From the December 2000 Idaho Observer:
By Hari Heath
As Thomas Jefferson said to Spencer Roane, in 1821, “The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”
Colonel Dan said more recently in his article, The Swords of American Patriots ( http://www.sierratimes.com/archive/dan/edcd112400.htm), “When those that are solemnly charged with upholding the law ignore the law; then there is no law; there is only lawlessness.”
Today, we find ourselves and our nation in a state of judicial anarchy. Originally entrusted to interpret our laws and maintain access to courts of justice, the judiciary has evolved into a creature of not so subtle lawlessness. It has not been a sudden event. Slowly, step by step, we have been conditioned to the changes made by the judicial governing power. What would have been an outrage a century ago, like taking children away from their parents and giving them to the custody of a government agency, or seizing someone's home and property because of a weed found growing there, or compelling the use of seat belts in your own private carriage, has now become the norm. The seeds of judicial anarchy were sown long ago and have prospered by our failure to weed the garden of government:
“At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”
Years ago, public service was just that. Now the relationship between master and servant has been reversed and we the people serve our new masters with taxes and tribute. “All rise,” as “your Honor” proceeds to the bench for another session of pillage and plunder. Caught in the web of pretended offenses where, all too often, no one but the “defendant” has been offended, the judicial officer lays a claim of jurisdiction to determine who gets what's left of our lives and fortunes. Constitutional provisions securing our rights be damned or ignored by the judicial hordes, we are treated by the judiciary as mere property, whose rights exist only by the permission of government, subject to judicial discretion. Time after time, Americans who still believe they have rights antecedent to government have challenged the tyrannical corruption of the third branch only to find themselves beaten down by a judicial officer, who willingly departs from the government laid down by the Constitution and embraces a new regime. How has this happened? Once a third component of the fabric of our Republic, the judiciary has now evolved to become legislators and administrators who have isolated themselves from the other branches of government and granted themselves immunity with impunity. In decision after decision, the judiciary has written not just volumes, but libraries, full of doctrines to command every aspect of our lives and their own protection. With their doctrines and rules, they have established law after law, with no need for a legislature.
Thomas Jefferson explained it well in 1807: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” The constitutions command that the lesser courts be established by the legislatures or the Congress, thus keeping a check and balance between the powers of the three branches of government. Article I, Section 8, clause 9 of the federal Constitution grants Congress the power to “constitute tribunals inferior to the Supreme Court” and Article 3, Section 1 vests the judicial power “in one Supreme Court, and in such inferior courts as the congress may from time to time ordain and establish.”
No longer ordained and established by the Congress, our lower courts have become the province of the Supreme Courts. With this in house control, the judiciary administers these courts through “rules” recommended by committees of lawyers and “adopted” by the state and federal Supreme Courts.
“The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether on one, a few or many and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny.” -- James Madison, The Federalist Papers, No. 47And in whose hands does this accumulation of power reside? That greatest of all monopolies, the Bar associations, claim as their members, all judges, all attorneys, many legislators, much of the executive branch members, and a small army of attorneys who have infiltrated the administrative agencies which have become a branch of government unto themselves. The iron grip of the Bar associations are maintained by prosecuting all who would act independent of their association.
By managing the monopoly of the Bar associations, they control the attorneys who bring the cases and questions before them. By creating the rules of court they control the proceedings before them. By controlling the evidence and the testimony they control the facts. With a broad and unfettered “discretion” they determine just what the law is. By controlling the jury they control the verdict. By controlling the question and the questioners, they control the answer.
And in the wake of this judicial tyranny imposed by the black robes behind the bench, gathering power unto themselves, we now face the prospect of a judicial act which will determine the next president.
Obstruction of Justice?
Law should be a simple thing designed first and foremost for the people themselves. It could and should be a system that is comprehensible and usable by the average person. Law should be clear and predictable, something one can rely on.
As it is now, the system is so complex and contradictory, that many lawyers, even after years of training in the system, still have difficulty navigating through the courts to a successful outcome. Instead of simple justice we have a convoluted and contradictory system designed for perpetual litigation (make work for attorneys) and an obstruction of true justice. Courts cannot be predicted, even on seemingly clear issues, because the layers of contradictory case law laid down for decades give ripe opportunity for the whimsical discretion of the presiding judge. One rule or statute may command certain conduct, while another commands a contradictory result. Fill a law library with enough rules and statutes and the judiciary is unfettered in its ability to pick and chose the outcome of any given matter. Justice can be obstructed, truth can be ignored and the Constitution shunned. After all, when the system fails you, to whom are you going to apply for a remedy? In the last 10 years, how many people have filed law suits against government officials to enforce the violation of their constitutional rights? I have filed several and personally know of thousands more. How many have succeeded? Almost none. Yes, Rodney King won his, mostly through the illumination of media attention, but most fail to pass the initial Motion to Dismiss for “failure to state a claim upon which relief can be granted,” or run into the wall of immunity -- judicially created immunity. Such immunity exists only because of case law or “judicial legislation” which claims that such immunity exists. Can such immunity from damage suits be anything other than the obstruction of justice when judges and prosecutors willingly and intentionally violate the Constitution and laws depriving us of our constitutionally secured rights?
