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Dead Constitution
See other Dead Constitution Articles

Title: Scalia: Don't re-interpret the Constitution
Source: AAS
URL Source: http://www.statesman.com/metrostate
Published: May 6, 2005
Author: Steven Kreytak
Post Date: 2005-05-07 01:05:17 by christine
Keywords: re-interpret, Constitution, Scalia:
Views: 398
Comments: 74

COLLEGE STATION -- The citizenry, and not judges, should make decisions about issues such as abortion and gay rights that are not explicitly mentioned in the Constitution, U.S. Supreme Court Justice Antonin Scalia told an audience at Texas A&M University on Thursday.

"Do you want a right to abortion? Create it in the way most rights are created in a democratic society: Persuade your fellow citizens and enact a law," he said.

Scalia's conservative views -- which are evident in his words during oral arguments, his written opinions and his frequent public appearances -- make him one of President Bush's favorite justices and a frontrunner to eventually replace ailing Chief Justice William Rehnquist as the head of the nation's highest court.

Former President Bush introduced Scalia in an auditorium adjacent to his presidential library, and Scalia won over most of the approximately 900 students, faculty, university supporters and members of the public with a 30-minute speech about his jurisprudence, dubbed originalism.

Scalia said the Constitution is not a "living document" but one that should be strictly read for its original meaning.

"Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people," said the Reagan appointee. "This is a very minority view these days."

Scalia, 69, said his sole like-minded fellow justice is Clarence Thomas. Thomas is also considered a contender for chief justice if Rehnquist, who is suffering from thyroid cancer, dies or retires.

Giving a version of his standard public speech, Scalia mocked most of his fellow justices and the majority of constitutional law scholars who believe that constant reinterpretations of the Constitution by the Supreme Court reflect "the progress of a maturing society."

"Societies only mature; they never rot," Scalia quipped, to the delight of the laughing audience.

Although there wasn't a hint of dissent in the room -- or outside it -- at A&M, Scalia has drawn protests at previous public appearances.

At the University of Michigan Law School last year, a handful of students briefly interrupted a speech by parading through the auditorium carrying signs denouncing his views on affirmative action and other subjects, the Detroit News reported.

In 2003, Scalia wrote a dissenting opinion in the landmark Grutter v. Bollinger case, in which the high court upheld by a 5-4 vote the use of race as a factor in admissions at the Michigan law school.

The court's majority opinion said a diverse student body provides an "educational benefit" and "cross-racial understanding." Those things could just as easily be learned in kindergarten, Scalia wrote, "for it is a lesson of life rather than law."

Scalia also dissented from the Supreme Court ruling in 2003 that struck down a Texas law banning homosexual sodomy.

Justice Anthony Kennedy, writing for the 6-3 majority, said Texas showed "no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Scalia later wrote that the majority opinion "is the produce of a Court . . . that has largely signed on to the so-called homosexual agenda."

During a question-and-answer period after Scalia's remarks at Texas A&M, one questioner identified himself as a member of the Young Conservatives of Texas, and the next as a member of the Texas A&M Young Republicans.

That led Scalia to ask: "Am I totally preaching to the choir?"

To that, many in the crowd laughed and applauded.

********

Hang on, Justice Scalia, we don't CREATE a right to anything!! We have by virtue of being born God given unalienable rights in a constitutional REPUBLIC!!! If someone can vote to create a right, then someone else can vote to take it away which means we have no rights. That's the problem with a democratic form of government which you seem to be pushing here. Then you talk out of the other side of your mouth and say that the constitution is not a living document. You just made it so with your prior statement!!

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#1. To: christine (#0)

"Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people,"

It is late, indeed...but if this is the "Scalia" true belief...I will have a hard time justifing opposition him, even if "Jorge, the war criminal" nominates him to the position.

Brian S  posted on  2005-05-07   1:19:08 ET  Reply   Trace   Private Reply  


#2. To: Brian S (#1)

It is late, indeed...but if this is the "Scalia" true belief...I will have a hard time justifing opposition him, even if "Jorge, the war

But it's not. This is for public consumption. He seems to me to be an untimate statist. The gov can never do wrong. Hell, it's been his lackey for 40 years, so now he's it's lackey.

tom007  posted on  2005-05-07   1:26:01 ET  Reply   Trace   Private Reply  


#3. To: christine (#0)

"Do you want a right to abortion? Create it in the way most rights are created in a democratic society: Persuade your fellow citizens and enact a law," he said.

Hang on, Justice Scalia, we don't CREATE a right to anything!!

Scalia is full of it here, and even more than your excellent comment indicates, christine.

In particular, the current tort system "crisis" we now have comes directly from "conservative" scholars like Richard A. Posner (appointed to the federal bench by Ronald Reagan) who advocated expanding the tort system to be a free- market tool for policing business.

They created the monster they now decry.

MUDDOG  posted on  2005-05-07   1:36:41 ET  Reply   Trace   Private Reply  


#4. To: christine (#0)

Hang on, Justice Scalia, we don't CREATE a right to anything!! We have by virtue of being born God given unalienable rights in a constitutional REPUBLIC!!!

I agree with you Christine in principle but might add that all people have the same exact "rights" regardless of whether they were born in a fascist/socialist dictatorship or a democratic representative republic under a constitution. God gives the same rights to humanity at large.

We have the "rights" we are able to enforce.

noone222  posted on  2005-05-07   5:06:25 ET  Reply   Trace   Private Reply  


#5. To: christine (#0)

Hang on, Justice Scalia, we don't CREATE a right to anything!! We have by virtue of being born God given unalienable rights in a constitutional REPUBLIC!!! If someone can vote to create a right, then someone else can vote to take it away which means we have no rights. That's the problem with a democratic form of government which you seem to be pushing here. Then you talk out of the other side of your mouth and say that the constitution is not a living document. You just made it so with your prior statement!!

I don't think Scalia would argue with you that rights are given by God, and please remember that those individual rights are acknowledged by the Bill of Rights. Scalia would say, I think, that the "creation" of new "rights" on the basis of "penumbras and emanations" (Justice Douglas) for the purpose of promoting some unstated current social agenda or hot button or mood, such as homosexual "rights", lies beyond the purview of the Supreme Court and the Court should step away.

