Proactive Liberty

The next time the conversation drifts toward the current political situation and somebody says, "The government has stripped the constitution," or, "The USA Patriot Act has destroyed the Bill of Rights," you must instantly respond, "No! That's not right!"

If anyone asks How so? or tries to argue the point, your response is simple: "Congress can't amend the constitution, and therefore it can't override it. Congress can't pass a law that changes or erases any part of the constitution!"

However, you can effectively erase your liberty by believing that congress can do those things. But you erase it by believing in an illusion. The illusion is based on the assumption that when congress acts and the president signs, the result is necessarily a law.

Because of what appears to be a lawful command on the surface, many Citizens, because of their respect for what appears to be law, are cunningly coerced into waiving their rights due to ignorance.
--US. v. Minker, 350 US 179 at 187
We must all simply walk away from this delusion and the self-pity that flows from it, and live as we are supposed to live, free people in a free society. Of course, first we must regain an idea of what that looks like.

A truly free society would require a minimum of laws, taxation and indeed, government.

The only purpose of the judiciary would be to assign and administer responsibility where people refuse or fail to take it upon themselves.

Some laws would be necessary because recognition must be given to the fact that people are not generally manifesting as perfect examples of a free and mutually respectful citizenry. However, all laws would be designed only to defend personal liberty and property, and to remedy situations that result from infringements against personal liberty and one's person and property. There would be no place for special-interest legislation, nor any misguided attempt to legislate one brand of morality over another.

All social-behavior pressures would be private, through congregational pressures and charities, and through the natural function of people choosing to know or not-know others based on personal likes and dislikes, but no one would be legally excluded from public or corporate opportunities because of their views in the world.

All taxation would go toward an infrastructure limited to the same objects as the laws. By extension, so long as foreign states, nations, and countries exist who adhere to other styles of society, the world requires that every decent people support a strong national defense.

Government would exist only to defend its citizens' persons, property and lives against aggression from within and without.

To get there, the term government must first become understood in a different light than it has been. Currently, where the word govern means to hold back, it is too often taken that government's job is to restrain everyone and to permit only those things to which no one objects. Our government today is taken to be an issuer of permits, where all things not permitted are prohibited.

But government in its proper role is never authorized to hold back anything other than aggression. And even in that role it is limited to its own boundaries. In fact, it is limited within its own boundaries as well, because even in our more perfect society there will still be imperfect people. Thus the individual must retain the right and duty of self-defense and the ad-hoc (when the need arises without notice) defense of family, friends and property.

Such a society would require perpetual and unwavering vigilance by its citizens. And that vigilance would necessarily be supported by a respectful belligerence toward any and all attempts, domestic or foreign, to infringe upon personal liberty or property. Yet that is not what is happening these days.

People all over the country are inadvertently surrendering their rights to the growing fascist tyranny in Washington. The strange part is that while they are doing it begrudgingly, they are at the same time doing it proactively. They are doing it to themselves! They do it every time they say anything like, "The government is destroying our rights!" or, "The Patriot Act is destroying the Bill of Rights!" This is, of course, merely the voice of confusion, and neither of these statements is true. It's a cruel joke: who needs oppressive government when you can fool the people into voluntarily surrendering their rights all by themselves?

Ah, but that is what is happening, solely because people have fallen for an illusion known as "color of law".

Repugnance and Nullity

"Color of law" means, the appearance or semblance, without the substance, of legal right; pretense of law. There are a few ways things can happen under color of law, the most recognized being when an official exceeds his authority but depends on his position to get away with doing something beyond what he is authorized to do. Misapplication of law is another form, as when a corporate tax is levied against a private individual. However, our focus is on a more subtle form: when an official acts under invalid authority. That is, when there appears to be authority for the actions of the official but the basis of that authority is actually void. Here's how that works.

Most people think that when congress acts to pass a bill and the president signs that enactment, the result is automatically a law, which can be enforced and then must be obeyed. This is not always true.

Article VI, Clause 2, of the US constitution reads, in part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land....
This provision requires that all laws made by our government must be in pursuance of the constitution. This means that they must be consistent with the letter of and intent behind the constitution, and when they are not, then they are repugnant to the constitution. And if they are repugnant to the constitution, they are void from the beginning.