Constitutionally, judges can't legislate and no act of Congress has granted them any immunity. It's nothing more than one of the feathers in their judicial cap. That cap however is the hat of judicial anarchy which is bleeding away what's left of our nation and our lives, fortunes, and sacred honor like so much sap in a tree. Next month we'll expose how we have been milked and mined into this state of judicial anarchy, as Thomas Jefferson so aptly explains:
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a Co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, 'boni judicis est ampliare jurisdictionem.' [good judges have ample jurisdiction]”
Government, at least that which poses as government in our current age, is a RICO activity. Originally passed to make the criminal activities of mobsters a federal crime, the Racketeering Influenced Corrupt Organization (RICO) Act is really a way for “government” to control its competition. And what a mob our government has become. At the center of it all is the judiciary and the members of its private fraternities, the bar associations.
It is, after all, the judicial branch which has the final say on all things in government. All laws are enforced by the judiciary and any challenges to its validity or application are determined by a judicial branch member. All criminal prosecutions and civil matters sail through the courts with a judicial officer at the helm. And in the year 2000, judicial supremacy was taken to a new level as the nine members of the Supreme Court held their own private election for the next president.
How has our nation fallen into this black hole of judicial anarchy? Through various unconstitutional schemes, the judiciary has collected and expanded the power of government unto itself, as Thomas Jefferson explained in his 1821 autobiography: “Contrary to all correct example, [the Federal judiciary] are in the habit of going out of the question before them, to throw an anchor ahead and grapple further hold for future advances of power. They are then in fact the corps of sappers and miners, steadily working to undermine the independent rights of the States and to consolidate all power in the hands of that government in which they have so important a freehold estate.”
And just what kind of anchors has the judiciary thrown ahead for themselves to gather and consolidate its power? By creating the rules they control the proceedings before them. By controlling the attorneys, they control the legal questions which come before them. Through the monopoly of the Bar associations, those who won't conform are eliminated. With a broad and unfettered “discretion” they have empowered themselves to define just what the law is. By controlling the evidence and the testimony they control the facts. By controlling the jury they control the verdict. With a claim of jurisdiction they can “find” their authority to determine any subject. With a simple dismissal, or a judicially legislated doctrine like “estoppel,” or the sealing and blocking of a case, they can prevent any question from being heard. By controlling the question they control the answer. The shelves of the law libraries are filled with answers to carefully controlled questions, ready for the next round of judicial plunder.
And after the citizen has been plundered of his rights and property, and seeks remedy and redress, what does he find? More judicial legislation creating the great wall of “Absolute Immunity.”
It wasn't meant to be like this. The Constitutions intended otherwise. Originally the judiciary was entrusted to interpret our laws and maintain access to courts of justice. The Idaho Constitution declares: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person property or character, and right and justice shall be administered without sale, denial, delay or prejudice (Article 1, section 18).” The Federal Constitution further compels a judges compliance with its mandates: “The...judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution;...(Article 6, section 3).”
Go ahead. Try to find a court that will respect your rights and deliver justice. The constitutions are no longer the foundation of government, but rather they are documents that are used when convenient to the judiciary and then discarded or ignored, defiantly, whenever they do not suit its purposes. In my years of trying to find justice in court and get a legal answer supporting the truths I have presented, I have seen courts routinely ignore constitutional commands. They defy the contents of clear and substantial case law when it doesn't suit their goals -- the collection and maintenance of power. Courts, from local magistrates all the way to Idaho's chief federal district court and Judge Edward J. Lodge, have ignored the mandates of the constitutions and legislated laws in favor of their court-adopted “Rules” -- the legislature and Congress be damned.
Thomas Jefferson saw it coming: “For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” ~Thomas Jefferson to Spencer Roane, 1819.
