The Logic of Legal Discourse

[Demosthenes]

Famspear, out of gratitude for your enlightenment about your views and the current state of legal training, I've posted some further thoughts at:

http://www.losthorizons.com/Forum3/topi ... IC_ID=1584

Why not post them here, John?

[Kimokeo]

If one follows the truth and correct interpretation of the law, why does the disclaimers disavow for any actions taken.

It's the truth, but you're on your own if things don't work out.

Is that the guarantee?

My accountant signs a disclaimer defending everything he attests as true, along with my affidavit. Therefore, we both agree that everything is fact.

Why won't the sites claiming the truth get beyond the 'educational' purposes and declare they are backing their opinions 100% with "a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."?

No backbone. Next time you see Bannister - ask him to sign one of those little 8821s to see if he walks the talk.

[Kimokeo]

Famspear, out of gratitude for your enlightenment about your views and the current state of legal training, I've posted some further thoughts at:

http://www.losthorizons.com/Forum3/topi ... IC_ID=1584

Why not post them here, John?

You mean this from the link?

The Borne Supremacy

by John J Bulten

All Constitutionalists can distinguish 3.1, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", from 6.2, "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". Which bears supremer supremacy: Supreme Court or Supreme Law?

I recently introduced a lawyer to CtC. (So has another forum member: join the growing trend!) With uncharacteristic accuracy this attorney bypassed sideshow questions like 7701(a)(26) interpretation and pinpointed the necessary fundamental: "What is law?" Sadly, with characteristic lockstep, he rejected Pete's principles of the law's legitimacy of authority, clarity of command, and conformity of dissemination, because "law" meant something entirely different to him.

He and I both swore to uphold "law". His oath was to "case law": his primary authority is whatever American courts say should and should not be done. Case law interprets statutory law, so is theoretically superior. He gave case law an alien authority, superior to that of its creators; and an obscurity of command and incomprehensibility to the masses, from many admitted ambiguities and contradictions.

My oath was to "natural law": whatever truly should and should not be done, irrelevant of who says it. Natural law is the ideal law of the cosmos, the commands and prohibitions proper if all facts in the universe were known. Since I'm a construct of the cosmos, cosmic law has natural authority over me, not alien; and insofar as one exercises diligent understanding and conscience, the clear meaning and sure knowledge of natural law comes naturally, without contradiction. (Right and wrong are much easier to grasp than legal and illegal.)

Supreme law (Constitution, statutes and treaties) continuously reflects and interprets ideal law, in words. Case law (Supreme and inferior court decisions) reflects the reflection and interprets the interpretation, in multiplied words. Lawyers, however, are taught that interpreting words supersede interpreted words, even if the interpreted words are undone by such rescoping. I was even told baldly that case law was "superior" to "supreme law" on this ground.

Even more telling is that the Constitution, by sufficient brevity and gravity, avoids even minor self-contradiction, and only raises statutes and treaties to its level if "made in pursuance" of it or "under the authority" it gives, demanding implicit consistency. In America, formal repair of inconsistency is achieved by four tools: rewriting consistently (e.g., repeals), enforcing consistently (signing statements), interpreting consistently (overturns), and adjudging consistently (jury nullification). Each operates independently-- and each can either remedy or exacerbate contradiction (with abuse ascending and right use fading, on all four fronts). So the Constitution maintains noncontradiction only insofar as we the people maintain it. Case law, so often local, specialized, and rude, with little comparative popular interest in its good repair, is much more self-contradictory.

Oddly, lawyers accept full-bore the admitted self-contradictions and faults inherent in case law, and prefer them to the noncontradiction inherent in ideal law and well-enforced in supreme law. "Supreme" is interpreted as "inferior", and "pursuance" as "precedence". (And, in 7701(a)(26), "public" as "private".) Lawyers assure me some case law, inaccessible to me, authoritatively so proclaims.

