A Mask Won't Save You from This

[morrand]

A good sovereign-citizen line of argument never seems to die; it just goes into remission for a while, waiting to transmit itself to the desperate and the unaware when they let down their guard.

I'm reminded of this by the wall of text that confronted me on Facebook, recently (Facebook being a fine vector for this sort of thing):

Any Contitutional Lawyers on here?

I am curious how some cities are issuing very expensive "tickets" or "fines" for non-compliance of their local Orders.

=====================

From a CONSTITUTIONAL Lawyer:

Current Federal and State law:

You do NOT have to stay home.

You do NOT have to close your business.

You are NOT restricted in your travels.

You are NOT banned from religious assembly.

These are NOT laws, as a law must be passed by your state legislature. And, of course, this has not happened in any of our 50 states.

These following orders are UNLAWFUL “orders”:

Stay at home,

Close your business,

Don’t go to church,

Practice social distancing,

Wear a mask,

No interstate travel etc etc.

These are NOT laws that can carry any kind of criminal penalty for violation.

They are at best ONLY guidelines for "suggestion". These "orders" carry NO legitimate force of law with which to back them up.

NO governor nor mayor may craft a law and assign a punishment for its non-compliance. They can't. And, even if one of these tyrants tries to do so, such orders or actions would then be profoundly unconstitutional and a solid basis for compensation to "anyone affected" by them.

The Free Exercise Clause of the First 1st Amendment firmly establishes freedom of religion as a fundamental liberty, and the Due Process Clause of the Fifth 5th Amendment firmly establishes your right to purchase a lawful product in interstate commerce from a willing seller as "fundamental".

Fundamental liberties are in the highest category of liberty, akin to freedom of conscience and speech and press and privacy and travel.

Right to Congregate/Assemble

Per the First 1ST Amendment to the United States Constitution:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Right to Travel:

DESPITE ACTIONS OF POLICE AND LOCAL COURTS, HIGHER COURTS HAVE RULED THAT AMERICAN CITIZENS HAVE A RIGHT TO TRAVEL!!!

Per our 14TH Amendment to the United States Constitution (abridged): “The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day."

Stopping a tyrannical overthrow of the United States AND the WORLD, the stripping of our Liberties & Freedoms BEGINS with YOU. Do your part and STAND UP for yourSELF before you no longer have a self to stand up for!!!

These are the facts..

Stop letting tyrants lie to you.
Call them what they really are = Tyrants. 🗣

Feel free to copy and share!

The business about "These are NOT laws" is cute but wrongish—I found my state's law in about 10 minutes of searching, 8 of which were because our local stay-at-home orders failed to cite the law beyond "the powers in public health laws"—but the part that really caught my eye was this:

The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day.

Now, I am pretty sure I've seen this elsewhere around here. A Google search on the phrase, "the ordinary and usual conveyances of the day," eventually led me to the citation: Thompson v. Smith, 155 Va. 367 (1930), which as you might expect (and has almost certainly been explained here, many times) is a Virginia case from an era when driver licensing was sort of a shaky concept. You might also expect that the case doesn't say anything like what it's claimed to, and you'd be right: as far as I can tell, the court upheld the right of the city to control and regulate the use of its streets, but I only think that because the opinion says, "The power of a city to control and regulate the use of its streets is a continuing power to be exercised as often and whenever the city may think proper." (Thompson at 376.)

Oddly enough, the phrase search I did on Google led me almost directly to a very telling result in Google Books:

The concept of the right to mobility has been a characteristic of a freeman since the days of Magna Carta and before. Such was discussed by the court in Thompson v. Smith, (1930) 154 S.E. 579, where the court said:

The right of a citizen to travel upon the public hiways [sic] and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to aquire [sic] property, and to pursue happiness and safty [sic]. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to drive a horse drawn carriage or wagon thereon, or to operate an automobile thereon, for the usual and ordinary purposes of life and business. It is not a mere privilege... .

While Thompson is not controlling authority in California it serves to illustrate the principle involved.

"Freeman"? "Magna Carta"? Uh oh. (At least he acknowledged it wasn't controlling authority.)

So wrote one Mr. Leo Eigenman in arguing his petition of the Supreme Court of California for review of his 1985 conviction of violating the California Vehicle Code. As he tells the story, "Prior to [his arrest,] petitioner had returned his 'drivers license' and vehicle license plates and registration to the State of California so that he could exercise his right to travel and mobility," and you can guess the rest. (I don't quite know why the Los Angeles Law Library felt like this was worth digitizing. Maybe this led into some major black-letter California law at the supreme court. I didn't follow up. but I somehow doubt it.)

On the one hand, then, we have a relatively early example of the "right to travel" meme appearing in its characteristic environment, which makes for an interesting historical find. And on the other we have someone trying 35 years later to wedge this meme into a discussion on COVID control measures, making it feel ever so slightly like a deliberately-constructed entry point into freemanism.

I told off my friend, warning that he was verging into sovereign citizens' arguments. I think that he'll listen, though I'm not sure. But I'm also curious to see whether this old line of baloney is going to pass on the disease to a whole new population, frustrated or scared about everything being closed and looking for any way out, and how they'll each adapt to the other if it does.

