June 18, 2011
Every great society has become great under the “rule of law.” Every great society has used the “rule of law” to oppress and destroy Liberty and lives. The ever expanding regulatory law (statute) system that has infested America is ruining lives and devastating the Constitution.
When we look back at history; at the pinnacles of human suffering and oppression, we think of the big names – Hitler, Mao, Pol Pot, Mussolini, and others who used laws for their own evil purposes. And, for the most part, history regards them as evil, oppressive, and fanatical yet what they did was “legal,” in that they passed laws, edicts acting under the color of law, that allowed them to do what they did under the pretense of obeying and supporting “the law.”
Within the scope of liberty and law there must be a balance maintained – a fine line that provides for a framework of individual freedom and societal protection. However, history has shown that all governments tend to expand in regulatory scope until, as today, it becomes impossible for the average person to go through each day without committing a criminal act.
At first blush some readers may doubt the forgoing statement until they recognize the scope of regulatory restrictions placed upon the American citizen. Many people today use fluorescent lights in their homes – how many of us throw them in the trash? According to the hazardous waste laws this may be a violation of the law. Did you cross the street at a marked cross walk? If you crossed in the middle of the street you may have broken the law. Did you have your car’s turn signal on for a full 3 seconds before turning or changing lanes? Did you install that old fashioned shower head that was not a low flow design? Did you install that flag pole out front of the house without having the power company check for lines? Did you really come to a full stop at the corner? I am quite sure you can name hundreds more and thousands more exist that you do not know about.
All of these are examples of regulatory laws. In particular they are known as Malum Prohibitum” laws – from Latin meaning “prohibited evil,” or in plain language they are laws because the government said so. This is where we, the American people, are made criminals without any criminal intent. The law came into existence solely because a group of politicians said we want this to happen regardless of the consequences to liberty, intentional or otherwise.
These laws are normally designed to control public behavior and to provide, in some cases, a revenue stream to the government. They attempt to curb public behavior by passing laws that discourage certain behaviors such as driving fast through town, or spitting on the sidewalk, or crossing in the middle of the street.
Do we really think a person is a “criminal” just because he did not walk across the street between the crosswalk’s lines painted on the road? Obviously enough people thought that it was needed and they passed a law against it. But the act, in and of itself, crossing the street, is not criminal; only the “not doing what you were told” – “cross only at cross walks,” has made it illegal.
This can be highlighted by the parent child relationship. When the mother and father sit down with their young child and tell them they must, as part of the family, perform certain chores each day after school before being allowed to play with friends. Should that child later be caught playing with friends without having completed the chores then the parent is justified to mete out punishment as set forth by the parents.
The punishment is based on rules that have little to do with criminal intent but more with judgment choices. The parent knows better than the child and is trying to train the child up in such a way that they will be successful in this world. Because the child is, well - a child, the parent must establish boundaries and limits. I think we can all agree the child is not truly free until he reaches a certain age and can fend for himself.
This is how the government (local, state, and federal) treats the American people.
There is another side to laws called “Malum in se” laws, meaning “Evil in itself.” These are laws most everyone would agree are wrong solely on their face. Examples would be murder, rape, attacking someone else (battery), assault (causing fear), arson, theft, etc. When a rational individual hears of this kind of crime it is immediately identified as being wrong.
In the 1905 N.C. case, State V. Horton, the court stated: “Criminal offenses can be broken down into two general categories - malum in se and malum prohibitum. The distinction between malum in se and malum prohibitum offenses is best characterized as follows: ?a malum in se offense is “naturally evil as adjudged by the sense of a civilized community,” whereas a malum prohibitum offense is wrong only because a statute makes it so.”
Just as the child is made wrong, solely because the parents say so; so too are the American people made wrong (criminalized) solely because the statute says so.
To me, and many liberty loving Americans, this does not sound like liberty and freedom, but more like a government controlled nanny state.
We hear the term liberty a lot in this country – have you looked it up – do you know what it means? The term is defined in Black’s Law Dictionary and states: “Liberty. 1. Freedom from arbitrary or undue external restraint, esp. by a government.”
Especially by a government – but really how far has liberty diminished today?
In the U.S. Federal case of Meyer V. Nebraska the court stated “[Liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
In John Salmond’s book, Jurisprudence (1947), he stated: “The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone.”
I think this concept is just as applicable today as it was 60 years ago. However, today, with the ever expansive malum prohibitum law controlling the American people; we are experiencing an ever shrinking sphere of individual liberty.
I met with a group of people this spring and posed the question to the crowd – Can anyone tell me one area of their lives that does not have government involvement? After 30 minutes of discussion we concluded that the only area left to the liberty of the individual was in his own thoughts. Not with what he does with those thoughts but only the thoughts themselves. This is sad.
This nation was founded on the concept of limited self-government, opportunity, liberty, and freedom to decide one’s own future that was not controlled by the government. In this declared land of freedom there are over 4,450 federal laws and this does not count any state and local laws. Now couple that with state laws, county laws, and city/local laws and the number easily reaches tens of thousands of laws.
Have you ever heard the phrase – “Ignorance of the law is no excuse?”
Madison, in Federalist Papers Number 62, stated: “The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
We were told, prior to the passing of the Health Care Bill, that we would have to wait until it was passed in order to find out what was in it. This single bill contained thousands of pages of legislation that created numerous new agencies, thousands of new laws and regulations, and now a year later we are still trying to come to grips with what is contained within this law.
This is not uncommon – each year Congress passes thousands of pages of new law, the states pass hundreds, if not thousands of pages of new law – yet ignorance of the law is no excuse?
Today we find the sheer volume of laws and regulations placed upon the back of the American citizen “poisons the blessing of liberty itself.” Law that promotes personal responsibility (Malum in se) guards the liberties of the people and allows for the society to flourish and grow. Laws that govern (malum prohibitum) restrict liberty and freedom, stifle and burden the people and converts liberty to serfdom.
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But there is hope my friends! There is movement afoot that has not been seen since 1773 and the Boston Tea Party, and that is an awakening of the American people. There are organizations that are moving to create Constitutional monitoring within every state of the Union to do what we should have been doing all along – HOLD OUR REPRESENTATIVES RESPONSIBLE. When you find these organizations becoming active in your state – join them. If you do not find them in your state – start one.
We the People are the reason America exists, We the People are the reason we have lost our liberty, and We the People are the only ones who can restore it. As my old First Sargent used to tell us – Lead, Follow, or get the hell out of the way!