But case law is only a tool to keep supreme law in repair, and is coeval with the other tools (amendments, signing statements, jury nullification, and their variations). Recent abuses of case law do not resolve abuses of other tools. The only solution is appeal to natural law as the supreme law's aspiration: for which we must each well-use, and encourage right use of, every tool.

So suppose an 1862 statute says "income derived from salaries" is not "salaries", and a 2007 decision says "income derived from earnings" is "earnings" (mooting any historical gap from "salaries" to "earnings"). Lawyers revel in the contradiction and adopt whatever was said last. Constitutionalists endlessly bifurcate original intent and side with antiquity here. But I subject both dicta to a natural law known worldwide, "you shall not steal". Natural law yields the Constitutional result here, as usual; but it remains independent and superior.

Case law is defectible, amoral, insufficient, and non-self-authoritative: its only potential virtues are comprehensiveness and proximity, which easily become vices. But supreme law may apprehend the same vices, less easily. So neither Supreme Law nor Supreme Court is always supremer: natural law, as idealized, is the supreme judge.

[Kimokeo]

"Which bears supremer supremacy: Supreme Court or Supreme Law? "

Marbury v Madison

The American Public, the branches of the Unites States Gov't, past and future, have accepted the judicial branch to decide the true interpretation of the Laws and Constitution.

The Legislative branch has the authority to present Amendments to correct Supreme Court decisions and they have the authority to remove the Supreme Court justices.

Check and balances are in place.

Which is superior? The final result. Anything performed contrary to the final result will lack redemption.

Hamilton in Federalist No. 78:

“ If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[

[Cpt Banjo]

"Which bears supremer supremacy: Supreme Court or Supreme Law? "

Marbury v Madison

The American Public, the branches of the Unites States Gov't, past and future, have accepted the judicial branch to decide the true interpretation of the Laws and Constitution.

The Legislative branch has the authority to present Amendments to correct Supreme Court decisions and they have the authority to remove the Supreme Court justices.

Check and balances are in place.

It is pointless to continue to argue constitutional law with Bulten because, as his latest screed posted on Lost Heads indicates, he has abandoned any attempt at using the law to justify his positions (having failed miserably at doing so on these pages) and has now retreated into the realm of political philosophy.

[Famspear]

Dear Mr. Bulten:

Mr. Bulten, you apparently profess to have taken an oath to "natural law" (to what you call "the ideal law of the cosmos," to "the commands and prohibitions proper if all facts in the universe were known") - to whatever "truly should and should not be done." Great.

You say that I have "rejected Pete's principles of the law's legitimacy of authority, clarity of command, and conformity of dissemination." Sometimes the command of the law is clear to all; often it is not. Sometimes the law is fair; sometimes it is not. Some people accept the legitimacy of the rule of law; others do not. In any case, "Pete's principles" -- in whatever lofty language you care to frame them in an attempt to ascribe to those principles a false legitimacy -- are not the principles that I have sworn to uphold. "Pete" has little if anything to teach us about the nature of law, and certainly neither I nor any other American should look to "Pete" -- of all people -- for guidance on the law.

Yes, I have sworn to uphold the law. My oath is not, however, to "case law" by itself, or to "natural law" itself -- although case law is a part of the law, and although natural law (not necessarily as you define it, but instead natural law as our Founding Fathers considered it) is an important historical underpinning of the American law I have sworn to uphold.

My oath is to do four things: (1) To uphold the Constitution of the United States; (2) to uphold the constitution of the State of Texas; (3) to honestly demean myself in the practice of law; and (4) to represent my clients to the best of my ability. Notice that the United States Constitution comes first on this list.

