Guest Article: Practical Matters of Self-Governance

A common-law based constitutional republic is best for liberty
By Ron Burcham, USMC

As I understand it, the Founders gave their descendants a libertarian world under mala in se, common, or natural law. It was supplanted by the political class with mala prohibitum, statutory, law.  Under common law the government had no authority or jurisdiction over an individual unless and until another’s person or property was harmed. The state, not being a person, could not be harmed by an individual.

An interesting aside is that the first police force in the United States, as we know it, was created in Boston in 1838. Until then the CLEO there was the county sheriff.

For it to be a crime someone or their property had to be harmed in some way. Statutory law, contrived, or invented law, gave government power over individuals 24/7/365. The Constitution was written under common law, hence the Bill of Rights was written to protect our rights under common law, i.e., using such phrases as:

  • “…shall not be infringed,”
  • “…shall make no law…,“
  • “…to be prescribed by law…,”
  • “against unreasonable search…,”
  • “…without the consent of…,”
  • “…without just compensation….,”
  • “…nor … put in jeopardy…”
  • and “…nor shall be compelled…”

The Constitution must be read and interpreted in the light of the common law to be made sense of today. The reason the bad guy in the old western movies would get his guns back from the warden when released from prison was that once his sentence was served the common law applied with double jeopardy, no new harm had been done, so he couldn’t be punished further for the same crime.

Immigration without pass ports was possible because of common law. No crime, no jurisdiction. After WWI passports became mandatory using contrived statutory law which in itself is a violation of the common law. Traveling is not harming anyone or anything.

Outside of laissez faire capitalist/Libertarian/Objectivist societies I believe that the closest that we can get to the ideal Libertarian/Objectivist society is a common law republic of independent states with a constitution that states in its preamble that it was written to specifically and expressly limit what the government would be allowed do under the common law. Statutory law would only be permitted to be enacted for the permissible powers and functions of government, not to expand its power, jurisdiction, or authority by any act or measure. Any violation of the constitution would be a felony and punishable by banning the offender from any public sector employment for life, including the courts.

I’m of the opinion that Objectivist, or anarcho-capitalist, or libertarian societies, like communism are pipe dreams that cannot exist in the real world. Too much depends on either near total agreement with the paradigm of the contrived notion of a “free” society organized under a quasi-goverment, or force is needed to implement it, as under communism, or the force necessary to protect the “free” society can’t be agreed upon by voluntary contributions or choices of which brigands, mercenaries, militias or paramilitary units to hire to have around to defend the “free” society which incidentally will always be in danger of hiring the wrong defense contractor or of being overrun by the dictator next door.

[Alan] has also observed that many “Objectivists” are bound by Randian dogma that doesn’t allow independent thinking. They are limited to parroting what Rand has said or written. What may engender [Alan’s] loyalty and mine to the Oakland County Objectivists is their not being dogma bound and can think outside of the “Objectivist box.”

Thank you for reminding me about The Truman Prophecy. I started reading it and it got buried with the reading list I sent you. When we moved from Warren I sold and gave away twenty boxes of books. Some of them I regret getting rid of. When we moved from Detroit to Savannah in ’74 I gave away ten boxes of books. In one of the boxes was a ten volume set of Washington’s personal papers. Hindsight and 20/20. Oh well.

I have begun to hoard books again….

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