by Mary W Maxwell, PhD, LLB, July 31, 2015.
So far I have not heard of anyone resisting Jade Helm. It is good to see, however, that there are Youtube videos of citizens resisting pull-overs by cops. Some have had 4 million hits.
You know, it takes a lot of work to find out how to resist. I discovered a good piece the other day written by an Australianized American, Terry Shulze. As a barrister he was defending an egg farmer from having to have his business dictated to by a monopoly. Give me ten minutes of your time to see how he ran the case. It’s ’Tude City, believe me.
Here’s an idea that Shulze drew from the Case of Monopolies — of 1602! “It was recognized at page 1263 of the Case of Monopolies “that every man’s trade maintains his life and the high value placed upon this aspect of personal liberty.”
That happily reminds me of Judaic law. See Meir Tamari’s coverage of rabbinic court rulings in The Challenge of Wealth: a monopoly goes against a man’s right to make a living.
Moving along to the very next page, Page 1264 of the Case of Monopolies, Shulze reports: “Further is the recognition of the deception of the sovereign in granting such a monopoly as for the public good, when it will actually be employed for private gain of the monopoly to the prejudice of the public.”
Who can say today whether a company that is so big, such as Microsoft, is not perforce a monopoly? Our Sherman anti-trust law is very “Judaic” and, amazingly, it has not been encumbered with the slightest amendment since it was enacted in 1890. Which wasn’t yesterday.
The Office of the Attorney General has a branch devoted to enforcing the Sherman anti-trust law, but its workers are just so many Maytag repairmen. They twiddle their thumbs; they nap. Sure there are private cases in which one company sues another for breach of “Sherman,” but your basic well-paid US Attorneys just aren’t there for you.
Now here is where Shulze goes deeper than deep. He asks Why should there not be monopolies? Is it because the law so states? If you think the essence of law consists of “whatever Parliament or Congress has decided to impose,” you’re only on the surface. You’re a believer in Legal Positivism, he says. Nah, dump that wimpy stuff. Go for the deeper, Magna Charta type stuff.
In defending his New South Wales client, an egg farmer, Shulze argued that “The appellant submits that the Egg Industry Act 1983 [is] unconstitutional. That is, it is ultra vires the constitution of NSW.” How so? Shulze starts with observations as to the continued validity of “natural law” and fundamental rights of the people.
Whoa, hang on there. I – the undersigned, Mary Maxwell, have mucho skepticism that there’s such a thing as “natural law.” For me, a committed sociobiologist, the real law of nature includes killing, deception and all those fun things. Stalwartly I have also opposed, and still do oppose, the word “rights” if it means something that exists in the person.
To the extent that I, or any mammal, desires freedom – and I think every creature desires to move around freely – it is only that, a DESIRE. If one is successfully opposed by stronger others, the “RIGHT” does not exist. I claim that in animals, “rights” can never exist but they exist in humans to the extent, and only to the extent, that humans band together to make it a reality.
Back to Terry Shulze, and natural law which – he says – is based on reason. The first thing you have to apprehend about him is his love for Coke. You know that I’m referring to Sir Edward Coke of “The Institutes of the Laws of England” (1628). What a guy! Shulze believes that “The fundamental documents such as the Magna Charta (thirteenth century) and Bill of Rights of 1688 were considered paramount to statutes and judicial decision when they were produced.”
Cokian stuff: Those documents were products of the people to dictate to the government of the day the conditions under which the government took power…. “They and the principles they expound have never been overruled.” In other words those original declarations of the true relationship of king and people were already residing “in” the people of the colony of NSW. Yes, even BEFORE those English-rights-bearing folk got around to making a NSW constitution.
AN EARLY MASSACHUSETTS CASE
So can the same be said for that other famous British colony? In Bowman v Middleton (1787), the judge knew his Coke. The plaintiff had complained that an Act of the assembly had transferred his freehold property to another without trial or compensation. (Hmm, in Kelo v New London there was at least the appearance of a trial.) In Bowman, the Court ruled that the transfer of property was not kosher, as:
“It was against common right, as well as Magna Charta, to take away the freehold of one man and vest it in another…without even a trial by jury of the country, to determine the right in question. The Act was therefore, ipso facto, void.”
Wow. Ipso facto. That’s what I was trying to say about the Homeland Security Act in Prosecution for Treason but I lacked the phrase.
(At this point, Shulze recommends you read The Higher Background of American Constitutional Law by Corwin, 1984, and I recommend Nelson’s The Americanization of the Common Law, 1982. Gosh, I’d never noticed that the Eighties were so hot.)
Shulze says, about the Homeland Security Act, or, pardon me, the Egg Industry Act:
“It would be a design offensive to the rational mind if the NSW Parliament sought to take principles which had a pre-existence and declare them on a piece of paper only to destroy the paper later in the hope of destroying the principles.”
As said, Terry Schulze is a Yankee in King Arthur’s court, or, as we would say here in Oz, he is a Seppo in Steak and Kidney (i.e., Sydney). (US-trained but migrated here.) He tips his hat to Marbury v Madison but says the proof of his claim that his Australian client is entitled to Magna Charta, etc., is to be found in the Imperial Acts Application Act, 1969.
Note: The separation of Australian law from Mother England has occurred gradually. The Australia Act of 1986 more or less cut the apron stings — but that Act was itself an Act of UK Parliament! Slightly embarrassing, but oh well, it’s done.
Shulze: “Taking a despotic NSW Parliament [John Ashcroft, anyone?] at its highest, if the Parliament should wish to abrogate the fundamental rights of the citizens of NSW, it would first need to abrogate the fundamental documents that were declared in the Imperial Applications Act.”
SPOILING FOR A FIGHT? GREAT.
I must point out here that we’re not living in a society that jumps to support principles. As Charlotte Iserbyt laments, the young are not taught the Constitution, so they don’t get upset about having it taken away from them. Oldies to the rescue!
The sociobiologist in me says that the new oppression by legislatures, and courts, is a normal manifestation of the power struggle in society. “Those who can, do.” Or as Thucydides put it pretty baldly in his funeral oration to Pericles, “The strong exact what they can and the poor grant what they must.”
Shulze is saying “Yep, the strong can do that, so let the people develop some ’tude that will make them strong enough to squelch the Bozos.” He reminds me of one of my beloved mentors, Philip Allott, who says “Once human rights has been thought, it can’t be un-thought.” Well, OK, Allott, but it takes more than thinking. It takes an armed fight. Armed? Sure, the arms can be thoughts and words, but the fight has to be a fight.
None of this falling asleep for twenty years like Rip Van Winkle, hoping when you wake up all will be resolved. In fact there is a dark age coming, says the wise old Jane Jacobs (Dark Age Ahead) in which skills and manners will be lost and we’ll regress Oh you who think you have to have every luxury and comfort today, beware. There won’t even be toilet paper.
I believe all of the above paean to Englishmen should be taken with awareness that the Brits screwed the Chinese in the opium “wars,” and went so far as to smash the fingers of textile spinners in India, for the benefit of “Manchester.”
Maybe there is a brainiac out there today who could figure how to pin down the “rights of man” in all their glory while also figuring out how not to take delight in genocide. Chances are it could be done. And why? Because we are, by the grace of God selfish, and want to preserve our life.