Fourteenth Amendment

[Captain Nate]

Interesting. However, many have argued the privliges & immunities clause (Justice Black being the most influencial proponent on the court) incorporated the full Bill of Rights against the States (as opposed to the haphazzard, incomplete incorporation under the due process clause).

Here is an article I had found recently arguing for the ressusitation of the P&I clause from the CATO institute:

http://www.cato.org/pubs/pas/pa-326es.html

[JDX]

I just don't know where to start with this last big post of yours, so I'll just take one point and leave the rest for later.  You keep ripping on statutory, statutory, statutory.  And yet you say

This point suggests that you are objecting merely to bad statutes.  However, most everything else you've said suggests that bad statutes are the reason you object to statutes per se.  Which is correct?  Do you think that statutes can sometimes be valid, and thus you only object to bad ones?  Or do you think that statutes are never valid?  If you think that statutes are never valid, do you have an alternative?

Common law is usually objective. Statutory law is subjective. Legislators can and do criminalize anything they want using statutes; Usually to satisfy the emotions of a dumbed down public to make themselves seem useful, when in fact they are the main problem. Many statutory laws cause problems where none need exist; which leads to more statutory laws to attempt to correct a symptom of the problem originally cause by subjective law. A never ending vicious cycle.

A free society exists without any *exterior authorities*. All problems can be solved by individuals and businesses. Government need only protect the rights of individuals. There is no "greater good" or "higher purpose".

There are, however, actual crimes dealt with in statutes. But, IMO, people would be better served by common law. No one should be permitted to initiate force or violate the rights of any other individual. Those accused of actual crimes should have their guilt or innocence and punishment (if guilty) decided by a jury of their peers.

I advocate the gradual fazing out of subjective law. I also advocate privatizing the public school system. And, I think it advisable to add two subjects to grade and high school curriculum: Objectivism and Proper Nutrition.

[DavidOdden]

Common law is usually objective. Statutory law is subjective. Legislators can and do criminalize anything they want using statutes; Usually to satisfy the emotions of a dumbed down public to make themselves seem useful, when in fact they are the main problem.

You're confusing the nature of legal systems with specifics about a particular system. Common law is most certainly not by nature more objective than statutory law: the opposite is actually the case. Common law, i.e. vague legal traditions of the type "we've always done it this way" are less objective because you have no objective way of determining what constitutes an offense or not. In the primitive Germanic tribal days of England, this may have been almost suitable when people rarely ventured away from the safety of their cluster of huts, and it was realistic for people to know what the local tradition was. Objectivity has to do with both ontology and justification -- it's not enough for a law to be objectively justified with reference to some principles, but also it must be objectively articulated. What you get under common law is totally arbitrary findings by the magistrate, which is even worse than the subjectivity of legislatively-passed statutes. A distinctly un-Objectivist view on law is the Rationalist / Intuitionist view, that anyone can automatically (either by pure reason or pure magic) automaticaly know what the law is. That's entirely naive. You even seem to be succumbing to that view, in trivialising the role of government. What are the legal rights of man? What principle government reparations under breach of contract? The one problem with statutory law is simply that there is no requirement that laws have to have a particular function, and that's simply a flaw in The Constitution.

[JDX]

You're confusing the nature of legal systems with specifics about a particular system. Common law is most certainly not by nature more objective than statutory law: the opposite is actually the case. Common law, i.e. vague legal traditions of the type "we've always done it this way" are less objective because you have no objective way of determining what constitutes an offense or not. In the primitive Germanic tribal days of England, this may have been almost suitable when people rarely ventured away from the safety of their cluster of huts, and it was realistic for people to know what the local tradition was. Objectivity has to do with both ontology and justification -- it's not enough for a law to be objectively justified with reference to some principles, but also it must be objectively articulated. What you get under common law is totally arbitrary findings by the magistrate, which is even worse than the subjectivity of legislatively-passed statutes. A distinctly un-Objectivist view on law is the Rationalist / Intuitionist view, that anyone can automatically (either by pure reason or pure magic) automaticaly know what the law is. That's entirely naive.

My opinion of statutory law is based on the subjective manner in which it's currently being legislated. You may be defining it differently. I would be open to expressing laws in well defined objective statutes if "a crime" required "a victim".

You even seem to be succumbing to that view, in trivialising the role of government. What are the legal rights of man?

Humans own their own bodies and are free to determine their own futures as long as they don't initiate force or violate the rights of others.

What principle government reparations under breach of contract?

That's unclear. Perhaps you could answer it yourself and then ask my opinion.

