Claimed: “Common Law” is the Supreme Law of the Land
Claimed: “Rules, Regulations, Statutes are Not Legal
or Only Govern the Government not People
Note: The “claim(s)” shown are those attributed to many adherents to a variety of theories, especially those who call themselves sovereign citizens. This blog is one of several used to address specific claims in detail, and the background and organization of my response to the movement begins at this link: http://wp.me/p3nYC8-fD
Sources of Law
Where does law come from in the first place?
Who made, or makes, or gets to make laws?
What is Law?
Let us first and briefly look into the question of “What is Law and why do we have it” to better understand the significance of the various sources of Law.
Compare bylaw, statute law.
law noun (rule) [Cambridge Dictionary]
a rule made by a government that states how people may and may not behave in society and in business, and that often orders particular punishments if they do not obey, or a system of such rules
So a law is a rule that is binding, enforceable, and one can be punished for not obeying.
The Rule of Law — More Than Just a Rule
We speak of The Rule of Law as being fundamental to our society.
The Rule of Law is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. (First Result from googling “What is the Rule of Law”)
Rule of Law Definition: That individuals, persons and government shall submit to, obey and be regulated by law, and not arbitrary action by an individual or a group of individuals.
Duhaime’s Law Dictionary
Without laws we have no effective freedoms. This is a corollary of the Rule of Law. We base the orderly functioning and fundamental justice of our entire society upon the “Rule of Law”
Laws shield us from others and even from government itself. Lack of laws is anarchy; which means whoever can force others to his will gets his way.
My position throughout my blogs is that Law is made by humans, has always been made by humans, and there is a long history of legal principles and thought which can be found in writing.
Law evolves as societies evolve. Law changes to fit the character of the society.
Humans when gathered in any significant number will ALWAYS create governments, and those strike the balance between societal needs and individual needs in different ways according to the values of those societies.
Indeed the essential tension of every human society is how to balance the freedom of the individual with the needs of the greater society; no perfect balance can ever exist, but each society must and will strike some balance. Too much for the individual and the society fails, too collective and the people are not served and will ultimately bring it down. Neither extreme works for long. Both are scary; terms for them might be anarchy on the one hand and fascism on the other. The best results are somewhere in the middle.
The ideal characteristics of a systemic rule of law (not to be achieved perfectly by fallible humans) are:
- The government and its officials and agents as well as all individuals and private entities are accountable under the law. No one is exempt from the laws.
- The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
- The processes by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
- Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
In OUR legal tradition there is a government to which every person (human being) is subject; and the people collectively exercise power over that government. That is collective sovereignty.
We have a written constitution and it is the supreme law of the land.
The legislative function of our governments is the part which has the power to make law; the judicial has the power to interpret the law, to say what it means, and to apply it to specific cases; and the executive function executes the law, enforces it. Separation of powers limits the power of government to help protect the individual.
Law is subject to the collective consent of the governed, but no society could exist and no government function if it required the unanimous consent of every person. Because no law would every receive such unanimous consent. No law passed by a legislature will have unanimous agreement of all humans; and thus no true law can exist by that measure. And if a law does not apply to all it is not a law. By definition it is not law if people can exempt themselves from it.
This is one reason you won’t find a single court decisions that ever said personal individual assent to the law is required; just the opposite in fact. You won’t find any legislative enactment (law or otherwise) that says that. Our whole society is based on laws to which all must submit.
It is the mandatory nature of law that allows us to use it to restrict the arbitrary use of power against us.
In order for our scheme of ordered liberties to succeed, we must all obey valid laws, even those with which we do not agree; a man cannot exempt himself from the operation of a law simply by declaring that he does not consent to have it apply to him.
City of Salina v. Wisden (Utah 1987) 737 P2d 981
So, we now turn to the question of where do laws come from? In the process we will also clarify how one kind of law is superior to another.
Source: The Constitution — Constitutional Law
In our nation we start with the U. S. Constitution. It sets up a legal framework and a government for the Union of the States and it is a source of law for us; it is the Supreme Law of our land, though some sovereigns disagree and assign that aspect to what they call “Common Law.”
The term Constitutional Law refers to Law derived from the Constitution directly.
I must caution that some simply claim the Constitution was from its start a corporate charter for those who wished to join in a venture and has no applicability to them. Philosophically I cannot respond; legally you can be assured that under all traditions and the actual practice of law the Constitution is binding law, and the government created by it exercises sovereign power.