Under the U.S. legal system, case law has always been a part of the entire body of law, as I and others have explained to you before. There is nothing you or your friend "Pete" can do about that. There is case law interpreting the Constitution, the statutes, the treaties, the regs, and there is also case law interpreting the common law (which itself comes to us from our English forebears, and which is itself primarily case law). You can try to slice it any way you want, and you can use any terms you like and you can phrase your arguments any way you like, and you can make any objections you like (including the objection that case law is being treated as "superior" to statutory law, etc.), but in the final analysis you are quite wrong. I do not give case law "an alien authority, superior to that of its creators." Neither do I give it "an obscurity of command and incomprehensibility to the masses, from many admitted ambiguities and contradictions." Even assuming, arguendo, that case law is obscure and incomprehensible to some, and even assuming arguendo that case law is riddled with ambiguities and contradictions, you and "Pete" cannot get around the central reality that all American lawyers since Thomas Jefferson, down to Abraham Lincoln, down to the present day, have sworn to uphold the entire legal system - a system that includes case law.

No, neither I nor any other lawyer in this country has ever sworn to uphold "Pete's principles." --yours, Famspear

[Dezcad]

Famspear, out of gratitude for your enlightenment about your views and the current state of legal training, I've posted some further thoughts at:

http://www.losthorizons.com/Forum3/topi ... IC_ID=1584

In what institute of higher education is your "current state of legal training" being taught?

[John J. Bulten]

Under the U.S. legal system, the law is WHAT THE COURTS RULE THE LAW IS .... Judges are correct in their rulings because, under the U.S. legal system, a ruling is BY DEFINITION a statement of what the law ACTUALLY IS -- until and unless that ruling is reversed (e.g., ruled erroneous) by a higher court or otherwise overturned by other legal action. (I'm oversimplifying here to make a point.) ... The mere fact that a court uses flawed "logic" to arrive at a decision does not make that decision any less A CORRECT STATEMENT OF WHAT THE LAW IS (until and unless that decision is overturned, etc.).

Under our legal system, there is no such thing as a "fundamental test of noncontradiction" - at least not in the sense in which you apparently mean .... Case law is not "inferior" in the sense in which you intend.

Do you really suffer from the delusion that you could somehow understand the nature and complexity and uncertainty of law, based on your struggling, straining, idiosyncratic attempts ...?

The case law interpreting each provision of the Constitution clings to and is enforceable as the AUTHORITATIVE legal statement of what that Constitution means, and that case law is SUPERIOR to mere statutes passed by Congress. I am bound by case law.

The law is what a given judge DOES to you on a give day, in a given court room. That's an oversimplication, and yes law is also much more than this.

I'm sorry you thought I was "waving" Black's Law Dictionary (Secondary Authority) around like I somehow thought it was case law (Primary Authority) .... Regarding Primary Authority, I don't consider it a question of what I personally desire. I didn't create the legal system. Primary Authority and Secondary Authority, and how they are applied, were defined long before I was born. I'm just a lowly citizen studying the system. And, even to the extent that American law is self-contradictory, etc., I am comfortable with that.

His oath was to "case law": his primary authority is whatever American courts say should and should not be done. Case law interprets statutory law, so is theoretically superior. He gave case law an alien authority, superior to that of its creators; and an obscurity of command and incomprehensibility to the masses, from many admitted ambiguities and contradictions.

Famspear, I've greatly appreciated this discussion (which, you may have noticed, is expected to be closed after 100 posts), and am thankful for your eye-opening contributions. I'm especially grateful for your moderate, judicious response. However, having reviewed your concerns, I've concluded that no misrepresentation took place (if you disagree, you may appeal to the newsletter editor).

But let me leave you with this thought. I'm surprised to find that you swore not only to case law (as your primary authority in upholding the first two clauses) but also to honesty and good representation, in the last two clauses. Those latter principles derive not from case law but natural law. If the laws against, say, perjury and malpractice were interpreted by case law as enforcing dishonesty and misrepresentation (or if new enacted law plainly said so and was upheld by case law), how could you continue to uphold both the case law, and your oath to honesty and proper representation? Given that "all lawyers are dishonest" (I exaggerate to make a point), this process of reinterpretation has already begun. Your trilemma remains. You have not sworn to men but to God.

