court [Common Law courts] provided for in the Constitution. The Common Law Courts that were [nonetheless] functioning in the country were dealt a fatal blow in 1938, five years after the establishment of the War and Emergency Powers Act of 1933 [the Bank Conservation Act], which happened six years after the carefully engineered collapse of Wall Street in 1927.
- Notice that this story explains that the crisis, which provoked the New Deal, was manufactured, which reinforces this community's interpretation of the New Deal as a coup d'etat by trick as opposed to a program supported by the people.
- Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).
- Erie appears in every leading textbook on civil procedure. It has also been the focus of far too many law review articles to list in this footnote.
- See Akil Amar, “Law Story,” 102 Harvard Law Review 688, 696 (1989) (explaining that Erie is a “rich” case that supports many different readings).
- See “The UCC Connection: Free Yourself From Legal Tyranny,” 4–5 (1990) (condensed transcript of tapes of seminar given in 1990 by Howard Freeman) (on file with author).
- 304 U.S. at 78.
- See, e.g., Citizens Rule Book, supra note 55 at 24 (labeling Bill of Rights, “Common Law” amendments).
- See, supra, text accompanying note 54.
- See, e.g., Guarantee Trust Co. v. York, 326 U.S. 99, 101–102 (1945) (explaining that Erie changed the relationship between state and federal law).
- 1 William Blackstone, Commentaries* 40.
- Swift V. Tyson, 41 U.S. (16 Pet.) 1, 19 (1842).
- By this assertion I do not mean to suggest that one must accept this as the “true” story of Erie. I mean only that this is one quite plausible account of the case, an account that is indeed retold by those in “our” legal world. See, e.g., William Casto, “The Erie Doctrine and The Structure of Constitutional Revolutions,” 62 Tulane Law Review 907 (1988) (describing Erie as the culmination of a revolution by legal positivists, a devastating repudiation of Blackstone's natural law view). Cf., Mortin Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1979) (insisting that Justice Story was a legal positivist when he wrote Swift, the language of the opinion notwithstanding).
- Ohio Handbook, supra note 32 at 9.
- 304 U.S. at 78. The full quote from Erie is “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.” Id. But, as we have seen, this community believes that the Constitution was suspended by 1938 when Erie was decided. See, supra, text accompanying notes 106–113. Thus, the “except” language is empty for them, particularly in that, at most, it leaves federal legislation as a valid ground for decision in addition to “the law of the State” and legislation of any kind is man-made law, which should be subservient to God's law, the Common Law.
- While mainstream narratives do not track this story, in “our” legal world Erie has been interpreted as consistent with the Court's endorsement of New Deal legislation and thus a part of the triumph of, at least, the federal legislative branch over the courts. See, e.g., Amar, supra note 154 at 698 (explaining Herbert Wechslers reading of Erie and other readings consistent with Wechslers). These mainstream narratives compete with those that picture Erie as a counterweight to the federal activism of the New Deal, and those that picture Erie as affirming a place for federal common law, see, e.g., Martha Field, “Sources of Law: The Scope of Federal Common Law,” 99 Harvard Law Review 833 (1986), and Thomas W. Merrill, “The Common Law Powers of Federal Courts,” 52 University of Chicago Law Review 1 (1985).
- See Ohio Handbook, supra note 32 at 9 (directly contrasting a “Republic” guaranteed by the Constitution to each state with the existence of “legislative courts” and a “legislative democracy”).
- “The UCC Connection,” supra note 155 at 4.
- 304 U.S. at 69.
- Id. (“The District Court had decided on the basis of COMMERCIAL (Negotiable Instruments) LAW, that this man was not under contract with the Erie Railroad, and therefore he had no standing to sue the company.”) The district court had, in fact, decided that Pennsylvania law (requiring privity of contract) did not govern but that the common law did, which extended liability to foreseeable pedestrians. Fleming James, Jr. and Geoffrey C. Hazard, Jr., Civil Procedure (New York: Little, Brown and Company, 1985, 3rd ed.), § 2.35 at 118.
- Id., § 2.35 at 118.
- Id., § 2.35 at 118–119 and n.5 (discussing the connection between the two and noting that the literature on the connections is “voluminous”).
- Id., at 119. At this point, the mainstream narratives diverge, providing various interpretations of what this switch signifies.
- Ohio Handbook, supra note 32 at 13. This fact is also accepted in our legal world (albeit with the caveat that the right to jury trial was retained for suits formerly “at law”), James and Hazard, supra note 169, § 1.8 at 21, although it is not interpreted in the same way.
- Ohio Handbook, supra note 32 at 13–14 (equating “actions at law” with the Common Law).
