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Eduardo M Rivera Opinion Letter
Thank you for your letter requesting my professional opinion as to your legal obligations with respect to the Federal personal income tax and the California state personal income tax. The most direct way to answer your question is to identify the individuals who, in my opinion, have a legal obligation to make and file California personal income tax returns. Members of Congress from California and inferior federal judges appointed to other than Article III federal courts in California must make federal and state income tax returns. No other persons have a legal duty to make returns. The blanket imposition of a duty to make a return always creates a direct tax. Neither the federal nor the state personal income tax is a direct tax. Any duty to make returns found in the personal income tax must be limited to those engaged in "the performance of the functions of a public office" the only income producing activity identified in both federal and state tax laws. Thus construed, the personal income tax is lawful and constitutional, but it is only a legal obligation of those individuals whose public offices fall within the scope of the law.
Since you earn your income from wages, you have no legal duty to make federal or state income tax returns. Lawful private employment at the level of the employee cannot be made the subject of legislation. While your wages are definitely income they are not taxable gross income to you. My investigation reveals that only the individuals who receive income from "the performance of the functions of a public office" must track, record and report §61-Gross income. Without legislative authority over you or your income there can be no legal obligation to record and report that income to government. The employer is subject to regulations by police power legislation, but that power cannot be exercised by Congress outside its legislative or territorial jurisdiction.
In the analysis that follows, you will learn that the duty to make a return had to be permanently removed from the federal income tax law in order to make it legal and constitutional. As a legislature made up of representatives of states, the Congress is severely limited in the kinds of individuals over which it has legislative authority. Assuredly, Congress has legislative power over its own members including the inferior federal judges not appointed to Article III courts, but there is nothing in the Constitution or the tax law itself that extends that power over other individuals.
Taxation in California, as in the other states, is direct taxation. All other governmental exactions for the support of government are indirect taxes accomplished by the exercise of legislative power. There is no legal duty to pay direct taxes because it is an obligation that the people as sovereigns impose upon themselves. According to that scheme the worse thing that can happen upon a failure to pay a direct tax is the loss of property. The need to make payment of a direct tax is an attribute of sovereignty and not a legal duty imposed by law. The California personal income tax laws were enacted by the legislature, so it is clear that the tax is one that is indirect. California law is consistent with my interpretation. An obligation is defined in California as:
California Civil Code § 1427
Obligation, what. An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.
California Civil Code § 1428. Creation and Enforcement
An obligation arises either from:
One-The Contract of the parties; or,
Two-Operation of law. An obligation arising from operation of law may be enforced by law, or by civil action or proceeding.
Taxes are not imposed according to contract law. The FTB often states in its correspondence "that a written contract between this department is not required for the administration of the personal income tax laws." Direct taxes cannot be imposed by the legislature. Direct taxes result from the self-imposition of taxation by the people themselves. To affect a fair and equitable tax on all taxable property assessors and tax collectors are elected to establish equal and fair assessments. The elected Board of Equalization is part of the system that attempts to achieve proper assessments so that taxpayers may each pay their fair share of property taxes. The law is well settled that all taxes that are not direct are indirect. Since the legislature has no legislative authority over employees except its own, California personal income tax laws are inapplicable to employees in private industry, but they be voluntarily paid by any government employee.
The legislature exercising the power of the people to make law may enact laws that impose an obligation to pay a tax. These taxes are the indirect taxes which, of course, include California's personal income tax. The tax is indirect because it results from a special status or privilege that is the subject of legislation. The only status or privilege over which Congress or the state legislature has lawmaking power is the "the performance of the functions of a public office."