The one problem with statutory law is simply that there is no requirement that laws have to have a particular function, and that's simply a flaw in The Constitution.

We may be defining "statutory law" differently. I'm using what is currently be practiced. Statutory law is expressed as "the will of legislators" in US democracy. That allows "laws" that are based on opinions to "legally" violate the rights of individuals. Do you approved of that? If you are speaking of "statutory law" in other terms, I could possibly agree with you.

Here's another question for you:

Corporations can only regulate their own employees and possibly other corporations. Do you agree?

Edited September 13, 2005 by JDX

[DavidOdden]

My opinion of statutory law is based on the subjective manner in which it's currently being legislated.  You may be defining it differently.

Statutory law is defined as a system of law where the prohibited acts are defined in a written statute, with the consequence that acts not expressly prohibited are not crimes.

Humans own their own bodies and are free to determine their own futures as long as they don't initiate force or violate the rights of others.

Suppose someone believes that you have violated the rights of another person. Can they kill you because of that belief? We need a more explicit legal system than the trivial principle "humans own their bodies".

That's unclear. Perhaps you could answer it yourself and then ask my opinion.

I know what the answer is, and I am asking your opinion. But the thing is, I hold that a civilized society does need a system of law that actually answers these questions. I want to know if, for example, when you suspect that a person has violated a contract you have with them, can you kill them to punish them? Or can you beat them until they submit? After all, they have stolen from you by violated the contract. At some point, you are going to have to have a system of statutes that answer specific questions that cannot be derived a priori from simple body-ownership.

We may be defining "statutory law" differently. I'm using what is currently be practiced. Statutory law is expressed as "the will of legislators" in US democracy.

Well, that's a wrong view of what statutory law refers to. It also describes the legal systems of Canada, England, Norway, France, German, Japan, Italy, The Netherlands, Imperial Rome... Statutory law simply means that it is written down and taken literally (as opposed to the subjective-judgment approach of common law).

That allows "laws" that are based on opinions to "legally" violate the rights of individuals. Do you approved of that? If you are speaking of "statutory law" in other terms, I could possibly agree with you.

Of course I don't; and common law can violate the rights of individuals just as much as statutory law (for example Droit de Seigneur; or consider the power granted to the king as recognised in Bracton; slavery is legitimized under common law; and so on)

Corporations can only regulate their own employees and possibly other corporations. Do you agree?

No, because corporations cannot regulate anything or anyone else. Any desire by a corporation to accomplish some end, such as not have people buy certain goods, has to be accomplished via contract. So you mean something special by "regulate"?

[JDX]

Statutory law is defined as a system of law where the prohibited acts are defined in a written statute, with the consequence that acts not expressly prohibited are not crimes.

Fine, is there a victim to every crime?

Suppose someone believes that you have violated the rights of another person. Can they kill you because of that belief? We need a more explicit legal system than the trivial principle "humans own their bodies".

Seems quite important to me. It doesn't deal with specifics but that principle would prevent acts such as gambling, drug use, prostitution, etc. from being criminalized.

I know what the answer is, and I am asking your opinion. But the thing is, I hold that a civilized society does need a system of law that actually answers these questions. I want to know if, for example, when you suspect that a person has violated a contract you have with them, can you kill them to punish them?

The circumstances of "violating a contract" would determine whether that act was criminal or a civil matter or both. Killing someone is only acceptable in self defense.

Or can you beat them until they submit?

Initiating violence is a crime.

After all, they have stolen from you by violated the contract. At some point, you are going to have to have a system of statutes that answer specific questions that cannot be derived a priori from simple body-ownership.

My position is that principle should not be violated by any statute. I can agree that details for all possible situations should be stipulated in a system of statutes.

Well, that's a wrong view of what statutory law refers to. It also describes the legal systems of Canada, England, Norway, France, German, Japan, Italy, The Netherlands, Imperial Rome... Statutory law simply means that it is written down and taken literally (as opposed to the subjective-judgment approach of common law).

The definition you apply is not currently in use by any country, to my knowledge. So, why would you expect anyone to know or accept your definition?

Of course I don't; and common law can violate the rights of individuals just as much as statutory law (for example Droit de Seigneur; or consider the power granted to the king as recognised in Bracton; slavery is legitimized under common law; and so on)

As long as your system of statutes defines actual crimes, I can probably support it.

No, because corporations cannot regulate anything or anyone else. Any desire by a corporation to accomplish some end, such as not have people buy certain goods, has to be accomplished via contract.

So how do corporate governments (local, county, state, & federal) manage to regulate the live of citizens?

