Constitution Society

6900 San Pedro #147-230
San Antonio, TX 78216
210/224-2868
1201 W Arbrook #109933
Arlington, TX 76015

Email: jdr@crl.com

95/05/14

Dr. Gene Schroder
Box 130
Campo, CO 81029

Dear Gene:

By way of introduction, I am the person who reactivated the constitutional Militia in Bexar County, Texas, on April 19, 1994, which led to the reactivation of it elsewhere in Texas and across the country. I am enclosing some of the documentation, most of it written by me, we have been using in reactivating the militias of Texas and other states.

I have been working with the AFC in Dallas to further develop the concerns we share about Emergency Rule. However, I do not entirely agree with some of the ways you formulate these concerns, and find some fault with a few passages in your book, Constitution: Fact or Fiction. This is to open a dialog to seek to bring our divergent formulations into agreement.

First, I question your tendency to accept the Constitution as suspended and Emergency Rule as established. I take the position that the Constitution has not been suspended, regardless of how many declarations of emergency might be issued by Congress or the President or ratified by the courts. Although those holding de facto power may be acting as though such declarations conferred authority for their usurpations, they do no such thing, especially since that "authority" is largely hidden from the people, the overwhelming majority of whom consider the Constitution in full force and effect. The doctrine of Emergency Rule, however elaborate, is a legalistic fiction, and those who operate under it are, simply, usurpers and criminals, whom I, as a militiaman, have the duty to arrest and charge with high crimes and misdemeanors, regardless of the forces they command. Of course, because they do command such forces, prudence dictates that I not waste myself in futile gestures, but rather seek to alter the balance of forces in the direction of compelling them to yield.

The issue can be discussed in the following way: Suppose someone commits a serious crime, such as a group of public officials who steal some public funds, kill a few people doing that, steal a vehicle, and flee in violation of the property rights and safety of the public. Now suppose some others, such as law enforcement officials or militiamen, pursue these criminals and apprehend them, but in so doing, commandeer a private vehicle, invade and cause destruction to private property, and, in a final shootout, cause the unintentional death of an innocent bystander. Do the owners of that vehicle and that property, and the heirs of the person killed, have standing to sue the enforcers of the law or to file criminal charges against them, or are their rights suspended by the emergency situation? The answer is that they do have such standing, but the courts should rule that if the actions taken were reasonable and prudent in the exercise of their duty to defend the state, which take precedence over their individual civil rights, they are not civilly or criminally liable. The recourse of the injured parties would be against the criminals who made the pursuit necessary.

The same standard of justice applies to a wider emergency of longer duration, in which those acting under their duty and authority to defend the state may have to take actions injurious to people. In each case, the injured has standing to file civilly or criminally, and each case must be decided on its merits.

The justification, then, for the doctrine of Emergency Rule, is not that officials need new powers, but to avoid a flood of litigation in which each and every act must be defended in court, and in which the courts will be second-guessing the judgements of the executive and legislative branches concerning whether the injuries were reasonable and prudent under the circumstances. I do not find that justification convincing, nor did the Framers. The courts could be expected to defer to the executives and legislators if their judgments were sound, and if not, then the courts would be as good a place as any to correct them.

In general, what we call emergency and war powers derive from the authority delegated to the President to act as Commander-in-Chief of the armed forces and his power and duty to defend the state against rebellion and invasion. However, such power does not grant him the authority to act to avoid economic or financial disaster, even though such might cause rebellion or weaken the nation in its defense against invasion. It might be argued that he should have such power, and I could formulate a constitutional amendment that would delegate it, but at present no such power is delegated, either to the Congress or the President.

The provision in Art. I, Sect. 9, allowing for the suspension of the right to a writ of habeas corpus in times of rebellion or invasion does not confer authority to suspend anything but that right, not any other right or provision of the Constitution, including the 10th Amendment that supersedes it if there were a conflict, regardless of what the legalistic sophistry of the usurpers might try to have us believe.