The courts' rules
Article I, Section 8, clause 9 of the federal Constitution grants Congress the power to “constitute tribunals inferior to the Supreme Court.” Article 3, Section 1 vests the judicial power “in one Supreme Court, and in such inferior courts as the congress may from time to time ordain and establish.” Idaho's Constitution similarly grants to the Legislature the power of creating the lesser courts.
No longer “established” by the Congress or the Legislature, our lower courts have become the province of the Supreme Courts. Yes, there are congressional statutes establishing the lower courts, but the “rules” provide the procedures which ordain their conduct and operation. Their functional utility is provided by the commands of the Supreme Courts. These “rules” were recommended by committees of lawyers and “adopted” by the federal Supreme Court in 1934 (soon after the conversion of our gold-backed national economy to worthless paper and ink). The State Supreme Courts across the nation followed in lock step with the establishment of state court rules, nearly identical to the federal rules. Through regular and routine amendments to the rules, the Supreme Courts have brought the lower courts into its fold. With these rules, and other devious devices, the judiciary has established itself independent of the other branches, superseding any checks and balances between the powers of the three branches of government.
Not all the Justices of the Supreme Court were in favor of the adoption of the Federal Civil and Criminal Rules. In their dissenting statement: “Mr. JUSTICE BLACK and Mr. JUSTICE DOUGLAS are opposed to the submission of these rules to the Congress under a statute which permits them to “take effect” and to repeal “all laws in conflict with such rules” without requiring any affirmative consideration, action, or approval of the rules by Congress or by the President. We believe that while some of the Rules of Civil Procedure are simply housekeeping details, many determine matters so substantially affecting the rights of litigants in lawsuits that in practical effect they are the equivalent of new legislation which, in our judgment, the Constitution requires to be initiated in and enacted by the Congress and approved by the President.” (374 US 865-866)
Although the constitutionally required method of establishing the rules of procedure for the courts is illuminated here by two Supreme Court justices, the judiciary continues to act contrary to the commands of the compact which created their own offices. In their quest for the consolidation of power unto themselves, control is the goal. By controlling the rules of the game, the judiciary controls the game.
The bar monopoly
The bar associations have been around for a long time. Originally from England, they set up shop in America in the 1800s. The Idaho State Bar (ISB) is a creature of artful construction. In 1925, by legislative fiat, all those who “practice” before the courts must be members of Idaho's “fully integrated Bar.” What is a “fully integrated Bar?” A monopoly which can and will prosecute anyone who commits the “unauthorized practice of law.” But this is only the beginning of the artful control of those who parade their cases before the judiciary.
Pretending to be a part of government lends the appearance of authority, which really, it doesn't have. The ISB doesn't actually license anyone, as I have previously proven through subpoena (well, not actually “proven” since the magistrate to whom I was about to prove it wasn't licensed to practice law and wouldn't allow me the opportunity to make my motion and offer my proof). Being really nothing more than a private club, the ISB can't issue licenses. But it does have “members in good standing.”
Do you know of any other “agency” of government that has members in good standing? What other agency has its members vote for the commissioners which operate that agency?
The artful contrivors in the lawyering class have attempted to make the ISB an “agency” to justify it's existence and consolidate power. On its website they claim the ISB is a “self governing state agency” and the ISB operates under power and authority delegated by the Idaho Supreme Court through its rule making power and under statutory authority of the Legislature.”
The ISB further claims, “The Idaho State Bar is the administrative agency of the judicial branch of the State of Idaho.”
But there's a little constitutional problem with its scheme. Article 4, section 20, of the Idaho Constitution limits administrative agencies to not more than 20 departments under the executive branch. Article 5, which creates and defines the judicial branch does not grant the Supreme Court any “rule making power,” nor does it authorize any “administrative agency of the judicial branch of the State of Idaho.” And Article 2, the separation of powers article, prohibits any person or collection of persons from one branch of government from exercising the powers properly belonging to another branch.
“Rule making” is an act of legislation, not a judicial act, and administrative agencies are an executive function. A clever ruse, but the constitutional fact is there is no authority for the Supreme Court to create the ISB, and what's more, it is prohibited from engaging in its legislative and executive functions. Therefore they have no authority to license lawyers or prohibit the “unauthorized practice of law.”
Illegitimate as they are, they still pretend to be the only game in town and will prosecute their competition for pretended offenses. Their consolidation of power requires it. Those who go against the grain of the judicial power will have their “member in good standing” status revoked, or at least the outcomes of their future cases adversely predetermined -- because the judiciary can.
