What motivates patriot mythmakers?

It is useful to try to understand how some people construct often elaborate but mistaken beliefs about law and government. Almost all of them are desperately seeking to make some sense out of what seems senseless: the obvious departures from compliance with what they think the Constitution requires. They are hoping that if they can find the theory, or rules of the game, of how the usurpers operate, they can somehow beat them, usually in their courts, at their own game. It is like seeking the combination to a safe, or the magic words "Open sesame" that will open the entrance to the cave containing all the treasure. It is a false hope. There is no combination, no magic words.

Part of what is going on is insecure people trying to appear authoritative, by adopting "explanations" that make them seem like they know what they are talking about. Instead of adopting theories that have merit, that they can't understand, they spread theories that lack merit, that they can understand. The result is the spread of patriot myths that just play into the hands of tyranny.

The only theory anyone needs to explain what is happening can be summarized in the following few words:

Agents usurp when we let them.

The only remedy needed or possible can be summarized with fewer words:

Stop enabling usurpation.

That is all anyone needs. The rest is details.

Of course, it is not only laypersons who seize on foolish ideas. The legal profession is full of fools too. They just choose different foolish ideas, like "living Constitution" or "binding precedent".

Their hope is fed by the ways judges rationalize their decisions, including their wrong decisions, basing their rationalizations on the rationalizations of other judges in previous cases, which may also have been wrong. Each departure, or "error", is built on the ones before, in a long chain, until the original meaning of the Constitution is forgotten, and a system erected that bears little resemblance to that the Founders intended.

Along the way a lot of people come to depend on those departures. They invest in them. They build careers on them. They write articles and books on them. They are called the "reliance interests", and over time they can become a strong majority faction within the legal community, and even among the general public and therefore the voters. Ask yourself how many people are planning to rely in part on Social Security or Medicare some day to get a sense of what we are up against if we proposed to go back to strict constitutional compliance.

But no one should support those departures as themselves based on some coherent theory or alternative rules of the game. In almost every case, they represent concessions to power. In other words, they were political decisions, based not on logic or history or the linguistics of original understanding, but on choosing the easiest course, the path that seemed least likely to get the judges in trouble, or make more work for them, or incur more criticism of them, or make it less likely they will get raises or promotions, or that those close to them will get nice jobs.

Once such chains of departures get entrenched, there is generally no alternative but constitutional amendments. Perhaps a lot of them. Not necessarily to change what the Constitution originally meant, but just to get back to that. Clarifying amendments. Remember that the first 14 amendments were largely for clarification rather than to correct original mistakes in the design of the Constitution.

Constitutional amendments are difficult. They were designed to be difficult, so people wouldn't make too many foolish ones. They managed to do that anyway, as Prohibition illustrates. In an age when most people don't understand how the Constitution was supposed to work, or how the departures from it work, it is difficult to get them to understand how to fix it, or to unite enough people behind a sound solution. We don't have James Madison around anymore.

I have made my own effort to compose amendments that might work. You can find them at http://constitution.org/reform/us/con_amend.htm

Example of how a myth gets made: UCC

One of the most persistent family of myths are built on misunderstanding and misuse of the Uniform Commercial Code (UCC). The misuse comes in applying it to areas of business and law to which it does not apply, such as criminal law, finance, real estate, and court transactions.

The UCC is to personal property as mortgages/trust deeds are to real property.  It gets entangled with real estate only when fixtures, minerals, timber, crop or consumer goods are involved. The security agreement behind each UCC loan transaction is the practical equivalent of the mortgage behind each real estate loan. Real estate uses a document recording system, whereas UCC uses a notice filing system. The UCC includes provisions for the sale of goods, commercial paper, bank deposits and collections, bulk transfers, investments securities, secured transactions, and several types of warranties.

The UCC is not the same as the Uniform Consumer Credit Code. The UCCC is designed to provide protection to consumers who buy goods and services on credit.

The UCC also  does not apply to securities, such as stock, bonds, or mortgage-based securities often used by the former investment banks and financial institutions. These are governed by securities statutes. It does not apply to taxes, including real and personal property taxes, rents, fees, commissions, fines, currency, or a host of other debt-like instruments.

Yet mythmakers try to apply the UCC to everything, sometimes even to law itself, as though it were superior to all law. They apply it to trusts, statutes, wills, estates, and many other things that are covered by entirely different laws. The fallacy involved is called reductionism. But real law doesn't work that way.

Malevolent myths

Not all patriot myths are earnest but misguided. Mythcrap is used by evil persons who try to spread it to fools to serve as their cannon fodder in a violent revolution they don't have the guts to start themselves. They are like the evil men who send suicide bombers to their deaths but refrain from going themselves. Their purpose is to send so many fools to their destruction that the judicial system and prisons will be overwhelmed and enough of the fools will become enraged to resort to violence. I have listened to federal agents gloating about this, how they were encouraging it, and expecting it to bring them easy convictions and easy promotions.

Lawyer Brad Henschel reported this about tax protester Irwin Schiff:

I know Irwin Schiff well and he admitted to me that he lied to many people or fudged the truth and his intent was to incite the rabble so the flood of civil disobedience would overwhelm the Government.

In other words he was giving advice he knew would get people prosecuted, in the hope of either filling the prisons with too many people for the government to handle, or get the victims or their friends motivated to engage in political opposition.

Another side of this is those who reject the Constitution altogether as a "failure", and either call for a return to the Articles of Confederation, or some kind of anarchy. They concoct myths of their own to try to discredit constitutional compliance. They seem to be coordinated with the cultivators of cannon fodder.

Using people in this way is immoral and discrediting to the cause they espouse.