As I discuss in the enclosed paper, Law and Antilaw, the Constitution is not just the Supreme Law of the Land, but of all operations of the institutions it establishes as agents of the people, including those on the sea and involving the laws of nations. The President is not a king. He did not inherit any common law powers over the sea from British law. Neither he nor any admiralty courts have any powers not delegated to them in any field of action, whether it be land, sea, the air, space, or whatever. The usurpers might resort to legalistic sophistry to argue otherwise, but such arguments are without merit, however well established in practice.

No, what we have here is simply violation of the Constitution and its laws, impeachable offenses on the part of nearly every government official of any of the branches. The usurpers may have a legalistic fašade they keep hidden from the people, and we should study it as a way to understand their thinking and to plan our course of action to overcome them, but we should never accept it as anything but a fraud.

Now, to the problems I have in your book, Constitution: Fact or Fiction. First, the title. It focuses on whether the Constitution is fact or fiction, when it is the Constitution that is fact and Emergency Rule that is fiction, regardless of whether it is what is being enforced. All the enforcement in the world doesn't change fiction into fact, or fact into fiction.

More than once you speak of American citizens as having "lost their rights". That is not the correct way to put it. We cannot lose our rights, or have them taken away from us. We can't even give them away if we want to. That is what makes them "inalienable". Our rights can be infringed, and they are being infringed. But that is not the same thing.

On page 16, para. 2, you state that the United States was a "republic" because not everyone could vote, but became a "democracy" when the vote was extended to almost everyone. That is not the accepted usage of the terms "republic" and "democracy". Although "democracy" can loosely include "republic", the latter term should be used to refer to a state in which its citizens delegate, directly or indirectly, the legislative, executive, and judicial powers of government to elected public officials or officials appointed by such elected officials, who act as their agents and serve at their pleasure until the next election. Not allowing everyone to vote is simply failing to extend the privileges and obligations of citizenship to all inhabitants. Among people in the patriot movement, "democracy" is usually used to mean a state in which the people reserve the legislative powers of government to themselves, and exercise them directly.

On page 36, you implicitly object to the statement that the state owns all property, and you are correct as to property in general, but not as to real property. It is a long-established principle of English law, which we inherited as part of our Common Law, that all land is owned by the State. What people own is an estate in land, an inheritable right to use. There are four types, the most important of which are estates in fee simple and estates in fee tail. In fact, almost all estates in the United States are in fee simple. As a practical matter, the distinction between direct ownership of the land and ownership of an estate in the land has made little difference through most of history, but it does provide the legal foundation for eminent domain, property taxation, and regulation of land use that is not considered a taking.

This issue comes up in regard to rights to "federal" land. In general, unless provided otherwise, the Framers would say that the creation of a state out of federal territory involves the transfer of ownership of that territory from the national government, in its corporate capacity, to the state, subject to any existing estates on it. However, it could, and did, retain fee simple title to an estate in much of it. That means that only the state government, and not the national government, has the power of eminent domain over the land once a state is created, unless some of the state's land is ceded back to the national government by an act of the state legislature. But the state has legal jurisdiction over such land not ceded back, including land to which the national government retains fee simple title. That also means that in the current dispute over the rights of states vs. the rights of the national government regarding grazing leases, the national government stands in the same position on its claimed "public land" as any private landowner, if in the creation of the state there was a provision for retaining fee simple title. Otherwise, the state owns it.

Nor did Congress "lose" the power to declare war. "Abandon" it, maybe. After all, they conferred their emergency and war powers. They can take them back. The main problem for Congress is that the national bureaucracy has become too large and powerful a constituency to take it on that way, with or without emergency powers. It can act on its own and stick Congress and the President with a fait accompli, and it does.

The main problem with not declaring war is that, in the absence of such a declaration, acts by U.S. forces in other countries are subject to the criminal and civil laws of those countries, and under the "laws of nations" provision, of extradition treaties and our own criminal laws as well. Consider the situation if law enforcement agents from one state were to enter another state and commit a violent and misguided law enforcement action there that resulted in criminally negligent and extensive "collateral damage". Within the U.S., they would simply be criminally liable, as there is no provision for "declaration of war" between states. A declaration of war is needed to suspend the individual civil and criminal liability of members of the armed forces under the laws of that country. This now seems like a quaint concept to many people, but the Framers took it seriously, and rightly so.