Discretion -- what is, is
Judicial “discretion” gives the anarchists on the bench the “authority” to have their way with whomever comes before them, disregarding law, or selecting from among the many conflicting laws and rules for one that benefits the purpose of the moment. Ample case law exists usually to support either side of an issue. The volumes of case law are well organized on a court by court basis and breaks down and digests the vast subject matter of law in an extensive key numbering system. Almost anything a judge wants to know about has already been decided, and usually several different ways, so they have plenty of legal outcomes to choose from. Add in the “broad discretion” given to trial courts, which are rarely overturned on appeal, and what “is”, is, is whatever the judge decides “is” should be that day, as Thomas jefferson explained: “This member of the government... has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt.”
Trial by jury?
In 1852, Lysander Spooner, wrote of why it is imperative that juries, rather than judges, decide the issues of a case. In the course of time, our nation has slowly departed from the rule of law to the rule of the government, by the government, and for the government. What he spoke of then, as a danger to the people's liberty, has, unfortunately, become all too common. From Lysander Spooner's Essay on the Trial by Jury: “That it is a maxim of the law, that the judges respond to the question of the law, and juries only to the question of fact. The answer to this objection is, that, since Magna Charta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are. It is not my intention here to impugn all judges, as the Supreme Court and higher court judges generally understand the Constitution and the Common Law and rule wisely. However, many lower court judges do not rule in a way consistent with Constitutional principles, and do violence to our heritage. Many judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact. By dictating to them the laws of evidence, that is, by dictating what evidence they may hear and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear, they of necessity dictate the conclusion to which they shall arrive; and thus the court really tries the question of fact, in every cause. It is clearly impossible, in the nature of things, for a jury to try a question of fact, without trying every question of law on which the fact depends.”
Nowadays, even the Idaho Legislature has jumped into the fray of who may determine the law in a court case. Idaho Code 19-3915 states: “The court must decide all questions of law which may arise in the course of the trial, but can give no charge to the jury.”
This is a difficult statute because it leaves much room for interpretation. In my own experience, this can be taken to extremes. On the one hand I would interpret it to mean that the court has a duty to decide all questions of law but cannot compel the jury to agree with its' decision. On the other hand when I have read this statute into the record at trial and attempted to bring questions of law before the court and jury, the jury was removed from the court room and I was threatened with shackles and imprisonment for contempt if I mentioned the law one more time to the jury (the judiciary seems to hate the law when it doesn't benefit its purposes or is beyond its control).
Just as the Supreme Courts have done with the Rules of Civil and Criminal Procedure, they have also adopted Rules of Evidence. While some of these are for a good purpose -- to prevent the government from using illegally obtained evidence into court, or using prejudicial information that doesn't really relate to the case, or to prevent surprises that were not disclosed before trial. On the other hand the Rules of Evidence control the evidence and that is the prime directive for “the ambitious and lawless will of the judges themselves, and of those whose instruments they are.”
The whim of jurisdiction
Courts are a funny thing. The way their 'jurisdiction” sways in the breeze can amaze the rational mind. They have jurisdiction when they want to get something from you or control you, even if case law says they don't have jurisdiction. Then when you want jurisdiction in your suit against them, they deny jurisdiction.
In one case I challenged the jurisdiction of the federal court because the public lands where the alleged “crime” occurred were not “owned” by the federal government, nor had the state ceded any jurisdiction to them. Federal ownership of the property in question as well as cession of jurisdiction from the state to the federal government is a legal prerequisite to the existence of federal criminal jurisdiction: “In examining subject matter jurisdiction, we start with the elementary but vitally important principle that federal district courts are courts of limited, not general jurisdiction...in federal courts the absence of jurisdiction is generally presumed unless the party invoking federal jurisdiction clearly demonstrates that it exists.” State of Louisiana v. Sprint Communications Co., 892 Fed Supp. 145 (1995)
“Constitution prescribes the only mode by which the United States can acquire land as a sovereign power, and, therefore, they hold only as an individual when they obtain it in any other manner.” US v. Penn, C.C.Va. 1880, 48 F. 669.
“Ownership and use of public lands ....does not withdraw the lands from the jurisdiction of the state; on the contrary, the lands remain part of her territory and within the operations of her laws, save that the latter cannot effect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.” Surplus Trading Co. v. Cook, Ark. 281 US 647.
“When land or other property is acquired by United States by purchase or condemnation without consent of state legislature, it would not be entitled to exercise exclusive jurisdiction over property, as state has retained right to exercise its general police powers.” McEachin v. US, D.C.App. 1981, 432 A.2d 1212.
