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63


THE LIBERTARIAN ENTERPRISE
Number 63, January 15, 2000
World Doesn't End!

Shysters!

by James J. Odle
jodle@primenet.com

Special to TLE

           [Authors Note: This one is intended for non-libertarians. I hope a few are actually reading The Libertarian Enterprise.]

           "The first thing we do, let's kill all the lawyers." -- Part Two, Act IV, Scene II of Henry the VI by William Shakespeare.

           "Lawyer: one who protects us against robbery by taking away the temptation." -- HL Mencken.

           "I am not a lawyer, and shall always strive to live a good and honest life, so as not to become one." -- former Congressman Sam Steiger's Promise.

           "The trouble with law and government is lawyers." -- Clarence Darrow

           "There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice." -- Baron de Montesquieu

           December 7, 1999 a day that should live in legal infamy. A day in which all morally minded, oath keeping, Constitution respecting attorneys should rise up in total outrage at the actions of their brethren. For it is on this day that the corrupt Clinton (mal)-Administration announced its intention to join with other corrupt criminal enterprises masquerading as municipalities, in an blatant extortion attempt of suing gun manufacturers to recover costs associated with gun violence.
           These groups are bitching that they have been forced to expend scarce tax victim dollars on dealing with the consequences of those who misuse firearms and they blame the gun manufacturers for marketing guns to those who are not legally allowed to possess them -- such as juveniles and criminals.
           This is the publicly stated purpose of these lawsuits. The hidden agenda is to force gun manufacturers out of business or, at least, drive up the price of their products beyond the reach of the average American. If they can reap a windfall in stolen loot in the process, so much the better [in their eyes]. Much as tobacco companies, gun manufacturers are perceived as having deep pockets and all tax authorities see themselves as resource poor. In the entire history of mankind, no government or subdivision thereof has ever believed that it has taken in enough revenue.
           Nevertheless, suing gun manufactures for irresponsible marketing is an exercise in total legal lunacy and corruption. After all:

- Gun manufacturers and distributors, unlike the tobacco companies, have never pretended that their products are safe. In fact, the manual that accompanied my Beretta .45 ACP specifically says -- among other warnings: Firearms Safety Course: To familiarize yourself with the proper use of firearms, attend a Firearms Safety Course in your area. Remember: only YOU are responsible for the firearm in your hands. Prevent accidents by knowing its functioning. HANDLE IT WITH RESPECT NOT FEAR…Safety devices on firearms are EXTRAS and are not substitutes for safe handling;
- Gun manufacturing and distributing is a perfectly lawful, respectable and constitutional business;
- Gun manufacturing and distribution are among the most highly regulated businesses in the US today. Everyone involved in the process must comply with literally thousands of unconstitutional rules;
- It is obviously beyond the thinking abilities or inclination of government bureaucrats to look to other potential causative environmental factors in understanding and dealing with urban violence. Some of these are:
1) The War on Drugs. Drug prohibition creates powerful incentives for those who are either illiterate, unskilled, unemployable, unscrupulous, greedy and/or lacking in anything resembling moral principles to sell drugs rather than pursuing more socially beneficial enterprises because of the large amounts of money involved;
2) minimum wage laws and other government impositions which raise the costs of doing business beyond the market value of the unskilled;
3) public schools which undermine basic morality, dumb down their students and don't provide the skills necessary to compete in today's high tech world; and
4) a high level of taxation, that exceeds 50% of one's yearly earnings and compels women to enter the marketplace rather than tend to the kids at home. The result, parents with little time to supervise children during their formative years. Think about this, taxation at all levels of government was about 2% of GNP at the turn of the century. Families were far more stable and home buyers probably didn't take out 30 year mortgages to buy their homes either.

           These then are a few of the environmental factors that distort the normal workings of a free society and create powerful inducements towards violence -- particularly inner city gang violence. None of them are legitimate reasons for taking up arms and initiating aggression toward one's fellow man. Nevertheless, for most of this century, the socialists/statists in both of the major political parties have done their best to separate adults from the responsibilities of adulthood. One of the unintentional consequences is inner city/school violence.
           Other than to use it as an example of out-of-control lawyers, it is not my intention to focus on the legal/social issues revolving around the prevalence of lawsuits against gun manufacturers. I'm sure that other writers for TLE will cover that issue in more depth. No, this article is about lawyers and some of the damage they are doing to this, what was once a free country.
           Let's us go now to a subject near and dear to the hearts and minds of many writers and readers of TLE.