For decades, the Liberals have used the courts to promote agendas that the various legislatures would not pass. The problem or at least one very significant problem is that if there is no effective Constitutional standard due to ongoing exceptions, "discovery" of new rights and modifications by the Court, then there is effectively no consistent law at all, which in my humble view is the case today. The effect is to destroy the Constitution itself.

There is a mechanism for changing the Constitution. It is by amendment. Majority vote by the Supreme Court as to matters not addressed by the Constitution lies outside the legitimate purview of the Court.

Scalia understands that we are on the verge of lawlessness. So do the other members of the Court but they, in their infinite arrogance, think their ideas are superior to Constitutional text. It's a case of unbounded hubris shredding legitimacy.

Phaedrus  posted on  2005-05-07   8:43:51 ET  Reply   Trace   Private Reply  


#6. To: Phaedrus (#5)

"penumbras and emanations"

The problem is that I don't know if you can take a black and white position here. For example, our right of privacy comes out of a penumbra argument. The objection being the famous quote of someone skipping though the constitution and picking up a word here and there to form a new right. But I don't think privacy was such an issue at the time the constitution was written. A person could always go 20 miles from town and start over. Hence, it wasn't carefully considered. It is an issue now and it may be that new right did need to be discovered in the document.

Granted, some of the commerce clause based rulings are genuine stretches. But from what I've heard, Scalia would take a meat ax to our body of law by simply overuling the use of the commerce clause for such rulings. This would throw out the child labor and privacy rulings along with the voting rights and non- discrimination rulings. The resulting world would be very different and probably not very pleasant.

crack monkey  posted on  2005-05-07   8:58:00 ET  Reply   Trace   Private Reply  


#7. To: crack monkey (#6)

Oh boy.

There is no "right to privacy" per se in the Constitution. It doesn't exist. It's been created out of whole cloth by the Court. Its most serious deficiency probably is that it can't be defined -- it means whatever the reader or interpreter want it to mean, not a good situation. The challenge to its promoters is to show that it's necessary, that fundamental, individual rights are not sufficiently protected by the existing Bill of Rights. If some particular agenda is to be promoted, leave it to the various legislatures.

All of the Commerce Clause interpretations are stretches. Its use is an illegitimate mechanicm for intrusion and centralization IMHO.

If citizens are acknowledged by the powers that be each to have the individual rights acknowledged by the Constitution, irrespective of race, then I would submit that there have been adequate safeguards all along to protect all individuals from racism. It is not consistent that a society that supposedly went to war to end slavery (there is legitimate contention here, I believe) is a society rife with racism that needs a Supreme Court to fix. I am sick to death of the attribution of evil motives to whites simply because they are white. The "elites" have no authority or business making this argument and I have been contemptuous of it for many, many years. Who are they to preach to us and attribute motives to us? Some of us, at least, are not children and most of us, I would submit, and oriented toward doing the right thing irrespective of race. That's what America's all about.

Phaedrus  posted on  2005-05-07   9:22:02 ET  Reply   Trace   Private Reply  


#8. To: crack monkey (#6)

Typed my reply in the wrong section. Sorry.

Phaedrus  posted on  2005-05-07   9:22:42 ET  Reply   Trace   Private Reply  


#9. To: All (#7)

...most of us, I would submit, and are oriented toward doing the right thing irrespective of race. That's what America's all about.

The flip side of this is of course that bad behavior is bad behavior and cannot and should not be excused by skin color. And good behavior and clarity of thought and character should be respected and honored. Thomas Sowell and Justice Thomas are prime examples of the latter. Their skin color is incidental, as it should be.

Phaedrus  posted on  2005-05-07   9:38:07 ET  Reply   Trace   Private Reply  


#10. To: Phaedrus (#7)

Some of us, at least, are not children and most of us, I would submit, and oriented toward doing the right thing irrespective of race. That's what America's all about.

I wasn't speaking of the rulings againt race, sex and age discrimination or for the protection of the safety of adult workers. I know that these are some of the rulings that particular groups consider fivolous and unnecessary. The world operated well without them. One need only read Charles Dickens to see this.

I'm speaking of the child protection laws and the right to privacy. These will go too, along with the frivolous rulings protecting middle class adults from corporate overbearing. The rules protecting kids from sexual preditors will be tossed along with the silly laws mandating a 40 hour work week or forbidding a toxic work environment. The laws that still keep the police from putting a camera in your bedroom will be tossed along with the goofy law that prevents General Motors from limiting woman's salaries to six dollars per hour.

crack monkey  posted on  2005-05-07   9:40:50 ET  Reply   Trace   Private Reply  


#11. To: crack monkey (#10)

I'm speaking of the child protection laws and the right to privacy. These will go too, along with the frivolous rulings protecting middle class adults from corporate overbearing. The rules protecting kids from sexual preditors will be tossed along with the silly laws mandating a 40 hour work week or forbidding a toxic work environment. The laws that still keep the police from putting a camera in your bedroom will be tossed along with the goofy law that prevents General Motors from limiting woman's salaries to six dollars per hour.

To repeat, there is no legitimate "right to privacy" and the phrase is nearly bereft of meaning. Its lack of specificity is an invitation to arbitrary interpretation by the powers that be, and that's dangerous.

Want child protection laws? Pass them. And I think a clear look at the Bill of Rights, and its application, would prevent police from putting cameras in your bedroom. To my knowledge, there is no discrimination in the Bill of Rights against women. But if the argument is that there are no fundamental differences between men and women (which the argument sometimes becomes), that is ridiculous. On its face.

I submit that there is a very basic difference in assumptions about human nature (there IS a human nature) at work among those who argue for a supreme arbiter of privacy rights and those who oppose it. My view is that human beings are fundamentally good, but flawed and sometimes do horrific things. The vast majority will, however, do the right thing (I see this each and every day) and treating all people as though they would do evil if given half a chance penalizes all. And it puts undue power in the hands of fallible human beings, those in authority.

Phaedrus  posted on  2005-05-07   9:55:47 ET  Reply   Trace   Private Reply  


#12. To: Phaedrus (#11)

My view is that human beings are fundamentally good, but flawed and sometimes do horrific things. The vast majority will, however, do the right thing

"Baloney".

You obviously agree with the flawed thinking of Reagan. It's not a Biblical/Christian world view. For all have sinned...there is non e righteous, no not one.