[Captain Nate]

JDX, would you favor codifying common law in written form? Doing so would make it statutory law, without changing the principles involved behind them. When you grasp this, perhaps you will realize how weak your argument against statutory laws is.

So how do corporate governments (local, county, state, & federal) manage to regulate the live of citizens?

What's a "Corporate government"? Is it just me, or does JDX sound more like an anarchist than an Objectivist?

Edited September 14, 2005 by Captain Nate

[DavidOdden]

Fine, is there a victim to every crime?...It doesn't deal with specifics but that principle would prevent acts such as gambling, drug use, prostitution, etc. from being criminalized....The circumstances of "violating a contract" would determine whether that act was criminal or a civil matter or both. Killing someone is only acceptable in self defense....Initiating violence is a crime.

Point 1: yes, and given a proper government, each victim would be a person (for many crimes, the victim is society or the state). Point 2: the specifics are exactly why statutory law is required, and therefore why perpetuation of common law is bad. Point 3: without a system of law, you have no objective basis for determining if a wrongful act is a crime or a "mere" civil offense; in addition, violating a contract means you have violated the rights of another person, so they have the right to defend themselves, for example to kill you. Unless prohibited by statute. Point 4: beating a person who violates your rights is not initiating force. That was done by the rights-violator.

The definition you apply is not currently in use by any country, to my knowledge. So, why would you expect anyone to know or accept your definition?

No, you are just wrong there. That is what statutory law means. Let's move on: I don't require that you admit that you're wrong, just that you not persist in repeating your canard.

So how do corporate governments (local, county, state, & federal) manage to regulate the live of citizens?

We're speaking of corporations, not governments. If you mean governments, then of course the way a government controls behavior is with the use of force, as you well know.

There is no such thing as a "corporate government".

[JDX]

Point 1: yes, and given a proper government, each victim would be a person (for many crimes, the victim is society or the state).

So now the statist's comments are uncovered. In the REAL world a victim must be a human being. How does one victimize an abstraction?

This is the way current corporate governments prosecute victimless crimes, using "the people" and "the state" as plaintiffs. That violates a mans right to face his accuser. Unless the prosecutor plans to line up every person in the state who all claim and can prove injury.

I thought you would present something new and intelligent. Your system of statutes requires a corporate government, which you claim doesn't exist. I could not possibly support you system of statutes, because it's a mirror image of the current corrupt system we have now.

Point 2: the specifics are exactly why statutory law is required, and therefore why perpetuation of common law is bad.

Specific details could be ezpressed in common law form, where "a victim" is a requirement in the commission of a crime, and "a victim" is always a human being, not an abstraction.

Point 3: without a system of law, you have no objective basis for determining if a wrongful act is a crime or a "mere" civil offense; in addition, violating a contract means you have violated the rights of another person, so they have the right to defend themselves, for example to kill you. Unless prohibited by statute.

NO! Fraud is not cause to escalate to or exact revenge through physical violence. One has a right to defend oneself against physical attack or a threat of violence made with a weapon. Those are the only two instances I can think of now.

Point 4: beating a person who violates your rights is not initiating force. That was done by the rights-violator.

Technically that's true, however, see above for an explanation why retaliating with physical violence is a crime.

No, you are just wrong there. That is what statutory law means. Let's move on: I don't require that you admit that you're wrong, just that you not persist in repeating your canard.

Statutory Law, as practiced in this country, is expressed as "the will of the legislators". Your definition does not include that meaning. It seems, the "canard" is yours.

We're speaking of corporations, not governments. If you mean governments, then of course the way a government controls behavior is with the use of force, as you well know. There is no such thing as a "corporate government".

LOL! You can't be serious! You can not throw a dart at a US map without hitting 3 jurisdiction (with one toss) regulated by a corporate governments.

Here's an excerpt from the book "The Corporate City" http://www.questia.com/PM.qst?a=o&d=25973165

Volume Introduction

"The important thing about the political entity called a city (or town, or village, or borough, for that matter) is, of course, that it is a legal person and can do things that its residents could do individually, but not jointly (when not so incorporated) without great risk. It can buy, sell, and hold property; it can sue and be sued; it can borrow money. Moreover, the incorporation of the city enables it to do things that its residents could not do at all, individually or jointly, without incorporation. It can tax its residents and nonresident property holders and entrepreneurs; it can require residents and visitors to take (or not to take) prescribed action; and it can punish by fines and imprisonment failure to conform to these requirements."