Guns!

           I will not repeat material I covered in an earlier article ["Those Horrid, Horrid Guns!" The Libertarian Enterprise, September 30, 1999], but I will add a few additional observations. Take another look at the Second Amendment:

"A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed."

           Notice that there aren't any words with more than four syllables. Now consider this. In order for a candidate to be accepted into the average law school, that candidate usually has to write an essay in which he demonstrates his command over the English language. It is reasonable to presume that law school graduates possess a great deal of facility in the use {or is it abuse?} of linguistics. It is therefore puzzling why these language experts can not successfully read, interpret and apply such simple, declarative words as are contained in the Second Amendment. Hell, a high school graduate should be able to read and apply it.
           Rather, it is not that they can't do it. They refuse to do it. What happens to the so-called Rule of Law when the legal profession picks and chooses which laws it will abide by?
           To any lawyers out there, I have to ask, is the practice of law so damn dull that lawyers have to create elaborate, nonsensical legal theories, as opposed to applying the normal meaning of commonly used words, in order to take an interest in their profession? Reading "Second Reading", by Daniel D. Polsby {Reason Magazine, March 1996, downloadable from www.reason.org, then a few clicks from there} is to experience legal lunacy in the fullest. The article reminded me of Jesuit priests, pondering angels dancing on the head of a pin. It also occurs to me that if the legal profession can't be safely entrusted with the proper interpretation of words of four syllables or less, then what in hell can it be trusted with?
           But, fellow freedom lovers, our problems with the legal profession don't end here. Let us take a look at one of the most common myths among Americans today, namely, the ridiculous idea that the federal government possesses the constitutional authority to 'promote the general welfare.'

A Proper Interpretation of the Preamble

           If you ask politicians to explain where they get the constitutional authority to pass laws regarding Social Security, Medicare/Medicaid and other debris of the welfare/warfare state they will usually point to the Preamble to the Constitution of the United States, and specifically to the 'promote the general welfare' clause. Are they correct? Take a look:

"We the People of the United states, in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

           Ladies and Gentlemen, in business parlance this would be a mission statement -- that is, a list of objectives to be obtained. There is nothing in the Preamble that either grants or forbids power to the federal government to do anything whatsoever. It is in the articles and sections of the Constitution where actual grants of power take place. It is the articles and sections that specify the means by which the goals listed in the Preamble are to be achieved.
           The curious reader will now be asking, "OK ? smart guy. How can I, when reading the Constitution, know when power is actually granted?" Here are a few examples:

"Congress shall have the power...to lay and collect taxes...to coin money...to borrow money on the credit of the United States." -- from Article 1, Section 8

"...All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills." -- from Article 1, Section 7 (a).

           Did you notice the use of the words 'shall' and 'may' in the above examples? You see, in law, the words 'shall', 'may' and also 'will' are normally treated as synonyms and are to be taken as either grants of power to do something or actual commands to either do/not do something depending on context.
           So unless someone can show me where in the Constitution it says that any US Government entity 'shall' or 'may' or 'will' have the power to 'promote the general welfare' then, clearly, there is no such power. If the Founders intended for the US Government to have such a wide-sweeping power as to 'promote the general welfare' then why would some of them argue against the Bill of Rights, insisting that the government only has the powers that have been expressly delegated to it?
           Also, there would be no point in enumerating any powers or passing the Ninth and Tenth Amendments since literally anything can be justified as 'promoting the general welfare.' Do you want to execute drug dealers without granting them the benefit of a fair trial before a jury of their peers? No Problem. Do you want to strip Americans of their historic, natural and Constitutional right to keep and bear arms? Hey, we're just 'promoting the general welfare' around here and you guys really don't need fair, jury trials or firearms, do you? Were the Feds 'promoting the general welfare' when they authorized subsidies to McDonalds to advertise in foreign markets, or when they sent scarce tax victim dollars to thugs [government officials] in Russia without receiving anything tangible in return or when Clinton authorized the transfer of high technology to China?
           Enough of this idiocy, because my friends, our problems with lawyers don't end here. We turn now to...