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.
--South Carolina vs. United States (1905)
...the intent of the lawmaker is to be found in the language that he has used.
--U.S. V. Goldberg (1897)
All laws which are repugnant to the constitution are null and void.
--Marbury v Madison, 5 US (2Cranch) 137, 174, 176 (1803)
An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.
--Norton v Shelby County, 118 US 425, 442
The government may attempt to enforce such an alleged law, requiring someone to stand up and endure the inconvenience of a challenge in order to get a responsible court to invalidate it, but the process of enforcement does not make the enactment valid. Only conformity to the constitution can do that.

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
--16 Am Jur 2d, Sec. 177; late 2d, Sec 256
Unless no one challenges the law. Then it operates as though it is law simply and only because no one steps forward and says, "No!"

Laws that slip through in this manner are known as defacto laws because they get their only power from the fact of people yielding to them. Laws that are actually made pursuant to the constitution are dejure, meaning that they can be affirmed by a court of competent jurisdiction.

Government built on defacto law is known as defacto government: it's only there because people go along with it, and it would disappear if people insisted on a dejure foundation for all things governmental. Of course it will never happen until they insist.

The Belligerent Claimant in Person

That's a hefty title, and frightening in its implications, but it's the one you must wear if you are to be a truly free individual; so sayeth the US Courts. What does it mean?

"Belligerent" means, openly asserting and willing to fight to defend. Note that in any discussion of individual rights it does not mean at war, which is an alternative definition applied only to states, nations and countries.

"Claimant" means, one who declares title to a possession as that possession's rightful owner. Rights are seen in law as property, and in the same way that homesteaders filed claims upon their lands, and miners still file claims for mineral rights, individuals file and assert claims of their rights.

The property-claim concept extends well as it relates to your rights. In the same way that a real-property owner or miner relies on an original filing of a deed or claim, you may rely on the Bill of Rights in the US constitution and whatever declaration of rights may be in your state constitution. And in the same way that a real-property owner must defend his property by preventing squatters from moving in and gaining an occupancy title by illegitimate means, or that the miner must post signs on the boundaries of his claim and then maintain those signs and run off claim-jumpers, you must perform certain acts that defend your rights. When you do perform those acts, you are their claimant. When you are proactively asserting your rights and willing to do (or doing) legal battle in their defense, you are the belligerent claimant.

"In Person" means, as and for yourself. It means you standing there making the claim using your own mouth. Not through a lawyer, not hoping that whenever you're in court the judge will do it for you even though he says he will and the law says he must, not even through the grace of whatever supreme power you may believe in.

Here is what an Appeals Court has said:

The privilege against self-incrimination is neither accorded to the passive resistant, nor the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting clause. Its benefits can be retained only by sustained combat. It can not be retained by attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in person. The one who is persuaded by honeyed words or moral suasion to testify or produce documents rather than make a last ditch stand, simply loses the protection. Once he testifies to part, he has waived his right and must on cross examination or otherwise, testify as to the whole transaction. He must refuse to answer or produce, and test the matter in contempt proceedings, or by habeas corpus.
--US v Johnson, 76 F. Supp 538, 540 (1947).
It is indeed unfortunate that the court used the term 'privilege' instead of the word 'right', because in speaking using alternative terms, they have opened the door to confusion, or at least to the demand for clarification. A privilege is usually seen as something that flows from special circumstances such as power, money, or a grant from the state. This is reflected in the first definition given in Black's law dictionary: "A particular and peculiar benefit or advantage enjoyed by a person, company or class, beyond the common advantages of other citizens." This is also the primary definition given in my plain-language English dictionary (Webster's New World College Edition).

However, since the object of the discussion in Johnson is a right listed in the Fifth Amendment, we must read all the way to the third definition of privilege given in Black's: "A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law." I note that this definition echoes the second definition from my Webster's, which, quite interestingly, is also labeled as a "rare" usage.

So we see that when the Supreme Court uses the word "privilege" in reference to a Bill of Rights protection, it is using the word as a synonym for the word "right". And from this knowledge we see something that may have been obscured by the use of the alternative term, which may have made it seem to some that there was a distinction between the "privilege" against self-incrimination and other constitutionally-protected "rights". But there is not. Further, all rights suffer from the same liability. All rights are "valid only when insisted upon by a belligerent claimant in person." We must not allow any confusion here to lead us to think that self-incrimination is a mere privilege in the common sense of the word, nor may we allow ourselves to be less strenuous in asserting and claiming any of our other rights just because they weren't explicitly listed in Johnson. Or just because they may seem to have been set apart from the belligerency requirement by a subtle trick of language.