The California personal income tax adopts as the federal basis of taxable income the §61-Gross income of the individuals subject to the power of Congress to impose an indirect tax. Compensation for services, the income for both members of Congress and the inferior federal judges, item number one of the fifteen items of gross income. Wages are not on list because, while income to a worker, they cannot be taxed in the hands of the recipient. Revenue and Taxation Code §17071 defines gross income by reference to Internal Revenue Code (IRC) Section 61 which provides as follows:
Sec. 61. Gross income defined
(a) General definition
Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
(1) Compensation for services, including fees, commissions, fringe benefits, and similar items;
(2) Gross income derived from business;
(3) Gains derived from dealings in property;
(8) Alimony and separate maintenance payments;
(10) Income from life insurance and endowment contracts;
(12) Income from discharge of indebtedness;
(13) Distributive share of partnership gross income;
(14) Income in respect of a decedent; and
(15) Income from an interest in an estate or trust.
Revenue and Taxation Code section 17073 defines "taxable income" by reference to IRC section 63; that IRC section defines "taxable income" as "gross income minus the deductions allowed by this chapter." I stated at the beginning that California members of Congress and the California inferior federal judges must make California personal income tax returns. Authority to tax the income of these individuals is granted to the states by the Congress in the Public Salary Act of 1939 and there is no doubt that California and many other states have done so. It may, therefore, be said that the individuals I have identified as having an obligation to make returns are taxpayers. Can there be any doubt that members of Congress and inferior federal judges pay federal income taxes and state income taxes where applicable?
A recent letter from the FTB stated: "Revenue and Taxation Code section 17041 imposes taxes on every individual who is in California for more than a temporary or transitory purpose, i.e., residents, and those individuals who derive income from sources located in this state." Revenue and Taxation Code section 17014 defines a "resident" as including (1) Every individual who is in this state for other than a temporary or transitory purpose (2) Every individual domiciled in this state who is outside this state for a temporary or transitory purpose. Members of Congress fall into the class of "any individuals" who are domiciled in the state while those individuals are holding elective offices of the government of the United States. Inferior federal judges fall into the first class of residents: "Every individual who is in this state for other than a temporary or transitory purpose." Members of the class "the people" of California are not identified as "residents" or as "individuals."
The term "in this State" as used in Revenue and Taxation Code section 17014 is defined in §§5304, 6017, 7309, 8609, 11205, 30013, 40006, 41005, 43009, 45008 and 60017 of the Rev. & Tax. Code:
"In this state" or "in the State" means within the exterior limits of the State of California and includes all territory within these limits owned by or ceded to the United States of America.
The inferior federal judges sit in federal courthouses which "includes all territory within these limits owned by or ceded to the United States of America." The key term is "individual." Quoting again from the FTB letter: "Section 18501 provides that every 'individual' realizing a specified amount of gross income or adjusted gross income must make a return to the Franchise Tax Board." The Franchise Tax Board, therefore, admits and the IRC clearly states that the federal and state income tax is imposed on "individuals."
Although it is clear that both the federal income tax and the California personal income tax are imposed on individuals which include the California members of Congress and the inferior federal judges, why can't the term "individual" include ordinary people of the states who do not reside "in the state" or "within the state." A review of history of federal income tax and examination of the 1894 and 1913 income tax law will confirm that only the California members of Congress and the inferior federal judges must make returns to the Franchise Tax Board. They alone as individuals with respect to Congress and its authority to make law applicable to individuals.
Everyone must concede that the federal income tax law of 1894 was declared unconstitutional in 1895 in Pollock v. Farmer's Loan & Trust, 158 U.S. 601 (1895) because the tax was an unapportioned direct tax that had not been apportioned to the several states. The ruling in that case is clear:
Our conclusions may therefore be summed up as follows:
First. We adhere to the opinion already announced, - that, taxes on real estate being indisputably direct taxes, taxes on the rents or income of real estate are equally direct taxes.
Second. We are of opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes.
