A Cultural Rosetta Stone: What Some Important Words Used to Mean

Words 

"In the beginning was the Word, and the Word was with God, and the Word was God." John 1:1 (King James Translation).

Words Matter.  Language matters.  Phrases matter. Our culture, our politics, our religious beliefs, our decisions, large and small, and our daily lives are all influenced in myriad ways, direct and indirect, which arise from the overt and implied meaning, connotations, implications, nuances, expectations and effects of the words we hear and speak and write and read and sing and listen to every day.

Legally effective and accurate wording, clearly and correctly communicating intended understandings, can save or cost real money in the real world of business and law. The understood meaning of words spoken between friends, spouses, parents and children, siblings, partners, and/or teammates will bond or strengthen or sever their relationships. Even in fields where numbers matter more than words, technically accurate terminology must also be utilized, with the numbers, to allow medicines to be properly administered, bridges to stand, airplanes to fly. Effective employment and deployment of the English language set apart Adams, Jefferson, Paine, Hamilton, Madison, Morris, Henry, Jay, Lincoln, Churchill, Kennedy, Reagan, and allowed them to alter history.

It has been argued that language is what differentiates us from every other beast and animal in the world, and the invention of language marked the beginning of humanity qua humanity, as opposed to humanity qua just one other mammal.  Tom Wolfe: http://www.neh.gov/about/awards/jefferson-lecture/tom-wolfe-lecture 

A government which wishes to remove threatening concepts from the minds of its citizens would do well to take over their dictionaries.  Orwell:  "It would have been quite impossible to render [the preamble to the Declaration of Independence] into Newspeak [the fictional, government-controlled language of 1984] while keeping to the sense of the original. The nearest one could come to doing so would be to swallow the whole passage up in the single word crimethink. A full translation could only be an ideological translation, whereby Jefferson's words would be changed into a panegyric on absolute government."  

Modern Orwellians in our Universities are busily banning words to fulfill this vision.  The phrase "man up" has recently been forbidden at Duke.  Too sexist.  Another recent target: "bossy" which feminists are campaigning to prohibit, especially when referring to girls and women, which I presume is a sort of preemptive strike on behalf of Hillary's presidential candidacy.  If you find the campaign to ban bossy to be a little, um, I don't know, authoritarian, ironic, lacking in self-awareness, well, that's just fine, as long as you don't call it bossy.  Personally, I want my daughters to be bossy.  I want them to be a boss.  Remember the self-contradicting and self-parodying wisdom of George Lucas: Only a Sith speaks in absolutes.

I'm not too worried about the modern Orwellian word-banners.  Human nature being what it is, our response to their bossy demands will likely lead to more resistance than compliance.

What I worry about is something more insidious.  Taking existing words and phrases and recasting them to mean something they have never meant before, so that, instead of banning concepts by banning the words which express them, you prevent the future human mind from ever understanding those concepts in the first place, as the words which would heretofore have been utilized to express those concepts have been co-opted and turned into symbols for some other concept, entirely different than the intended original.  So our values are changed, not via direct assault, but by co-option and transformation of the words that previously reflected those values. If the major task of civilization is to transmit its values to the incoming horde of barbarians who arrive in our maternity wards each year, and if you want to prevent that transmission from occurring, what do you do?  Change the meaning of the old words, so the old values can't be taught.  As C.S. Lewis said: "when . . . you have killed a word you have also, as far as in you lay, blotted from the human mind the thing that word originally stood for.  Men do not long continue to think what they have forgotten how to say."  