Sovereignty is found by transfer of power by treaty with the King in the Treaty of Paris (or arguably at the time we declared independence); by current international law which recognizes the U.S. as a sovereign government by reason of its exclusive control of its territory and people; and by the Constitutional claim that the people created this government as an exercise of their own sovereignty.
The last is I suppose the one thing most disputed by them. Under international law sovereign nations decide by law who is their citizen, and that is not a matter of choice by the citizen.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Supreme means supreme, therefore no law, case law, natural law, common law, statutory law, is higher.
(Note: State Law is supreme in the matters that are the sole purview of the States, i.e., where the Constitution does not apply, State Constitution and statutes are supreme.)
Constitutional Law: Many provisions of the Constitution are about how government is organized; the three branches and their powers, and those are in fact law; and some of the Constitution makes other types of law, for example the prohibition against a “Bill of Attainder” restricts the power of the Congress (a legislature) a fine example of the Rule of Law at work to prevent arbitrary exercise of power; all of this is “Constitutional Law.”
(This is not to be confused with the study of the Constitution, which may be called Constitutional Law. And please note that both of those are different from the determination that some law conforms to or violates the constitution, which we call “a constitutional law” in the first case and “an unconstitutional law” in the latter.)
The terms of the Constitution are Law; the Supreme Law of the Land.
The Authority of the Constitution rests on the Sovereignty of the People.
“…the people, in their collective and national capacity, established the present Constitution..and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves…”
Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793)
The Chisolm decision, rendered just four years after the creation of the Constitution, shows that “We the People” is a collective term; the process of adoption of the Constitution did not make any provision for the individual sovereign theory (which did not exist at the time, it came about in 1970) and therefore our legal tradition is that we are governed by the Constitution and our consent is implicit in our failure to change that document or form a different government. We exercise our consent (at least in one aspect) when we vote. When we exercise free speech. When we campaign for political ideas and laws. And if we choose to not vote we are again exercising consent.
Source: State Constitutions
Each state is likewise a sovereignty. As explained before a sovereign is an entity which controls a territory and its people and actually exercises sovereign powers. While the states have designated areas of their sovereign powers that they delegate to the national government, the remaining powers by the tenth amendment are reserved to the state. The people of each state empower their state government to exercise those residual powers in certain ways, via a state constitution. Again the Supreme Court clarified that only four years after the First Congress convened, the same case that showed the U.S. Federal Government represented a sovereignty:
“From the Crown of Great Britain, the sovereignty of their country passed to the people of it… and thirteen sovereignties were considered as emerged from the principles of the Revolution … Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner…
Chisholm v. Georgia, 2 U.S. 2 Dall. 419 419 (1793)
Source: Statutory Law (Statutes, Ordinances, Codes)
The next source of law we have is called statutory law, which is a fancy way of saying laws passed by a legislature., called statutes. Sometimes this is called “black letter law” because it is literally printed in black ink on white paper; fixed in type so to speak; and is not changed except by another statute. It can be pinned down precisely which is not always the case for laws when examined in the context of a case or controversy.
A Legal Code is simply a compilation of laws, statutes, or ordinances typically limited to a particular topic or topics and arranged in a logical fashion for convenience.
For some reason the idea exists among sovereigns and fellow travelers that codes are not laws but in fact in any legal code you will find every provision was passed by the legislature, though the organization and numbering might or might not be part of that law. I suppose technically one could argue that the code is not THE law; yet every provision in it IS a law.
Historically laws in the form of codes have been the way of governing an entire nation. For example the Code of Hammurabi, the Napoleonic code, the Mosaic Code. More mundane versions might be the Vehicle Code or the Penal Code in some states. But they are simply compilations of law.
Ordinance is the term usually applied to local government laws, also passed by a legislative body such as a county board or town council. They are laws subordinate to federal and state law and constitutions. But they are in fact statutory or black letter law. They may be passed pursuant to a county or city charter or other founding document, or a state statute that designates how it is done.
The power of local governments in the U.S. is delegated by the State and local jurisdictions (cities, towns, counties) are creations of the sovereign State.
Some claim that statutes are not laws; but every dictionary (legal and ordinary) and every precedent and practice and court ruling back to the 13th century in our system says that they are…when the legislative authority of a sovereign nation (including in our case the individual States, which are sovereign) follows its defined processes to enact a statute, that is a legally binding law. There is an entire blog on this topic for your information.