- Id., at 14:
- The founding fathers gave us three types of law to adjudicate a dispute under, and the ability to chose [sic] what law to grant jurisdiction to hear the case, Law (Common Law) Equity, and Admiralty for contract cases. In 1938 your ability to choose was taken away, as we were placed under contract, under Admiralty law, thru your social security number and driver's licenses, and all cases heard in the courts today are heard under Admiralty, even though most cases do not pertain to disputes about shipping or commerce on the navigable waterways.
- This is a central piece of dogma in the Common Law world. See, e.g., Ohio Handbook, supra note 32 at 14 (“[A]ll cases heard in the courts today are heard under Admiralty”); Kriemelmeyer Habeas, supra note 56 at 14 (“describing courts, presumably federal and state, as “admiralty courts”). Moreover, these and other Common Law sources suggest that the community considers state courts to be admiralty courts along with the federal courts. See also “The UCC Connection,” supra note 155 at 8. Presumably, the admiralty label extends to the state courts because state procedural codes mirror the Federal Rules of Civil Procedure and because in Erie “State law” was “acknowledged” to be other than the Common Law. See, supra, text accompanying notes 164, 166. See also “The UCC Connection,” supra note 155 at 8 (explaining that “Colorable Admiralty is now known as STATUTORY JURISDICTION) [emphasis in original].
- See, infra, note 178 (quote explaining that these changes were made without knowledge of the people).
- The Ohio Handbook, supra note 32 at 13. The Ohio Handbook provides a succinct summary of the Common Law narrative on the revolution of 1938:
- The U.S. Supreme Court was ordained and established on September 24, 1789 by act of Congress when it passed a Judicial Act that created the U.S. Supreme Court and ignored the Constitutional Court provided for in the Constitution. The Common Law Courts that were functioning in the country were dealt a fatal blow in 1938, five years after the establishment of the War and Emergency Powers Act of 1933, which happened six years after the carefully engineered collapse of Wall Street in 1927.
- The Federal Rules of Civil Procedure reveals this fact on page 17, under the 1966 Amendment clause where it states, “Just as the 1938 rules alsolished the distinction between actions at law (common law) and suits in equity, this change (the 1966 change) would alsolish the distinction between civil actions and suits in admiralty. By a stroke of the mighty pen the common law, equity law was alsolished without the knowledge of the people.
- Id.
- I say “federal” courts in the text to simplify this story and make it more comprehensible to those steeped in “our” legal world. In “our” world Erie expands the scope of State law but does not change (or announce a change in) its nature. To us, Erie is a decision that changes federal law and the Federal Rules, while greatly influencing state procedure, are federal rules. Thus, the idea that together those two events changed the nature of state court jurisdiction is even harder to digest than the idea that they transformed (or marked the transformation) of the federal courts into admiralty courts. Nonetheless, in the Common Law world, as far as I can discern, the events of 1938 signalled the transformation of the state courts into admiralty courts along with those of the federal government. See, supra, note 176.
- See, e.g., Kriemelmeyer Habeas, supra note 56 at 14 (“[T]he alleged courts today are in fact Military tribunals, flying the gold-fringed flag. That flag sets the jurisdiction of the tribunal as inland admiralty and maritime tribunals of contract law [as opposed to Common Law]”).
- See, e.g., Banks & Carrio, supra note 114; Lobel, supra note 115.
- See, e.g., sources cited supra note 116.
- See, e.g., Ackerman, We the People, supra note 121.
- See, e.g., Casto, supra note 162.
- Here I am alluding to the work of Owen Fiss and Stanley Fish, who have each emphasized the role this community of elites plays in the intelligibility of law. See, e.g., Stanley Fish, “Fish v. Fiss,” 36 Stanford Law Review 1325 (1984); Id., “Interpretation and the Pluralist Vision,” 60 Texas Law Review 495 (1982); Owen Fiss, “Conventionalism,” 58 Southern California Law Review 177 (1985); Id., “Objectivity and Interpretation,” 34 Stanford Law Review 739 (1982). See, generally, Stanley Fish, Is There a Text in This Class? (Cambridge: Harvard University Press, 1980) (elalsorating the concept of interpretive community, which was then borrowed by Professor Fiss to explicate the judicial process).
- My use of this phrase should not, however, be taken as implying any sympathy with the idea that the interpretive community of legal scholars, judges and lawyers has some exclusive right to have their interpretations called “law” that should be denied to other interpretive communities. On that question, I am with Professor Cover, who criticized Professor Fiss' attempt to privilege the interpretation of judges as law of presumptive moral worth and, as such, presumptively entitled to our obedience. Cover, supra note 48 at 43–44 (criticizing Fiss' argument on the special moral authority of judicial pronouncements). see Fiss, supra, “Objectivity and Interpretation,” at 755–56.