In plain language, the belligerent claimant in person looks like anyone else, with one big exception: he does not "go along to get along". He steadfastly refuses to meet unconstitutional mandates and the misguided social expectations that flow from those void mandates. He consistently encourages others to stand up for themselves and to band together for their common preservation, and he lives a life of integrity that is consistent with the personal liberty and mutual respect principles I set forth at the beginning of this article: he is a fine example to all those who meet or see him of what it means to be truly American.

In practice, the belligerent claimant in person would never say that his rights were being trampled. Instead, he would accuse tyranny wherever he found it, and he would take legal action to halt it whenever he had standing to do so. And he would encourage and lend whatever support he could to anyone else who would do the same. He would form alliances and create legal aid societies and funds, and he would network to build a social and voters' block to be reckoned with, and he would be suing anyone who attempted to coerce him to surrender any of his rights in any way. This would include states and corporations that tried to make him conform to inapplicable legal venues such as privilege taxes and licensing, in order to make him an employee or in the alternative deny him the equal opportunity to make a living.

Who will challenge the government's trespasses against our rights, and thus defend them? Only the belligerent claimant in person! Why? Because in the normal course of things, the only way the average person can challenge a law is to disregard it and get cited or arrested by the police for allegedly "breaking the law". Even if the law is a repugnancy that doesn't actually exist! And only the belligerent claimant in person is gutsy enough to invite that kind of trouble into his life. Of course, there are things we can do to make it easier for more people to become belligerent claimants in person. More on that later.

The Method of Liberty

The method I propose we all use as the foundation of our recovering our rightful relationship with our government, that is, we being the sovereigns and it being our servant, is for us to become the belligerent claimant in person, every one. Yes, it's a little extra work. Yes, it's a bit risky. But then freedom is not free. And lazy people always become slaves.

Yet, Surprise! It is a lot easier than any of us has thought. Why? Because we don't need to learn all those complicated legal defenses that everyone seems so sure will work, and how to present each one in a winning strategy. In fact, we must not learn and present "defenses" at all!!

The belligerent claimant in person is not on the defensive. He is proactive, aggressive, yes belligerent in claiming his rights. The belligerent claimant in person forces the accuser to meet the legally required burdens of due process and proof.

Thus the belligerent claimant in person needs to learn and become able to present only one response strategy.

Here's the secret: it is a HUGE mistake to present what is called an "affirmative defense" when the government is unconstitutionally acting under color of law to violate your rights.

The belligerent claimant in person never says, "I objected to the search because I have the right to a lawful warrant," unless there is an actual law authorizing that search under a lawful warrant. When what really happened is that they came to his door without a warrant and claimed they didn't need one under such-and-such allegation of law, and proceeded to violate his privacy under color of law, that's clearly unconstitutional regardless of any allegation of law or legal right. In that case he merely asserts his rights and demands that they prove the elements of their claim, beginning with the constitutional basis for their presumption of legal authority.

The belligerent claimant in person never says, "I didn't file or pay any income tax because...(whatever reason)...." Instead, he just demands that they prove the elements of their claim, including showing exactly what type of financial receipts he had and exactly what in which specific law clearly shows that those particular receipts, or any of them, are taxable income.

This is important: pleading an affirmative defense against rights violations is juristic suicide!

When you plead an affirmative defense, you do two things to your case. An affirmative defense operates as a demurrer, which essentially says that the basis of the government's action is valid but that it doesn't apply in your instant case because of this or that exception. What this means is that you've waived your rights as they pertain to constitutionality and with that waiver you've given up the right to argue the constitution! And, you've totally shifted the burden of proof onto yourself. If you cannot prove your counterclaim, you automatically lose.

This is where the so-called patriot movement has erred all along. This is how we've gotten into the apparency of being told that we can't bring up the constitution, which has led many of us to believe that the courts are more corrupt than they actually are. And this is how the government has generated an overwhelming mass of bad case law that is now used to improperly invalidate affirmative defenses that, while they still should not be raised as defenses, might otherwise serve us well as the foundations of a challenge against the illegal applications of law and the outright unconstitutional acts of governments that we are seeing so much of.

We all need to clearly understand a simple maxim of forensics: you cannot prove a negative!

The belligerent claimant in person does not try to prove that his income is not taxable. He requires the government or its contracted non-constitutional lackey, the IRS, to prove that his income is in fact taxable. To do that, they must show the determination specifically in laws and regulations. If they can't they lose. (Unless the court actually is corrupt, or stupid, in which case, that's what the appeals process is for.)