Marriage

The most overt implementation of this strategy has obviously been in regard to the word "marriage" which heretofore meant (i) the legal union (ii) intended to be sexually exclusive (iii) between a male husband and a female wife, (iv) usually publicly solemnized, typically before one authorized to so officiate (v) and consummated through coitus, the act by which male and female fulfill the biblical injunction and biological imperative to become one flesh (after which, the now completed marriage cannot be annulled, but may only be formally terminated via divorce). Does the word marriage matter?  Do each of its elements?  Sure. Among other things, the concept of marriage, so defined, being centered on procreation and family life, ensures that any child who comes into the marriage will have the benefit of being reared by the child's biological mother and biological father, and where marriage is an expectation before childbirth, our species thereby continues, via the replacement of current humans with a new set who have been given the best possible chance at a successful life.  Are any of the items I have listed as its elements so core to the meaning of marriage that without one or more of these elements you do not have a full and complete marriage?  If not, which parts can you remove, and still have the word retain the essence of its meaning? At what point, having removed this or that element of the definition, does it become impossible to differentiate between a marriage and a friendship? Or a marriage and a business partnership? Or a marriage and two people sitting near each other on a bus?  

Can the term marriage be "expanded" to include new relationships not heretofore covered by that term, without the essential concept of marriage simply being destroyed?  A Gedankenexperiment: Let us "expand" the definition of a triangle so that it now includes both three-sided and four-sided polygons.  Have we enhanced the concept of triangularity? Made it more inclusive?  Or have we simply destroyed its very essence?  Have we rendered numerous mathematical truths false, or simply linguistically un-teachable?  Is there a difference?  If you don't know the answers, you don't know the most important thing about words. A word must mean something, or it does not mean anything, in which event it serves no purpose.  To mean something necessarily excludes meaning something else, including something less or something more or something close but still fundamentally different (excluding homonyms, the recognition and categorization of which proves the rule).  A concept, to be worthy of a word, must have an essence, which will include both core constitutive elements and exclude non-elements, or the word related to the concept will cease to perform its basic function: to mean something which the speaker and the listener can both understand, and not to mean something else.

By teaching that a particular core constitutive element of marriage (the rule of opposite genders) is not, in fact, part of the definition, we also teach, by implication, that the concept of marriage is so inchoate and mutable as to have no essence, so that the concept symbolized by the word "marriage" will eventually simply go away, and with it the institution, and the expectations affiliated with that institution, which have stabilized society for millenniums, by ensuring that each new-born individual has the best possible chance at life: a chance most likely to be afforded if each such individual is able to be raised and cared for by both of her biological parents, with exceptions to be afforded solely where necessary as in the best interests of the child (not merely to gratify the desires of any adult). Many of the fiercest advocates for redefined marriage are increasingly willing to acknowledge that abolishing the entire concept of marriage is the true point and ultimate goal of their movement, which is not designed merely to afford same-sex couples the same legal rights as traditional married couples (which could be accomplished in other ways, with other words), but to lay waste to the very concept of marriage as a normative institution furthering previously accepted societal expectations (including by rejecting not just one, but, eventually, all of the elements of marriage), and rejecting them altogether.

Don't believe me?  Do some reading:

http://www.beyondmarriage.org/

http://www.heritage.org/research/commentary/2012/12/monogamy-exclusivity-and-permanence

http://www.cnn.com/2013/03/20/opinion/george-gay-marriage/

Is this crusade to abolish the concept of marriage succeeding?  Words having the power that they have, and altering their meaning having the effect which that will have, of course it is. How could it not?  In the ten years since marriage as the union of any two persons was introduced into America by the Massachussets Supreme Court, the number of new marriages has dropped to its lowest per capita level in American history, and over 50% of newborn children whose mothers are under 30 are now born to an unmarried mom.  Also a first in our history.  Take away the word, and you take away the concept.  Take away the concept, and you take away the expectation.  Take away the expectation and you take away the behavior.  Change the behavior, and destroy the culture.  Aren't we all proud for having created a more just and compassionate society?  Except of course, if you're one of the newborn children of our brave new world, deprived of your inherent right to know both your mom and also your dad.   