Third. The tax imposed by sections 27 to 37, inclusive, of the act of 1894, so far as it falls on the income of real estate, and of personal property, being a direct tax, within the meaning of the constitution, and therefore unconstitutional and void, because not apportioned according to representation, all those sections, constituting one entire scheme of taxation, are necessarily invalid. Pollock v. Farmer's Loan & Trust, 158 U.S. 601, 637 (1895)
Few will concede, however, that the Sixteenth Amendment did not permit an unapportioned direct tax on income. An unapportioned direct tax is an impossibility but the federal income tax is based on the concept. Entire Circuit Courts of Appeal believe that the amendment permits an unapportioned direct tax. Treatises on federal income taxation are based on the federal tax as an unapportioned direct tax. Decisions of the United States Supreme Court confirm that the Amendment did not add anything to the power of Congress to tax and certainly did not create a new tax. The Court stated, in fact, that the power to tax income existed from the beginning of the federal government.
What did the Sixteenth Amendment really do? The answer, amazingly, is contained in the language of the Amendment:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
A direct tax is created when a duty is imposed to disclose on to an assessor a list or return of taxable property. That duty can be found in Section 29 of the 1894 federal income tax:
That it shall be the duty of all persons of lawful age having an income of more than three thousand five hundred dollars for the taxable year, computed on the basis herein prescribed, to make and render a list or return, on or before the day provided by law, in such form and manner as may be directed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to the collector or deputy collector of the district in which they reside, of the amount of their income, gains, and profits, as aforesaid;
The duty to make a return or list was unique in federal legislation but not to the people of the colonies who initiated the property tax systems there. Shortly after California was admitted into the Union, provision was made for the election of an assessor and the imposition of a duty to disclose all taxable property to that officer. Thus began the property tax. That process was begun in the earliest American colonies and duplicated in every colony and state that exists today. The duty to disclose taxable property exists today in provision for escaped assessments.
The duty to make a return that caused the 1894 tax become unconstitutional was not made constitutional by the Sixteenth Amendment. The duty to make a return does not reappear in the 1913 federal income tax. In fact, the duty to make a return never appears again in any federal income tax law. There is a sound reason for its continued absence. The imposition of a duty to make a return creates a direct tax. The United States Constitution does not allow Congress to create such taxes but it specifically demands that direct tax be apportioned to the several states by population.
Apportionment is what the assessor and tax collector do to the property tax. These officials apportion or allocate to each parcel of property its fair share of the tax burden. One tax is allocated among all the property being taxed. The Sixteenth Amendment was not concerned with one tax to be apportioned. The amendment was concerned with "taxes on incomes." Many taxes on many incomes were indirect taxes that were not subject to apportionment, and had nothing to do with any census or enumeration. The tax has expanded beyond the rich it was intended have pay their fair share, by removing all impediments to making the tax completely voluntary. In my opinion, it is the oath of office that supplies the duty long absent from the federal income tax law.
Recently our own California Supreme Court decided, In Re Attorney Discipline System, 19 Cal.4th 582; 79 Cal. Rptr.2d 836 967 P.2d 49 (1998), that it could, as a separate branch or department of state government, impose a regulatory fee to sustain the state's attorney disciplinary apparatus. All the separate branches of government have this internal autonomy. Federal income taxes are imposed pursuant to the power of the federal government's legislative branch to regulate and control its employees and to impose taxation for revenue upon them.
The Congress has inherent authority over its own members so there can be no doubt that the federal income tax is a tax on Senators and Representatives. The inferior federal judges are not Article III judges whose compensation for services is protected by the Constitution, so their gross income can also be taxed. I have proven that in my opinion letter on the federal courts. Members of Congress enjoy no protection of their compensation for services for the obvious reason that it is the people who must be protected by an overreaching legislature.
Very truly yours, Dr. Eduardo M. Rivera
Who Is Really Liable For The Federal Personal Income Tax?