The belligerent claimant in person doesn't have to prove that he was allowed to be doing whatever he was doing or that the government shouldn't have come into his house and taken him and his computer away in the dark of night because they didn't want him doing it. He makes them prove that it was constitutional and legal for them to do what they did, to have done it the way they did, and in fact that any law that says he can't do it is itself constitutional. If they cannot, they lose. (Unless he has that tainted court again....)

If you enter an affirmative defense, they only have to poke holes in that defense, and you lose. They don't have to prove their claim or justify their actions because you waived your right to contest those facts when you bought into the game and took the burden of proof onto your defense.

Note that nowhere in any of the past several paragraphs did I say anything about anybody winning. In court, no one wins; instead, somebody loses. Your job as the belligerent claimant in person is to make them lose on the lack of merits underlying the elements of their claim.

It has rightfully been said that the price of liberty is eternal vigilance. Yet even more than that is required. Vigilance without action is nothing more than monkeys screaming in trees as the tiger stalks from below and picks off their weakest friend each time it passes by. The essence of being the belligerent claimant in person is action: doing the correct things correctly, and simply not doing anything else. The power in being the belligerent claimant in person is in knowing how to commit the defensive portion of the action.

What I am calling for is not exactly the same as civil disobedience. The word "civil" carries an element of pacifism, and we are not truly belligerent if we will not fight. It also taints the action by calling it disobedience; doing the right thing is not disobedience, except in the esoteric sense of Jefferson's declaration that, "Disobedience to tyranny is obedience to God!" Fortunately, we can say the thing more correctly by using the language given in the cases cited above. Also, we can do it without falling back on religion to justify our actions, which will keep us in line with the fact that government is a purely secular entity, whether some of us would have it different or not. (Personally, I think this is a good thing, because it removes the barrier of cooperation among people of different religions: when it comes to tyranny, everyone is at risk, and therefore everyone is a potential ally against tyranny.)

Further, we are not talking about the popular fiction known as civil rights; these are gifts from government, not preexisting conditions that lie beyond the reach of government. Civil rights do not exist except as that a government says they do, and then only on the terms given; worse, they can be taken away as easily as given, and thus they are not property.

Instead, you should assertively claim your rights as inalienable, in the same exalted sense that they are guaranteed by the Bill of Rights and the various states' declarations of rights. These are rights that the people who formed our constitutional governments knew we had before and senior to that formation, and which they wisely saw to define as being above the law.

"Above the law!" Am I nuts? You might ask: isn't nothing above the law? No, I reply, That's not right! Only men and their creations are not above the law. Rights are something else.

Rights that existed antecedent to the law (before the law existed) cannot be removed by the law when they are guaranteed by the source of the law itself. To be sure, the Johnson case explicitly states this, where the legal definition of privilege with respect to rights includes the language, "held...against or beyond the course of the law". Therefore, Yes, rights are senior to law! And below rights, and itself still above the law because it controls the law, is the constitution, within which exists the Bill of Rights in protection of those rights, to bind the government's greedy tentacles from reaching out to infringe upon your rights. Therefore, no law can restrain you from the responsible exercise of your rights unless that law complies with the constitution's own due-process provision for the forfeiture of rights upon conviction for serious crimes.

So: the method is to be the belligerent claimant in person. In practice, it is refusing to comply with unconstitutional mandates, whether they are disguised as laws or merely the improper demands of officers and agents of the courts and government. In action, it is ignoring unconstitutional enactments altogether, and when accused by government, doing nothing more than steadfastly and aggressively demanding that government justify itself before the constitution and valid law.

This is beyond civil disobedience. This is proactive liberty!

In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.
--Thomas Jefferson

The operative word is bind! The method is to be belligerent claimants in person and bind the fools and fascists down by the chains of the constitution.

The Plan

The plan is to take the necessary organizational and action steps to encourage, facilitate and defend proactive liberty, and see to the enforcement of lawful government.

The greatest courage comes from being solidly educated in how to deal with something. There's a huge gulf between uncertainty and certainty as to what to do next. Note that the question is not about certainty that one is right. The past few decades have been littered with the broken lives, marriages and bank accounts of those who were certain of their rights but uncertain as to their defense. We can change this with proper education.

Facilitation can be done in several ways, not the least of which is the education just mentioned. Yet more than that is needed. Connections must be established and preserved among our claimants; financial assistance in the form of family preservation and legal defense funds must be created, maintained and made available; legal proceedings must be monitored so we can make certain that no one stands alone. In fact, we must find and combine like cases so as to generate class-action lawsuits and united-front obstacles to tyranny. And we must initiate legal action wherever possible to stop tyranny at its source.