Man is born evil and will not get better on his own, only worse.

CWRWinger  posted on  2005-05-07   10:20:28 ET  Reply   Trace   Private Reply  


#13. To: CWRWinger (#12)

Man is born evil and will not get better on his own, only worse.

Baloney yourself. Folks like yourself who look only for evil will find it.

Phaedrus  posted on  2005-05-07   11:45:39 ET  Reply   Trace   Private Reply  


#14. To: Phaedrus (#11)

To repeat, there is no legitimate "right to privacy" and the phrase is nearly bereft of meaning. Its lack of specificity is an invitation to arbitrary interpretation by the powers that be, and that's dangerous.

I disagree in that a right to privacy is not needed. The founding fathers saw the need for people to be secure in their personal possessions and papers, but did not anticipate the snooping powers that would evenually develop - as they didn't anticipate the need for common maintenance of the airwaves or of the Federal Airspace.

As for passing the laws, that is precisely what was done in many cases. In ruling upon many of these matters, Gilmore and the other privacy and civil procedure cases, the supreme was often upholding existing law.

The argument that men and women are biologically equal is a desperate red herring that Rush, Hannity and Brit Hume toss out for the goobs when rational argument fails them. As you were well aware at the time you typed the above statement, the question is really whether all groups will receive equal protection under the laws or not - not whether blacks and whites have the same color skin or whether men and women are precisely the same biological makeu-up.

If minimum wages standards exist, then they must apply to all groups. If standards for industry don't exist, then the constitution must be violated to allow for tariffs between states - else Alabama or Mississippi would suck up the nations manufacturing while sinking further into third world status.

As a second point here, you are getting into the original and precise purpose of the commerce clause - to regulate interstate commerce for the common good. Standards CAN be imposed on industry under the constitution, the only question is which are unreasonable.

crack monkey  posted on  2005-05-07   11:47:10 ET  Reply   Trace   Private Reply  


#15. To: Phaedrus (#13)

One thing you also might want to think about:

When the constitution was drafted, and for about a hundred years thereafter, corporations were not considered to be people. This is because, to a large extent, the colonists were really revolting agianst the East Indian Tea Company and the oppressive government supported tactics they employed.

Corporations were never actually ruled to be people. JP Morgan and the railroads tried for this without success for 25 years. The "ruling" was finally surreptitiously inserted into the headnote of a very garbled railroad case by a clerk who favored the railroads and later went on to represent them. Thom Harteman details this in his book and essay "Unequal Protection". The short version can be found in google.

Once the constitution had been changed to allow these "super individuals" loose on the landscape, further changes were needed to balance the power of ordinary real people. If you want to strike the commerce clause based legislation that protects common people from corporate preditors, this can probably be done. But it is first necessary to strike the ruling that gives these corporate preditors the status of human beings before the law. They are supposed to be artificial entities suffered to exist by the people who control the state - not artificial human beings with supers powers and resources at odds with the citizens.

crack monkey  posted on  2005-05-07   12:12:39 ET  Reply   Trace   Private Reply  


#16. To: noone222 (#4)

but might add that all people have the same exact "rights" regardless of whether they were born in a fascist/socialist dictatorship or a democratic representative republic under a constitution. God gives the same rights to humanity at large.

Yes, you are correct. Your statement is more accurate than mine. ;)

We have the "rights" we are able to enforce.

hmmmmm...saturday morning dose of reality for me.

christine  posted on  2005-05-07   12:15:53 ET  Reply   Trace   Private Reply  


#17. To: noone222 (#4)

You are exactly correct, noone222. Governments do NOT give rights. God gives us our unalienable rights. In theory, a Constitutional Republic is formed to protect those God-given rights, though governments of any kind never do. Governments always take more and more of our rights and liberties.

Scalia must be a Luciferian piece-of-shit to even shape his lips to say what he said.

Freedom William  posted on  2005-05-07   12:21:01 ET  Reply   Trace   Private Reply  


#18. To: christine (#0)

[Nuked]

toddbrendanfahey  posted on  2005-05-07   12:22:50 ET  Reply   Trace   Private Reply  


#19. To: Phaedrus, MUDDOG, noone222, tom007, crack monkey, Freedom William (#5)

then there is effectively no consistent law at all, which in my humble view is the case today. The effect is to destroy the Constitution itself.

Scalia understands that we are on the verge of lawlessness

We are there, imo, not on the verge. The true law is the common law. The constitution/common law is based on subtance/money/coin (gold and silver). When congress took the money from the people in 1933, it took the law. That money was replaced with 'color of money' (FRNs) and that law was replaced with 'color of law'(PUBLIC POLICY).

christine  posted on  2005-05-07   12:29:22 ET  Reply   Trace   Private Reply  


#20. To: Freedom William (#17)

You are exactly correct, noone222. Governments do NOT give rights. God gives us our unalienable rights. In theory, a Constitutional Republic is formed to protect those God-given rights,

I don't think you're not alone in this opinion. The guys who wrote the Declaration of Independence said something similar - are you are no doubt aware.

crack monkey  posted on  2005-05-07   12:29:39 ET  Reply   Trace   Private Reply  


#21. To: toddbrendanfahey (#18)

IMHO: F*ck Scalia.

I agree. See my #19. Scalia knows what the deal is. He's a proponent of 'color of justice'.

christine  posted on  2005-05-07   12:32:21 ET  Reply   Trace   Private Reply  


#22. To: christine (#21)

[Nuked]

toddbrendanfahey  posted on  2005-05-07   12:38:26 ET  Reply   Trace   Private Reply  


#23. To: Phaedrus (#11)

The vast majority will, however, do the right thing (I see this each and every day) and treating all people as though they would do evil if given half a chance penalizes all.

I concur. The attitude of tyrannical governments of control of the "mindless and untrustworthy" people is, indeed, a dangerous one. They cannot allow that independence and must keep their subjects under their boots!

christine  posted on  2005-05-07   12:39:20 ET  Reply   Trace   Private Reply  


#24. To: christine (#19)

The true law is the common law.

I was thinking about this the other day. The common law is the case law that has developed over centuries. It is an attempt to write down what people in out culture believe is right and wrong - plus the allowed exceptions to the general rules. It develops very slowly as thousands of cases are examined and their individual quirks are accounted for in new rulings. It becomes very compex, but it is very complete.