This tax has been around for such a long time it is silly to believe that it is not a genuine and constitutional tax. All taxes, including this one, have to be clear and certain. It is clear that the tax covers just about every trade, business and occupation but the problem with the tax is the common belief that the tax applies to everyone. That is incorrect. This brochure will correct that and other misconceptions. Even before we get into Subtitle A of the Internal Revenue Code, where the tax is found, I can tell you that the tax you think of as an income tax is imposed on the receipt of money from the United States Treasury. The United States government is so vast that every type of business and every manner of earning money has been compensated out of the U.S. Treasury at some time. However, the only people actually made liable for the tax are those acting as federal employers for the individual contractors and employees who receive the income. This can be a very convenient and practical way to collect the tax provided private employers understand that Section 3403 does not apply to them. The Sixteenth Amendment permits an indirect income tax on all sources of income over which Congress has power but it may only tax using the legislative power contained in the rest of the Constitution. The income of individuals who have contracted to work for government is one large source. Another source of taxable income are retail sales in Washington, D. C. and all other federal possessions. These and all other sources of taxable income are to be found in Article I, Section 8 and Article IV, Section 3, Clause 2 of the Constitution.
Why Is The Federal Income Tax Law So Complicated?
Congress has a lock on money paid through the federal Treasury but to tax private money it must deceive those persons over whom it has no power. It does this by making people believe there is a requirement to file income tax returns. Complexity is how it does it. No matter how complicated the Code becomes the only persons who have to understand it are the federal employers who pay out government money and withhold some to pay the tax. The federal income tax law is contained in Subtitle A of the Internal Revenue Code Sections 1 through 1564. Section 1, imposes an income tax on the taxable income of a married individual who makes a single return jointly with a spouse and on a married individual who does not make a single return jointly with a spouse. A tax is imposed on the taxable income of single individuals and heads of households, without mentioning the making of any return. The person liable for the tax, the federal employer, determines what is taxable income and withholds it from the individual federal employee or contractor.
How Does Congress Get Away With Such A Complex, Evil Scheme?
The tax is clear and certain and it is imposed without regard to the filing of a return. It is the filing of an income tax return that gums up everything. All Congress had to do was write a law that makes you think you have to file. The caption of the first section of the tax law is titled: "Married individuals filing joint returns and surviving spouses." Section 6013 which is also mentioned in Section 1, is entitled: "Joint returns of income tax by husband and wife" Do not assume that a joint return is a form 1040 an individual makes with his wife. Section 7806 states that the captions, titles, cross references, tables of contents and such are not part of the law. All references to the filing of a return are made in the places that should be ignored in determining the actual law of income taxation. This means that the persons whose income is being taxed do not have to file returns or even pay the tax. The federal employer does everything but earn the taxable income. Everything done for government by its employees is "filed" and in government custody at all times. Besides the deceptive filing requirement Congress has come up with special filing status, deductions, special credits and exemptions to create a perceived need to file. All that complexity creates a tax liability where none exists and the persons who file returns are as guilty as Congress for the income tax mess.
How Is The Federal Income Paid?
The IRC does require in many places the making of a return but it is not always clear that reference is just being made to a document like a 1040. Because the tax is on government money any payment is a return of income which makes a tax on the employer the best way to collect the tax. Section 3401(d) defines an employer as the person for whom an individual performs any service of whatever nature. Section 3401(c) makes it absolutely clearly that an individual is a federal government employee. Section 3403 makes the federal employer liable for Chapter 24-
Collection Of Income Tax At Source Of Wages.
Am I Subject To The Federal Income Tax?
To determine for yourself if you are liable follow the same procedure used in this brochure. Employ critical reading techniques to read the Constitution and the tax laws of the United States. They can be found at your local library but you should have your own copies. You, too, will discover there is no law that requires private persons to make and submit to the federal government written confessions that income taxes are owed. Once you are free from this imaginary tax burden you can start educating others, including an employer who has been taking your money to pay the "make believe tax".
How Can I Be Certain The Tax Only Applies To Federal Workers?
If you start with the power of Congress you will quickly see that the national government has no taxing power over the people doing purely local things in the states and may only tax people using the indirect excise tax. Congress has taxing power over its own employees under Article I, Section 8, Clauses 11, 12, 13 and 14, (the War Powers), and 17. Congress was given no power over ordinary people doing ordinary things in the states of the Union. Ask yourself: What power does the Congress have over a dentist filling cavities in Chicago? The answer is none. The state of Illinois can require a dental competence certificate and the City of Chicago a business license but what Congress can't control it cannot tax. If Congress has control over the source of your income you are subject to the income tax. Congress may impose direct taxes using the power to raise revenue, however, your own state would have to collect this tax from you and Congress has not imposed this kind of tax in over 130 years.
