Rebuttal to U.S. Supreme Court Justice Scalia’s Comments About the Common Law

SOURCE:  Rebutted Arguments About the Common Law, Form #08.025, Section 15.1; https://sedm.org/Forms/08-PolicyDocs/RebuttedFalseArgumentsAboutCommonLaw.pdf

EDITORIAL:  Additional commentary about this speech can be found at:

How Judges Unconstitutionally “Make Law”, Litigation Tool #01.008, Section 3; https://sedm.org/Litigation/01-General/HowJudgesMakeLaw.pdf

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At a speech given at the Federalist Society, now deceased U.S. Supreme Court Justice Antonin Scalia said that he didn’t want to have anything to do with the common law.

Below is a list of his comments on common law and natural law:

1. At minutes 14-16:28, he stated that:
   • A belief in the common law was naïve.
   • The Supreme Court said there was no federal common law within a state in Erie Railroad v. Tomkins.
   • The modern conception of “common law” is that when one puts on a black robe, they are charged with protecting human rights, but that those rights are subjective and cannot be defined by judges.
   • When you put an unelected judge in charge of deciding what “human rights” are, then it is “anti-democratic”.
2. At minutes 28-29:25 he says:
   • Natural law has nothing to do with his decisions.
   • Natural law is subjective.
   • The constitution should not contravene natural law.
   • As far as he is concerned, there is nothing in the constitution that DOES contravene or contradict natural law.

During his lecture in minutes 14-17, Scalia even goes so far as to say:

“I don’t think for many countries of the world the text [of the Constitution] even matters anymore. What has happened can only be compared with the naïve belief that we used to have in the common law.  You recall before Erie Railroad v. Tompkins, we really believed that there was A COMMON LAW. THE COMMON LAW.  And every state was trying to grasp its reality.  Some of them got it wrong, but they were all engaged in the same enterprise. And so they would cite each other, right?  New York would cite Georgia.  California would  cite New York because we were all looking for the same thing.  Well, Erie Railroad blows that away.  Holmes says there is no brooding on the presence of the common law up there. What’s happening that each state is adopting its own domestic common law through the adjudicative system and we all understand that.  And we [supreme court justices] sort of chuckle at how naïve, how naive the world could have been ever to have thought there was a common law up there.”

“The common law has been replaced by human rights, Capital H capital R.  There is a belief that judges, somehow, are charged with protecting human rights in the abstract.  Never mind the text of a particular constitutional guarantee.  When one puts on a black robe, one becomes charged with protecting Human Rights. As though we all agree as to what human rights are.  There’s enormous disagreement. And to give the responsibility of determining the meaning of that abstract phrase to unelected magistrates is anti-democratic.”

[Justice Scalia, Role of the Federal Judiciary, Federalist Society National Lawyers Convention, C-Span, 11/22/08]

Notice the phrase “As though we all agree on what human rights are”.  We WOULD all agree if we hadn’t ABANDONED the Christian roots of our culture by abusing franchises [see Government Instituted Slavery Using Franchises, Form #05.030], fiat currency [See The Money Scam, Form #05.041] , and income taxes [which are FRANCHISE/EXCISE taxes, see The Great IRS Hoax, Form #11.302] to do “social engineering” that replaces God with the government, fires the people/state as the sovereign, and puts the rancher owner (We the People) in the barn with the horses.

“Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one’s belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those [283 U.S. 605, 634]   arising from any human relation. As was stated by Mr. Justice Field, in Davis v. Beason, 133 U.S. 333, 342 , 10 S.Ct. 299, 300: ‘The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.‘ One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the existence of a belief in supreme allegiance to the will of God. Professor Macintosh, when pressed by the inquiries put to him, stated what is axiomatic in religious doctrine. And, putting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. What that field is, under our system of government, presents in part a question of constitutional law, and also, in part, one of legislative policy in avoiding unnecessary clashes with the dictates of conscience. There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power. The attempt to exact such a promise, and thus to bind one’s conscience by the taking of oaths or the submission to tests, has been the cause of many deplorable conflicts. The Congress has sought to avoid such conflicts in this country by respecting our happy tradition. In no sphere of legislation has the intention to prevent such clashes been more conspicuous than in relation to the bearing of arms. It would require strong evidence [283 U.S. 605, 635]   that the Congress intended a reversal of its policy in prescribing the general terms of the naturalization oath. I find no such evidence. “

[U.S. v. Macintosh, 283 U.S. 605 (1931)]

The result of all this malicious, narcissistic, idolatrous social engineering is a dulocracy which we describe in Form #05.016:

“Dulocracy.  A government where servants and slaves have so much license and privilege [meaning FRANCHISES, Form #05.030] that they domineer.”

