The Two Types of Law

Mar 7, 2016

Clifford Ribner
Spread the word

Copyright 2016 Clifford N. Ribner.
The following is an excerpt from Clifford Ribner’s book, Freedom’s Last Stand.

The Two Types of Law

The American Counterrevolution has truly been multi-faceted, manifesting itself not only in federal law, but also throughout our society – throughout the spheres of entertainment, education, the so-called learned professions, journalism, America’s churches, and any other sphere of influence or activity you can think of in the nation.

That very ubiquity of its presence, throughout every sphere of activity of the citizenry and our businesses it has been able to penetrate, dominate and even vanquish into servitude to the collectivist Cause, is a major point of difference between it and our founders’ original Revolutionary aspirations: free Americans were supposed to be able to live their lives, each pursuing his own ideas of happiness, unencumbered by any forced religion, ideology, unconstitutional government intrusion of any kind, nor any other outside influence.

Specifically, the founders intended their/our Revolution, and the Constitution it produced, both to establish a new, non-monarchical, non-tyrannical central government, and simultaneously to narrowly-constrict and confine its powers and influence over civil society to only those few, specifically-defined, purely-legal functions/activities, specified in the Constitution, functions which would facilitate the new Republic’s security from invasion, the soundness of our currency, and the individual liberty, property, including intellectual property, and opportunities for enterprise and prosperity of all the citizenry.

They intended their/our Revolution to manifest itself in federal law alone, with the least possible influence of federal officials — and ideologues of all kinds — otherwise on civil society, in citizens’ lives, and on the sovereign operations of the several states. The Revolution’s value to all was to speak for itself from its own, particular, narrowly-defined works and results – with that minimal role enforced by the legal strictures of the Constitution.

The Counterrevolution has, on the other hand, drawn massive power from its massively-intrusive influence throughout all American society, enabling it constantly to interject and promote itself and to effect and promote the changes it has sought in citizens’ very thought-processes (changes necessary for free citizens to buy into its collectivist logic), as well as in federal law. Even just those Counterrevolutionary legal changes have been profound, involving the enactment in America of tens of thousands of pages of federal laws whose very structural, forensic nature, as discussed below, was radically different from what is Constitutionally permitted; indeed, all laws of that very nature are deliberately precluded under the Constitution.

Since their very first enactment in 1887, those clearly-unconstitutional  Counterrevolutionary laws have had the effect of seizing crushingly-intrusive policing powers for the federal government, its politicians and bureaucrats, over the citizens, their businesses and virtually all our activities, markets, lands and even dictating in minute detail products of all kinds the federal government unconstitutionally, and increasingly, permits, forbids and, most monstrously, even forces us to buy.

Taken together, those laws, and the federal, virtual-Star Chamber alphabet agencies and federal departments – and their unelected bureaucrats – those laws purport to create and empower have had the effect of transforming the nation from one in which there used to be a rule of law, into one in which there is now a rule of politicians and unelected bureaucrats whose discretionary power in enforcing – and even creating – federal law has no real limits.

That inherent lack of any real limits on all those agencies and their bureaucrats alone, without regard to the legal arguments shown in chapters 8 and 11 below, announces their utter unconstitutionality: it is an undeniable historical fact that the whole purpose of our Constitution was severely to limit the scope of the federal government. In short, as mentioned above, all those laws and agencies are of a completely different forensic and operational nature from anything contemplated in, or permitted under, the Constitution. That is what is explained in this chapter below.

There Are Two, Completely Different Types of Citizen-Policing Laws

Because structurally, there isn’t just one type of law: when it comes to laws policing citizens’ behavior and actions, there are in fact two. One type of such policing law (Good Law) provides the necessary societal underpinnings in which free people can pursue happiness, secure in their lives, liberty and property, to the maximum extent law can actually provide. Laws of that nature are the only ones permitted under our Constitution.

The other type of citizen-policing law – Bad Law – consists of all other policing laws that don’t qualify as Good Law.

In this chapter I will describe to you in detail all the structural elements of Good Law, and what Bad Law has consisted of historically in all the places it has arisen – throughout the tyrannies of continental Europe ever since the 17th century, and here in America, as the Counterrevolution has succeeded in imposing it on us, bit-by-bit, beginning in 1887.

The key structural differences between Good Law and Bad Law invariably manifest themselves in two, different ways:

(1) who is subject to prior restraints on their actions under the law – the government and all its officeholders under Good Law, and the citizens, their lands and other property, including every aspect of their businesses, under Bad Law; and

(2) what agency imposes legal sanctions and/or dictates on citizens directly under the law – due process-constrained judicial courts alone, with very-limited discretion, under Good Law, and unelected bureaucrats, including always-politicized criminal prosecutors, each with his own career interests and other agendas, all with virtually-unlimited discretion under Bad Law.

This nation was blessed with Good Law alone (other than the federal laws legalizing the slavery which, in fact, had existed in all nations since the Stone Age) at the time of its founding in 1789 – nothing further of that nature needed nor permitted. The Counterrevolution has  been cursing us with freedom-and-prosperity-destroying laws which are, without exception, Bad Law. And, as briefly outlined below, all of the hundreds of federal agencies – other than the IRS – manufactured by politicians in Washington to enforce that Bad Law are forbidden under the Constitution.

Every law reduces citizens’ freedom: that is, quite simply, what law does. Laws that do so tyrannically, unconstitutionally, and with no genuine benefit to the nation’s prosperity and the security of citizens, with the sole, actual consequence of empowering politicians and bureaucrats and other parasites at the expense of the citizens and their businesses – as all Bad Law does – have no place in this Republic.