- Cover, supra note 48 at 33.
- Id..
- Id.
- Rules and stories alone (literature, history), while essential to normative discourse, are to be distinguished from law because they do not license transformations of reality through the use of force. Law does. Law is rules and stories and a commitment of human will to change the world that is into the world that our rules and stories tell us ought to be. This commitment to realize the “ought” distinguishes law from utopian vision, literature and history. It also accounts for the connection between law and violence. Both metaphorically and literally, law entails violence: to insist on one normative vision is to be willing to kill off alternative visions and, if necessary, those who adhere to those visions or who idiosyncratically fail to conform.
- Susan P. Koniak, “The Law Between the Bar and the State,” 70 North Carolina Law Review 1389, 1403 (describing Professor Cover's jurisprudential vision).
- Cover, supra note 48 at 53.
- Koniak, supra noie 189 at 1460–1478.
- Cover, supra note 48 at 49.
- Such groups may ultimately make important contributions to legal meaning. Their actions may become the center of a new legal order, a founding narrative around which a new world of law develops. But that is a different process than the one we are concerned with here. Here, the group already has law and the question is what resistance to the state that law sanctions. see Cover, supra note 48 at 50 n.37 (contrasting these two phenomena).
- Id.
- That distinction is common to law maintained without a State. State law defines itself by its near-exclusive license to use force to insist that people do what the law “requires.” Thus, it is natural for State law to speak in imperatives when it means to communicate a requirement or prohibition. Moreover, when the State fails to speak in imperatives (given its license), it is reasonable to assume that its commitment to the law in question is weak. Because private groups, unlike the State, maintain their law primarily through the celebratory obedience of members, as opposed to “enforcing” it upon them [see Cover, supra note 48 at 12–16] they typically express “requirements” as insistent “oughts,” which can be distinguished from noble but terribly demanding “oughts,” which are not “required.” For a somewhat more detailed elalsoration of this point, see Koniak, supra note 189 at 1481–82.
- The moves members “should take now” are the equivalent of “required” moves in groups that maintain law without a State. See, supra, note 195.
- This, of course, refers to the events of 1938: Erie and the adoption of the Federal Rules of Civil Procedure. See, supra, text accompanying notes 152–180.
- As we have seen, these terms are used interchangeably in the Common Law.
- Kriemelmeyer Edict, supra note 50 at 17–18, 23.
- Id., at 17–18.
- Roddy, supra note 72 (describing theory on driver's license and right to travel); 20/20, ABC Television, 9:00 pm, January 5, 1995 (same).
- References to the UCC alsound in Common Law Documents. see “The UCC Connection,” supra note 155; Ohio Handbook, supra note 32 at 12; Kriemelmeyer Edict, supra note 50 at 33.
- “The UCC Connection,” supra note 155 at 5–7.
- Comment to U.C.C. § 1–207.
- Id..
- See Memorandum to Chief Justice Moyer of the Ohio Supreme Court, re: Common Law Court, dated October 25, 1995 [hereinafter Moyer Memo] at 6 (explaining that rarely do Common Law adherents sign their names without citing this section or stamping on the document “without prejudice) (on file with author). See also Kiemelmeyer Edict, supra note 50 at 33 (“‘Without prejudice’ with explicit reservation of all unalienable Rights, waiving none, ‘without recourse’”) (citing § 1–207); “The UCC Connection,” supra note 155 at 25–26 (explaining the importance of making a reservation under § 1–207 when appearing in “our” courts).
- The Common Law community also makes extensive use of UCC § 3–501. see Moyer Memo, supra note 206 at 7. That section allows a party to refuse payment of a negotiable instrument if it lacks a necessary endorsement or otherwise fails to comply with the terms of “an agreement of the parties, or other applicable law or rule.” The community uses that section in responding to State court process of any kind, particularly traffic tickets. Id. The community's argument is apparently that its members have reserved their rights not to be bound by the State's statutory courts and thus the presentment of process is not in compliance with the agreement between the parties.
- Cover, supra note 48 at 27–29.