Why Do So Many People File Income Tax Returns If They Don't Have To?
The IRC is written to make it appear that such a filing requirement exists. Lawyers are no longer trained to read the law so everything gets by them. They advise people to file and they do so out of fear.
Why Do Lawyers Claim The Tax Is An Unapportioned Direct Tax?
Government controls public and private education so law schools teach what government wants lawyers to know. Lawyers are taught the Sixteenth Amendment permits such a tax and they cannot understand what you have read in this brochure. Lawyers are the butt of jokes because they deserve to be.
Why Was This Brochure Prepared?
I have studied and practiced law for more than three decades and it seems that lawyers know less about government and taxation then ever. This is an attempt to make everyone think. If I am wrong I want to hear about it.
Dr. Eduardo M. Rivera
Attorney and Counselor at Law
Member of the California Bar
WHY THERE IS NO JUSTICE IN AMERICA
The Congressional Judicial Hoax
A California Case Study by Dr. Eduardo M. Rivera
Judge Andrew P. Napolitano recently wrote a book that rips the government up one side and down the other. In the book, Constitutional Chaos, he laments the fact that federal, state and local governments are not bound in absolute obedience to the law. His first sentence in his first book is: "It should be against the law to break the law." What is his remedy for such lawless government? He concludes his book by saying: "Congress and the state legislatures should enact legislation simply requiring that the police and all law enforcement personnel, and everyone who works for or is an agent of the government, be governed by, subject to, and required to comply with all the laws."
Now, why wasn't that thought of before? If the people have to obey the laws, then why shouldn't the government? If he succeeded at nothing else, Judge Napolitano has put the focus exactly where it should be. How has government been able to commit all the wrongs he so ably detailed in his book? Judge Napolitano acknowledges on page 18 that he has no answers, when he states on page 18 of his book: "It is anyone's guess why employees of the federal government can lie to private citizens without penalty, but citizen can go to jail for lying to the federal government even when they are innocent."
The answer will confound everyone. Congress has managed by legislative stealth to make the people of the states believe federal law applies to them. The Constitution and all laws enacted pursuant to the Constitution is the supreme law of the land for—government. The English common law is the law for the people in 49 of the 50 states. Judge Napolitano has not noticed that government over the course of more than 200 years has managed to get the people to believe that government law applies to them. If government fails to obey the Constitution, it is the people who must correct government. Judge Napolitano has accurately documented government on a lawless rampage, but he has failed entirely in understanding the basis of our government and the origin of our laws. He may have been a very fair and compassionate judge, but he certainly did not learn much employment law. Government employees like private employees are not responsible for what they do on the job the employer is. Which of the three branches is the employer?
Judge Napolitano, like most people with legal training or experience, has missed that part of our history where Congress substituted itself for His Britannic Majesty. Not to understand what the federal government has done with the law after independence from the United Kingdom is to completely ignore that the English common law is the law in 98% of the states. In only a very short time, the United States Congress was able to take the legislative power granted in the first sentence of the Constitution and create the democracy, which is responsible for all the evil Judge Napolitano has unearthed. Democracies are not based on laws they are based on voting and elections. The candidates who get votes make laws and the people are made to obey them. The ultimate democratic law or code is the rule of the majority. Republics are based on the rule of law. Natural law was called upon to free the fledgling republics known as the United States. The common law jury was no match for a full time Congress determined to enact whatever legislation might be necessary to correct the people in what Congress perceived to be their errant ways.
Judge Napolitano makes reference to Natural law, but he does so in such a way that warns us that he has not found it in our most revered public document—the Declaration of Independence. The first sentence of that great document explains that the Laws of Nature and of Nature's God establish the rules by which free people shall live. The Declaration of Independence proclaims that "it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security."