The founders included multiple provisions in the Constitution to prevent Bad Law from being enacted by either the state or federal governments here. That was, indeed, one of the Constitution’s most fundamental purposes – enshrining in our only fundamental law all the victories for individual liberty won in our Revolution — and those won in each of the English revolutions which had proceeded it since the 12th century. Chapters 8 and 11 {of my book} prove that legal proposition, and the fact that all the purported legal/Constitutional arguments advanced by proponents of Bad Law in support of its supposed legitimacy, arguments monstrously and illegally adopted by the hyper-politicized federal judiciary in the 1930’s, are not only meritless: they are patently frivolous.

In a nutshell, Good Law has two elements:

(1) the unique American Constitution itself, which polices, and strictly-constricts, not private citizens, but rather the activities of the central government and its officials by, among other things, explicitly imposing prior restraints on that government and all those officials, and

(2) the Common Law (much of which has been statutorially-codified) in each state which alone was intended by the founders and the Constitution to police America’s private citizens’ behavior (and that of their businesses). The Common Law was developed case-by-case over many centuries by the English courts articulating legal principles applicable to real-life situations based on, and limited to, precisely what God Himself mandates in the 10 Commandments. In accord with the 10 Commandments, it criminalizes and penalizes everything the 10 Commandments demand – and, consistent with those Commandments’ unambiguously-implied requirement, provides for citizens’ complete, unfettered freedom to do everything else.

The federal Constitution portion of Good Law contains each of the following:

(1) bright-line rules describing the specific, limited powers and jurisdictions of each of the three  —and only three — Constitutionally-created branches of the central, federal government and its officers, and rules prescribing in detail mandatory procedures for all such officials’ acquisition of and, when applicable, their forced-ouster from, their offices,

(2) express prohibitions on certain, specifically-described state and federal actions, described in the various provisions of Article I section 9 and 10, and and in the Bill of Rights contained in the first 10 Amendments to the Constitution, and the Civil War Amendments 13 through 15, including prohibitions on states’ issuing paper money, imposing impediments on commerce, engaging in any foreign policy actions, “impairing the Obligation of Contracts, or grant[ing] any Title of Nobility.” The Constitution also forbids any title of nobility to be granted “by the United States…”

(3) specific, carefully-described procedures which must be rigorously followed in order for any “law” actually to be law, for the Constitution to be amended in any respect, and in order for new states to be added to the nation.

(4) a precise enumeration of each and every criminal-policing law the federal government is authorized to enact and enforce (“Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”, “counterfeiting the securities and current Coin of the United States…” “Exclusive Legislation in all Cases whatsoever, over [what became the District of Columbia]… And to exercise like Authority over all Places purchased… For the Direction of Forts, magazines, arsenals, dockyards and other needful Buildings…” and “Treason against the United States…”).

Since those particular areas of criminal-policing law are specified as the only ones which the federal government has power to enact and enforce, it is manifest that they are exclusive: the federal government is forbidden to criminalize any other citizen actions without an amendment to the Constitution permitting such. No such amendment has ever been explicitly enacted (including, interestingly, with respect to the income tax authorized in the 16th Amendment), although the Civil War amendments XIII through XV contain broad enabling language permitting their enforcement by “appropriate legislation.”

(5) unambiguous provisions to force politicians in all three branches of government to conform both to all of the Constitution’s directives – rendering a legal nullity of any action of any kind they may take which fails to do so – and to force them explicitly to seek and obtain all Constitutionally-necessary, mandated consents to any amendment of any kind to any of its provisions. Those provisions both preserve the Constitution’s timeless integrity and value, and permit its modification – but only when overwhelming super-majorities of all the people and the states genuinely desire and force such. In our Constitution, these provisions consist of its explicit Article VI statement that it alone is the “supreme Law of the Land,” which automatically repeals and repudiates any violation of its terms, and the provisions of its Article V providing for the exclusive means for amending it. Under these provisions all misconduct by any politician which violates them in any manner – such as if any, or even all, of the political branches violate, and so purport to amend, any Constitutional provisions without conforming to the provisions of Article V – has no validity whatsoever at any time, and can be legally repudiated at any time by anyone in the nation, under the express provisions of the 9th and 10th Amendments which, as Jefferson himself proclaimed at the time of their creation, incorporate all the natural rights provisions announced in the Declaration Of Independence, which he knew something about.

A Constitution like ours has, in all world history, only existed and been enacted in the United States.

As just mentioned, it uniquely sets up explicit, self-enforcing (by automatically rendering all violations legal nullities) prior restraints on the federal government itself, and on all federal officials, and specifies the only powers available to each of the three branches of the federal government, and formally precludes it, and its officeholders, from taking any official action outside the powers specifically granted them in the Constitution.

The Common Law is the other necessary component of Good Law. It constitutes all the citizen-policing laws of every state (which is virtually identical in all states, and has existed with few changes in England and here since long prior to the Revolution), applies to all citizens equally, and describes clearly and simply all conduct which is prohibited, under the criminal and civil laws, to protect the life, liberty and property of all citizens, together with rules regarding property rights specifically.

The Common Law, unlike Bad Law, in no way prescribes any actions citizens are required to take: it contains all the legislation necessary to codify God’s requirements for law in the 10 Commandments and since, as shown in chapter 2 above, those Commandments specify all conduct forbidden for free men in a free society, they are necessarily exclusive, and implicitly forbid any laws forbidding any conduct not described therein.