- See Branzburg V. Hayes, 408 U.S. 665, 679–81 (1972) (describing the reporter's argument, which was rejected by the Court, that the 1st Amendment protects journalists from having to reveal their sources to a grand jury); Brief for Amici Curiae Advance Publications, Inc. et al. at 11, Cohn v. Cowles Media Co., 111 S. Ct. 2513 (1991) (No. 90–634) (arguing that the 1st Amendment prevents a source from suing a reporter for breaking a promise to keep the source confidential, an argument rejected by the Court, Cohen, 111 S. Ct. at 2516); Brief for Amicus Curiae Association of American Publishers, Inc. at 7, Simon & Schuster, Inc. v. Members of the N. Y. State Crime Victims Bd, 112 S. Ct. 501 (1991) (No. 90-1059) (arguing that the 1st Amendment protects the press and authors from laws prohibiting publishers from paying—for writing the stories of their crimes—those who have been convicted, accused, or who admit having committed crimes); “Facts on File,” World News Digest, 748 A3 (1976) (describing Daniel Schorr's nine refusals to answer questions about his sources posed by a House Ethics Panel and quoting Schorr's explanation that his silence was based on “professional conscience as well as [the First Amendment, freedom of the press] constitutional right”) [brackets in original].
- See Koniak, supra note 189 at 1453–55.
- I do not mean that a group “accepts” State law when it argues for a right to be left free of it based on a precept accepted by the State. I mean it accepts the precept. That, however, is not the same as accepting what the State says the precept means: the State's narratives about the precept. The group typically argues that the State should accept the group's understanding of the State's precept, i.e., that the precept is a boundary rule that prevents State law from trumping the group's law in the particular context at issue. see Cover, supra note 48 at 26–28 and n. 85 (describing the Mennonite understanding of the 1st Amendment as a boundary rule).
- “Generally, [t]he…self-referential supremacy of [a group's legal system and the State's] is…mitigated by the partly principled, partly prudential rules of deference that each manifests in relation to the other.” Cover, supra note 48 at 30. The self-referential supremacy of the Common Law is such, however, that its prudential rules of deference, such as appealing to the UCC as a means of fending off State law, are not perceived as deference by the State, but as defiance. The group shows deference to State law that the State does not acknowledge applies. That is a deference which is designed to fail. I nonetheless call it deference because it is not the community that holds the UCC sacred. The community insists that it is the State that, however wrongfully, holds the UCC sacred, so it uses that otherwise unworthy source of law to speak to the State.
- For a Common Law “hero's” response to a routine traffic stop, see, infra, text accompanying note 285.
- Hallisey, supra note 29.
- See, e.g., Larson and Sforza supra note 71 (noting that judges are frequent targets of liens filed by common law believers).
- See, e.g., Testimony of Nickolas G. Murnion, County Attorney of Garfield County, Montana, Crime Subcommittee of House Judiciary Committee, November 2, 1995 (describing lien filed against him for failing to prosecute the Farmers Home Administration for fraud).
- Michele Cole, “‘Courts of Justice Spring Up Across State,’” The Idaho Statesman, December 15, 1995 at A1 (reporting that such liens have been filed against the Mayor and City Council of Boise, among others).
- Ballard, supra note 36 (describing such liens as “ticking time bombs”):
- After getting the document past a clerk, the person seeking the lien can get an official abstract of judgment from the district clerk, which legitimizes the document. The lien can sit unnoticed for years, a time bomb waiting to explode when the person tries to sell the property.
- Id.
- See Hallisey, supra note 29 (stating that process to remove liens is often costly and time-consuming).
- Ballard, supra note 36.
- I reproduce here an example of a typical Common Law quiet title notice, omitting the Sovereigns name:
- A quiet title has been received and filed for [name], Leist, Sovereign, private, personal and real property in “Our One Common Law supreme Court in Manitowac county, Wisconsin state republic. Demand is hereby made upon all persons, people or entities to produce a title believed to be a superior title, or lose any and all interest in the private property of [name]. Anyone with a superior title or interest pertaining to the alsove named may request a copy of the Quiet Title at the cost of $5.00. Responses should be mailed Registered Return Receipt Mail to [name/address], Wisconsin state, united States of America “without” the U.S., so attest by Peers in Common Law, nunc pro tunc.
- DATE POSTED Feb. 6, 1996.
- (originals on file with author).
- See, supra, text accompanying notes 32–35.
- See, e.g., Potok, supra note 17 (describing officials of the Cherokee, Oklahoma Common Law court, “one of the earliest and largest in the nation,” as “still working out how to enforce [the court's] findings”).
- Cover, supra note 48 at 40–41 (describing how, inter alia, Aeschylus' Oresteia and The Federalist Papers justify the creation of a court by appealing to the need to choose between competing laws).
- Cover, supra note 14 at 201 (describing this incident).
- Id..
- Id. (quoting letter from DeGaulle to Sartre).