Because of the slow and thorough process, the common law normally doesn't contradict itself. Something that is true under property law doesn't, for example contradict something under probate.

Statutes on the other hand come about very quickly and can be very full of holes if not debated thoroughly. The courts try to fill these in with the common law.

Rulings for regulatory agencies are even worse. These have the force of law, but the rulings haven't even been debated.

crack monkey  posted on  2005-05-07   12:39:40 ET  Reply   Trace   Private Reply  


#25. To: Phaedrus (#11)

I think you're on the right side of things, but that youthful idealism has yet to slough off.

Dude Lebowski  posted on  2005-05-07   12:44:49 ET  Reply   Trace   Private Reply  


#26. To: Phaedrus (#5)

Just a point of clarification, with all due respect. The Constitution does not create or list any rights. The Constitution is a grant of limited power from the states to the federal government.

The Constitution lists the POWERS and DISABILITIES of the federal government. The people of the states delegated limited powers to the states and the states delegated limited powers to the federal government. Not one single right is given in the Constitution, as our rights come from our Creator -- and for sure the government did not create us.

Scalia is a deceitful scumbag for pitching his propaganda s**t. He knows that in a democracy there are no rights, but only privileges given via 51% of the politicians' vote. If those self-serving, corrupted politicians can vote to create a "right" (privilege) for us, then they can vote to take it away.

That is not the purpose of a Republican form of government -- which is to secure and protect all of our Creator-given rights.

In addition, the people should never have to prove what is a right. We have a gazillion, uncountable rights. We should be able to exercise all of these rights without interference from anyone or anything else. The only limitation to the exercise of our rights is when we trespass against another's rights. In those cases, it should be incumbent upon a flesh-and-blood human (not the State or the People) to prove that he/she was damaged by our trespassing on his/her equal right to life, liberty, or property.

Freedom William  posted on  2005-05-07   12:48:56 ET  Reply   Trace   Private Reply  


#27. To: Freedom William (#26)

The Constitution lists the POWERS and DISABILITIES of the federal government. The people of the states delegated limited powers to the states and the states delegated limited powers to the federal government. Not one single right is given in the Constitution, as our rights come from our Creator -- and for sure the government did not create us.

This is the theory the way I understand it. But the founders did think there were some rights that were so important that they needed to be specifically enumerated to avoid any confusion on the issue. These were set forth in the Bill of Rights. The Bill of Rights arn't our only rights, just the ones that warranted special mention.

Sometimes I see confusion here and sometimes I get confused myself. Just because a right isn't mentioned in the Bill of Rights doesn't mean that a person doesn't have a legitimate claim to that right.

crack monkey  posted on  2005-05-07   12:55:02 ET  Reply   Trace   Private Reply  


#28. To: crack monkey (#24)

Because of the slow and thorough process, the common law normally doesn't contradict itself. Something that is true under property law doesn't, for example contradict something under probate.

Statutes on the other hand come about very quickly and can be very full of holes if not debated thoroughly. The courts try to fill these in with the common law.

good analysis.

christine  posted on  2005-05-07   12:58:39 ET  Reply   Trace   Private Reply  


#29. To: crack monkey (#15)

Edwin Vieira, Jr. argues that the government (state or U.S. constitutions) have no delegated authority (grant of power) to create corporations. His reasoning is as follows:

If any single man or woman has no authority to create a corporation, then how can he/she grant that power to the government. How can the government possess a power that its granter did not have? And where is the language in the Constitution that authorizes the Legislature to create corporations?

Nonetheless, it is the governments' incessant creation of legal fictions that have created 99% of our problems. Yes, the government can create fictions, such as corporations, trusts, fiat currency, etc.

And now Scalia is telling us how we can create "rights." Why do we need to create a right, when we have unlimited rights that were created for us by our Creator? Hmmmm Scalia?

Freedom William  posted on  2005-05-07   12:59:57 ET  Reply   Trace   Private Reply  


#30. To: Freedom William (#29)

Edwin Vieira, Jr. argues that the government (state or U.S. constitutions) have no delegated authority (grant of power) to create corporations.

I could see a corporation existing as a policy. The policy being that the small investors, who exert no management and control, would not be liable for the actions of the corporation beyong their initial investment. It would basically be a contract to limit the damages to the small investors and, as a matter of policy, anyone who did business with a coporation would agree to the contract.

Here the corporation is just a policy to encourage investment. No phoney super powerful person is created.

You run into problems when you begin giving the coporation the same rights as a person, i.e., contributing to a political campaign, or allowing them protection under the rules of criminal procedure.

crack monkey  posted on  2005-05-07   13:08:19 ET  Reply   Trace   Private Reply  


#31. To: crack monkey (#24)

Sorry to be repetitive, but I always feel the need to stress that, in a free society, there only needs to be ONE LAW:

Do not trespass against another's right to life, liberty, or property.

PERIOD!

The only purpose for the courts should be to adjudicate these types of matters. The STATE should never be allowed to be a plaintiff, defendent, or witness, as the state is a fiction. The state has no rights to trespass against. The state has only a limited delegation of powers -- and many disabilities.

Freedom William  posted on  2005-05-07   13:10:00 ET  Reply   Trace   Private Reply  


#32. To: Freedom William (#31)

Sorry to be repetitive, but I always feel the need to stress that, in a free society, there only needs to be ONE LAW:

That's basically what they are trying to do, but the devil is in the details. It's very hard to define what ownership is. It's an instinct common to all cultures that people recognize when they see it. It's even harder to define what infringes upon the concept of ownership.

Basically, ownership is a bundle of rights that a person my excercise with respect to something. These rights vary for land, spouses, children, chattels, wild animals, slaves, running water, etc. They have to be defined if you are ever going to be fair about what infringes these rights.

Some general rules can be developed and then things proceed on a case by case basis. The system we've been using for the past thousand years is frustrating and full of holes, but I honestly have not been able to come up with a better idea. I have actually tried to do this.

crack monkey  posted on  2005-05-07   13:17:21 ET  Reply   Trace   Private Reply  


#33. To: crack monkey (#27)

But the founders did think there were some rights that were so important that they needed to be specifically enumerated to avoid any confusion on the issue. These were set forth in the Bill of Rights.