If anyone claims statutes are not laws they should be asked to cite the document that says so. (No response is ever forthcoming to that request…unless they refer you to a blog of some kind. Blogs, including this one, are not authorities.)
Otherwise such claims are actually a challenge to the sovereign character of government, and the authority of its legislature to enact laws. The states are sovereign as noted in the Chisolm decision quoted above; they are not, as some claim, corporations.
The claim that statutes are not law is absurd and without any foundation in our legal tradition. As you will see every single legal and regular dictionary say that “statute” means “law”. No court case finds otherwise. No constitutional provision to the contrary exists.
Federal and State Laws (Statutes)
In the US, Congress is the national legislature, and each state has its own legislature.
In the case of Congress it is manifestly clear that it has the power to and it does pass LAWS Here is what our Constitution says:
“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, … it shall become a law …If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Article I Section 7 U.S. Constitution
Legislative enactments by Congress are laws. The Constitution says so. Congress can only pass laws that it is specifically given the power to pass by the Constitution (“enumerated powers”), though there are some “implied powers” identified by various court cases.
In every state there is a legislature, and the legislative branch by definition (the root word is lex, plural leges, meaning “law(s)” in Latin) make law. The legislative power is the power to make law. One need only read the California Constitution to find an explicit statement about what a statute is:
“The Legislature may make no law except by statute and may enact no statute except by bill.”
California Constitution Article IV Section 8 (b) (1)
Even going back to the original California Constitution of 1849 (California’s current constitution was ratified on May 7, 1879 and has been amended over 480 times). We see clarity on this point; The Legislature makes laws:
Sec. 1. The Legislative power of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of California; and the enacting clause of every law shall be as follows: “The people of the State of California, represented in Senate and Assembly, do enact as follows.”
Sec. 17. Every bill which may have passed the Legislature, shall, **before it becomes a law,** be presented to the Governor. If he approve it, he shall sign it; …If, after such reconsideration, it again pass both Houses, by yeas and nays, by a majority of two thirds of the members of each House present, **it shall become a law,** … If any bill shall not be returned within ten days after it shall have been presented to him, (Sunday excepted,) **the same shall be a law, in like manner as if he had signed it,** unless the Legislature, by adjournment, prevent such return.
And States have the powers to pass laws in areas traditionally exercised by sovereign entities, except as limited by the U.S. or State Constitution, but also as empowered by the Tenth Amendment.
States have their own constitutions of course and state laws may not violate either the state’s constitution nor the U. S. Constitution by reason of the Supremacy Clause. In this scheme, the Constitution is supreme and federal laws are superior to state constitutions and laws unless they are found by the courts to be unconstitutional.
And statutory law can overrule any common law provision.
“No doubt a statute may take away a common law right…”
Meister v. Moore 96 U.S. 76 (1877)[U.S. Supreme Court]
Source: Case Law (AKA Common Law)
“Case law,” is the American version of the term “common law” and it is broadly speaking, principles and understandings of law developed by the courts in the course of interpreting and applying the laws.
Courts often have to examine how a law works in a particular situation to resolve the questions that arise; what does the law mean? Does it apply here? How? In the real world the Legislature just cannot imagine every situation that may lead a party to court.
The Courts over centuries developed ways of analyzing laws, and principles of law applied in their interpretation; and that collected wisdom is ‘common law’. It is used to achieve a common answer in applying laws from case to case, to gain consistent results and make the law predictable. Thus if the same issue comes up later in another case, the answer is accepted and applied for consistency.
In the US a particular Federal appellate court that controls courts from a number of states calls its case law “circuit law” and any court dealing with an issue determines the “law of the (specific) case” because that is where it applies.
Note that courts and judges don’t make laws, that’s for the legislature, so case law can be changed by, and is subject to, statutes. Far from being supreme it is several ladder rungs below the Constitution and below Statute Law.
“No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.”
Meister v. Moore 96 U.S. 76 (1877)[U.S. Supreme Court]
If the Congress doesn’t like how judges interpret a federal law, for example, it can change the law to make it clear what Congress intends. Likewise a state legislature can repeal or modify a law if it feels the judges got it wrong.