- Potok, supra note 17 (reporting that in Montana members of the Common law court occupied a courthouse and offered $1 million dollar bounties for the arrest of local officials and quoting Rex Davis, former head of the Bureau of Alcohol, Tobacco and Firearms describing these courts as “a real breakdown of law and order,” and as similar to terrorist courts in the Middle East, which have conducted executions).
- Almay, supra note 2 (describing Common Law practice of inundating “our” courts with piles of meridess papers and the strain that places on our legal system). Brown, supra note 50 (describing the concern of Chief Justice Moyer of the Ohio Supreme Court with the demand Common Law courts place on Ohio state courts through multiple Common Law filings); Heath, supra note 17 at 75 (describing nuisance filings inundating our courts).
- Martha A. Bethel, “Terror in Montana,” New York Times, July 20, 1995, at 23.
- Id. He called his appearance a “special visitation,” but it seems clear that he was trying to enter what in “our” world is called a “special appearance” to contest jurisdiction.
- Id.
- Almay, supra note 2 (reporting on threats against Ohio judges and on one Ohio judge who has requested and received police protection for himself and his family); Skiba supra note 17 (reporting on threats against Montana judges).
- See, e.g., Potok, supra note 17 (quoting Mike Reynolds on the “flurry of indictments of federal, state and local officials” now being issued by Common Law courts); Almay, supra note 2(testifying that the Ohio Common Law court has indicted all members of the Ohio Supreme Court for treason); Brown, supra note 50 (reporting that Common Law courts have indicted about twenty federal judges nationwide).
- The uncertainty about precisely what commitment these indictments imply has, apparently, caused some Common Law courts to put off issuing them. Potok, supra note 17 (reporting that most “rightist leaders won't publicly back the indictments” because it is “too early to take that step”).
- In “our” world, these indictments are assuredly seen as threats. One state court judge said of the indictments: “[W]hen you hear about things like indictments, you wonder what they will do to enforce these things. All judges who have heard of this have some concerns.” Brown, supra note 50 (quoting Jon R. Spahr, chairman of the Ohio Judicial Conference and a judge in the County Common Pleas Court).
- Deputy U.S. marshals in San Francisco routinely monitor courtrooms where Common Law advocates are defendants in tax trials. Marshals began guarding the judge and jury overseeing one criminal tax case after they were sent treason indictments from a Common Law court based in Tampa, Fla. They had good reason: several times, extremists dressed as federal marshals stood up in the courtroom and attempted to serve papers on court officers and jurors.
- Braun, supra note 22.
- “In the Common Law lexicon, treason is an all-purpose charge, often used when public officials ignore [Common Law] court dictates.” Id., at 22.
- One such indictment, entitled Public Notice of Treason, and issued against an Ohio state court judge reads in relevant part:
- The person whose name and address appears at upper right, has accused you, the addressee of an act of TREASON against the United States and WE THE PEOPLE. That act is briefly stated herewith for public viewing:
- The accused allowed a police agent to act as an Officer of the Court.
- The accused entered a plea without the accuser s consent.
- Denying the accuser due process of law.
- Treason is defined in 18 USC 2381: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned…” This applies to ALL U.S. citizens! [citations to Constitution and Treason Act passed by first Congress omitted]
- If acts of treason against WE THE PEOPLE go UNreported and UNpunished, it breeds CONTEMPT FOR THE LAW and encourages repeat performances….
- Those who love America cannot and will not let this happen!!!
- YOU, the accused, are put on notice by this document that your act(s) of treason are now a matter of public record.
- Your accuser has the legal obligation to make your act(s) of treason known to government officials (18 USC Section 4 to invoke due process) and to formally document this accusation by affidavit. Further, your accuser has the moral responsibility to inform fellow citizens by posting this notice in PUBLIC PLACES.
- The public is invited to contact the accuser to learn more of treason. AN ACT AGAINST ONE IS AN ACT AGAINST ALL AMERICANS and such acts should NEVER, EVER, go UNPUNISHED.
- May God have mercy on you the accused, if convicted.
- Date Dec. 26, 1995.
- Indictment of Judge (name omitted by author) by (name omitted by author), Dated December 26, 1995. This document is a form document in which the second paragraph is filled in by the accuser, who also fills in the accused's name and address and his own (document on file with author).
- I say “flawed” because the conditional nature of a threat does not remove it from the reach of criminal law. See United States v. Schneider, 910 F.2d 1569 (7th Cir. 1990) (upholding conviction of Common Law adherent for conditional threat against state court judge), discussed, infra, text accompanying notes 239, 307, 311.