Then we have: The United States government is a foreign corporation with respect to a state. [citing In re Merriam's Estate, 36 N.E. 505, 141 N.Y. 479, affirmed U.S. v. Perkins, 16 S.Ct. 1073, 163 U.S. 625, 41 L.Ed 287]

[DavidOdden]

{Gibberish snipped}

We're done here. I have limited time to waste on pointless exercises with people who prove themselves incapable of making a connection with reality. You are hereby plonked.

[JDX]

[Mod's note: Merged from a separate thread that was started when this one was closed. - softwareNerd]

I recently participated in a discussion regarding existing conditions in government/law in the US today. The thread is titled 14th Amendment , Intent and Effect and my last post was #34. David Odden found something in the facts I presented which he objected to. He used very condescending language and closed the thread to new posts, making it impossible for anyone to answer his last post.

My question is, does David Odden speak for all objectivists or is this forum open to the presentation of proven facts. If my last post #34 in the subject thread offends other objectivists, I would appreciate hearing from them.

Edited September 16, 2005 by softwareNerd

[Proverb]

You severely misunderstood him and attacked him unfairly; I think that's why he closed the thread. There is no such thing as "speaking for all Objectivists" that is unnecessary differentiation. It would be properly said, "does he speak from the facts of reality."

From my experience here, asking that question about Mr. Odden shows a lack of observation.

[Groovenstein]

My question is, does David Odden speak for all objectivists or is this forum open to the presentation of proven facts. If my last post #34 in the subject thread offends other objectivists, I would appreciate hearing from them.

First, David, though a respected member of this forum, is not a moderator. He could not have closed that thread.

Second, we have procedures for reporting posts if you think their content is questionable. There is a "report" button you may click and report the post. It will be reviewed by a moderator.

Third, read the forum rules. "Objectivism" is to be capitalized. This includes the associated term "Objectivists."

Fourth, threads are closed for a reason. If you take issue with a thread being closed, PM a moderator and your concern will be addressed. It is not appropriate to attempt a run around a thread closing by reposting.

Fifth, your question is ridiculous. David does not speak for all Objectivists, and this forum's entire purpose is the presentation and discussion of facts pertaining to Objectivism. In case you are not aware, one of the fundamental principles of Objectivism is that facts are facts, that reality is reality, or, to use the phrase, "A is A."

If you wish to continue participating in this forum, I suggest you take a different approach to conflict resolution than the one you have. Insinuating that one of our respected members is not open to "the presentation of proven facts" is not a good way to establish your intellectual value to us.

[softwareNerd]

I closed the thread. It was floating away pointlessly. After I came to that conclusion, I saw two other members (who I know are capable) attempt to bring it back to reality and then come to the same conclusion independently. That's when I I figured the thread had served its purpose.

Edited September 16, 2005 by softwareNerd

[JDX]

We're done here. I have limited time to waste on pointless exercises with people who prove themselves incapable of making a connection with reality. You are hereby plonked.

It's your system of statutes which lacks respect for reality. You think a statist system is a "proper government" and that an abstraction can be a victim. But, you fail to answer: "How does one victimize an abstraction?"

You deny the existence of corporate government when it is requirement for the function of the system of statutes which you advocate.

You think people need to be told (by statute) that they shouldn't kill someone who defrauds them. And, you think that "There is no such thing as a 'corporate government'", when you are literally surrounded by them.

And, after stating all these misconceptions you label my post #34 (facts and objective conclusions) as "gibberish" and attack me as "incapable of making a connection with reality". Objectivism is a philosophy which places a high value on *honesty with oneself*. By labeling my facts and opinions as gibberish you show no respect for honesty.

And finally, please keep in mind that condescending language is reserved for those with superior knowledge.

[JDX]

What's a "Corporate government"? Is it just me, or does JDX sound more like an anarchist than an Objectivist?

I don't limit my expression to the tenets of any one group. I am an objective person, using my brain in that manner most of my life, which preceded Objectivism. I do respect Ayn Rand and Objectivism, but I do not respect the manner in which some apply its principles, especially to government. In my short time on this forum I've encountered several members who seem more focused on making personal attacks than in discussing relevant facts of an issue.

Now, corporate government is practiced by every city, county, state, and country which has incorporated. The book "The Corporate City" details the benefits of organizing city government in the form of a corporation. State governments and the US government are also corporations.

An incorporated city becomes a fictional person so it can legally impose the "will of legislators" on actual real life persons living within the boundaries of its fictional jurisdiction. It creates totally subjective law. Even actual crimes like murder when specified in statutes is subjective because legislators can determine a mandatory punishment. This makes conditions specific to each case irrelevant, and usurps the purpose and authority of juries and judges.