The Common Law simply tells citizens actions they are prohibited from taking – e.g. murder, theft, defrauding others, assault, trespass, false imprisonment, business misconduct, etc. – and prescribes both civil and criminal consequences for such misbehavior — after it has, by due process, been adjudicated to have been committed by someone. Civil (tort) liability thereunder, if adjudicated, provides any and all actual victims (definitely not including political activists claiming to act on behalf of “the public”, or “the planet” or “the environment”) of such misbehavior with compensatory and, where applicable, punitive, damages payable by anyone who has harmed them.

And, as indicated above, in stark contrast to Bad Law, the Common Law never applies as a discretionary prior restraint on citizens’ actions: citizens are always free, in the first instance, to act as they desire, but will face the law’s adverse consequences if they are later adjudicated to have engaged in prohibited misconduct. Under that judicially-created law, prior restraints – known as injunctions – against other citizens can only be obtained after first convincing a judge they are genuinely required in the particular circumstances for justice to prevail.

And judges and juries alone have the power to impose fines and punishments and directives on citizens under Good Law; no bureaucrats, let alone invisible, unelected ones, have any such power thereunder. And, under the Constitution’s Article III, no federal court is permitted to exercise any jurisdiction/power over any citizen unless an actual “case or controversy” — necessarily arising from someone’s actual, past conduct — is before it. The idea that the Constitution could permit unelected executive branch bureaucrats to exercise power over citizens — as they have been routinely been doing since 1887 — which is Constitutionally-forbidden even to Article III courts is facially-nonsensical — and frivolous. 

And Congress alone has all legislative power, with no power to delegate it specified anywhere in the Constitution.

Bad Law – What It Is

The other type of law (Bad Law) is what the 10 Commandments implicitly forbids any moral state to enact. This is because, in those Commandments, God specifies all conduct He orders to be forbidden – thereby implicitly ordering that, for citizens to be free, everything else must be legally-permitted.

Bad Law is, quite simply, all law whose enactment procedurally, or whose contents substantively, is forbidden in the Constitution, all law forbidding conduct by citizens not forbidden by the 10 Commandments, and all laws dictating that citizens act in a particular manner – laws I have characterized as prior restraints, or tyrannical directives, on citizens, as opposed to officials acting in a public capacity, who alone are subject to any such restraints and directives under the Constitution.

Bad Law turns out to be the opposite in virtually every respect of Good Law. By Bad Laws’ very micromanaging nature, they are invariably complex and difficult to understand – with full comprehension of them well beyond the capabilities of anyone lacking specialized, legal understanding of them, They supposedly “protect” the citizens from all injuries which can be imagined from any source – including themselves. Bad Law literally treats citizens like stupid, incompetent children — or presumptively evil, in need of constant restraint and active supervision by bureaucratic masters.

And Bad Law pretends, preposterously, that the bureaucrats with unfettered discretion to enforce, and even create, it against the citizenry are both wiser than judges and all the citizens themselves — and virtually selfless, to boot!

In stark contrast with Good Law policing laws, rather than applying only after they are adjudicated to have been violated, Bad Laws invariably operate as prior restraints on citizens’ behavior, with citizens needing to obtain permission from bureaucrats for any action which they fear could run afoul of them – because the consequences of violation, even if inadvertent, are often dire, including crushing fines and jail time.

By their very nature, Bad Laws cannot be administered like Good Laws – by ordinary policeman and courts. Instead, they are invariably administered by specialized governmental agencies – i.e., all the federal alphabet agencies and departments – which invariably claim “expert” knowledge, supposedly to maximize public safety. Because of their inevitable complexity, Bad Laws are unable ever to respect the individuality – and dignity – of citizens and, instead, inevitably create “one-size-fits-all solutions” for everything their unelected bureaucrat administrators contemplate to be a “problem” requiring their interposition. And, once empowered at all, there is never an end to the “problems” they insist on addressing — until they are forcibly stopped,

The complexity of the Bad Laws, each of which inevitably operates on the “precautionary principle” (discussed below) invariably results in the specialized government agencies which enforce them being granted the legislative power regarding such laws to formulate additional, euphemistically-named, “regulations”  — which themselves have the force of law also — supposedly “interpreting” them, as applicable to the endless real-life circumstances which can arise, plus the combined executive-and-judicial power to actually enforce such laws against the citizenry, with fines and jail. The effect of this combination of state power in such agencies can be summarized in one word – tyranny.

If there is any doubt about this point, consider the following quote from James Madison in the Federalist no. 47 in which he, the Constitution’s principal author, both defines tyranny as consisting of precisely that accumulation of powers by a single person or agency, and expressly repudiates the notion that the Constitution he was advocating therein permits such ever to occur:

“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”

Bad Law is monstrous, tyrannical, destructive of the liberty and prosperity of the society subjected to it, structurally incapable, as shown below, of producing a positive outcome for the citizenry, productive only of corruption of the citizenry, every market subjected to it, all politicians and bureaucrats empowered by it over the citizenry, incapable of being limited as long as it exists. Additionally, because it is created purportedly to eliminate supposedly-defective outcomes before they occur, is driven to apply the Precautionary principle, resulting in the unavoidable constant expansion of its jurisdiction and tyranny over an ever-increasing number of human actions – rendering forbidden more and more otherwise blameless behavior, and limiting the scope of permissible actions by citizens more and more without limitation – until the Bad Law and its administrators are simply eradicated.

It is monstrous and tyrannical because it is incapable of functioning without at least two, if not three, of the different governmental powers – executive, legislative and judicial – being concentrated in the hands of its administrators.

