2011/05/16

Mistakes made regarding "sovereign citizens"

CBS News had a segment, Who are "sovereign citizens"? My comment follows:

Each side in this dispute is making its own mistakes about the law.

The "sovereign citizens" are correct in their position that being subject to the law rests on their consent. Where they get it wrong is in failing to recognize they give that consent by remaining on the territory of the polity, be it nation, state, county, or whatever. Jurisdiction is primarily territorial (in Latin, ad locum). To expatriate, people have to leave the country. If they don't, they are subject to the law of the country.*

However, they, and their opponents, also err in accepting the rules that are being enforced as "the law". To be law, official acts must be constitutional. If unconstitutional, it is not law, even if people think it is law. Much of what is being enforced is not law, and no one is bound to obey or help enforce it. Further, no one may rely on judges, supervisors, or legal advisers. Every person has the absolute duty to make an independent determination of what is and is not law.

Instead of arguing they are not subject to the law, the protesters need to be arguing that what some are attempting to enforce is not law, but a usurpation. That is the proper frame for discourse.

The people are collectively sovereign when they elect delegates to constitutional ratifying conventions or legislatures sitting as constitutional ratifying conventions, but not as individuals. To be individually sovereign one would have to be the monarch of his own independent country somewhere, and there is nowhere left on Earth where anyone can do that.

There is a sense in which we are each "sovereign" in the interpretation and application of the law to cases before us, but that power comes with a duty to get it right, by basing decision on the best evidence of what the lawgivers meant in the laws they gave us. However, none of us is individually sovereign in the making of law, or free to exempt ourselves from subjection to it. That is a subtle but critical distinction too many dissidents, and their critics, fail to make.

The proper frame for debate is not over whether we are subject to law, but over whether what is being enforced really is the law.




* There are three kinds of jurisdiction: territorial (locum), personal (personam), and subject (subjectam). A court must have all three to hear a case. "Venue" is not the same as locum jurisdiction. The term means the location of a forum, normally within a jurisdiction territory. For more on this see A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824).

"Venue" is the location of a forum, of a particular court. "Locum" is a territory, such as a nation, state, county, town, or whatever, which is defined by geographic boundaries and may contain multiple courts or venues. However, a particular court may convene at different locations. Wherever it convenes is its "venue".

The term "political" jurisdiction is a misuse of terminology. A foreign diplomat is immune due to his status as a foreign diplomat, which is a kind of office with respect to U.S. law. However, he is subject to the laws of a different nation. The court lacks personam jurisdiction over such a person.

We have been speaking here only of judicial jurisdictions. There are also legislative and executive jurisdictions, each divided into locum, personam, and subjectam. For a court it defines the bounds on what cases it may lawfully hear. For a legislative body, the kind of statutes it may lawfully adopt. For an executive the kind of enforcement actions he may take.

It is all very orderly and systematic, but it is surprising how much of this never gets across to students in law schools.



1 comment:

Xavier said...

Great article, as usual. In law school, we did not study territorial jurisdiction as a stand-alone concept. It's subsumed under personal jurisdiction and not distinguished therefrom except as it relates to in rem and quasi in rem jurisdiction, mostly after Pennoyer v. Neff.

The idea that an unconstitutional law is not enforceable ab initio was not considered, probably because this does not lead to the compliance and conformance that makes the status quo possible and ensures the administration, faculty and law school staff pay checks continue to appear.

The point that venue is not part of jurisdiction was made clearly. However, I noted that most students did not seem to grasp the distinction.

Further, these issues are taught in first year law school as a first term subject (often called Civil Procedure and Practice) and, as such, is not well understood by the doe-eyed, frightened 1Ls who have almost nothing to prepare them for this somewhat-complex subject and are simply trying to survive their first year.

The truth is that law school simply runs thousands of people through a mill designed to produce cookie-cutter, mediocre results which is all that's needed for a legal system that has as little to do with justice and fairness as the current medical system has to do with health and wellness.

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