[Jeffrey]

These guys forget there's 50 different states. In my case it would technically be true that the stay at home order isn't a law. The governor did it by executive order but the state constitution gives the governor the power to do that.

[Arthur Rubin]

Some of the State (and county, and city) orders probably aren't legal. In, at least, California, Michigan, and Wisconsin, the selection of allowed activities seems arbitrary. (It's hard to imagine an activity more "distancing" than surfing in California, or boating in Michigan.) At the least, the order has to be reasonably related to slowing the spread of the virus.

I believe some aspects of the orders in Wisconsin have been rescinded by courts.

[notorial dissent]

I don't imagine that "surfing" was the issue, it was the being on the beaches, in groups, before the surfing part they had a problem with. Now if you could surf from your home I don't imagine there would be a problem, otherwise meh, word and hair splitting.

[Arthur Rubin]

I think we're touching on politics. In the abstract, there really is the "common law" right of governments to quarantine individuals and areas; it's just that closing "non-essential" businesses for reasons other than limited resources has never been done before; there really isn't a precedent, the statutes probably weren't written this in mind, and the courts may very well decide that some of the actions were unconstitutional and/or illegal even if generally appropriate.

[notorial dissent]

Nobody ever drove a car/automobile before 188-whatever and yet somehow they are still driving them and taxing and licensing, anymore than legal quarantine was a thing before the mass epidemics of the 19th C, and yet the laws still persist. Essentially, that dog don't hunt.

[JamesVincent]

There is several states whose laws state that the governor has the power to use executive order in a state of emergency but they also limit the time period to do so without either legislative support or with a second finding of an emergency. If memory serves that's what happened in Wisconsin when the court there ruled the continuance was illegal since it didn't have legislative backing. So it may very well be that the orders were legal and then illegal after that time period. Think the courts will have to figure that out eventually.

Either way arguing that the laws are unconstitutional without a courts opinion backing it up is kinda dumb and oversimplistic.

[Pottapaug1938]

In the US, I see what I call the "false democracy of opinions", in which one person's opinion is as good as any other, and to claim that one opinion is better than another is "elitist". Here, people read the Constitution -- wrongly -- and mine quotes from the body of case law, and decide that their "analyses" are as good as any other.

[morrand]

In the US, I see what I call the "false democracy of opinions", in which one person's opinion is as good as any other, and to claim that one opinion is better than another is "elitist". Here, people read the Constitution -- wrongly -- and mine quotes from the body of case law, and decide that their "analyses" are as good as any other.

I read this as a confusion between what the law is and what the law ought to be. So the law ought to be (the argument goes) that I don't need a license to drive on the public roads, therefore, the law is precisely that, and if I can't find the text to prove that's the law, it's only because someone has hidden it from me, probably for nefarious reasons. It doesn't help that the law, common law especially, is hard to research, so it's not hard to believe that my elusive text lies hidden somewhere among the court reports, maybe way up on the top shelves of the library.

Apply democratic principles to that concept, and it's easy to see how you could also come to the idea that any analysis is as good as any other. What the law ought to be is a political question. If a democratic society doesn't observe political orthodoxies, and all my notions of what the law is are rooted in my answers to that political question, then who are you to say in a democracy that I'm wrong about what the law is?

Now, of course, this is bonkers. Whatever the law should be, it is what it is, no more and no less. It's a little more mutable than other things—petitioning against the driver licensing laws has a better chance of success than petitioning against the laws of gravity, if not by much—but not so mutable that everyone gets to make it up on their own. But this business of confusing facts and politics, what is and what ought to be, seems to come up in a lot of contexts, not least sovcittery, and I've been fascinated by it recently.

[Jeffrey]

If we’re skirting politics, I will point out that there’s an interesting selectivity at play where governors orders are unconstitutional per certain groups but executive orders from elected officials they like are just fine.

Anyways there’s a lawyer debate program in the evenings that gets into nitty gritty details of local legal issues. They have pointed out that some of the governors orders are technically unconstitutional and really should have been done via laws through the legislature. But, courts were closed and the orders were gonna expire shortly anyways so the entire thing was academic anyways.

[Pottapaug1938]

The issue then becomes whether the executive orders are constitutional; and here, I take no position, either way.

[notorial dissent]

With sovcits, it is not a case of what the law "oughta" be, it is what they want the law to be by ignoring contradictory material, misreading, and quote mining to prove their points, as witness their arguments about taxes and driving. In most cases they very specifically DON'T want to know what the law really is, or will deny it if pointed out. They would rather depend on an obsolete and only partially germane legal dictionaries than the actual hard dry text of the law. So, there really is a difference.

[Jeffrey]

Skip the political bits, we have a sovcit spotting at 01:39

[wserra]

a sovcit spotting at 01:39

A public service announcement from my law firm:

[Famspear]

a sovcit spotting at 01:39

A public service announcement from my law firm:

Charge 'em a premium over the regular rate, too.

[eric]

Stolen.... A question though, do I have to insert the stock "all rights reserved" or "creative commons licence" notice before I use it to harass people on facebook ?

[notorial dissent]

Why not use both. Have fun, share the fun.