[Black’s Law Dictionary, Sixth Edition, p. 501]

The reason Scalia doesn’t know what the “common law” is derives from the fact that he’s a pagan who worships men such as himself as gods with superior or supernatural powers.  The entire development of the common law within western civilization derives from Christianity.  He identifies subjective and relativistic “Human Rights” as his new pagan god and FIRES the real and living and true Christian God as the AUTHOR and CREATOR of human-kind and human liberty and REAL “Human Rights” that He is:

“Is this not the fast [act of faith, worship, and OBEDIENCE] that I [God] have chosen [for believers]:
To loose the bonds of wickedness,
To undo the heavy burdens,
To let the oppressed go free,
And that you break every yoke [franchise, contract, tie, dependency, or “benefit” with the government]?”
[Isaiah 58:6, Bible, NKJV]

“The Spirit of the Lord God is upon Me,
Because the Lord has anointed Me
To preach good tidings to the poor;
He has sent Me to heal the brokenhearted,
To proclaim liberty to the [government] captives
And the opening of the prison [government FARM, Form #12.020] to those who are bound;
To proclaim the acceptable year of the Lord,
And the day of vengeance of our God;”
[Isaiah 61:1-2, Bible, NKJV]

A failure to acknowledge the above brings a curse and inevitable DESTRUCTION from God Himself, who uses a corrupted government to ENFORCE His Holy curse!:

Curses of Disobedience [to God’s Laws]

“The alien [Washington, D.C. is legislatively “alien” in relation to states of the Union] who is among you shall rise higher and higher above you, and you shall come down lower and lower [malicious destruction of EQUAL PROTECTION and EQUAL TREATMENT by abusing FRANCHISES].  He shall lend to you [Federal Reserve counterfeiting franchise], but you shall not lend to him; he shall be the head, and you shall be the tail.

“Moreover all these curses shall come upon you and pursue and overtake you, until you are destroyed, because you did not obey the voice of the Lord your God, to keep His commandments and His statutes which He commanded you.  And they shall be upon you for a sign and a wonder, and on your descendants forever.

“Because you did not serve [ONLY] the Lord your God with joy and gladness of heart, for the abundance of everything,  therefore you shall serve your [covetous thieving lawyer] enemies, whom the Lord will send against you, in hunger, in thirst, in nakedness, and in need of everything; and He will put a yoke of iron [franchise codes] on your neck until He has destroyed you.  The Lord will bring a nation against you from afar [the District of CRIMINALS], from the end of the earth, as swift as the eagle flies [the American Eagle], a nation whose language [LEGALESE] you will not understand,  a nation of fierce [coercive and fascist] countenance, which does not respect the elderly [assassinates them by denying them healthcare through bureaucratic delays on an Obamacare waiting list] nor show favor to the young [destroying their ability to learn in the public FOOL system].  And they shall eat the increase of your livestock and the produce of your land [with “trade or business” franchise taxes], until you [and all your property] are destroyed [or STOLEN/CONFISCATED]; they shall not leave you grain or new wine or oil, or the increase of your cattle or the offspring of your flocks, until they have destroyed you.

[Deut. 28:43-51, Bible, NKJV]

What Scalia fails to realize is the purpose for establishing the very government that he is an integral part of and at the PINNACLE of:

1. That purpose is ONLY to protect PRIVATE and PRIVATE rights. Declaration of Independence.
2. The FIRST step in protecting PRIVATE rights is to keep them from being converted to PUBLIC rights without at least the EXPRESS WRITTEN CONSENT of the owner.
3. To only allow conversion to PUBLIC/government rights with explicit, fully informed, express consent. After all, according to the Declaration of Independence, all just powers spring from the CONSENT of the governed.  Where there is no EXPRESS consent, there is only INJUSTICE.
4. To not play word games to make the consent INVISIBLE by using STATUTORY STATUSES that people are fooled into thinking are NOT voluntary to effect the conversion. See:

5. To not HIDE methods to REMOVE consent to do the conversion by obfuscating legal terms. See:

By “private” we mean the following:

SEDM Disclaimer

Section 4:  Meaning of Words

The word “private” when it appears in front of other entity names such as “person“, “individual“, “business”, “employee“, “employer“, etc. shall imply that the entity is:

