Laws - Part V
June 3, 1994
There are really only two types of law that can be applied on a broad base to people within a community. Regardless of the size of the community, the concept of laws which result in injury or damage is necessary to the peaceful existence within the community. The enforcement of these laws is the communal application of each of our rights to protect our own and our property. This is tempered, then, by being imposed communally through various means which provide a balancing and equal application of this concept which is frequently referred to as Common Law, in the old sense, not in the sense that is promulgated today by the Bar associations.
The other aspect of law might be considered ‘moral law’. The ‘crimes’ that may be construed as arising from this sort of law would be those in which a ‘perceived’ injury or damage resulted from an act. Generally, the perceived ‘wronged’ party is the community, or that level of society, which has asserted itself in the passage of moral laws.
In the recent past of our country these ‘moral laws’ were the prerogative of the community. The community (County or township) was the highest level of government, and it"s executive, generally the Sheriff, the highest officer in the land. Now, we"ve all heard of this concept, but do we understand the simplicity and practicality of it? The Sheriff, in all matters of day to day life, was the chief law keeper. Generally, however, the Sheriff was not an attorney. He would be known more for his physical appearance, or presence, than his use of words, a statesman rather than a politician. The community could enact laws which were based more upon religious morality than on the conventional concept of common law. These laws, then, as well as those wherein personal injury or property damage resulted, would be enforced by the Sheriff. The Constitution for the United States of America and every states" constitution provided protection from encroachment upon those rights — protected from government usurpation. The only exception being those local moral laws enacted by the community.
The violations of moral law (at least when enforced consistent with the constitutions), were civil matters and were remedied as such. Jail may have been a punishment for certain violations. However, conviction by a jury was requisite for the implementation of the punishment of incarceration. The only jailing that could be practiced prior to conviction was based upon the constitutional protection of a Grand Jury.
So, why were moral laws a community option? We can clearly see extensions of that old practice in the Southeastern states where wet and dry counties coexist without conflict. The allowing of prostitution, gambling and the recent past regarding speed limits (such as no daytime limit in certain locations of Montana, and no limit in certain portions of Nevada), are remnant proof of the old standard of community morality.
We have other vestiges of those practices embodied, though, perhaps, questionably, in the constitutional amendment on alcoholic consumption (the Eighteenth Amendment) wherein it took an amendment to the Constitution (rather than an enacted statute) to outlaw an activity considered by some to be morally unconscionable.
Now, shall we look into why this concept developed with the formation of the country? It was understood, and written into the Founding documents, that rights were inherently a gift from the Creator. Allowing this is left to each individual to determine what is morally unconscionable, and what is not. This, however, crested a degree of conflict within certain communities where two or more moral foundations were existent. One, for example, might have no problem with drinking in moderation, one might have a desire for total abstinence and the third might feel that any imposition in the matter was objectionable. In this case, and only in this sort of circumstance, might a law be proposed, and enacted, by the majority that could deny ‘rights’ to another. Never, however, would the compulsion to leave the community be denied. Each could seek and join a community in which the moral standard were consistent with his own, and thereby could find comfort and solace in the environment in which he made his home.
Under any manner of argument, government began a slow but steady encroachment upon these basic concepts of Freedom (of choice) and Liberty (of action) and persuaded the populace that government was endowed with, and necessarily so, the ‘right’ to limit personal action for the good of the state (State v. anybody?). Is the state really even a party to the action? How is the state, for example, injured or damaged by the activity of an individual when it represents no injured party? Is the ‘conscience’ of the state offended? Only if the state is capable of morality. And this concept can only exist if the state is capable of determining which religious morality is correct, and which is incorrect. You might say that when given this capacity the state has the power to initiate a state religion, and concept abhorrent to the Founding Fathers. However, through guile, education (controlled by state) and application (enactment of moral laws, especially on the federal level) we have been conditioned to accept the inevitability of this imposition into the realm of morality, and violation of the entire premise of the Constitution, the Bill of Rights and the concept of ‘a republican form of government’ as guaranteed by Article IV, Section 4 of the Constitution.
How, then, are we converted to a belief system which allows the intervention of the state in these matters? Perhaps if we look at how the government (especially the Supreme Court) has intruded into realms previously outside of their purview, we will see that a long and continual application toward this change has been going on for quite some time. Most believe that the Supreme Court, for example, should rule along with their interpretation of the legality/illegality (say morality/immorality) of abortion. We hope, pray, finance, demonstrate and connive to encourage the court to ‘rule’ on ‘our side’ of the issue. The problem here is that each of us, within our community, can have an effect on the outcome of the imposition of restrictions on the availability, level of, and/or punishment for this activity, as it should properly be. However, by our actions we ‘assign’ the Supreme Court (rather than any moral virtue or entity) the responsibility for the decision which is totally without the authority of federal government. We have given away our sacred rights and turned them over to a bunch of attorneys who have deceived, connived, manipulated and wrested power from us slowly, but surely.
It is absolutely necessary that we recognize that it is not our right, nor our duty, to impose morality upon others (whether they be in America or Iraq). Except to the extent it is necessary to feel comfort where we live. Each of us has as little right to impose upon another our morality, as they do to impose upon us. The only resolution that can allow each and every one of us to live in harmony with our morality, is to allow that morality to be imposed where we live, or to live when that morality is imposed. Once we condone the application of denial we have placed ourselves in a situation where we might be denied our belief. The concepts of Freedom, Liberty and Justice envisioned by the Founding Fathers leave no room for this sort of judgment upon others, except in the circumstances stated.
If we allow ourselves to force our morality upon a minority we must consider the consequence of us being a minority and having the majority morality imposed upon us.
The more we allow government to allow us to make decisions with regard to moral law, whether it be through legislative enactment, or through attempts to influence the Supreme Court, the more we acquiesce to them the authority which the Constitution never granted either the state or the federal government.
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