Authenticity

Because the attempt to redefine marriage out of existence has happened in the courts and at the ballot box, it's been easy to take a stand, one way or the other, on the question of whether one agrees or disagrees with that movement.  But for most words and phrases, the redefining has been much more subtle. A political party or an academic school of thought starts using a phrase in a certain way, their allies in the news and entertainment media pick it up, or their enemies resist, and soon, the culture having shifted, you can't be understood if you are using the same term or phrase in the old way. The movies, song lyrics, textbooks, and other leading cultural indicators reframe our use of cultural terminology, and pretty soon it becomes difficult to explain to your children what your values are, because the words you are using to do so don't mean the same thing to you as they mean to them.  A person whose values primarily come from scripture speaks to a person whose values primarily come from cable-tv and they find they are speaking past each other, even though they seem to be using the same words. 

Let us take for example the word "authentic" or the related phrase, "being true to who you really are/ being true to your true self." As we are all children of God, I would use this phrase to mean trying to be true to my best self and highest nature, by seeking to act in accordance with God's will.  (I fail.  Completely and totally and pretty much every hour of every day.  Nevertheless, that's what I think we ought to attempt, if we want to live lives which are true and authentic to who we really are.)  Under this definition, being authentic, or true to our true natures, involves putting off our base desires, and seeking to become more like Him in whose image we are created.  Too religious for you? Then how about this: Let us (in Aristotle's terminology) instantiate more perfectly the rationally discernible form and purpose of a human.  Not religious enough? Then let's try this: Let us fulfill, as best we can, the measure of our creation.  This sense of authenticity is described in Mosiah 3:19: "For the natural man is an enemy to God and has been from the fall of Adam, and will be, forever and ever, unless he yields to the enticings of the Holy Spirit, and putteth off the natural man and becometh a saint through the atonement of Christ the Lord, and becometh as a child, submissive, meek, humble, patient, full of love, willing to submit to all things which the Lord seeth fit to inflict upon him, even as a child doth submit to his father."  So, to be true to your Father's purpose and character, you must put off the merely physical and natural elements of your being.  An example of this type of authenticity may be found at the end of Beauty and the Beast, in which the Beast overcomes the curse and becomes a prince.  

However, in our post-modern world, many people now use the term authentic to mean just the opposite of fulfilling the true measure of our creation.  To many moderns, who deny man's inherent divinity and dignity, to be authentic means to embrace the physical, non-spiritual, aspects of your nature, which are after all the only "true" aspects of that nature if you're just a primate. To be authentic, in this point of view, means giving in to your physical desires, even defining yourself in accordance therewith, whether or not those desires will help or hinder you in fulfilling the measure of your creation or instantiating more perfectly your rationally discernible form and purpose.  See, for example, someone who leaves their spouse to pursue a love affair because to do so is "being true to my true feelings" and staying in a relationship in which I am not, at least at the moment, this week, feeling "fulfilled" in order to honor my marital vows, and give my spouse and children the benefits of a loving stable marriage and home would be "inauthentic" and would not be "true to who I really am."  An example of this meaning of authenticity may be found at the end of Shrek, in which the princess is celebrated for deciding to be true to her inner ogre.  

Robert P. George's incredible book, Conscience and Its Enemies, described these competing views on the meaning of "authenticity" with a story about George Washington.  Some students at Princeton were taken aback by a lecture from two Washington biographers, who explained that, in his youth, Washington had "formed a picture of the kind of person he would like to be and then tried to become that person by acting the way that person would act. . . .  He sought to make himself virtuous by ridding himself of wayward desires or passions that would have no place in the character and life of the noble individual he sought to emulate and, by emulating, to become."  As George explained: "For someone who understands and believes in" certain "classical" ideals, including that "of self-mastery, there is nothing in the least inauthentic about Washington's approach.  On the contrary . . . Washington sought to be master of himself rather than a slave to his desires.  But to some of the students, Washington's conduct seemed radically inauthentic.  He was play acting, they protested; he wasn't really being himself.  He was trying to live a life that wasn't his own, because he wasn't affirming and following his desires; rather, he was trying to reshape his desires in line with standards drawn from, as one of them put it, 'outside himself.'"  Robert P. George, Conscience and Its Enemies, (ISI Books, 2013) at pp. 33-34.  What a sad understanding of what it means to be authentic, but how typical of our Shrekified world.  George goes on: "Not all the students saw things this way, but we can explain why some of them did.  They had drunk deeply of the Kool-Aid of . . . a conception rooted in a profoundly misguided notion of what a person is: a soulless self, governed by desires, whose liberation consists in freeing himself, or being freed, from constraints on those desires . . . .  They had not so much as considered the alternative view of man . . . namely, the human being as a rational creature, capable of understanding reasons in light of which he can become the practitioner of virtues that enable him to master his desires." Id.