I would disagree that Abraham Lincoln was a "constitutional dictator". His acts, justified or not, were either constitutional or they were not. I would say that some were not constitutional, but were justified, and that we forgive him for them. He acted as a benign dictator, perhaps, but a dictator nonetheless. Dictators are not necessarily bad guys. We can forgive usurpers, or at least decline to enforce the laws they break. But that doesn't make them constitutional. That is a problem, of course. Mostly in that the Constitution doesn't provide for all contingencies, such as those that came with the secession of the southern states. It is still a work in progress.

I would also disagree with your interpretations (1) and (2) of the effect of the 14th Amendment, on page 132. I realize that they are, with some variations, popular with some people in the patriot movement, and that the amendment could have been worded more clearly, but from reading the writings of its framers, several things emerge: It did not create a new class of "federal citizen". The notion of citizenship was simply not well defined at the time the Constitution was adopted in 1787. A person was a citizen of any jurisdiction he claimed as his residence, his town, county, region, state, the United States as a whole, the world. Whatever. Some persons were excluded from voting in certain jurisdictions, but those not in the excluded groups could declare any citizenship they wanted to without much question. The intention of defining U.S. and state citizenship was to extend the same rights and privileges of U.S. citizenship to the citizens of every state, especially to blacks. U.S. citizens were certainly not denied the protections of the Bill if Rights. Quite the contrary. The 14th was intended to extend the protection of the Bill of Rights as restrictions on the states as well as on the national Congress, especially the 1st and 2nd Amendments. It was largely motivated by Jim Crow state gun control legislation directed against blacks, who needed to defend themselves from the whites. It was intended to settle a longstanding dispute as to whether the original Framers had intended the Bill of Rights to apply to the states. Actually, they had, although during debate they limited the 1st Amendment to the Congress, because some states did have established religions. The dispute is moot, in that the Bill of Rights merely recognizes those "inalienable" natural and common law rights, not of citizenship but of personhood, that preceded both the United States and the States, and which are therefore a restriction on any kind of constitutional government, no matter what the provisions of its written constitution might say. The 14th says nothing about extending federal police power over the states, but does support federal criminal laws against violation of the civil rights of citizens of either kind by any official, national, state or local, such as 18 USC 241 and 242, which is what a lot of federal officials have been violating lately. This is a step forward for the cause of constitutional rights, in that previously the national government had no authority for prosecuting its own officials for offenses they might commit on state territory, including violation of their own oaths of office to uphold the Constitution, and now it had. Enforcement is another matter, of course.

Incidentally, the 14th implies equal rights for women and native Americans, including voting rights. Took the courts and a couple of further amendments a long time to figure that out, though. It seems that judges, like most lawyers, are a bit weak on logic.

There are some problems with federal jurisdiction today, of course, but the legalistic rationale for that is not the 14th Amendment. As far as I can tell, there is no rationale. The Congress and the President are just doing what they can get away with. Plain, old-fashioned usurpation without a shred of legal authority or any pretense of having it, made possible by compromised and intimidated courts and constitutionally ignorant, complacent, and corrupted voters.

Under the heading of "What Can I Do?", I would suggest one modification. Congressional staffs have gotten so used to "one subject per letter" that they just note the subject, what the writer's position is, and don't read the letter. I have found that it works better to deviate from the pattern, such as open with two or three subjects on the first line. Then it is more likely to get read, because the staff person has to pick out the two or three positions from the body of the letter.

I would disagree with your definition, on page 222, of "constitutional republic". You have provided the rough definition of a "federal union". A constitutional republic doesn't need political subdivisions to be called that. A constitutional republic is a republic (see above) having a constitution, that is, a basic law or laws that supersede later laws that conflict with it.

In general, we must never, in anything we say, accede to the faits accompli of usurpers or accept their acts as established. The Rule of Law means that we assert constitutional principles and the law as abstract historical facts to be perceived or discovered, existing beyond the will or preferences of men, and not accept official acts as the primary facts of legal discourse, as lawyers are trained to do. The Constitution is to be considered a fact beyond human control, except through proper amendment, to be interpreted correctly or not, by judges or other officials or by ordinary citizens.

Jon Roland, Founder
Chairman, Texas Militia Correspondence Committee