The unalienable right of the people to dissolve former political bands and to alter or abolish government precludes the solution to constitutional chaos offered by Judge Napolitano. Neither Congress nor the state legislatures have the power to enact a legal duty to obey government laws. The clearly recognized and fundamental right and duty in the people to throw off despotic government prevents the imposition of a legal duty to obey American governments. After July 4, 1776, government cannot enact laws that establish a legal duty to obey government law. The Constitution imposes limitations on government actors and punishments are clearly limited to certain specified violations of law. Once American Patriots who had fought for freedom against the British got a little power they, of course, became American politicians. Now in politics, these newly minted politicians had to overcome the Constitution and lack of authority over the people.
The Congress overcame these problems, almost immediately, by legislating for federal territory where the Constitution has limited application. The United States is an ambiguous term that can mean many things including, in its most restricted sense, just the federal territory subject to the dispositive power of Congress under Article IV. The former American Patriots decided to act territorial and think and talk nationally. However, even their idea of national was obscure. They reasoned that since the Constitution provided for the purchase of places for the erection of needful buildings in all the states, a nation of federal territory located in every state was a real possibility if not a reality. The United States district courts serve as the governing authority for this territory and for the state governments. This idea of the United States is quite different from the one in the heads of the people, but the written law will resolve any dispute, or so it was thought. It was only after painstaking and persistent effort that the truth was teased out of the United States Code and confirmed by the United States Statutes at Large.
Congress has not used its power under Article III to create federal trial courts that would have some independence from the legislative and executive branches; instead it created district courts under Article W of the Constitution for the ostensible purpose of managing federal territory and other federal property. Congress created decoy district courts to create an illusion of a genuine federal government. Since Congress never created any law other than law for federal territory and for the disposition of other property belonging to the federal government, the Article III part of the Supreme Court rarely acts. There are, therefore, two Constitutions—a Federal Constitution for federal territory and State governments and one for show and school children—the real Constitution. The Constitution was never intended to replace the states, state constitutions and laws or the English common law, but the clever men in Congress have always found a way to increase their power by making it appear that federal law applies to all the people in all places. Present federal and state government laws present a plausible alternative to the common law because no one, till now, has been able to unravel the secret to restricting federal law to federal territory.
To understand how the former Patriots managed to replace His Britannic Majesty with an oligarchy of Founding Fathers, we have to look at some old documents. The Articles of Confederation created a perpetual confederacy of the 13 states called the United States of America. The purpose of the Articles was to guide the states in achieving a united defense and to answer the problems of 13 English-speaking states without fenced borders. Operating under the Articles convinced the patriot politicians that the states needed a military minded leader for their mutual defense and a Supreme Court for a system of American justice. The Constitution created a federal government with a chief executive who was also to its military commander in chief and a court system that was separate from the states, but which would be created by Congress as needed. In Article IV the Constitution conferred upon Congress the power over lands that had not been incorporated into any of the states. Constitution of the United States created a government of three separate branches and set down principles that were to be followed in creating more law for those three branches though the Constitution specifically says that Congress shall have power to make rules for government.
In the Judiciary Act of 1789, Congress created a court system of district courts for the lands it was to dispose of and manage under Article IV. District court judges were required to be residents of the district for which they were appointed. There was no provision for a judicial appointment for life during good behaviour, so it was just assumed that that courts and judges were of the third branch of government. To support the false belief that district court were judicial officers appointed for life, Congress impeached District Judge John Pickering of New Hampshire in 1804. The impeachment was pure show as Congress would not enact lifetime appointments for district courts judges until 1948 and the first quasi Article III district court in a state would not be established until 1959 when Hawaii was admitted into the Union. Because of a dearth of early cases and other skillful legislative moves, Congress has managed to keep their origins and limitations secret till now. What Judge Napolitano and others perceive to be Constitutional chaos is congressional conniving sustained by a judicial conspiracy to hide the true nature of the federal courts and federal laws.