JDX, would you favor codifying common law in written form? Doing so would make it statutory law, without changing the principles involved behind them. When you grasp this, perhaps you will realize how weak your argument against statutory laws is.

I could make the same comments about you, but that would just lead to ill feelings, preventing an understanding to be reached. Don't you agree?

Common law only deals with crimes that have real victims, actual people. Abstractions, are not recognized as persons. Laws are not codified, they are stated, in detail if necessary.

Statutory law operates from a position of "fiction". Defining an abstraction like "the state" as a person is fraudulent. Statutes pervert a language to fit the agenda of corporate government, criminalizing human activity. Operating from fiction and fraud allows rampant subjectivity.

[Proverb]

I move (though I am aware I do not have say in it) for the suspension of JDX as he has not heeded warning and has failed to make connection with his explicilty defined errors.

[Groovenstein]

Common law only deals with crimes that have real victims, actual people.

Are you sure? How about sodomy? "Crimes against nature"?

Didn't early (around the 12th century) common law juries sometimes make decisions without evidence, but instead looking at so-called common local knowledge?

In the absence of statutes, how are citizens to be put on notice of what conduct is illegal and what is not? What about that whole "ex post facto" thing?

(I split the reply to the comment on ex-post facto here (link) -softwareNerd)

Edited September 17, 2005 by softwareNerd

[JDX]

Are you sure? How about sodomy? "Crimes against nature"?

My reference point of common law is the US Constitution.

Rape has a victim. Consensual sodomy is not a crime. What "crimes" against nature?

Didn't early (around the 12th century) common law juries sometimes make decisions without evidence, but instead looking at so-called common local knowledge?

Common law of 700 years ago is irrelevant. I merely want to faze out subjective law and replace it with objective common law. I don't favor an immediiate or rapid change. And, gradual change should be accompanied by changes in public education.

In the absence of statutes, how are citizens to be put on notice of what conduct is illegal and what is not?

Statutes require a corporate government, which makes a "city" legally equal to a "person" and superior to humans in the sense of jurisdiction. I think government should and can operate without fraud. IMO common law if worded correctly is a more honest application of law which can be as effective as statutes.

What about that whole "ex post facto" thing?

If the constitution is rewritten properly all previous errors and inconsistencies can be dealt with.

[daniel]

I move (though I am aware I do not have say in it) for the suspension of JDX as he has not heeded warning and has failed to make connection with his explicilty defined errors.

I agree!

[Adrian Hester]

My reference point of common law is the US Constitution.

The US Constitution is not common law (though it accepts common law when it's the basis of a state's law). It's obvious you don't even know what the term means.

Rape has a victim. Consensual sodomy is not a crime. What "crimes" against nature?

All these "crimes against nature" are criminal acts because common law said so.

Common law of 700 years ago is irrelevant.

Not in common law itself it isn't. Common law is by definition a combination of unwritten law and case law (with the cases decided on the basis of unwritten law). In common law, a case decided 700 years ago or a legal procedure (like the various kinds of writ) established 700 years ago can be relevant. (How do you know? Well, the judge will decide whether it is.)

I merely want to faze out subjective law and replace it with objective common law.

You mean, you want objective written law--in other words, statutory law!

Statutes require a corporate government, which makes a "city" legally equal to a "person" and superior to humans in the sense of jurisdiction.

You obviously don't know what "statute" means either--statutes are quite simply written law. All statutes require is literate legislators! And you still don't seem to know what "jurisdiction" means either.

I think government should and can operate without fraud. IMO common law if worded correctly is a more honest application of law which can be as effective as statutes.

"Common law if worded correctly"? That wouldn't be common law, it would be statutory law! Please, go learn the basics of American legal theory. Your argument is deeply misguided.

[split into next post with wording exactly intact. --Matt]

Edited September 17, 2005 by Groovenstein

[Groovenstein]

[Adrian, I split this off for you. All of your wording is exactly as you left it. --Matt]

---------------------------------------------------------------

Adrian's remarks:

Added: I meant to post this as a separate response, but I goofed somehow and it ended up here.

Interesting. However, many have argued the privliges & immunities clause (Justice Black being the most influencial proponent on the court) incorporated the full Bill of Rights against the States (as opposed to the haphazzard, incomplete incorporation under the due process clause).

Sorry I missed this earlier. That's probably quite true (I'd certainly never argue against Justice Black without doing a lot of reading), but it's a separate consequence of the clause. Perhaps it's more a consequence of the fact that under Reconstruction the southern states had to include the 14th Amendment in their new constitutions as a fundamental part of state law in order to be readmitted?