The Founders Well-Knew What Bad Law Is — and Forbade it in the Constitution

Both types of law – the Good and the Bad – were well known to our founders at the time of the drafting of the Constitution and, indeed, during the Revolution which preceded and paved the way for it. And they had a clear understanding of which type of law they wanted to permit the new Republic’s federal government under the Constitution to enact – and to provide the strongest mechanisms they knew to devise in the Constitution to forbid the enactment of any Bad Law.

The Constitution was conceived by them as a written, legal constraint on central, federal and state power. The founders were well aware that in it they were creating such a document for the first time in legal history for an entire nation (many of its provisions were based on a similar mechanism Massachusetts had then-recently adopted, much of which was devised and drafted by John Adams)  precisely to forbid the federal government from enacting any Bad Law.

That is the precise reason they defined with such specificity the few areas the federal government is permitted to legislate in – primarily in the Constitution’s Article I section 8: to create guardrails severely limiting actions the federal government could take which would have any affect on all the liberties of the citizenry – including impairing their property and contract rights above all. The last thing on earth they wanted was a central federal government with the power to dictate to individual citizens or their businesses how they should conduct themselves, or operate their lands or other property, in any manner whatsoever.

Article I of the Constitution prescribes in very-specific detail how any law can become a law – requirements that can never be met by any “regulation” manufactured by any executive agency. And the Constitution specifies how the only citizens authorized to adjudicate cases against other citizens – judges – are to be appointed; no other citizen – let alone a bureaucrat within the executive department – is authorized to impose any directives or punishment against citizens of any kind.

The founders deliberately separated the various powers of the federal government (legislative, executive and judicial) into three separate branches, and defined with such precision how the legislative branch should conduct its affairs: it was  always to act openly, and never in the dark, with full disclosure of everything to the citizenry; the Constitution prescribes very-specific procedures governing how all those persons who alone were authorized to participate at all in the actual, law-making legislative process should be selected. The Constitution could not have been clearer in that regard: only those persons who were so elected and publicly known to be so were authorized to participate in the legislative process in any official manner, by providing explicitly in Article I Section 1 of the Constitution,

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives [emphases added].”

Article I section 8 specifies all the legislative powers Congress is granted. It is forbidden to do anything not so granted. None of those powers include any power to delegate any portion of its legislative power to anyone – particularly to some unnamed, unelected bureaucrats, and particularly to anyone in the executive branch.

The founders were, specifically, well-aware both of the actual virtues of certain aspects of English law, which the English had secured for themselves uniquely among European nations over many hundreds of years (the English Common Law and the freedoms the English people and its Parliament had been able to extract from the King since the 12th century, including particularly freedom from Courts of Star Chamber, and  other freedoms extracted from the King in the Civil War/Revolution of 1640-1660, and the so-called Glorious Revolution of 1688), and all the evils of Bad Law – including the manner in which it was invariably created and enforced – both of which they were determined to preclude in the Constitution.

Quite simply, Bad Law – and the unelected bureaucrats it empowers – tell citizens what they must do, and so turns them into servants, serfs and even slaves of the state – and of the politicians and bureaucrats who run it. We know this as a historically-proven fact today, as shown in the chapters devoted to history below, because Bad Law is what tyrants have always used to enslave their people in the West – beginning with Louis XIV and other monarchs claiming absolute power over their citizens.

And, although they – the two types of law – have certain things in common (primarily the requirement that people obey them – or else) and are both called “the law,” they are actually as different from each other as night is from day.

Indeed, as history has revealed, and as discussed below, to the extent that Bad Law exists at all in a nation it institutionalizes state tyranny and corrupt cronyism over the citizenry;  such has invariably been the norm for all continental Europe; and the American Counterrevolution has been imposing Bad Law here as its primary mission.

Once Bad Law is enacted in a nation, it overwhelms and destroys the Good Law – and has the effect of crushing all the benefits of Good Law. This occurs inevitably because Bad Law smothers all property rights and, accordingly, all liberty and prosperity of the citizens which depend on the substantiality of those property rights. And, unlike Good Law, it reaches far beyond the legal arena; for numerous reasons discussed above/below, its tentacles extend throughout all civil society, securing absolute control by the state over every aspect of its citizens’ lives.

As a result, Bad Law, while invariably claiming to secure safety for the citizenry as an excuse for its enactment, in fact destroys all legal and other safety and security of the citizenry by, among other things, destroying citizens’ property and contract rights and choices of all kinds, and subjecting the citizens directly affected by it to constant fear of prosecution – prosecution resulting from their having simply engaged in conduct which is specifically not forbidden by the 10 Commandments, and which, accordingly, Bad Law, and its bureaucrat-enforcers, alone endlessly, and gratuitously, criminalize.

The only actual, even arguable, beneficiaries of Bad Law in a republic or democracy, are personally-ambitious politicians, lobbyists, lawyers, bureaucrats and other parasites who feed off its presence. It gives the government so much dictatorial power over the citizens that they need those intermediaries simply to survive. That has always been its purpose – a feature, not a bug.

Today, the wealthiest counties in the nation surround Washington, D.C., populated almost exclusively by such people, all whose wealth is derived from performing work made possible by Bad Law alone, none of which work adds any actual value to the nation’s wealth and, indeed, all of which simply drains and harms the real economy’s strength, restricting and/or even preventing its growth — and the freedom of those who produce all goods and services actually desired by the citizens — including those virtual parasites themselves.

Nothing in the Constitution permits the federal government to police behavior by American citizens and their work/businesses (with extremely limited exceptions, as specified above – e.g., treason, counterfeiting, piracy) – which is precisely what Bad Law does.