Not to be pedantic, but no rights were enumerated in the Bill of Rights. That is a misconception and the verbiage, "Bill of Rights" is a misnomer.

A more correct wording would be, "Bill of Government Disabilities & Limited Powers."

If you carefully read the wording in each of the Bill of Rights, you will see that it is telling the Government (not the people) what it can and cannot do. For example:

Amendment I: "Congress shall make no law...."

Amendment II: "....shall not be infringed."

Amendment III: "....shall...without the consent of the owner...."

Amendment IV: "....shall not be violated...."

Amendment V: "No person shall be held...nor shall any person be subject...nor shall be compelled...nor be deprived of life, liberty, or property...."

Amendment VI: "In all criminal prosectutions the accused shall enjoy the right...."

Amendment VII: "....shall be preserved...."

Amendment VIII: "Excessive bail shall not be required...."

Amendment IX: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Amendment X: "The Powers not delegated to the United States...are reserved...to the people."

As you can see, each and every Amendment, is something that either the government, (1) SHALL do, or (2) SHALL NOT do. There is not a single Amendment that requires the people to do anything or gives anything to the people, other than the protection from government intrusion or force.

Thus, the Bill of Rights is NOT a list of rights, but rather a list of disabilities and limited powers imposed upon the government.

Freedom William  posted on  2005-05-07   13:46:00 ET  Reply   Trace   Private Reply  


#34. To: crack monkey (#30)

The policy being that the small investors, who exert no management and control, would not be liable for the actions of the corporation beyong their initial investment

You don't need a corporation or a policy of a corporation to accomplish this. This can all be accomplished using contracts. Contract law is the basis of the common law.

It is the corporations and their limited liability, that have created so many problems. All legal fictions (corporations and the State) are problematic, because they deflect personal responsibility and even give immunity in some cases.

A properly written contract can handle every type of limited liability desired. For example, if I want limited liability or indemnification, I can include in the contract that another party to that contract must provide the surety or bond, or whatever, to cover any potential damages. Yet, other parties to the contract would want to include language that requires my own surety or bond, for any damages that I may cause.

This type of personal responsibility would make for a much better world -- and everyones' bond would be at risk -- even the politicians'.

Freedom William  posted on  2005-05-07   13:57:39 ET  Reply   Trace   Private Reply  


#35. To: Phaedrus (#13)

Baloney yourself. Folks like yourself who look only for evil will find it.

And what and where is your moral basis that man is basically good?

My belief is founded in the Bible which clearly teach the fallen nature of man from birth.

BTW, I always try to find good in righteous people, but recognise all men are born evil.

CWRWinger  posted on  2005-05-07   14:55:08 ET  Reply   Trace   Private Reply  


#36. To: Dude Lebowski (#25)

I think you're on the right side of things, but that youthful idealism has yet to slough off.

LOL ... I'm 62 and I deal with people under stress daily. I'm a mortgage broker. But thanks, anyway. The easy, cynical position to take is that people are worthless and need close supervision. I ... know better. We're here to learn and grow. We make mistakes. They have consequences and it's from the consequences that we learn. What we don't need is some self-appointed guru, jurist or otherwise, to tell us what is right or wrong or what we can and cannot do. Why? They're human and very fallible. No one knows better what's best for me than me. I know I'm good and that's all I really know about others. I don't live in their skin.

Phaedrus  posted on  2005-05-07   16:54:30 ET  Reply   Trace   Private Reply  


#37. To: Freedom William (#26)

Scalia is a deceitful scumbag for pitching his propaganda s**t.

I don't know where you and others here come off with this but you completely lose me with it. Scalia is able, clear and honest. When you post comments like this, it tells me you just have no clue what Scalia writes or where he's coming from. It's flat wrong in every way and my inclination is to say "Go do your homework." As a plain citizen, Scalia is the best friend you've got.

Phaedrus  posted on  2005-05-07   17:01:01 ET  Reply   Trace   Private Reply  


#38. To: CWRWinger (#35)

And what and where is your moral basis that man is basically good?

My belief is founded in the Bible which clearly teach the fallen nature of man from birth.

BTW, I always try to find good in righteous people, but recognise all men are born evil.

Neither our sciences nor our religions understand what we are and, if this is so, how can we possibly understand God? Is anything apart from God? If you believe so, how can that be if it all began with nothing? We all have a lot of rethinking to do IMHO.

Phaedrus  posted on  2005-05-07   17:06:38 ET  Reply   Trace   Private Reply  


#39. To: Freedom William (#33)

Thus, the Bill of Rights is NOT a list of rights, but rather a list of disabilities and limited powers imposed upon the government.

This is just symantics. They are a list a rights and they were considered important enough that the founders saw fit to enumerate them and give them special protection. To make sure they were never lost. What you pointed out was the means employed for protecting these rights. I never implied the rights were "granted" by the Feds.

crack monkey  posted on  2005-05-07   17:07:15 ET  Reply   Trace   Private Reply  


#40. To: Freedom William (#34)

You don't need a corporation or a policy of a corporation to accomplish this. This can all be accomplished using contracts. Contract law is the basis of the common law.

Yes you do if you are going to protect the shareholders. Contract law doesn't begin to cover all the bases.

First of all, you can't contract away liability for deliberate wrongful acts. If the shareholders were partners, and if an officer did something sleazy, something they didn't even know about, then they could all be jointly and severally liable for the actions of the officer.

Secondly, it's very difficult to contract away liability for negligence, if it can be done at all. Same argument applies as was presented above.

Third, the corporation won't be dealing with somebody in a formal contract situation at all times. Hence, a lot of the time there will not even be a contract between the person and the shareholders. If a person is asleep in bed and a corporate truck comes through the wall and kills his kid, the person is not bond by a contract with the corporation. Without the corporate policy, he'll sue the shareholders and then take the money from whoever has it.

crack monkey  posted on  2005-05-07   17:14:28 ET  Reply   Trace   Private Reply  


#41. To: Freedom William (#34)

A properly written contract can handle every type of limited liability desired. For example, if I want limited liability or indemnification, I can include in the contract that another party to that contract must provide the surety or bond, or whatever, to cover any potential damages.