However when the Supreme Court rules on what The Constitution means, Congress has no power to define or redefine The Constitution…so that ruling cannot be changed unless the Constitution is amended, or the Court later decides the case law on that issue was incorrect or no longer applies.
Sovereign Citizens often cite “Common Law” as the authority for their beliefs. What do they mean? They seem to primarily mean “Natural Law,” discussed below.
What they do NOT seem to mean is what much of the legal world calls “common law” or in the U. S., “case law” which is a source of law.
Not a Source: Natural Law
Sovereign Citizens may make the claim that common law is supreme, by which they must mean — even though they often refer to Common Law in so doing — “Natural Law”.
Natural law is a view that certain rights or values are inherent in or universally recognized by virtue of human reason or human nature. It is often tied to religious beliefs, such as that god gives us our rights as humans. Some use natural law synonymous with natural rights.
Natural law implies that there are binding rules of moral behavior that are obvious to everyone. While natural law principles absolutely underpin the Constitution and notably the Declaration of Independence, it in fact is not a set or settled form of law and is simply a set of principles that courts or legislatures use in framing law and the Constitution itself. While there is general agreement about what those principles are, there is no binding written document specifying them.
Many say it comes from God, and you know how many people claim to speak for him and say contradictory things. So we don’t rely on an unwritten set of beliefs, we write down what we believe in this sense incorporating it into the laws we create. We prefer a written form of law in our system.
And in any event we will always end up with issues of interpretation which our tradition leaves to the courts. And under our system the Constitution is the Supreme Law.
(Ironically English Common law is also used to understand the Constitution since that was the form of law used by the Framers and it is to English law we sometimes look to understand their intent. For example “natural born citizen” was a term well understood in English Common Law so the Constitution does not define it. “Treason” was also well understood, but the framers specifically did not want that definition so they redefined it in the Constitution.)
The idea that Congress is limited by “natural law” was more recently rejected. In dismissing a suit for the refund of all federal income tax, social security, and Medicare contributions withheld from the plaintiff’s wages between 1993 and 1994, Judge Kimba Wood wrote:
“Plaintiff thus appears to argue that this Court should look to principles of natural law, or more accurately, his preferred principles of natural law, as opposed to the positive law by which it is bound. That, however, is not this province of this Court.”
Calder v. Bull, 3 U.S. 386, 398-99 (1798) (opinion dissenting in part):
“If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice.
The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
Under this principle of constitutional law, the courts cannot refuse to enforce the federal income tax merely because one or more judges believe that the tax is contrary to their concepts of “natural law” or “natural rights.”
Not a Source of Law: Rules and Regulations
Rules and regulations are not laws but properly adopted and applied they can have the force of law within their area of authority. To have the force of law they must be made pursuant to some law which actually authorizes them.
I often see this case misquoted for the proposition:
“The common law is the real law, the supreme Law of the land, the code, rules, regulations, policy and statutes are “not the law”
Self v. Rhay 61 Wn.2d 261 (1963)377 P.2d 885
Well that seems clear enough; this quote also is offered to support the idea that statutes are not laws. The problem is that Self v. Rhay says no such thing. The quote is fraudulent. Those words are not there. Nothing like that is in the decision.
But as said above the Constitution and Laws and Treaties made under it are the Supreme law of the land.
However, here are the important words that are in that decision, a place one gets to when one carries the idea of individual sovereignty to its extreme:
“It follows that the petition for a writ of habeas corpus is denied, the stay of execution is dissolved, and respondent is directed to produce petitioner in the Superior Court for King County for setting the time of his execution in the manner provided by law.”
Anyone wishing to rely on these theories should consider seriously taking a more traditional approach to the law. The defendant didn’t use lawyers or present defenses because “the court ‘has no jurisdiction’ and is only able to hear ‘commercial cases'”. Perhaps he’d have gotten a death sentence anyway, but… this is not the sentence for a commercial infraction. It’s not about money. “The King or International Banker or the BAR” will not get richer for it.
Frequently quoted in this context:
“All codes, rules, and regulations are for government authorities only, not human/Creators in accordance with God’s laws. All codes, rules,and regulations are unconstitutional and lacking due process…”
Rodrigues v. Ray Donavan (U.S. Department of Labor) 769 F. 2d 1344, 1348 (1985).
This is a wonderfully supportive quote but once again it is simply made up; those words are not in the opinion; nor does the case conclude anything remotely like that.