Constitutional chaos has always existed because the federal trial courts have always operated under territorial law. The Constitution appears to have functioned without too many incursions into personal freedoms because federal territorial law did not extend into private lives. Federal judges were scarce while there was federal territory to make ready for statehood, but as soon the last great territories became states Congress was ready to maintain and use the secret of the federal courts to create a national democracy that would rival the emerging European fascist states.
The Declaration of Independence has always been a first line of defense against fascism, but the growth of the federal government and its federal Constitution have relegated it to an excuse for fireworks and barbeques. The Constitution like the Articles of Confederation was always meant as a guide for government and not as a source of authority for punishment for those in opposition to government even if the opposition came from within the government. Federal politicians have proven themselves adept at enlarging their power by manipulation of the documents that are revered by Americans. There should be a special hell for what they have done, but it is for God to conceive and populate it.
It should be apparent to all that the Constitution recognizes that it is only a guide for government and not the imposition of another layer of law for the people. That great document expressly identifies four instances where the Congress may prescribe punishment for violations of law. Rampant law breaking by government or the people was never a problem the Constitution was meant to correct.
My research has proven that all the horror stories of a government out of control are a result of the application of federal territorial law outside of federal territory. It is there where the answer to any constitutional chaos may be found. This misapplication of the law has gone on for so long that hardly anyone knows there is a separate law for government and a law for the people. Judge Napolitano himself fails to recognize that the English common law is always available in 49 states to handle the most serious violations of government lawbreakers. Like so many legal scholars, who are victims of legal specialization, Judge Napolitano has forgotten that the common law is inapplicable on the federal territory subject to the power of Congress under Article IV of the Constitution. Congress can never forget and now employs its own attorneys to carefully review all legislation so new laws will fit into the federal territorial scheme. It has become so dependent on these legal specialists that members of Congress don't read or can't read the laws they enact.
The United States Congress decided very quickly that if it didn't fudge in the creation of the federal trial courts it would never be able to gain the kind of control it thought it should have. Now that it has this control it is very unlikely that Congress will be willing to admit what past Congresses have done to create the belief that the jurisdiction of United States district courts extended beyond the federal territory located in the counties that comprise the districts and divisions of those courts. This world would be an entirely different place had the Congress created legitimate trial courts pursuant to authority of Article III rather than Article IV of the Constitution.
As a constitutional scholar Judge Napolitano, should know that the federal territories are places where the Constitution is not in full force. This revelation would help him account for all the evil that he has found and reported in his book. The scale of the problem Judge Napolitano has carefully documented can only be possible where the participants can act under color of law or can knowingly consent to a loss of rights and freedom. No matter how limited it might be federal territorial law is still law. I am sure, however, that when Judge Napolitano becomes aware of its severe territorial limitations he will not want it enforced outside of federal territory. I am also sure that everyone who reads this will make an effort to inform him of the truth about Congress and the federal courts. We anxiously await his report to the nation on the Fox News. By fooling the people, Congress has made fools of intelligent men. Knowing that the 50 state governments are republics, he makes the inane statement that: "Ultimately, the fate of American liberty is in the hands of American voters." Fortunately, unalienable rights will never be put to a vote where the American voters can get a hold of them.
Voters in any democracy can vote themselves out of their rights. This is why the Constitution guarantees every state a republican form of government. That American liberty is in the hands of American voters is an astonishing statement coming from a man that has dedicated his book to Sir Thomas More. Judge Napolitano is dead wrong. More was for found guilty of treason against Henry VIII by a jury upon perjured testimony and condemned to death. The English common law could keep him alive only so long.
Perversion of the law killed Sir Thomas More just as perversion of the law is killing American freedom.
Judge Napolitano's prescription for a cure is far worse than the problem. In fact, the very idea that Congress and the state legislatures should make laws that are to be unquestioningly obeyed by the people displays a naiveté that is alarming in a person of his education, training and experience.