[Famspear]

Dear Mr. Bulten: Thanks for your comments.

The "trilemma" that you believe I and other lawyers face is illusory -- based, as it is, on a hypothetical, imaginary "if."

Natural law, as Thomas Jefferson considered it, underpins the thinking of the Founding Fathers and, yes, the concepts of honesty and good representation may be said to come indirectly from natural law. I am, however, bound by a more direct, more immediate source: the Texas Disciplinary Rules of Professional Conduct, including rules 1.01 and 4.01, promulgated under Texas law.

Your concept of Law, Mr. Bulten, as you express it, seems to be primarily abstract and theoretical, and based in large part on "Pete's" principles.

My concept of law is both theoretical and concrete. As one who has actually sworn in open Court to uphold the law (an oath administered to me by the Chief Justice of the State of Texas), I am not allowed the luxury of reliance on "Pete" and his "principles" or on anyone else's unlearned, idiosyncratic, and blatantly self-serving ideas about what law should theoretically be. The honesty and good representation to which I and other lawyers have committed are not the theoretical rantings of a convicted criminal, but are instead solemn undertakings. --Yours, Famspear

[Kimokeo]

Honest representation? The honest truth is to tell your customers that they are committing crimes by deliberately not following the law as it has been interpreted by the courts. By not telling them the truthful consequences of such actions. By not telling them that the courts have decided what the law is and by disobeying it intentionally, the consequences are far more dire than just a simple mistake.

That a website has to claim they don't back what they say and you're on your own if they follow your expert, truthful, advice. - It's for educational purposes only -bad education and false teachings known to get you into trouble.

Here's some snake oil. It'll do lots of things and they are all true-use at your own risk, no guarantee - not liable for use - thanks for your money, fool

[Nikki]

All this talk of "Pete's principles" -- gag ptui ptui.

What principles does someone have who sends a letter bomb through the mail?

Perhaps you are all misspelling the Peter Principle, which Pete exemplifies.

He has clearly risen to a level of vastly exceeding his competence.

[Dezcad]

I was following this discussion regarding JJ Bulten's take on American Jurisprudence and noticed this post by him on LH.

It appears JJBulten believes that State Courts can rule on Federal Tax questions.

But then again when you really don't understand American jurisprudence and create your own form of jurisprudence, I guess this would seem reasonable.

http://www.losthorizons.com/Forum3/topi ... IC_ID=1581

John J. Bulten

322 Posts

Posted - 06/08/2007

Tony, I'm all for as many informed lawsuits as we can muster. What type of "petition" did you have in mind? So far I think Randy White's idea is best of entering an "Action for Declaratory Judgment in re Federal Tax" in a state court. We are actively working on making this a more widely available approach.

[Famspear]

Yeah, hey Mr. Bulten, just a reminder - under the U.S. Constitution, Federal law is supreme over state law, and state law judges are bound by Federal law -- anything in state law to the contrary notwithstanding. See the Supremacy Clause.

See Internal Revenue Code section 7421, which provides (in part):

----"(a) Except as provided in sections 6015(e), 6212(a) and (c), 6213(a), 6225(b), 6246(b), 6330(e)(1), 6331(i), 6672(c), 6694(c), 7426(a) and (b)(1), 7429(b), and 7436, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."

Yours, Famspear

[Cpt Banjo]

Yeah, hey Mr. Bulten, just a reminder - under the U.S. Constitution, Federal law is supreme over state law, and state law judges are bound by Federal law -- anything in state law to the contrary notwithstanding. See the Supremacy Clause.

Again, it is fruitless to cite the Constitution to Bulten, for he has made it quite clear that the Constitution is inferior to his peculiar notion of Natural Law, under which state courts apparently can trump federal law.

[Demosthenes]

Bye thread. Start a new one to continue the conversation.