- Brown, supra note 50 (quoting Bill Ellwood, acting chief justice of the Ohio Common Law court).
- Richard W. Jaeger, “Militias, Protestors Form ‘Supreme Court’ in Western Wisconsin,” Wisconsin State Journal July 1, 1995, at 2D.
- Leonard Ginter served five years in prison for conspiracy and harboring a fugitive. Potok, supra note 17. The fugitive Ginter harbored was Gordon Kahl, a hero in the Common Law community who killed and in turn was killed (in Ginter's home) for the cause. See, infra, text accompanying notes 253–284. While the concept of a national Common Law court strikes me as oxymoronic, I trust that there is some story that makes this sensible under the community's law. Ginter is one of 23 justices on this court. Potok, supra note
- See also Bill Simmons, “Arkansas Man Awaits Takeover of Courts, The Commercial Appeal,” May 7, 1995 (describing Ginter's role on Common Law supreme court and in Kahl case).
- Potok, supra note 17.
- Id (quoting Leonard Ginter). See also Murnion Testimony, supra note 216 (relating how Common Law constable envisioned process against State officials: “[W]e would be tried by a jury composed of Freemen and if convicted the penalty would be death by hanging,” to save taxpayer money the hanging would be from a bridge instead of a gallows).
- Brown, supra note 50 (quoting Alfred Adask, publisher of the Dallas-based AntiShyster magazine, a Common Law related publication).
- Robert M. Cover, “Violence and the Word,” 95 Yale Law Journal 1601, 1615 (1986).
- Id., at 1614 (describing psychologist Stanley Milgram's famous explanation of the “agentic state” and how it changes one's willingness to inflict pain on others). see Stanley Milgram, Obedience to Authority (New York: Harper and Row, 1974).
- Cover, supra note 246 at 1628.
- Cover, supra note 48 at 52.
- See, e.g., Kriemelmeyer Edict, supra note 50 at 1 (referring to address of Common Law court as being “without the United States”).
- Cover, supra note 246 at 1604.
- Id., at n.9 (“Martyrdom functions as a re-membering when the martyr, in the act of witnessing, sacrifices herself on behalf of the normative universe which is thereby reconstituted, regenerated, or recreated”).
- See, Id., at 1604, 1605 n.9 and n.11 (contrasting the submission to suffering in 2 Maccabees 7 with the dramatic killings of those enforcing the States law in 1 Maccabees 2).
- Gordon Kahl is just one of the Common Law movement's heros. See, e.g., Stumpe, Extremists Write 19 in Red on Calendar (describing other heros of the extreme right along with Kahl). But Kahl appears to be one, if not, the earliest of this community's martyr-heros. see “The Prequel to the Oklahoma City Bombing,” Business Wire, April 24, 1995 (explaining how Kahl's story is generally viewed as the start of the “bloody trail of right-wing extremism”). James Corcoran's book Bitter Harvest, supra note 38, is devoted to Kahl's story as is the movie Death and Taxes. See Corey Williams, “Anti- Government Movie Draws Crowd,” Detroit News, May 11, 1995 (describing the reaction of moviegoers to this film on Kahl's fight against the government).
- Corcoran, supra note 38 at 45.
- Id., at 44.
- Id., at 49.
- Id., at 50 (describing the beliefs of this party as follows: the government is an extension of the Christian Church; the Constitution is biblically derived; the federal income tax must be alsolished along with all social welfare programs and agencies; and the gold standard must be restored—all tenets of the Common Law).
- Id., at 52 (quoting Kahl's letter).
- Id., at 53.
- Id.
- Id., at 53–54.
- Id., at 54.
- Id.
- Id., at 55.
- Id.
- Id., at 55–56.
- Id.
- Id., at 56.
- Id.
- Id.
- A condition of Kahl's parole was that he pay his taxes. The government's efforts to seize Kahl were pursuant to a misdemeanor warrant issued for his arrest for violating parole. Id., at 56–57. Law enforcement officers do not usually respond to misdemeanor warrants with the doggedness displayed in Kahl's case [id, at 71–72] but Kahl was openly defiant of State law and that usually generates a more serious response from the State.
- Id., at 56–57, 71–72.
- Id., at 93–100.
- Id.
- Id., at 245–46.
- Id., at 245.
- Id., at 246.
- Id.
- Id., at 252.
- Id.
- Id., at 254.
- Id.
- Id., at 255.
- Almay, supra note 2; Columbus Dispatch, supra note 20.