That case is also cited as proof that courts are purely administrative, not judicial, but that is a complete misreading of the case, which revolved around a matter that was the subject of an administrative hearing. That case itself is an Equal Protection and Due Process claim under the Constitution filed in federal courts as a lawsuit, not an administrative hearing nor a ‘direct’ appeal from a hearing under statutory authority.
One of the most famous Supreme Court decisions ever made is quoted in support of the proposition:
“All laws, rules and practices which are repugnant to the Constitution are null and void”
Marbury v Madison, 5th US (2Cranch)137, 174, 176 (1803)
Indeed the Marbury decision is the famous defining opinion of the Judicial Branch’s role in declaring laws unconstitutional and it does stand for that proposition. However,to say this is an absolute ban on rules or regulations is to misunderstand the grammatical meaning of it; to misconstrue the meaning of the key phrase: “which are repugnant to the Constitution”
If you think “which” modifies “rules and practices” you might conclude that it says rules and practices are repugnant to the Constitution. But if that were the case you can leave ‘which’ out of the quote to get the same result:
“All laws, rules and practices are repugnant to the Constitution [and] are null and void”
Of course that also means NO laws re effective.
But every word in a legal document must be given meaning if it can, so instead, “which” modifies “repugnant to the Constitution” so that the proper understanding of this statement says would be:
“Those laws, rules and practices which are repugnant to the Constitution are null and void;
but those laws rules and practices which are not repugnant to the Constitution are not null and void.
The following words are not part of Marbury but are often found with the quote above, mostly because they have cut and pasted from someone who did the same and probably down a long chain of repeats:
“Legislators simply don’t have the authority to rule make”
That is someone’s total mis-interpretation of the case. Of course, in most cases Legislatures don’t rule make (except for themselves); they create or empower executive bodies to do that, regulations can be complex, require much expert input, and change often. These are not tasks legislatures are good at.
The Internal Revenue Code is one example of a fairly complete and detailed set of rules in the form of a law. And a code that is a law as well. But that’s unusual.
The Clean Air Act and Clean Water Act and Automotive Safety Act and many others create bodies such as the EPA and authorize them to adopt rules to achieve the ends the law seeks, to implement and execute the law, and those regulations when properly adopted have in fact the force of law.
Indeed at this writing British Petroleum (BP) is in court on many legal cases seeking to hold it liable for breaking rules regarding pollution of the Gulf of Mexico from the Deepwater Horizon oil spill. The regulations and underlying laws hold them responsible to those injured and also allow the agencies and courts to impose fines for the violations of rules and regulations. Those regulations dictate, for example, how much drilling ‘mud’ (fluid) and of what density must be used in certain situations to prevent wells from blowing out.
These are things no Legislature would have the time or knowledge to specify and which they could not quickly change if they got it wrong.
So the statutory goals and consequences are laid out in law and the agencies are given the power to regulate by rules, subordinate to the statute. And there is a defined process for adopting rules which must be followed. But then they DO have the force of law.
Also often cited is the famous Miranda case:
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them”
Miranda v. Arizona, 384 U.S. 436, 491
And that is correct. But it does not say, nor does it mean that ALL rule making or legislation is forbidden, rather it applies to only those rules and laws which actually abrogate rights secured by the Constitution.
Pretty basic grammar.
In fact, many rules and regulations and court decisions limit rights, but do not abrogate them. Indeed as we have discussed above, limits also play a role in protecting particular rights.
The sovereign citizen often relies on the notion that rights are absolute and cannot be restrained, infringed, or balanced, but if rights collide and no restraint is available, then might makes right, not law. Whoever is strongest will get unabridged rights and tough for the other guy and his rights.
The Rule of Law is the antidote.
Courts decide whether a rule or law abrogates a right secured by the Constitution (Marbury v Madison, ironically!); and Courts routinely hold that rights must be balanced against each other, so sometimes a right is restrained or restricted in order to give proper deference to a conflicting right. Indeed a massive share of decisions by the Supreme Court are focused exactly on how to balance one right versus another.
= More Blogs by Philipem 1000 =
Strawman Theory and CAPITAL Letters
= The US and the States =
(Or If You Prefer, It Can Be An Elephant )
The US Became Bankrupt in 1933 &
Federal Reserve Notes are Not Legal Currency
The United States is still a British Colony
There are Three United States
= The Courts =