Bonds have caps but damages against something like GM or Amtrack don't. Under this system it would never be save to invest in a mutual fund. The limited liabiity concept works. People who excercise no management and control of the corporation are by definition innocent of the corporate wrongdoing. These shareholders should not be held liable past the value of their investment. If the shareholder does exercise management and control, he is no longer a shareholder or limited partner and the corporate veil can be piered. I have no problem with this. My problem is with making this entity a legal person - it isn't a person and shouldn't compete in the same arena as private people.

crack monkey  posted on  2005-05-07   17:23:15 ET  Reply   Trace   Private Reply  


#42. To: Phaedrus (#37)

Sca;oa is able, clear and honest.

I don't think you can find anybody outside of the formal RNC establishment that will support that statement. Martin Garbus has some figures on this in his book Courting Disaster. Scalia is not well thought of at all in serious legal circles. All of his support comes from the political end of the very far right.

crack monkey  posted on  2005-05-07   17:26:34 ET  Reply   Trace   Private Reply  


#43. To: Phaedrus (#11)

My view is that human beings are fundamentally good, but flawed and sometimes do horrific things.

Can you define "good"? Is it something that you recognize when you see it? Are you "good"? Are people who disagree with you politically also "good"? If these people can be "good", would they still be "good" if they forced you to adhere to their belief system? Conversely, should everyone in the world adhere to what you define to be "good"? Are people who wish to subjegate others into alien belief systems "good"? Are the Iraqis fighting against the Americans "good"? If no, were the Isralis fighting against the arabs in 1967 "bad"?

The point is that you're using a very fuzzy and ill defined term here and it really doesn't make a lot of sense. It's an emotional argument without much substance.

crack monkey  posted on  2005-05-07   17:38:22 ET  Reply   Trace   Private Reply  


#44. To: Phaedrus (#43)

The point is that you're using a very fuzzy and ill defined term here and it really doesn't make a lot of sense. It's an emotional argument without much substance.

This probably sounds snide and I didn't mean it that way. I fall into the same trap all the time.

"Good" just isn't an applicable concept when talking about the law. It's more a question of what behaviors will society tolerate and what behaviors will society not tolerate.

The behavior that will be tolerated might not agree with everyone's concept of "good" and behavior that will not be tolerated might not be considered "bad" by all parties.

The law starts with a system of rules to force "good" behavior on people, but it soon goes beyond this. In our society it's a consistent set of rules that provides the maximum liberty to all parties while protecting the rights and property of individuals. The rules might not always be implemented successfully, but this is the goal.

crack monkey  posted on  2005-05-07   17:59:53 ET  Reply   Trace   Private Reply  


#45. To: crack monkey (#42)

Sca;oa is able, clear and honest.

I don't think you can find anybody outside of the formal RNC establishment that will support that statement. Martin Garbus has some figures on this in his book Courting Disaster. Scalia is not well thought of at all in serious legal circles. All of his support comes from the political end of the very far right.

Says who? You? Serious legal circles? Nonsense. Show me your badge; that is, you have NO authority.

Phaedrus  posted on  2005-05-07   18:08:35 ET  Reply   Trace   Private Reply  


#46. To: crack monkey (#43)

The point is that you're using a very fuzzy and ill defined term here and it really doesn't make a lot of sense. It's an emotional argument without much substance.

What "good" means is not misunderstood by any reader. You are engaging in sophistry.

Phaedrus  posted on  2005-05-07   18:10:52 ET  Reply   Trace   Private Reply  


#47. To: Phaedrus (#37)

Sorry, but I disagree. I've read Scalia's stuff and he is no protector of individual's rights to property and liberty.

His mixed messages in this very article is typical of his duplicitous work. Telling people that they can create a right by getting others to vote on it is the antithesis of a Republican form of government that is founded on the principle of inumerable Creator-given rights.

I've done my damn homework, thank you. That's why I consider Scalia to be a lying dirtbag.

Freedom William  posted on  2005-05-07   18:24:04 ET  Reply   Trace   Private Reply  


#48. To: crack monkey (#39)

You can say it is just semantics. I believe it is an extremely important distinction that is lost on most people.

I'll leave it at that.

Freedom William  posted on  2005-05-07   18:29:03 ET  Reply   Trace   Private Reply  


#49. To: crack monkey (#40)

First of all, you can't contract away liability for deliberate wrongful acts.

Indeed, and that's the way it should be. It's called personal responsibility. Nonetheless, a complainant/plaintiff should have to prove that someone's acts were "wrongful and deliberate" as you say.

According to your beliefs, it appears that we could not conduct business or commerce without corporations and other legal fictions. Is that correct? Could a system based on substance rather than form and personal responsibility rather than limited liability and immunity not work?

Freedom William  posted on  2005-05-07   18:36:52 ET  Reply   Trace   Private Reply  


#50. To: Freedom William (#49)

According to your beliefs, it appears that we could not conduct business or commerce without corporations and other legal fictions.

I don't think the money could be raised as readily if the investors could not be protected with some status akin to that now held by a shareholder. Otherwise, there would always be a danger that someone would circumvent the contract protecting the investor.

If the shareholder asserts no management and control, which must be the case to hold the status or shareholder, or limited partner, why not give them freedom from liability?

The ability to pool resources to do projects is very valuable to society. The system you propose would hinder this while giving less protection to the investors.

crack monkey  posted on  2005-05-07   18:48:56 ET  Reply   Trace   Private Reply  


#51. To: Phaedrus (#46)

What "good" means is not misunderstood by any reader. You are engaging in sophistry.

Any two people will eventually disagree about what constitutes "good". That's why good faith disputes end up in court all the time. That's why we have codified codes in society - we need them because people disagree what "good" is.

If what you were saying is true, there would only be one religious sect in the world. There would only be one political party. There would only be one code of morality. It wouldn't even be necessary to write the principles behind these entities down. People could find the answers simply by asking themselves if something was "good" or not. Everyone would reach the same conclusion - all the time. You're up against some pretty big guns postulating universal truth and and common concept of "good".

crack monkey  posted on  2005-05-07   18:57:32 ET  Reply   Trace   Private Reply  


#52. To: Phaedrus (#45)

Says who? You? Serious legal circles? Nonsense. Show me your badge; that is, you have NO authority.

I quoted you a well recognized source from a well recognized legal authority. The entire book rips Scalia on a case by case basis. Access the book and simply read the review.