Good Law alone provides all the necessary underpinnings of a truly free and prosperous society. In all recorded history it has been the ruling law to any extent in only a handful of (English-speaking) nations, and it has been fully present only in one nation – the United States.  it has invariably come under attack – from politicians who despise the constrictions it imposes on them and on their ability to curry favor to be used to amass power for themselves. Those guardrails which Good Law does indeed impose on the federal government and its politicians are the single most important feature – its underlying foundation or Constitution – of this virtuous law.

What Good Law Does

When fully present, as the founders of the United States consciously intended, Good Law does each and every one of the following:

(1) it provides rules which the citizens and, most importantly, in its Constitutional provisions, the state, at all levels, and all public officials (whether elected or appointed) without exception themselves must live under, all to guarantee that the citizens, the state and its officers each respect the sanctity of all individuals’ person and property, including,

(2) making sure that all non-criminal (under Good Law) promises citizens make  to each other intended to be binding among the parties to such agreements are indeed enforceable, under the principles developed under the Common Law, as contracts – and are not subject to being disturbed in any manner by the state,

(3) protecting all legally-acquired property from theft, fraud or invasion by others, including the state and its officials,

(4) clearly describing all misconduct which constitutes crimes and civil misconduct (torts), all of which are sanctionable against each wrongdoer after the fact of their commission, and only after being adjudicated as such pursuant to genuine, even-handed judicial due process, including trial by jury if requested, with monetary damages payable to actual victims due from adjudicated wrongdoers,

(5) rules, including the Constitution itself, which describe with specificity all the powers which the federal government and each state, and each separate portion of  each of them, may lawfully exercise, and expressly precluding  any government and its agents from exercising any other power,

(6) laws prescribing all the procedures the state and its agents/officers must follow in exercising each of its legitimate functions (executive, legislative and judicial) and,

(7)  laws describing with specificity all the procedures which must be followed for the selection of each of the state’s officeholders who alone are permitted to act as its agents, and to do so solely in the capacity of their specific office – precisely so that neither the state itself, nor any of its agents, exceed the boundaries set for it/them.

Failure by the state and any of its agents to obey the bright-line boundaries so set for them inevitably results in such state becoming what virtually all other states have become throughout history – a tyranny governed under the discretionary power of men, and not the rule of law, a tyranny whose subjects – and that is indeed what they become, at best – can best be described as servants of the state and its functionaries, if not their slaves or serfs, instead of as freemen.

As described above, Good law is easy to recognize: Other than in Constitutional provisions which act as prior restraints at all times only on the federal government and its officers and agents, the Good Law – Common Law – applicable to individuals only actively comes into play, from an enforcement point of view, after the fact of its actual or claimed violation by someone. Under Good Law, all citizens are treated like responsible adults, fully capable of internalizing the requirements of the Good Law, and it is only when they have actually been fairly adjudicated to have violated it – which often requires a jury finding that they did so – that it comes into play to actually impose justice (a money judgment, an injunction, a conviction, for example) against them.

For example, although Common Law contract law (an example of Good Law) informs the process of people entering into a contract, it is only if and when one of them are alleged to have  breached that contract that the state gets involved – and only through its courts – at all.

What Bad Law Does

Bad law is also easy to recognize — once its invariable features are understood: it is, quite simply, all law that is not Good Law, and is always recognizable, particularly, by when it applies: as mentioned, it, and the bureaucratic governmental agencies inevitably created to enforce it, act as a prior restraint against citizens’ actions and enterprises, rather than coming into play only after it is violated, like the Good Law.

Because those empowered to enforce Bad Law invariably, and inevitably, are granted discretion in such enforcement, discretion whose potential reach is often unpredictable by those subjected to the law, Bad Law invariably has the effect of forcing those so subjected to it to seek permission from government functionaries in order for them (who such Bad Law thereby reduces to serfs) to engage in actions subject to it which they otherwise wish to pursue – even though such actions in fact pose no actual, identifiable harm to any other citizen.

Indeed, the discretionary enforcement of Bad Law by those empowered to do so is what turns each government functionary so empowered into a lawless tyrant (true rule of law requires those enforcing it against citizens to do so only pursuant to judicial processes, with no discretion in the application of genuine justice – which, as the ancient Greeks recognized, must be blind).

For example, there was no shortage of laws, which those enforcing them had practically unlimited discretion in doing so, most, if not all of which laws were enacted according to (at least arguably) technically-legal, prescribed procedures, in Nazi Germany and the Soviet Union (and in present-day Cuba, Communist China and Vietnam and North Korea) – laws explicitly relied on by each of those monstrous tyrannies to kill millions, and to enslave their entire populations

The Constitution is written in plain English, easy for anyone to understand – with no need for any assistance from a lawyer, judge or any other claimed “expert.” Its authors were well-known at the time (principally James Madison), as were its intended consequences – discussed at length in the widely-published the Federalist, and in other writings by the founders— as was their very clear and self-consciously held understanding of its absolutely unique place in world history, and its historical roots in the various uniquely-English revolutions which they were well-aware had preceded it, beginning with the Magna Carta, followed by the English Revolution, known as the Civil War, of 1640 through 1660, which had, in turn, been followed by the so-called Glorious Revolution of 1688.

Our own unique Revolution was consciously intended to absorb and retain all the liberalizing victories won through the blood and efforts of all those previous English revolutionary events, each extracting additional individual liberties from the crown/state beyond those won previously, with our Revolution guaranteeing equality before the law and multiple additional individual liberties from state power to a greater extent than had ever achieved previously in known history.

More on Bad Law

There were actually three, specific types of Bad Law which the founders were personally familiar with (many of them had spent considerable time in Bourbon France witnessing its crushing effects, including Franklin and Adams, both of whom were active participants in the drafting of the Constitution, and Jefferson who, though in France at that time, communicated always with Madison, the Constitution’s principle author, and was personally actively involved in the drafting of the Bill of Rights) and wanted to prevent.