In short, we must make it safe for the first few to be free, that they may go forth and win back the freedom of the many.

Another thing: we must proactively employ political involvement and the electoral process to remove and replace every elected official in the land who will not or cannot pass a basic test on the constitution and sign a binding contract with the voters to actually follow through on speaking and voting consistently with it. And we must support and elect those who will.

How will we do this? The same way our opponents have accomplished their goals so far: organization and funding. As I believe that in our case funding will be a function of organization, I'll propose organization first. Yet I include fundraising as an integrated aspect of organization, right from the beginning.

Obviously, time is short, and tyranny is looming large upon us. How can we organize and fund quickly enough?

That is the subject of a complete proposal I've prepared and posted to the website we've set up for this project. Hint: we will use the internet in a new and surprising way to enable us to have a serious impact in the very next federal election. Note that I'm not talking about a monolithic or bureaucratic organization that will absorb and override everyone in the constitutionality movement. The many and varied constitutional defense groups across the land should and probably will choose to remain independent, each with its own identity and focus. The difference is, they'll be networked and cooperating instead of isolated and competing. Remember, I said there is a new and surprising way!

One more thing.

Let's take another look at the US Supreme Court cite with which I opened this essay:

Because of what appears to be a lawful command on the surface, many Citizens, because of their respect for what appears to be law, are cunningly coerced into waiving their rights due to ignorance.
--US. v. Minker, 350 US 179 at 187
This is a comment about the consequences of accepting and accommodating illusion. If you look at it that way, and then expand the concept to all of life, you can see that there are additional dire consequences available to people who fail to get to the truth. It is one of those truths, and its consequence, that I propose to close with.

The enemies of the US constitution, both foreign and domestic, have successfully positioned themselves within our midst as being just as American, just as patriotic, just as devoted to the American solution and anyone else. But the truth is that they are not that at all. They are pretenders perverting the vision, gently massaging it through the years until it meets their standards. And their standards are not the standards of the founders of this country.

Where our founders saw strong, self-reliant but cooperative and responsible individuals going forth to carve a free society from a harsh but benignly neutral universe, our enemies see frail victims who owe each other everything in their futile common cause against a cold impersonal universe, huddled together against cosmic chaos. In that view they see us as agents of disorder and self-serving individualism, and they must destroy us and our way of life. They have largely succeeded, because they have two things we don't have. They have a plan, where we have something to lose. And they are building something, where we are fighting a dismembered defensive action.

No wonder we have lost most of the dream.

Yet, again, Minker shows us the way: ignore the illusion, formulate a plan, and set to building something!

For far too long American constitutionalists have been on the negative side of the equation--accused, cheated, attacked and living in grief for what once was. It is time to find the high road and assume a positive posture. We are the ones who know what America is, because we are the ones who understand our founding documents. Believe it or not, the vast majority among our enemy hasn't even read the constitution! They know all they need to know from the propaganda machine they've built into our public schools. With our own money, our enemies have indoctrinated our children against their heritage. And most of what we have done about this and a thousand other affronts to our birthright is to weep.

But the belligerent claimant in person does not weep for what was and now appears to be gone. No! He sees that the world of politics is of our own making, and that all it takes to stand tall, proud and strong, and preserve our constitution, the guarantees of our rights, and our country as it was intended to be, is to claim it. Against all challengers, within as well as without.

That is the necessary attitude adjustment the patriot community needs to get through. For not to do that would be to continue stooped-shouldered and beaten down the path to oblivion, for there is no strength in fighting a holding action; eventually you are worn away. True power is in taking a position, holding the position, and then proceeding in terms of it. Where we have failed to do any one of these, we have been defined by those whose interests oppose ours, and with our loss of self we have seen our world eroded.

If we are to rebuild, we must take the affirmative perspective of the builder: where there is emptiness, there will be structure. We must re-envision our country and our people moving freely upon the world's stage in all their intended glory, and we must follow those three maxims of positioning to that vision: take it, hold it, and proceed in terms of it.

For now, the first step is clear: determine to become the successful belligerent claimant in person. See yourself as living free and using law and votes to stomp out of existence anyone who would interfere with your responsible and benevolent exercise of liberty.

If you can do that, and once you have, read our proposal. Then we can talk.

Allen Hacker,
Lawful Government

   From the LawfulGov.Org website.
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