1. In possession of absolute, exclusive ownership and control over their own labor, body, and all their property. In Roman Law this was called “dominium“.
2. On an EQUAL rather than inferior relationship to government in court. This means that they have no obligations to any government OTHER than possibly the duty to serve on jury and vote upon voluntary acceptance of the obligations of the civil status of “citizen” (and the DOMICILE that creates it). Otherwise, they are entirely free and unregulated unless and until they INJURE the equal rights of another under the common law.
3. A “nonresident” in relation to the state and federal government.
4. Not a PUBLIC entity defined within any state or federal statutory law. This includes but is not limited to statutory “person”, “individual”, “taxpayer”, “driver”, “spouse” under any under any civil statute or franchise.
5. Not engaged in a public office or “trade or business” (per 26 U.S.C. §7701(a)(26)). Such offices include but are not limited to statutory “person”, “individual”, “taxpayer”, “driver”, “spouse” under any civil statute or franchise.

“PRIVATE PERSON. An individual who is not the incumbent of an office.”

[Black’s Law Dictionary, Fourth Edition, p. 1359]

6. Not consenting to contract with or acquire any public status, public privilege, or public right under any state or federal franchise. For instance, the phrase “private employee” means a common law worker that is NOT the statutory “employe” defined within 26 U.S.C. §3401(c )or 26 C.F.R. §301.3401(c)-1 or any other federal or state law or statute.
7. Not sharing ownership or control of their body or property with anyone, and especially a government. In other words:
   7.1 Ownership is not “qualified” but “absolute”.
   7.2 There are no moities between them and the government.
   7.3 The government has no usufructs over any of their property.
8. Not subject to civil enforcement or regulation of any kind, except AFTER an injury to the equal rights of others has occurred. Preventive rather than corrective regulation is an unlawful taking of property according to the Fifth Amendment takings clause.
9. Not “privileged” or party to a franchise of any kind:

“PRIVILEGE. “A right, power, franchise, or immunity held by a person or class, against or beyond the course of the law. [. . .] That which releases one from the performance of a duty or obligation, or exempts one from a liability which he would otherwise be required to perform, or sustain in common [common law] with all other persons.  State v. Grosnickle, 189 Wis. 17, 206 N.W. 895, 896. A peculiar advantage, exemption, or immunity.  Sacramento Orphanage & Children’s Home v. Chambers, 25 Cal.App. 536, 144 P. 317, 319.

[Black’s Law Dictionary, Fourth Edition, pp. 1359-1360]

“Is it a franchise? A franchise is said to be a right reserved to the people by the constitution, as the elective franchise. Again, it is said to be a privilege conferred by grant from government, and vested in one or more individuals, as a public office. Corporations, or bodies politic are the most usual franchises known to our laws. In England they are very numerous, and are defined to be royal privileges in the hands of a subject. An information will lie in many cases growing out of these grants, especially where corporations are concerned, as by the statute of 9 Anne, ch. 20, and in which the public have an interest. In 1 Strange R. ( The King v. Sir William Louther,) it was held that an information of this kind did not lie in the case of private rights, where no franchise of the crown has been invaded. If this is so–if in England a privilege existing in a subject, which the king alone could grant, constitutes it a franchise–in this country, under our institutions, a privilege or immunity of a public nature, which could not be exercised without a legislative grant, would also be a franchise.”

[People v. Ridgley, 21 Ill. 65, 1859 WL 6687, 11 Peck 65 (Ill., 1859)]

10. The equivalent to a common law or Constitutional “person” who retains all of their common law and Constitutional protections and waives none.

“The words “privileges” and “immunities,” like the greater part of the legal phraseology of this country, have been carried over from the law of Great Britain, and recur constantly either as such or in equivalent expressions from the time of Magna Charta. For all practical purposes they are synonymous in meaning, and originally signified a peculiar right or private law conceded to particular persons or places whereby a certain individual or class of individuals was exempted from the rigor of the common law.  Privilege or immunity is conferred upon any person when he is invested with a legal claim to the exercise of special or peculiar rights, authorizing him to enjoy some particular advantage or exemption. “

[The Privileges and Immunities of State Citizenship, Roger Howell, PhD, 1918, pp. 9-10;
SOURCE: http://famguardian.org/Publications/ThePrivAndImmOfStateCit/The_privileges_and_immunities_of_state_c.pdf]

See Magill v. Browne, Fed.Cas. No. 8952, 16 Fed.Cas. 408; 6 Words and Phrases, 5583, 5584; A J. Lien, “Privileges and Immunities of Citizens of the United States,” in Columbia University Studies in History, Economics, and Public Law, vol. 54, p. 31.