The first type of such Bad Law – what we would call bureaucratic regulatory law and enforcement – was what prevailed throughout continental Europe by the end of the 18th century. As discussed throughout this book, that particular type of Bad Law was the creation of absolute monarchs determined to subjugate their people completely under their absolute authority.

The Bourbons first created and wrote it, and imposed it with particular effectiveness, and with the most elaborate bureaucracy for enforcement of such at that time, on the French people, very consciously under Louis XIV in the 17th century. Those laws continued  unchanged under his Bourbon successors and, with almost no substantive changes whatsoever, even after the French Revolution. This it did under both the Reign of Terror under the Committee of Public Safety of Robespierre and guillotine notoriety, and again, with little change other than its name – the Napoleonic Code, as it was thereafter called – under the totalitarian military dictatorship of Napoleon and, unfortunately for the French, and for all the rest of continental Europe which imitated it, for the rest of their history, including today.

And, far from incidentally, the founders were well aware that the English had had their own experience with kings claiming absolute authority over their people – James I and Charles I – who punished their political enemies in secret tribunals (the Court of Star Chamber) they alone controlled through their cronies, and who made what efforts they could to similarly impose the kind of central, absolute bureaucratic authority over their people perfected by the Bourbons in France in the 17th and 18th century.

And the founders also knew only too well that the English and their Parliament had fought a bloody revolution/civil war literally for decades, beginning in the 1640s specifically to end Star Chamber and the other absolutist claims of this nature made by Charles I, who they ended up beheading, permitting his son, Charles II to ascend to the throne only after his commitment to major constitutional concessions precluding precisely such absolutist claims (including tyrannical Courts of Star Chamber).

Thus, the founders, who saw themselves self-consciously as building on the previous two revolutions in England of the 17th century in their own Revolution, clearly viewed preventing this type of Bad Law as having been a constitutional, individual-liberty achievement of the English over 150 years earlier, an achievement they wanted to make sure in the Constitution did not have to be fought for in blood again.

Although it has now become our task to once again win that victory over Bad Law which our founders hoped we could avoid under the Constitution, its remarkable provisions make it unnecessary to shed blood once again to do so.

The Second And Third Types of Bad Law

But there was a second type of Bad Law which the founders also had an intimate experience of under the British – and which they also wanted to forbid or, at least, make extremely difficult to enact, by the federal Congress. This type of Bad Law was the type of law Parliament was continuing to pass, and the king to enforce brutally, prior to our Revolution, all as described in many of the enumerated instances of British tyranny described in the bill of particulars portion of the Declaration of Independence.

This type of Bad Law consisted of Parliament – the legislative branch in England – passing special laws corruptly to provide benefits to some of their constituents//cronies – at the expense of other citizens. These laws were the direct result of Parliament and its members themselves becoming drunk with their own power derived in the revolutions of the previous century: they would pass special laws – taxes (including the Stamp Act, and the tax particularly on tea which had given rise to the famous Boston Tea Party), for example – intended to benefit particular constituents or businesses to the detriment of other citizens – the American colonists, for example – in exchange for corrupt payoffs of some kind to the legislators themselves.

Again, the explicit rules for openness – what we would call today complete transparency – regarding all the details of selecting Congressional members and how they were required to conduct and publicize all official proceedings, as prescribed in detail in Article I of our Constitution, were intended to at least make it extremely difficult for Congressman to engage in such corrupt activities without the public (and the state legislatures, who originally controlled Senate representation) knowing about it – and so having the ability to remove them at their next opportunity.

It is the inherently corrupt nature of such law, including the cronyism/favoritism involved in it, coupled with the political and/or even financial payoffs to legislators that make it so difficult for it to be enacted except in secret – something the Constitution was designed to completely forbid, or at least make extremely difficult, if not impossible.

The consciously-divided federal nature of all government in the nation – in which the states retained their sovereignty over all police powers affecting individuals and their property, while the central, federal government had only very specific tasks assigned to it, and was precluded from doing anything else — was also intended to minimize the risks of such special laws, by preventing the central government from showing favoritism to particular regions or states in the nation, and preventing, to the extent possible, states from favoring their own citizens over citizens of other states – policing which was sole the intended purpose (as I clearly prove below from the actual text of formal writings by multiple founders, with no contrary writings by any founders) of the Constitution’s Commerce clause and the Contract clause.

A third type of Bad Law was also well known to the founders – through their knowledge of its enactment in continental European countries, typically through mere decrees by absolute monarchs, prior to 1789 – and the founders also wanted to preclude its enactment in the Constitution. This type of law consisted of inherently-intrusive, confiscatory taxes on citizens’ income.

The founders wanted the federal government to be able to have sufficient revenue to defend the nation – the principal expense expected for the federal government contemplated in the Constitution – even in the face of potentially existential military danger posed by the European superpowers of the day – England and France, either of which had more than sufficient military capability to conquer us. But they were determined that the taxing power of the nation not permit anything like an income tax, nor any other tax that could fall unevenly among the citizenry (such as favoring one portion of the country over another). And that is why the provisions of the Constitution regarding taxing were drafted the way they were.

England had never enacted an income tax as of the time of our Constitution – and did not do so at all until faced with the dire military emergency posed by Napoleon early in the next, 19th, century, a tax which initially lasted only during that Napoleonic emergency, and was repealed within years.