- On June 3, 1995, the anniversary of Kahl's death a Common Law grand jury convened in Wichita, Kansas and “issued a ‘Show Cause’ order to President Clinton and Attorney General Janet Reno calling for the alsolition of the War & Emergency Powers Act of 1933.” Militia Update, Klanwatch Intelligence Report at 6, August 1995.
- Corcoran, supra note 38 at 255.
- See Almay, supra note 2 (testifying to his belief that the community's commitment to its law would “dissolve” as their law's inability to change the world became more apparent). My point in the text is that it might dissolve into something else, something other than violent rebellion or law.
- Of course, the Internet may and apparently is used for other purposes, such as the calling people to action in the physical world or the dissemination of information about the Common Law that is used to support actual commitments in the physical world. See Almay, supra note 2 (describing Internet use by this community as a means to disseminate information quickly); Heath, supra note 17 at 75 (describing how members use Internet to post meetings).
- Terra Libra printout (on file with author). Professor Cover's language was:
- Now the natural understanding for a court confronting a gap between what is affirmed as right and the world as perceived, is the world will be changed…. [Sometimes, however,] a reality…cannot be brought to coincide with the demand made upon it. [Then t]he risk…is that the gulf between the redeemed world and the unredeemed will be bridged not by our committed practical behavior, but by our “inner life”—our spiritual and psychological realities. Cover, supra note 4 at 209–210.
- Id, at 210.
- At the Terra Libra Freedom and Economic Power Seminar you will learn the latest “Freedom Technology” for the practical means to live free and prosper in an unfree world dedicated to destroying your freedom and wealth….
- Dennis Lee…will show you that the technology is available to make “free electricity” out of thin air! And now YOU can become independent of the energy monopolies.
- David Friedman (University of Chicago Law School and a Ph.D. in physics) will tell you “how Society Will be Revolutionized by New Technology.”…
- k Lindsay (Terra Libras top psychologist) comes to you straight from our “headquarters.” He runs the Terra Libra Personal Power Institute….
- Terra Libra, supra note 287. Of the 16 listed speakers, only two, Alfred Adask, the publisher of Anti-Shyster, and Frank Kowalik, “arguably America's top tax freedom expert, were slated to talk primarily about using the law to achieve freedom. Id.
- Id.
- Id.
- Cover, supra note 246.
- Cover, supra note 48 at 45.
- Cover, supra note 246.
- Id..
- Professor Lawson's narrative forswears the power to dictate what anyone should do about the world that his legal interpretation describes, one in which the Constitution has been abandoned. Lawson, supra note 116 at 1253–1254 (pleading incompetence on the question of what should be done and asserting that “only the best of moral philosophers” can explicate what, if any, action is dictated by the tale told therein). While I have already explained that I consider Professor Lawson in “our” world and explained why [see, supra, note 116] I am criticizing his work for suggesting, however inadvertently, some form of “straddle.” I assume that Professor Lawson took it for granted that no one would assume that one legitimate response to the legal situation he describes is to “lock and load.” Few academics would consider that reaction. But that is exactly the error we make by ignoring the alternate legal worlds around us and by failing to understand that those worlds inevitably intersect with our own. I use Professor Lawson's work as an example of a larger problem. Most academics write as if legal interpretation was a game played by a selected few, known entities and all “harmless.” I do not mean to suggest that he alone warrants criticism, quite the contrary. I also want to make clear that my criticism is that his work shows too little commitment, not too much. I want him to tell us all more about what he thinks, not less.
- Michael Ryan, “Meaning and Alternity,” Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992), p. 271.
- See, e.g., Cover, supra note 246 at 1608, 1628:
- If I have exhibited some sympathy for the victims of [a criminal court's] violence it is misleading. Very often the balance…is just as I would want it…. If it seems a nasty thought that death and pain are at the center of legal interpretation, so be it. It would not be better were there only a community of argument, of readers and writers of texts, of interpreters.
- Cover, supra note 48, at 68 [emphasis added].
- How “our” law is being shaped by “theirs” is a subject onto itself. To cover it here would swell this article to unreasonable proportions. For that reason I include only this brief reference to the subject and not because I consider it either simple or unimportant. I hope to explore the court cases that reflect the confrontation between the Common Law and official law in later work.
- See, e.g., Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 759–761 (Ind. Ct. App. 1985) (discussing Common Law adherent's request to be assisted at trial by other Common Law adherents in lieu of one of “our” lawyers); Braun, supra note 22 (describing increasing frequency of criminal charges for unauthorized practice of law being filed against Common Law adherents).
- See, supra, note 31.