You are a mortgage broker who has offered no source for your opinion. None at all.

Now tell us about your authority. And please, no mention of an uneducated first impression gut reaction.

crack monkey  posted on  2005-05-07   19:01:58 ET  Reply   Trace   Private Reply  


#53. To: Freedom William (#47)

I've done my damn homework, thank you. That's why I consider Scalia to be a lying dirtbag.

No, you haven't. And I'm not sympathetic to your need to resort to ad hominem attack. As far as I'm concerned, you're the lying dirtbag. Post to someone who cares to hear your opinion.

Phaedrus  posted on  2005-05-07   19:28:05 ET  Reply   Trace   Private Reply  


#54. To: crack monkey (#51)

The most difficult moral questions have to do with conflict between 2 or more goods.

Phaedrus  posted on  2005-05-07   19:29:45 ET  Reply   Trace   Private Reply  


#55. To: All (#51)

codified codes

codified laws

crack monkey  posted on  2005-05-07   19:30:34 ET  Reply   Trace   Private Reply  


#56. To: Phaedrus, Freedom William, crack monkey (#53)

Scalia

Can we all agree that DC should be sacked and its ruling class be hung?

Jethro Tull  posted on  2005-05-07   19:40:02 ET  Reply   Trace   Private Reply  


#57. To: crack monkey (#52)

I quoted you a well recognized source from a well recognized legal authority. The entire book rips Scalia on a case by case basis.

I've read some, not all, of Scalia's opinions and they're strong, clear, consistent and supportive of the text of Constitution. YOU say "well recognized legal authority". You say, go read a book. I say BS. If you have a specific case to make, in context, make it, here. Pick an opinion you don't like and critique it. I'll rip that critique to shreds. Don't bring me some sophist with his/her word games -- I'll rip that to shreds in spades. But I won't allow you to take inordinate amounts of my time with this BS because that's what it is.

Phaedrus  posted on  2005-05-07   19:44:40 ET  Reply   Trace   Private Reply  


#58. To: Jethro Tull (#56)

Can we all agree that DC should be sacked and its ruling class be hung?

I am certainly no fan of the place but if Scalia were made king for a day, the Supreme Court's power would be radically diminished. Do any of you who so freely trash the man understand this? Do your homework, people.

Phaedrus  posted on  2005-05-07   19:48:46 ET  Reply   Trace   Private Reply  


#59. To: Phaedrus (#58)

I am certainly no fan of the place but if Scalia were made king for a day, the Supreme Court's power would be radically diminished.

From what I've read, he's a readically activist judge. Probably as radical as the activist judges Delay and Bush were seeking in the Sciavo matter. Scalia's activism is simply for hard money corporate interests such as Ken Lay or Dick Cheney. Personally, I'd trust the old supreme court over Scalia and his buddies.

crack monkey  posted on  2005-05-07   19:53:16 ET  Reply   Trace   Private Reply  


#60. To: Phaedrus (#58)

I can't say I've read any of his opinions, nor would I want to. The hanging & sacking I suggest is based on general principle. It's an idea whose time has come.

Jethro Tull  posted on  2005-05-07   19:55:01 ET  Reply   Trace   Private Reply  


#61. To: Phaedrus (#58)

I am certainly no fan of the place but if Scalia were made king for a day, the Supreme Court's power would be radically diminished.

You shouldn't be able to determine the political leanings of a good judge. Fairness and correct interpretation of the law is the only question. Scalia pratically wears his RNC badge on the end of his nose.

Scalia has stated that he doesn't feel the precident must be followed. This is like a fireman saying that housefires don't need to be put out.

These are some of the reasons why the legal establishment, both democratic and republican, is against him.

crack monkey  posted on  2005-05-07   19:57:26 ET  Reply   Trace   Private Reply  


#62. To: crack monkey (#50)

I don't think the money could be raised as readily if the investors could not be protected with some status akin to that now held by a shareholder

Indeed, I agree, but that might not be such a bad thing. Maybe I would need to be convinced that I am not investing my gold and silver coin with a pack of thieves and sociopaths. Maybe we would all need to be more prudent in our investments. Maybe there would be fewer scandals, fewer lawsuits, and less debt notes (FRN's) borrowed into circulation.

I realize that this concept runs counter to the present system, but the present system is flawed beyond repair. I believe the day is approaching when we will find out how flawed it is.

You wrote, "....The ability to pool resources to do projects is very valuable to society. The system you propose would hinder this while giving less protection to the investors...."

True, however, the system that you propose allows and even REQUIRES government protection in the form of giving limited liability to legal fictions that government creates (corporations). Moreover, I do not see any specific language that gives specific power to the government for incorporating.

I am open to any system that reduces the power and influence of government. Private enterprise and the human spirit will find ways to operate -- better ways than now exist -- if we can remain free from government interference or control. At least that's my belief.

Freedom William  posted on  2005-05-07   20:03:04 ET  Reply   Trace   Private Reply  


#63. To: crack monkey (#59)

From what I've read, he's a readically activist judge. Probably as radical as the activist judges Delay and Bush were seeking in the Sciavo matter. Scalia's activism is simply for hard money corporate interests such as Ken Lay or Dick Cheney. Personally, I'd trust the old supreme court over Scalia and his buddies.

Activist? A Justice who supports the plain text of the Constitution is activist? Radical? Well, yes, in the sense that the Founders were radicals. One of us is very confused as to the meaning and use of the term, activist, and it is NOT me. You're a Liberal, are you not, and words to you mean what you want them to mean. You're sliming every Republican and conservative in sight and THAT is not reasoned argument. Some of us with a Libertarian/Anarchist orientation can use words very well, but we use them to clarify, not muddy the waters.

Phaedrus  posted on  2005-05-07   20:04:15 ET  Reply   Trace   Private Reply  


#64. To: Phaedrus (#53)

Post to someone who cares to hear your opinion.

Indeed, and you do the same.

Freedom William  posted on  2005-05-07   20:04:29 ET  Reply   Trace   Private Reply  


#65. To: Jethro Tull (#56)

Can we all agree that DC should be sacked and its ruling class be hung?

I'll second that.

Freedom William  posted on  2005-05-07   20:05:51 ET  Reply   Trace   Private Reply  


#66. To: Jethro Tull (#60)

You would enjoy reading Claire Wolfe.