But our founders knew what an income tax was because they were aware that Louis XIV had, unilaterally, imposed an income tax of 10% on all French citizens who were not nobles (the commoners), on top of all the other taxes they were subjected to, in his fruitless efforts to fund his extravagant government (which nevertheless defaulted several times technically). And the major purpose of Louis XVI in taking the steps which ended up resulting in the French Revolution was to try to get the nobility and the church hierarchy in France to go along with also being subjected to an income tax (the clergy and church possessed, and nobility itself provided, complete immunity from all taxes in France prior to the Revolution).

The income tax could only be enforced by intruding into all the personal affairs of taxpayers – and so was a particularly humiliating, though income-producing, tax – and was seen in France as akin to an attribute of serfdom (even though it was continued with a vengeance after the Revolution). A major reason commoners in France who were financially able to do so purchased titles of nobility from the crown prior to the Revolution was to obtain complete exemption from taxes – including the income tax – by doing so.

Quite simply, our founders wanted all citizens in this nation to have a dignity and status comparable to that of only the nobles in both France and England (by the time of our revolution, English nobles had significantly less actual legal/juridical privileges, as opposed to mere social standing, which they clearly enjoyed, over commoners, than the French nobility with similar titles). Although, as discussed below, a temporary income tax was indeed passed as an extraordinary emergency measure during our Civil War, as discussed below, it took a constitutional amendment – the 16th amendment – to permit its institution here in 1913. And it has indeed proven to be the abomination our founders were determined for us to avoid.

Bad Law in Operation

To fully understand how monstrous – and genuinely-enslaving – Bad law is, all one need do is consider how it actually operates in real life — in contradistinction to Good Law, whose rule is essential for citizens who obey its simple demands to obtain and maintain their freedom and personal security.

To illustrate this, consider the following situation:

I own X acres of land in the countryside where I have my house and conduct various types of farming operations, including raising animals and growing crops of various kinds in different years, all of which I am able to do profitably because of my astute agricultural management – without any government assistance. Immediately adjacent to my land is land owned by Mr. Evil. I learned that Mr. Evil is going to conduct a number of activities on his land which I fear might harm my land, including opening and operating a mine expected to produce multiple minerals, and operating an industrial-type animal-breeding and raising business that will produce massive amounts of animal waste.

If Good law governs exclusively, we each are free to do what we want with our land: our property ownership is secure and absolute; however, if either of us creates a nuisance on our land which affects our neighbors’ land adversely, the landowner who is harmed is entitled to sue the nuisance creator under the common law for all damages and, if the nuisance was created deliberately or knowingly, the wrongdoer (tortfeasor, in legalese) can become liable to the injured landowner for punitive damages as well.

In addition, also under Good law, if the person whose land will be adversely affected becomes aware of his neighbor’s intended nuisance-creation misconduct, and has the ability to prove the irreparable damage that will befall his own land if the neighbor follows through on that misconduct, to the satisfaction of a judge (no jury for this type of proceeding, though there is for a damages claim), he can obtain an injunction, or legal prior restraint, barring his neighbor from engaging in such injurious misconduct.

But he must first actually prove that he is actually entitled to that in order to obtain that prior restraint on his neighbor’s activities; and, as free men, neither I nor Mr. Evil is ever required to seek the others’ permission in his use of his land – nor anyone else’s permission, including the government’s, and we are each entitled to the full enjoyment and value of our own land, without having to grease the pocket of anyone.

In other words, unless I or Mr. Evil can genuinely prove to a judge that the other of us is about to engage in conduct certain to harm our homeland, we each are free to develop and utilize our land to its full potential and reap the financial and personal benefits from doing so, and provide whatever we produce on the land for purchase by would-be buyers in a free market, and so increase our own wealth and, as Adam Smith proved, the total wealth of our nation.

Again, if it turns out that either of us actually harms the other or his land – and can prove that to the satisfaction of the jury – the injured party is permitted to sue and obtain full compensation for such harm as legal damages, including possible punitive damages for being such a tort victim. That is what all happens under Good law.

Under Bad law, neither of us is able to use our land with any security that the state will not destroy us, without first obtaining the permission of numerous “regulatory” agencies, each staffed by bureaucrats who have their own career and other considerations – including possibly political considerations – in mind when they review our requests – requests for permission for us to use what is supposedly our own land.

Under the multiple agencies that exist at the present time, depending on the precise nature of the activities we plan, our activities on what is supposedly our own land would be subject to prior restraint by at least the following agencies – the Environmental Protection Agency, the federal Department of Agriculture, if we have any employees, the Department of Labor, with its own additional multiple agencies, the Internal Revenue Service and numerous other agencies (the Equal Employment Opportunity Commission, OSHA and numerous other ones.

Bureaucrats in each of these agencies have passed their own “regulations”, which are actually laws by another name, violation of any of which can result in massive fines and even criminal conviction and sanctions (even though Congress never itself enacted the actual statute defining any such crime we could be subject to, and it was created exclusively by unnamed, unseen and unelected bureaucrats).

Because of their power to harm us if we run afoul of their regulatory dictates, the only way either I or Mr. Evil can do anything on what is supposedly our own land is if we begged the permission – employing and paying lawyers, lobbyists and other intermediaries, at our own enormous expense, who we have no choice but to use if our interests are to be protected at all against the power of the state – of each of the multiple regulatory agencies and obtain that permission.

Accordingly, what this entire circumstance we are each faced with under Bad law amounts to is that the massive prior restraints on all of our conduct it imposes – even though all we want to do is utilize land we supposedly own – is indistinguishable from multiple injunction forbidding us to act, which only our neighbor could obtain under Good law and, in that case, he alone could do so only after first legally convincing a judge to first rule that we were about to commit some grotesque misconduct on our land that would irreparably harm him.