A Rosetta Stone

Herewith therefore, as though preserved in amber, some important words, and what they mean to me (which, because I'm an arrogant person, I will describe as the "correct original meaning"), versus what they increasingly seem to mean to those around me, especially those who are younger than me (which I will label the "postmodern meaning" because I don't understand what "postmodern" means, in the same way that I don't understand why these words have had their definitions changed, but I'm pretty sure that post-modernism, whatever that is, had something to do with it.)  So, consider the following as a sort of generational, or at least cultural / attitudinal, Rosetta Stone, which can be used so that people who have been raised on screens can understand how people like me, raised in an earlier era, when there were fewer screens and more books, understand life, the universe, and everything:

Accountability (correct original meaning): Accepting responsibility for the reasonably foreseeable and likely consequences of one's actions.
Accountability (postmodern meaning): An archaic belief utilized to allow people in power to oppress the powerless by claiming that the powerless have free will and should therefore be punished for wrongdoing, despite the overwhelming consensus among evolutionary psychologists (whose hypotheses are inherently un-testable and which can therefore never be questioned) that free will is an illusion.

Amoral (correct original meaning): Worse than immoral, as being psychotically unaware of the very possibility of morality.
Amoral (postmodern meaning): 1. Moral. 2. A meaningless term, given the equal meaninglessness of the terms morality and immorality.

Bullying (correct original meaning):  Meanly and needlessly harassing or demeaning or teasing or hazing a victim who may be unable or unwilling to confront the bully due to being physically smaller or less socially popular than the bully.  As in: "That kid's a big bully, without a brain in his head or a heart in his chest.  Someone needs to confront him and knock that smirk off his face and protect and befriend his victim."
Bullying (postmodern meaning):  Being opposed to same-sex marriage.  As in: "And now students, an anti-bullying advocate from GLAAD, Dan Savage, will be addressing our assembly, and will be cussing  at, screaming at, mocking and attacking students who believe in Christianity and pre-marital chastity, so those students will stop being such bullies."

Diversity (correct original meaning): An environment in which one is exposed to many different ideas.
Diversity (postmodern meaning): An environment in which one is exposed to many different people, with different skin colors and ethnic backgrounds, but who all exhibit ideological conformity, and think exactly the same, especially about the importance of (non-ideological) diversity.  As in the following sentences: "In order to promote diversity, the tenure and faculty committee granted tenure to a Puerto Rican Marxist, a Lesbian Marxist, and a White Male Marxist, but of course rejected the application of the African-American Conservative, as being insufficiently diverse, since we already have two African-Americans on the faculty, and we certainly don't want our students being exposed to such a professor's beliefs."  "Remember, we are all diverse, but some of us are more diverse than others."

Education (correct original meaning): The acquisition of knowledge, intellectual and vocational skills, and learning how to think.
Education (postmodern meaning):  The acquisition of politically correct beliefs and attitudes, and learning what to think.

Equality (correct original meaning): The treatment to which we are entitled before the law and in the eyes of the government, regardless of our age, sex, race, etc.  "Everyone's vote should count equally."
Equality (post-modern meaning): Redistribution of outcomes.

Imperialism (correct original meaning):  The takeover of another people's land, and exploitation of its resources, by foreigners, for the benefit of the foreigners' native country.
Imperialism (post-modern meaning): The United States' policy of containment and hostility to Communism during the Cold War and its current policies opposing radical Islamist terrorism.