Government legislatures only have power to make administrative laws for government personnel. To be guilty of a crime there must be a violation of a legal duty. The wholesale creation of such duties were never intended to be left to governments in America. This was the function of the common law juries. The vast government bureaucracy consists of employees whose job duties can never be confused with legal duties. Judge Napolitano has confused work with a legal duty. Since the United States district court judges obtain whatever authority they have pursuant to Article IV of the Constitution, they are accurately employees rather than officers of the United States. A close examination of the United States Code will reveal them to be the federal government employees around which most federal laws revolve.
Judge Napolitano's training and experience have done nothing to prepare him to offer solutions to the problem, but we should thank him for his accurate depiction of the problem. Present legal education is the problem. Like every government-trained lawyer he believes that government legislatures can make laws for people. This is an ancient but corrupt understanding of the law responsible for the statement in Shakespeare's play Henry II, Act W, Scene II: "The first thing we do, let's kill all the lawyers." Well, lawyers become judges.
Judge Napolitano proposes that the solution to the tragic criminal justice system is to make the government obey it own laws. That is definitely not the solution to the problem. The problem with American criminal justice is that the government is successfully imposing government law on the people. If Judge Napolitano thinks the solution to the lack of criminal justice lies in making those in government subject to government law, he's not alone, but that does nothing to correct a corrupt criminal justice system. The real problem is the pernicious thought that government can make laws for people outside government and can establish punishment for violations of those laws.
Judge Napolitano is correct about governments breaking the rules, but unfortunately, he misses the importance of his own discovery. The judge has missed entirely the point of the Constitution as the supreme law of the land—for government. The Constitution and all the law enacted pursuant to the Constitution are law for government and are not for the people. The people have their own set of laws called the common law. He has forgotten that all the "repeated Injuries and Usurpations" and "Oppressions" set forth in the Declaration of Independence resulted in no criminal punishment for the British. History records that many signers of that great document suffered grievously for their stand against the King. The Declaration of Independence provides all the reasons needed to alter or abolish government and the Constitution provides the means to carry it out, if government hands can be taken from the necks of the people. The lack of justice in America is the fault of the governments but the problem will not be remedied by suing the bastards, as the Judge suggests or even by defending the Constitution.
The American criminal justice system that is the subject of the Judge's book is supposed to be built on a foundation whose bulwark should be Article III of the Constitution of the United States. Instead, we have the awful territorial substitute for justice that Judge Napolitano documents in his book.
With all this good work to his credit, the good judge has missed the single most important fact of constitutional law—the Constitution is the supreme law of the land for—government. The Constitution and all law enacted pursuant to the Constitution follows government personnel wherever they can be found while they occupy a public office. We have the technology to track the evildoers and blacklist them so they will never hold another position of public trust or government employment again. Nixon one of the biggest crooks, despite vehement denials, never spent a day in custody for the evil that he did. Let's get the politicians off a government payroll and in the workforce. Vengeance is not ours.
To his credit Judge Napolitano does prove the need to change forever the present criminal justice system. The good judge easily proves his case: the common man can't get justice in America. The incidents of government injustice Judge Andrew P. Napolitano recounts are horrible and chilling. They are accurate depictions of recent incidents of prosecutorial and judicial abuse that can happen in federal territory. That they happened outside federal territory is our fault. The abuse began with the ratification of the Constitution and taking our eyes off Congress. Current societal problems stem from misapplication of government law to the people.
What the good judge perceives to be judicial malfeasance is actually good old-fashioned graft and political corruption that will plague mankind as long as we have public revenues and the desire to spend for an alleged public good. The easiest way to improve government is to register as electors and not voters and to refuse to be unqualified jurors in federal districts where we don't reside.
Judge Napolitano has courageously exposed the evil empire that is the American criminal justice system. I think that he is sincere and he is not part of the congressional and judicial conspiracy that will commit all the acts he describes in his book I do think that he belongs in that great group of intellectuals who have forgotten to heed the one duty of all free people—Question all authority. Now that he has opened the Pandora's box of government evils is he prepared to accept the awful truth about the government? I, for one, will do everything in my power to see that he is made aware of the great loophole in the Constitution through which Congress has stolen American justice.
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