Under Bad law, it is as if we are operating as someone who is automatically pre-judged to have engaged in misconduct worthy of an injunction against us – before we have done anything with our land at all — and with no actual foreseeable victim of any misconduct by us even complaining.

In other words, Bad law transforms us from actual ownership of our land into effectively a serf who must do the bidding of overlords – the various bureaucrats whose permission we require to act – in utilizing our land at all. Additionally, because of the huge transaction costs involved in obtaining such permission – and the potentially enormous amounts of time potentially involved – the value of anything we produce from our efforts from our land is substantially reduced, if not destroyed, by the need to engage in such compliance costs and activity in order even to get to square one. And the nation’s wealth is diminished pro tanto.

And today, in America, every business in the nation, particularly those with any employees, is subject to that same micromanagement from multiple federal agencies and their bureaucrat functionaries – who have become the true masters of all our businesses.

Bad Law’s Inevitable Liberty-and Prosperity-Destroying Handmaidens – The Precautionary Principle And The Criminalization Of Virtually All Conduct

The Precautionary Principle

As shown above, Bad Law always is administered to control the behavior of citizens prior to their engaging in any conduct its administrators choose to forbid – regardless of their particular rationale for their so forbidding it. That rationale invariably consists of claims that the forbidden behavior will supposedly result, typically based on claimed “expert” predictions, in some harm – to other citizens, the environment, the government, you name it.

The most-flattering claim for Bad Law’s purpose is inherently utopian and preposterous — to prevent all imaginable harms from ever occurring at all, not simply to punish them after the fact – although typically it does that as well, and in draconian in fashion (truly-extraordinarily-high fines, e.g.). Since its only real result is always to radically empower tyranny, it strains credulity to believe that is not at least its other purpose.

Quite simply, the underlying enabling mandate legally-imposed on each such agency – to anticipate and prevent all harms even arguably within its purview – results in its inherently needing to forbid all conduct posing even the slightest chance of resulting in any such harm – even if only as a matter of self-protection from any oversight by Congress, for example.

Specifically, no federal bureaucrat wants to be called on the carpet before a Congressional hearing and accused of permitting some horrible, theoretically-preventable, in hindsight, tragedy from occurring. Each bureaucrat, of course, reports to his superiors within his particular agency, superiors who impose that duty on their support always for the most-restrictive citizen -action mandates, even if only for their self protection from their own superiors.

Accordingly, simply to fulfill its duty of “protecting from,” and so preventing, all harms within its jurisdiction from occurring, the agency has no alternative but to take the most extreme precautions necessary to forbid any citizen conduct which could lead to any conceivable harm – however unlikely – which its “experts” might imagine. Quite simply, the agencies never suffer any adverse consequences from forbidding behavior of citizens unnecessarily,purportedly always to prevent improbable harms; they are reprimanded only if some conceivable harm eventually actually occurs.

Thus the behavior they forbid – and criminalize, to enforce such forbidding – is done by casting a very very broad net. The very purpose of the agency is to limit citizens’ freedom, never to enhance it.

Fulfilling the agency’s mandated duty is one reason it necessarily employs the precautionary principle as its guiding principle for restricting citizen behavior. But there is an additional reason why it does so with enthusiasm: bureaucrats always want to make themselves as indispensable as possible and to expand their power over the citizenry. Indeed, they typically constantly expand the scope of the jurisdiction. The precautionary principle provides a readily available excuse for them to do so.

Quite simply, the bureaucracy only encounters adverse reactions when it permits some harm to occur – never when it over-restricts citizens’ freedom.

The Criminalization of Virtually All Conduct

Federal bureaucracies have been churning out tens of thousands of pages of “regulations” on endless subjects, every single page of which is enforceable by criminal prosecutions. As mentioned above, since all crimes actually forbidden in the 10 Commandments have been forbidden under the states’ Common-Law since we were simply colonies of Britain, it is obvious that all of these additional agency-decreed crimes criminalize behavior that is otherwise perfectly legal — and always perfectly moral under the 10 Commandments. As more and more behavior is criminalized, less and less behavior is legal.

This  fact has multiple consequences. First of all, it empowers the federal Justice Department and its bureaucrats to literally decide who they want to prosecute, without regard to the genuine criminality of their conduct, simply because they cannot possibly prosecute everyone who has violated some regulation – typically without even knowing it existed – and so have no choice but to make all prosecutions highly-selective.

In that circumstance, not only is it purely a matter of their arbitrary discretion what particular crimes — among the millions possible —they choose to prosecute, but also who, since they have the virtually-unlimited resources of federal prosecutors at their disposal – the FBI, numerous lawyers and accountants, and the sheer terror that any such mere federal investigation, let alone an actual prosecution after indictment, inspires in its targets.

The federal bureaucrats risk nothing from going after someone who they simply choose to destroy, while their target risks everything in even trying to oppose them. They can typically seize his assets, destroy his business and credit, frog march him on camera — all without ever actually convicting him of anything.

Indeed, it is fair to say that since they can prosecute people based on who they are, rather than what they did, and make their lives miserable in the process, there is no limit to the harm they can inflict on any citizen they simply choose to harm in that manner. This fact literally makes America today, and for several decades past, increasingly what can only be called a police state.

That in itself creates a reign of terror among the citizens – at least those who are aware of this fact. Because they never know when they might become a federal target and, if they are, even if they are not actually indicted, the process of defending themselves is typically financially ruinous, as well as being emotionally devastating.

Copyright 2016 Clifford N. Ribner

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