Justice (correct original meaning): Justice.  Arriving at a fair and equitable result in a civil controversy between two litigants, or in a criminal controversy between the state and a criminal defendant, based on previously established laws and procedures, which were created in an objective and impartial prior setting.
"[Justice may be obtained only] so we are taught, by recourse to law.  By recourse to and devotion to those laws made impartially, without respect to individuals, and applied impartially."  David Mamet, The Secret Knowledge  (Sentinel 2011) p. 148.
Justice (post-modern meaning): Social Justice.  The quest for cosmic universal fairness or "Social Justice" which is based on the refusal to accept that the universe is inherently unfair, especially in a free society, and the desire to remedy all inequality of outcomes and results, which will necessarily require providing the government with totalitarian powers. Forced redistribution of income and wealth.  "What is 'social justice'?  It is not merely an oxymoron.  It is, inherently, the notion that there is a supergovernmental, superlegal responsibility upon the right-thinking to implement their visions.  . . . .  [True justice which attempts to find justice through equality of opportunity] is antithetical to that equality of result [or 'social justice'] beloved of the Left; one might have one or the other, but they each are the other's negation, and one must choose."  David Mamet, The Secret Knowledge (Sentinel 2011) p. 153.  

Liberated (correct original meaning) Freed from slavery, subjugation, or addiction.  "With my church's help, I was able to be liberated from my addiction to alcohol." "The allied forces successfully liberated France from Germany."

Liberated (post-modern meaning) Freed from restrictive and outmoded values based in superstition and bigotry. "With Oprah's help, I was able to be liberated from the restrictive values of my parents, so I could quit my boring job as an accountant, leave my wife and children who were bringing me down, join the commune and smoke pot and write poetry."

Libertarianism (correct original meaning):  The false but comforting belief that a debauched and permissive society, full of fatherless homes and drug-infested neighborhoods, can maintain a small and non-intrusive government.
Libertarianism (postmodern meaning):  The beliefs held by a Republican who is only 1/2 evil.

Marriage (correct original meaning):  From the 1991 6th Edition Black's Law Dictionary: "Legal union of one man and one woman as husband and wife. [Citation omitted.]  Marriage . . . as distinguished from the act of becoming married, is the legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.  A contract, according to the form prescribed by law, by which a man and woman capable of entering into such contract, mutually engage with each other to live their whole lives (or until divorced) together in that state of union which ought to exist between a husband and wife." (Copyright 1990 by West Publishing Company.)
Marriage (postmodern meaning): A term which will hopefully soon be obsolete (see, www.beyondmarriage.org) but which, in the meantime, may be utilized to mean whatever you and any other person or persons with whom you form a relationship, regardless of the precise nature of that relationship, and regardless of the gender or number of persons involved, want it to mean, and with respect to which your personal definition must be recognized and celebrated by all members of the community at large, under threat of social sanction, penalties issued by the New Mexico Human Rights Commission, and castigation for bigotry as against any non-complying members of the community, even though that community has no other legitimate interest in your marriage, however defined.

Patriotism (correct original meaning): Love of one's Country and desire to see one's country be prosperous and strong.
Patriotism (postmodern meaning):  Parochial small-minded xenophobia exhibited by those who pay insufficient attention to becoming a citizen of the world.

Politics (correct original meaning): The methods by which human beings order their governmental affairs. As in: "He is interested in politics, and wants to be a consultant to his favored candidate in the upcoming election."
Politics (postmodern meaning): Everything.  Everything is political. Thus, no work of music, literature, or art, may be studied for its aesthetic value or craftsmanship or intrinsic beauty or inherent value, but all works of art must instead be deconstructed for invidious political meanings, and critiqued for the ways in which they promulgate and support oppressive class structures.