Trial by Jury?

           In America today, real trial by jury, that is, the kind of trial by jury that was intended by our Founding Fathers, has virtually ceased to exist. What kind of jury trial is that? Well, a hint can be found in the Noah Webster's first dictionary -- a dictionary that was written to preserve and protect the integrity of the language of the Constitution, or so I'm given to understand. For it is in that dictionary, that you will discover that the word 'jury' is defined as one's local peers who have the power to judge both the law and the actions of the defendant and who are truly independent of judicial jury tampering.
           But we don't have that kind of jury trial today. Now it is commonplace, to require an oath of a jury members to 'faithfully apply and uphold the law as the judge explains it to you.' It is usually difficult for the jury member to get a copy of the law in question so that he can read it for himself. He will usually be forbidden to know what the potential penalty is for the crime in question.
           Further, potential jury members effectively have fewer rights than the defendant. Did you notice the way the OJ jury was treated? Those poor people were locked up for a year {the legal term for this madness is 'sequestered'} and denied unapproved access to TV or reading material less they become 'tainted' [horrors!]. Is it any wonder that they bolted after what was it, three hours of 'deliberation' after a year of suffering with legal windbags? Hell, I'd run for it too. The OJ jury should thank God they weren't sitting in on the IBM antitrust case. That one lasted for, what was it, twelve years, only to be dismissed.
           Speaking of the practice of 'sequestering' jury members less they become 'tainted', I refer to this as the 'human beings as test tubes' theory of jury management. "Don't let any foreign matter get in there!" It's based on the ridiculous idea that human beings can be brought into the jury box free of any opinions derived from the outside world. A person with no opinions is a person without a brain. In short, the perfect juryman, in the eyes of the legal profession. In this country, people are not supposed to be jailed unless they have committed crimes and are being escorted through the legal jungle. A hotel [which is where the OJ jury was kept for most of their servitude] is just as much a jail even though food, approved visitors and entertainment are allowed.
           It gets worse. We haven't even spoken of the abuse potential jury members suffer during the prescreening process where they are routinely asked highly personal questions such as their civic affiliations, their routine reading matter, their bank account balances, the source of their income, the bumper stickers on the backs of their cars, where they work, where they play, and what they think, know and feel on a thousand different topics. Jury members in other countries don't put up with this crap. Why do the lawyers do this? The defense wants to purge the jury of anyone who is hostile to the defendant before any testimony is given. The prosecution wants to purge the jury of any anti-government types who might be predisposed toward the defendant or who might display a tendency to think for themselves. Neither party to the controversy wants independent thinkers. They want jury members to sit there passively and absorb everything like a sponge while they prance up and down playing their lawyer games -- having their sidebar conferences, going into chambers for lengthier discussions. What happens to the Constitutional requirement that trials must be public when part of the trial is conducted at the side bar or behind the closed doors of the judges chambers, away from the eyes and ears of the jury or the press?
           In a story in the January 2000 issue of the LP News, Peter McWilliams has decided to plead guilty to the charge of 'conspiracy to manufacture and distribute marijuana.' He had been denied the right to use medical necessity as a defense to the charge. He suffers from AIDS and cancer. Can you think of anything more outrageous than the practice of deciding for a defendant what constitutes a 'legitimate' defense to a given charge? Why did Mr. McWilliams plead guilty? Quoting from the article:

"We had no place to go...We couldn't present our medical marijuana defense, so we would be automatically found guilty, taken into custody on the spot, and begin serving a mandatory 10-year sentence.
"By pleading guilty, we take the crime out of the mandatory minimum category and permit the judge to use compassion in his sentencing."

           {Note: Mr. McWilliams lives in California and there is a California law enabling the use of marijuana for medical reasons -- which is why Mr. McWilliams wanted it.}

           Now its true that many times judges are following the law as passed by our elected official when they limit a defendant's defense, but this practice is incompatible with the fundamental structure of a free society. It removes power from the citizenry and places it in the hands of government officials. Abuse of power becomes more likely as government misdeeds can be shielded behind judicial protection. For example, the Waco defendants had been refused the opportunity to present evidence of government misconduct during the standoff. Nevertheless, the jury still managed to keep most of their wits about them. They found the defendants not guilty of the majority of the charges leveled against them and guilty of a few minor weapons infractions. The judge, under pressure from the prosecution and who knows who else, then threw out the not guilty verdicts, found the defendants guilty and sentenced them to, I believe, 40 years in prison.

