From: jim bell <jimbell@pacifier.com>
Date: Thu, 14 Nov 1996 19:40:47 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: A Disservice to Mr. Bell
Message-ID: <199611150340.TAA08395@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 12:14 PM 11/14/96 -0500, hallam@vesuvius.ai.mit.edu wrote:
>
>>As for the "self-selected" issue:  In almost all areas of human endeavor, 
>>things are (often?  usually?) done by people who are "self-selected."  I 
>>suggest that there is simply no reason that even "self-selected" courts 
>>cannot work.
>
>Oh I forgot to mention, last week we found you guilty of sedition, it
>was a pity you were not present to put your case but maybe if you had 
>bothere to read the court roster you would have attended.

You might be surprised to learn that this kind of thing doesn't bother me at 
all.  To whatever extent such commonlaw courts act like loose cannons, they 
will primarily tend to do so against those who are most abusive of the 
public's perceived rights.  Like a non-lethal version of AP, those people 
who are most abusive of the public (primarily current government employees 
and officeholders) will be named most often in commonlaw court proceedings.  
Eventually, they will begin to behave.

>>1.  Commonlaw courts predate the US Constitution by a few hundred years.  
>>The former does not depend on the latter for authority or credibility.  
>
>Untrue, the US constitution replaced all previous constitutions.

But commonlaw courts were not a product of previous constitutions.  And the 
US constitution certainly didn't "replace all previous constitutions":  
state constitutions were "replaced."    The only document the Federal 
constitution arguably "replaced" was the Articles of the Confederation.

> Thats
>what the supremacy clause is all about. All previously existing courts
>were extinguished.

Ah!  So you admit that these courts were "previously existing," huh?  Well, 
if that's the case, merely read the 9th and 10th amendments and tell me how 
you're so sure that "all previously existing courts were extinguished."


>>2.  The US Constitution is, at most, a statement of the authority of the 
>>FEDERAL portion of government.
>
>It also includes a supremacy cluase and a "due process" clause. The
>due process clause means amongst other things that noone can be subjected 
>to proceedings that are not authorised under the constitution.

Anyone in state court are "subjected to proceedings that are not authorized 
under the [Federal] constitution."  Clearly, state courts operated before 
the Federal Constitution existed.  And the "due process clause" may simply 
apply to the Federal government, not necessarily all individuals or the 
organizations they form.


>>3. The Federal Constitution only references states, and I don't think it 
>>references state Constitutions at all.
>
>There is no logical reason why it should, if a state exists it has a process
>of government, a boundary to its authority and performs legislative,
>excutive and judicial functions. The explicit recognition of the states
>was necessary since otherwise the supremacy clause would claim to extinguish
>their rights. 

There's a big inconsistency with what you just said.  It was the 
representatives of the STATES which WROTE the US Constitution.  Their 
ratification was _necessary_ to approve that document.  If states were not 
recognized, nor their representatives, they would have been unable to ratify 
the Federal constitution.  It would be, therefore, totally illogical to 
believe that the product of their writing could somehow "extinguish" the 
rights of the citizens, let alone the states.  You're obviously confused.


>The authority of the states to make law is explicitly 
>stated.

Whatever it said, it was not necessary to have said it.  The 9th and 10th 
amendments make it clear that any power not explicitly granted the Feds was 
reserved to the states or the people.


>>You should have said, SOME courts.  Not "the courts," implying ALL the 
>>courts.  Notice that the US Federal Constitution (at least, to my 
>>recollection) does not describe or regulate state courts, or for that matter 
>>local courts.
>
>It recognises the states, and thus their constitutions. If you can find 
>a state which omitted a supremacy clause from its constitution then you
>might have a point.
>
>
>As a practical matter however the immediate effect of claiming to issue
>proceedings under "common law courts" is from now on almost certain to 
>be criminal and civil proceedings followed by long jail sentences.

Oh, really?  It certainly isn't "criminal."  At most, you might try to claim 
that it is legally irrelevant.  After all, if commonlaw courts don't really 
exist, then nothing they do has legal weight, and thus it's a legal nullity. 
 But your commentary seems to indicate that no, what commonlaw courts do is 
not only real and significant, it's also going to be called "criminal."  In 
other words, it's a threat to the existing legal monopoly.


>While Jim Bell can pick nits and pretend that he is a lawyer the people
>recognised as lawyers in our society act in a different matter. 

All of whom are trained to recognize the existing legal monopoly.

>It is 
>an empirical fact that those convicted in federal and state courts
>go to jail, those convicted in "common law kangeroo courts do not". In
>fact the only people who do are the judges, jurors and other 
>instigators.

Of what relevance is this?  Sending a person to jail is only one of many 
ways a court can exercise its power.  


>It is an empirical fact that the authority of "common law" courts 
>is not recognised by society. 

"Society"?  I think you mean "the people who believe they are in charge."  
The "thuggerati" would be one way to identify them.

The vast majority of the population of the US are simply unaware of 
commonlaw courts.  In fact, it's quite possible that the vast majority of 
the population can't quote even a single law verbatim.   The average person 
knows nothing of the history of commonlaw courts, and therefore what he 
"recognizes" is unlikely to include them  


>They can be dealt with easily enough,
>the intended victim need only apply to a real court for an injuction
>prohibiting proceedings,

What "proceedings"?  You just said that commonlaw courts do not exist, and 
that their actions are legally irrelevant.  Why should an "intended victim" 
NEED to "apply to a real [sic] court for an injunction"?  An "injunction" is 
generally obtained to prevent somebody from doing something that he'd 
otherwise have the power (and, often, the right) to do absent the injunction.


>turn up to the "court" to serve the injunction
>and if people insist on proceeding apply to the real court for 
>enforcement of the original order since anyone participating in the 
>"common law court" would then be in contempt. 

They would only be "in contempt" if their actions were legally relevant, 
which you have already denied.


Your problem is obvious:  You're desperate, and you can't promote a 
consistent argument.  I, far more honestly, started by pointing out the fact 
that commonlaw courts are but one type of court, and they were in 
competition with equity courts in England for centuries.   It's a power 
stuggle, quite analogous to the free market, and if anything their long 
absense  will only make the competition keener.  Naturally, the opponents of 
commonlaw courts  (and, "opponents" are exactly what they are; they are 
biased on one side of the issue) want to deny past reality as well as 
prevent the resurgence of those courts.


Jim Bell
jimbell@pacifier.com