- In United Staus v. Kaun, 633 F. Supp. 406, 418 (E.D. Wise 1986), the district court enjoined Mr. Kaun, inter alia, from: organizing any entity or promoting any plan based upon “(a) the false representation that wages…are exempt from federal income taxation, or (b) any other such frivolous claim with respect to the scope of federal income taxation;” “[advertising, marketing or selling any documents” that made such claims about income taxation; “[f]iling…Freedom of Information requests with the Internal Revenue Service;” or “[filing…or prosecuting]…any civil action in any court in the United States…” based on such claims about income taxation. This is truly an injunction of remarkable scope. Moreover, its scope was supported by references to the potential breadth and power of the movement with which Mr. Kaun was apparently associated, the Common Law movement. Id., at 411–412 (discussing the Kaun group's association with other groups and noting that members of Kaun's group were required to attend sessions on constitutional law and other legal subjects).
- This injunction was upheld by the Seventh Circuit, although the Court first “narrowly” interpreted some of its parts. United States v. Kaun, 827 F.2d 1144 (7th Cir. 1987). The “narrowing” process did not dramatically curtail the injunction's scope. For example, the court made it clear Kaun could attend meetings with other tax protesters and “share his general beliefs” without violating the injunction. Id., at 1152. The injunction, however, would be violated “if…Kaun actually persuaded others, directly or indirectly, to violate the tax laws, or if…Kaun's words and actions were directed toward such persuasion in a situation where the unlawful conduct was imminently likely to occur.” Id., at 1151. The other “narrow” readings offered by the Seventh Circuit were as “narrow” as that one. After such narrowing, the Court found the injunction was not vague or overbroad. Id., at 1153.
- United States v. Schneider, 910 F.2d 1569 (7th Cir. 1990).
- 910 F.2d at 1570.
- Id.
- Id.
- Id., at 1571.
- See also Kaun, 633 F. Supp. at 411–12 (emphasizing the scope of the legal movement of which the defendant was a part as implicit justification for granting injunction, which severely restricted the words the defendant could speak, his organizational activities and his petitioning activities).
- The Seventh Circuit also considered whether the defendant was denied effective assistance of counsel when the court refused to allow his lawyer to withdraw due to irreconcilable differences with his client. The client wanted the lawyer to argue in his defense that as a Sovereign Citizen he was not subject to the jurisdiction of the Illinois courts, the lawyer refused. The Seventh Circuit held that because no “reputable lawyer could have been found to persuade the judge” to admit this defense that “has no conceivable validity in American law,” the Common Law adherent was not harmed by the judges refusal to allow his counsel to withdraw. Id., at 1570. “He wanted a lawyer who does not, or at least should not, exist.” Id. This part of the holding demonstrates again how courts are interpreting precepts on who may practice law and how as well as the 6th Amendments guarantee of counsel to shut this law down.
- That case is not the only example of the criminal law and process being stretched to help shut down the Common Law nomos. See, e.g., Heath, supra note 17 at 75 (describing prosecution in Montana of Common Law adherents for criminal syndicalism on the ground that the group advocated violence for political purpose and reporting that one Common Law adherent was sentenced to 10 years, others to smaller sentences); Braun, supra note 22 (describing raid of Common Law adherent's office in Florida and seizure of his court files and two computers in investigation for charge of unauthorized practice of law).
- The Wisconsin legislature is considering legislation that would make it a felony to simulate legal process. 1995 Wis. Sen. Bill 437 (on file with author).
- In his first published work, Professor Cover condemned the Vietnam war as a “genocidal horror.” see Robert M. Cover, “Book Review” of Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression, by Richard Hildreth (1856), 68 Columbia Law Review 1003, 1005 (1968). He urged judges to resign, to engage in creative legal interpretation to protect resisters or “simply [to] refuse to follow law or authority and set resisters free.” Id., at 1006–07.
- Robert M. Cover, “Obligation: A Jewish Jurisprudence of the Social Order,” 5 Journal Law and Religion 65, 73–74 (1987).
- As one of his students I can attest that Bob's commitments were clearly expressed in class. He did not mask his commitments, nor did he try to pawn them off as uncontestable. He labeled them as “his” commitments and encouraged us to make our own. He did, however, encourage us to make some, to take up the responsibility for building law that might bring a better world.
- I, for one, paid no attention to the tractors that rolled into Washington, D.C. to protest peacefully the farm crisis in our country. Apparently, the failure of that effort helped fuel the Common Law alternative. Conversation with Susan Hansen, reporter for the American Lawyer, March 4, 1996 (relating that Mr. Schroder, a leading figure in this movement, sees the failure of the tractor protest as a pivotal moment in this law's development).
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Published online: 11 Nov 2014
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