Phaedrus  posted on  2005-05-07   20:08:50 ET  Reply   Trace   Private Reply  


#67. To: Freedom William (#64)

Done.

Phaedrus  posted on  2005-05-07   20:09:39 ET  Reply   Trace   Private Reply  


#68. To: crack monkey (#61)

I posted: I am certainly no fan of the place but if Scalia were made king for a day, the Supreme Court's power would be radically diminished.

You replied: You shouldn't be able to determine the political leanings of a good judge. Fairness and correct interpretation of the law is the only question. Scalia pratically wears his RNC badge on the end of his nose.

My post has nothing to do with politics, period, and your response is completely off-point.

Scalia has stated that he doesn't feel the precedent must be followed. This is like a fireman saying that housefires don't need to be put out.

I would like to see some support for this glittering generality but the facts are that the Activist Court breaks precedent all the time, expanding their powers as they go. You are accusing Scalia of what the Activist Court has been doing for 50 years. Brown vs. Board of Education was a radical break in precedent, based primarily on sociology. The present court is citing international law. They are WAY out of bounds.

These are some of the reasons why the legal establishment, both democratic and republican, is against him.

Legal establishment? What the Hell does that mean? And whatever it means, I have no faith in this argument from authority. So what?

Phaedrus  posted on  2005-05-07   20:26:03 ET  Reply   Trace   Private Reply  


#69. To: crack monkey (#39)

This is just symantics. They are a list a rights....

Here I said earlier that I'd "leave it that" and now I went back on my word. Guess I'll have to deal with the loss of credibility.

I've been thinking about the word "semantics" that you used to explain the similarities, rather than the differences in our respective positions. However, if you will indulge me, I would like to expound on that concept.

"Semantics" is more than just the use of different words for the same ideas. Semantics is what wins or loses a debate. If we say the right words (semantics), we win the debate. If we say the wrong words, we lose the debate. Extending this line of thought, semantics are what helps to win or lose in the political arena.

Semantics is the tool of propaganda. For example, the U.S. government calls our military that is occupying 142 countries, "peace keepers." Does anyone believe our military is keeping the peace in Iraq? The U.S. gov. calls the inhabitants of Iraq, who are protecting themselves from a foreign invader, "insurgents." If the U.S. were attacked by a foreign invader and you and I defended our homes, property, culture, and way of life, would we be insurgents?

An oppressive, corrupt U.S. government is called "Uncle Sam." Cuddly, loving uncle, huh? When the State invades our privacy and spends billions of dollars to surveille and snoop into our lives, it is called, "Big Brother." How nice!

I can't tell you how many times I have heard callers on radio shows say, "well you don't have any right to do that....show me where that right is listed in the Constitution." These people have been mis-educated and indocrinated via propganda -- semantics -- used to deceive the people so that they would fail to understand something that would, otherwise, impede the government's agenda.

That is why I believe it is very important to never refer to the Bill of Rights as a list of rights; or to never say, "Constitutional rights" but instead say, Constitutionally-protected rights; or as I said previously, the Bill of Rights is actually a "Bill of government disabilities and limited powers."

If we fail to use the most accurate and precise terminology, we will continue to lose the propaganda war -- the semantic war, if you will. Whoever establishes the nomenclature -- the semantics -- will have the advantage in any debate or propaganda war. We cannot let our enemies establish the vernacular and then sucker us into using their wording.

Freedom William  posted on  2005-05-08   0:15:51 ET  Reply   Trace   Private Reply  


#70. To: christine (#19)

When congress took the money from the people in 1933, it took the law.

It appears to me that many (most) folks "volunteered" out of the original government by signing a new agreement through Social Security Insurance. (See "tontine" Insurance)

The number of volunteers being so vast that public policy was accepted by the "majority" of people, so much so that a "democracy" was created that began to operate under "public policy" rather than the organic law.

It appears that both forms of government are existing concurrently, as the original "Constitutional" requirements related to equal weights and measures, ie., Gold and Silver remain intact, while a debt instrument also exists and is used by the American Society as currency.

Members of the original organic government are so few that they are basically ignored. This might change when everyone becomes aware of the commercial fraud they live under or when it bankrupts itself by only creating more debt without any remedy or method of extinguishing the debt.

noone222  posted on  2005-05-08   9:32:16 ET  Reply   Trace   Private Reply  


#71. To: Freedom William (#17)

Thanks ... and Be Free regardless of Scalia's demonic rhetoric !

noone222  posted on  2005-05-08   9:33:56 ET  Reply   Trace   Private Reply  


#72. To: christine (#19)

That money was replaced with 'color of money' (FRNs) and that law was replaced with 'color of law'(PUBLIC POLICY).

First let me say "Amen" sister ... you are correct. However, it does appear that the government began encroaching at the time of the war of Northern Aggression, and began issuing birth certificates, enacted the 14th Amendment to enslave all men, and may have even placed invisible martial law upon us.

The freedom loving public (folks like us) have been trying deparately for 150 years to figure what happened to independence and liberty. The early 1900's gave us a new game plan with the Federal Reserve Act and the Income Tax Act. Soon after the Federal Reserve Act we were bankrupted and enslaved through the Socialist Security Insurance Scheme.

Our parents and grand parents couldn't conceive of the corruption being perpetrated upon them by their fellow Americans in D.C., so they went along with just about every fraud that commerce is capable of producing.

Now we are being expected to accept the fraud perpetrated on them ... I say ... Fuck No !

noone222  posted on  2005-05-10   19:43:45 ET  Reply   Trace   Private Reply  


#73. To: noone222 (#72)

However, it does appear that the government began encroaching at the time of the war of Northern Aggression, and began issuing birth certificates, enacted the 14th Amendment to enslave all men, and may have even placed invisible martial law upon us.

yep, we weren't able to keep the republic very long, were we?

christine  posted on  2005-05-10   23:18:09 ET  Reply   Trace   Private Reply  


#74. To: christine (#73)

yep, we weren't able to keep the republic very long, were we?

I'm not certain that anyone had intentions that we would keep (the Republic) it very long ... but it sure sounded good for about 15 minutes !

noone222  posted on  2005-05-14   20:54:13 ET  Reply   Trace   Private Reply  


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