Every attempt by anyone in government to alienate rights that the Declaration of Independence says are UNALIENABLE shall also be treated as “PRIVATE BUSINESS ACTIVITY” that cannot be protected by sovereign, official, or judicial immunity. So called “government” cannot make a profitable business or franchise out of alienating inalienable rights without ceasing to be a classical/de jure government and instead becoming in effect an economic terrorist and de facto government in violation of Article 4, Section 4.

“No servant [or government or biological person] can serve two masters; for either he will hate the one and love the other, or else he will be loyal to the one and despise the other. You cannot serve God and mammon [government].“

[Luke 16:13, Bible, NKJV]

[SEDM Disclaimer, Section 4:  Meaning of Words; SOURCE: https://sedm.org/disclaimer.htm]

The legal encyclopedia confirms these conclusions in spades. On the duty of officers WITHIN the government to PROTECT PRIVATE PROPERTY, it says:

“As expressed otherwise, the powers delegated to a public officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officer. [1]  Furthermore, the view has been expressed that all public officers, within whatever branch and whatever level of government, and whatever be their private vocations, are trustees of the people, and accordingly labor under every disability and prohibition imposed by law upon trustees relative to the making of personal financial gain from a discharge of their trusts. [2]   That is, a public officer occupies a fiduciary relationship to the political entity on whose behalf he or she serves. [3]  and owes a fiduciary duty to the public. [4]   It has been said that the fiduciary responsibilities of a public officer cannot be less than those of a private individual. [5]   Furthermore, it has been stated that any enterprise undertaken by the public official which tends to weaken public confidence and undermine the sense of security for individual rights is against public policy.[6]“

[63C American Jurisprudence 2d, Public Officers and Employees, §247 (1999)]

So the job of judges is quite simple, and the purpose the common law is to effect ONLY the above goals.  Since those goals in essence are the protection of private property, then judges don’t need to MAKE law.  All they have to do is RECOGNIZE what property is.  This isn’t rocket science or “anti-democratic” as Scalia puts it.   A failure or refusal by people like Scalia to recognize the existence and rights of PRIVATE property protected by the Fifth Amendment makes government VAIN, according to the Supreme Court:

“The rights of individuals and the justice due to them, are as dear and precious as those of states. Indeed the latter are founded upon the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is government.”

[Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793)]

“Every man has a natural right to the fruits of his own labor, is generally admitted; and no other person can rightfully deprive him of those fruits, and appropriate them against his will…”

[The Antelope, 23 U.S. 66, 10 Wheat 66, 6 L.Ed. 268 (1825)]

“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say “L’État c’est moi.” Of what avail are written constitutions whose bills of right for the security of individual liberty have been written, too often, with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the State? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, State and Federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked; and of communism, which is its twin; the double progeny of the same evil birth.”

[Poindexter v. Greenhow, 114 U.S. 270 (1885)]

What Scalia is doing with his vague subjective notions about the purpose of government is to rewrite his job description so he can join the PLUNDER of private property with his Pharisee colleagues in the covetous legal profession.[7]  As someone whose own son is a Catholic Priest, he ought to know better.  What a LOSER!:

‘For among My [God’s] people are found wicked [covetous public servant] men; They lie in wait as one who sets snares; They set a trap; They catch men. As a cage is full of birds, So their houses are full of deceit. Therefore they have become great and grown rich. They have grown fat, they are sleek; Yes, they surpass the deeds of the wicked; They do not plead the cause, The cause of the fatherless [or the innocent, widows, or the nontaxpayer]; Yet they prosper, And the right of the needy they do not defend. Shall I not punish them for these things?’ says the Lord. ‘Shall I not avenge Myself on such a nation as this?’

“An astonishing and horrible thing Has been committed in the land: The prophets prophesy falsely, And the priests [judges in franchise courts that worship government as a pagan deity] rule by their own power; And My people love to have it so. But what will you do in the end?”

[Jer. 5:26-31, Bible, NKJV]

Our Bible, the Open Bible, describes the folly of the road that pagans like Scalia are taking this country down as follows:

The Book of Judges stands in stark contrast to Joshua.  In Joshua an obedient people conquered the land through trust in the power of God.  In Judges, however, a disobedient and idolatrous people [towards God’s law] are defeated time and time again because of their rebellion against God.

In seven distinct cycles of sin to salvation, Judges shows how Israel had set aside God’s law and in its place substituted “what was right in his own eyes” (21:25).  The recurring result of abandonment from God’s law is corruption from within and oppression from without.  During the nearly four centuries spanned by this book, God raises up military champions to throw off the yoke of bondage and to restore the nation to pure worship.  But all too soon the “sin cycle” begins again as the nation’s spiritual temperance grows steadily colder.