That would seem to be enough to prove it was well decided that the feds couldn't exercise jurisdiction on lands they didn't and couldn't own. But the judge reached into his magic hat and “found” some jurisdiction with which to proceed anyway. Then I tried to remedy the denial of a trial by jury in the same case, after the 9th Circuit court of appeals refused to even address the issue (they have a way of ignoring truth and the Constitution when it gets in the way of their judicial schemes). I sued in the Federal Court of Claims which, as declared in the statute which created that court, has jurisdiction over claims arising from the Constitution. Since my claim was solely based on the denial of a trial by jury which the Constitution mandates and the evidence of the denial was irrefutable, it should have been a slam dunk. But no, it was the shortest case I ever prosecuted. Within a couple of days, the court which Congress gave jurisdiction to hear cases arising under the Constitution “found” some case law which said they didn't have any jurisdiction and thereby prevented me from prevailing in a case which would result in federal courts being required to actually give all criminal defendants a jury if they requested one. Imagine what that would do to the wheels of expedient judicial anarchy.
Under Article 1, Section 1 of the federal Constitution, all legislative power is vested in the Congress. But is it? Doctrines are those collections of case law around a particular subject which tend to create a certain judicial trend in interpretation. Doctrines usually come from implied law rather than constitutional or legislated law. They are more typically “what we think it should be” kind of law, rather than a “this is what Congress or the Constitution says” kind of law.
Whenever there is an ambiguity or lack of clarity in a legal area, or a subject is void of actual legislation, the courts then have a ripe opportunity to do their own legislation, through laying down doctrines. If you visit a good law library you will notice that the published volumes of judicial “laws” -- case law, outnumber the legislated laws by about 20 to 1.
Who needs a Congress anyway?
The wall of immunity
One of the most intriguing doctrines of all is the doctrine of immunity. Many forms of immunity abound, but the judiciary has created for itself and its prosecutors the doctrine of “Absolute Immunity.”
What is Absolute Immunity? An unlegislated judicial fiat which proclaims that no matter how corrupt or violative of your rights or the Constitution government actors are against you, you cannot sue them for damages. Policemen, being lesser beings in the eyes of “your honor” have only been granted “qualified immunity,” which, translated, means, “if the policeman thinks he was doing the right thing, but really wasn't, he's still immune from damage actions.”
They have given themselves permission to hurt you because they have prohibited you from hurting them back.
You won't find immunity laws in the statutes because Congress hasn't made such laws. Judicial legislation all the way. One more brick in the wall of judicial anarchy, barring any redress for the citizen.
“Having found from experience that impeachment is an impracticable thing, a mere scarecrow, [the Judiciary] consider themselves secure for life.” -- Thomas Jefferson to Thomas Ritchie, 1820.
So what is the remedy? The one major flaw in our Constitution is the lack of any effective enforcement method for official misconduct. Thomas Jefferson predicted it saying: “We have... [required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible ...that our judges are effectually independent of the nation. But this ought not to be. ...I deem it indispensable to the continuance of this government that they should be submitted to some practical and impartial control, and that this, to be impartial, must be compounded of a mixture of state and federal authorities.”
With no enforcement teeth to remedy or redress judicial anarchy our nation has succumbed to the corruption of the third branch. Some pretended efforts to remedy the problem have been attempted. Idaho established the Judicial Council to take complaints of judicial misconduct. From 1995 through 1999, 915 complaints were lodged. The result? One judge was reprimanded. Some tax dollars were spent on the Judicial Council members and their staff in return for a near zero accomplishment.
Congress has provided a statute to administer judicial misconduct complaints (28 USC 372 c). However, our infamous chief Federal District Judge Edward J. Lodge has had over 500 of them filed against him and he is still on the bench. As an expensive investment (federal judges don't come cheap), the powers that be don't want to let go of him.
“Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny.” - Patrick Henry
As Colonel Dan said: “When those that are solemnly charged with upholding the law ignore the law; then there is no law; there is only lawlessness.”
When there is no law, what was pretended as law becomes only theater -- a judicial theater -- a theater of operations -- a judicial war zone, demarcated by their bar, the military gold fringed flag and their army of attorneys. America has been sucked into the black hole of judicial anarchy by that corrupt cabal of cannibals, the judiciary.
Mr. Heath, a horse logger from Santa, Idaho, has spent the last several years using every point of IQ in his brain, most every ounce of energy in his body and his humble resources to find a way for a common person to find justice in the state and federal courts of this country. As you can see from reading the above story, he hasn't found a way. Instead, he has discovered irrefutable proof that we live in a state of judicial anarchy.