Question: Where, in hell, does any judge get the legal authority to throw out a not guilty verdict?

Question: What the hell is the point in having a jury trial if the government can throw out verdicts that it doesn't like?

Question: How can a jury serve its proper function of defending the defendant from the government when the government is out of line, if the judge can invade the province of the jury like this?

Question: How the hell can you call it 'trial by jury' when the government is in there dictating what constitutes a 'valid' defense, and what arguments and evidence a defendant may advance?

Question: Who the hell's defense is this anyway. Is it the defendant's defense or a government imposed defense?

Question: Are "We the People", as represented by the jury panel, supposed to come up to the government's standards or is the government supposed to come up to our standards? Who's the employer here and who's the employee anyway?

           Personally, I don't care if a defendant argues that the moon is made of green cheese. As long as he can present some factual basis for how he determined that the moon was made of green cheese, it is for the jury to decide if a green cheese moon is relevant to the issues at hand. Anything else leads to pernicious judicial jury tampering. These then are a few of the problems that freedom lovers are having with the legal profession. Another area in dire need of attention is the use of asset forfeiture laws to seize property from people who are never charged with crimes. I could also mention judges passing laws from the bench -- such as the Eastern judge who mandated a tax. I might also mention the insane doctrine of sovereign immunity.
           I don't want this article to become to lengthy. Let's close with...

A Few Words from Sam Steiger

"No longer should we abide a legal system in which normal social activities are spoiled, and foolish deeds are rewarded. It is ridiculous that public events which once benefited charities are now canceled because of the high cost of disability insurance. Family doctors are withholding maternity care, leaving that practice to specialists burdened by excessive insurance costs. Obstetricians simply will not practice in small towns where they would be most vulnerable to the vagaries of pregnancy, childbirth and infant mortality. The end is in sight for contact sports in small, poor schools with no budgets for insurance. Our culture is crumbling.
"Our coddling of culprits is a national disgrace. Our disdain for the rights of victims is reprehensible. A bank robber flees with a money bag, which explodes and injures him. He sues the bank and wins a large settlement. A dipsomaniacal woman drinks a fifth of bourbon every day for twelve years and develops cirrhosis of the liver. She sues the whisky company. She wins. A drunk pilot crashes an airplane. He sues the aircraft manufacturer. He loses, but because it cost $2 million to defend the lawsuit, the manufacturer ceases to build general aviation planes. More culture crumbles.
"There is a great deal already wrong with our civilization — undersupported schools, drug use, erosion of individual responsibility, miscrepancy in high office, corruption in low office, afternoon television, well done steaks, professional wrestling, unabashed pimping and political reporting. But the most glaring evil abroad in the land today is the practice of law by armies of avaricious attorneys.
"They must be stopped. Scorn will help."
-- from Kill The Lawyers, by mule killer, curmudgeon, libertarian-leaning, former Congressman, now Mayor of Prescott, Arizona, Sam Steiger.


Suggested Reading

An Essay on Trial by Jury, by Lysander Spooner

We the Jury: The Impact of Jurors on Our Basic Freedoms, by Godfrey D. Lehman


James J. Odle is a splendid fellow who, unlike the vast majority of so-called 'public servants' has a real job in the private sector performing real work which a real employer voluntarily pays him to perform. He is a Life Member of Gun Owners of America, a $25 a year member of the National Rifle Association.


APPARENTLY HIS MIND IS STILL BEING HELD PRISONER BY HO CHI MINH

"The Confederate flag is offensive in many, many ways, as we all know. It's a symbol of racism and slavery, but I also understand how others do not view it in that fashion." -- Senator (and pretender to the throne) John McCain

Source: http://www.telegraph.co.uk/et?ac=000824395742768&rtmo=aTu595KJ&atmo=
rrrrrrws&pg=/et/00/1/12/wusa12.html


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