…

The Book of Judges could also appropriately be titled “The Book of Failure.”

Deterioration (1:1-3:4).  Judges begins with short-lived military successes after Joshua’s death, but quickly turns to the repeated failure of all the tribes to drive out their enemies.  The people feel the lack of a unified central leader, but the primary reasons for their failure are a lack of faith in God and lack of obedience to Him (2:1-2).  Compromise leads to conflict and chaos.  Israel does not drive out the inhabitants (1:21, 27, 29, 30); instead of removing the moral cancer [IRS, Federal Reserve?] spread by the inhabitants of Canaan, they contract the disease.  The Canaanite gods [money, sex, covetousness] literally become a snare to them (2:3).  Judges 2:11-23 is a microcosm of the pattern found in Judges 3-16.

Deliverance (3:5-16:31).  In verses 3:5 through 16:31 of the Book of Judges, seven apostasies (fallings away from God) are described, seven servitudes, and seven deliverances.  Each of the seven cycles has five steps: sin, servitude, supplication, salvation, and silence.  These also can be described by the words rebellion, retribution, repentance, restoration, and rest.  The seven cycles connect together as a descending spiral of sin (2:19).  Israel vacillates between obedience and apostasy as the people continually fail to learn from their mistakes.  Apostasy grows, but the rebellion is not continual.  The times of rest and peace are longer than the times of bondage.  The monotony of Israel’s sins can be contrasted with the creativity of God’s methods of deliverance.

Depravity (17:1-21:25).  Judges 17:1 through 21:25 illustrate (1) religious apostasy (17 and 18) and (2) social and moral depravity (19-21) during the period of the judges.  Chapters 19-21 contain one of the worst tales of degradation in the Bible.  Judges closes with a key to understanding the period: “everyone did what was right in his own eyes” (21:25) [a.k.a. “what FEELS good”].  The people are not doing what is wrong in their own eyes, but what is “evil in the sight of the Lord” (2:11).

[The Open Bible, New King James Version, Thomas Nelson Publishers, Copyright 1997, pp. 340-341]

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FOOTNOTES:

[1] State ex rel. Nagle v. Sullivan, 98 Mont. 425, 40 P.2d. 995, 99 A.L.R. 321; Jersey City v. Hague, 18 N.J. 584, 115 A.2d. 8.

[2] Georgia Dep’t of Human Resources v. Sistrunk, 249 Ga. 543, 291 S.E.2d. 524.  A public official is held in public trust.  Madlener v. Finley (1st Dist), 161 Ill.App.3d. 796, 113 Ill.Dec. 712, 515 N.E.2d. 697, app gr 117 Ill.Dec. 226, 520 N.E.2d. 387 and revd on other grounds 128 Ill.2d. 147, 131 Ill.Dec. 145, 538 N.E.2d. 520.

[3] Chicago Park Dist. v. Kenroy, Inc., 78 Ill.2d. 555, 37 Ill.Dec. 291, 402 N.E.2d. 181, appeal after remand (1st Dist) 107 Ill.App.3d. 222, 63 Ill.Dec. 134, 437 N.E.2d. 783.

[4] United States v. Holzer (CA7 Ill), 816 F.2d. 304 and vacated, remanded on other grounds  484 U.S. 807,  98 L.Ed. 2d 18,  108 S.Ct. 53, on remand (CA7 Ill) 840 F.2d. 1343, cert den  486 U.S. 1035,  100 L.Ed. 2d 608,  108 S.Ct. 2022 and (criticized on other grounds by United States v. Osser (CA3 Pa) 864 F.2d. 1056) and (superseded by statute on other grounds as stated in United States v. Little (CA5 Miss) 889 F.2d. 1367) and (among conflicting authorities on other grounds noted in United States v. Boylan (CA1 Mass) 898 F.2d. 230, 29 Fed.Rules.Evid.Serv. 1223).

[5] Chicago ex rel. Cohen v. Keane, 64 Ill.2d. 559, 2 Ill.Dec. 285, 357 N.E.2d. 452, later proceeding (1st Dist) 105 Ill.App.3d. 298, 61 Ill.Dec. 172, 434 N.E.2d. 325.

[6] Indiana State Ethics Comm’n v. Nelson (Ind App), 656 N.E.2d. 1172, reh gr (Ind App) 659 N.E.2d. 260, reh den (Jan 24, 1996) and transfer den (May 28, 1996).

[7] See:  Who Were the Pharisees and Saducees?, Form #05.047; https://sedm.org/Forms/FormIndex.htm.