Privileges (correct original meaning):  Something which is provided or granted to you at the discretion of the government.  To be differentiated from rights.  As in the sentences: "You have the right to appeal your conviction, but appearing before the State Board of Pardons to seek clemency or a commuted sentence due to extenuating personal circumstances is a privilege not a right."  "You have a right to obtain a business license upon the same reasonable terms which apply equally to anyone else who is similarly situated.  You do not have a right to a concession to operate a business at the Airport; there being a limited number of spaces for rent, the granting of these concessions are under the sole discretion of the County Commission, and can be revoked upon your lease's expiration, at will, with or without cause."
Privileges (postmodern meaning):  Rights.  I have a right to let my cows graze on public land, whether the government provides me with another permit or not.

Progress (correct original meaning): Moving closer to the ideal.
Progress  (postmodern meaning): Changing the ideal.

Purpose (correct original meaning):  The reason why something exists, ascertainable from its form and function, in a universe which is clearly teeming with undeniable teleology.  "The purpose of a man is to love a woman and the purpose of a woman is to love a man.  So come on baby let's start today. Come on baby let's play.  The game of love." Wayne Fontana and the Mindbenders.
Purpose (postmodern meaning): A false social construct designed to prevent people from pursuing what Justice Kennedy's notorious new-age magical mystery passage described as the heart of liberty: "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" which right can only exist if there is no objective truth such that "one's own concept" of the purpose of one's own life is as good as any other, there being no universal truth against which any particular version of one's own meaning may be judged.

Racism (correct original meaning): The belief that another person's race or ethnicity makes that person inherently inferior, morally, physically, or intellectually, to others of one's own race or ethnicity.  The belief that the law should treat people differently and unequally based on the color of their skin.
Racism (postmodern meaning): The belief that the law should not treat people differently and unequally based on the color of their skin.  Believing in the "equal protection" clause of the U.S. Constitution; opposing affirmative action in public university admissions or minority bidding preferences for public works contracts.  A white male's insufficient feelings of guilt for his privileges and resultant unintended micro-aggressions towards those around him, and his failure to grasp that his skin color and his blood, inherited subject to the taint of original sins committed by his ancestors, make him an inherently less virtuous person than those around him who have a different skin color.

Responsibilities (correct original meaning):  Tasks which are expected of an adult who wishes to be treated as a relevant human being and to act as a productive and contributing member of a free society. "You are an adult now, and you have a responsibility to provide for yourself, and for your family, to pay your taxes and to become educated about the issues facing our country so you can participate meaningfully in our society."  See also, Duties.
Responsibilities (postmodern meaning):  Obsolete terminology.  No definition available.

Rights (correct original meaning): Restrictions on the government's powers in its interactions with me as one of its citizens.  As in: "I have a right to due process, before the government can restrict my liberty or take away my property, meaning sufficient prior notice, a fairly conducted transparent hearing, and the right to confront and cross-examine my accusers."  "I have a right to freely exercise my religion without government interference."
Rights (postmodern meaning): Wants. As in: "I have a right to a job, even if that takes away an employer's rights to make her own hiring and firing decisions."  "I have a right to free health care, even if that takes away a physician's right to earn fair compensation after many long years of expensive higher education." "I have a right to let my cows graze on government land without signing a permit or paying fees, and regardless of whether the government wants to allow that use on its land or not."  "I have a right to not be offended by hearing views in my classroom with which I disagree."

Sin (correct original meaning):  Intentionally disobeying the commandments of God (something which, according to scripture and personal experience, we all do).
Sin (postmodern meaning): Being judgmental (which can, in fact, be a sin, but in the postmodern meaning is considered the only one).

Spiritual (correct original meaning): Religious.  As Truman Madsen once noted, religion is to spirituality what language is to communication.

Spiritual (postmodern meaning): Non-religious.  As in: "I'm spiritual but not religious."

Suppress (correct original meaning): Suppress. Exhibiting emotional maturity by not constantly giving in to the temptation to lose your temper. As in: "I suppressed my urge to scream at the person who cut me off in traffic, as I didn't want to give in to road rage and set a bad example for my child in the back seat."
Suppress (postmodern meaning): Repress. Exhibiting a psychologically damaging mode of living. As in: "You should treat people as rudely as you want to and not try to suppress your emotions to be polite or civil when you are feeling angry. Otherwise, you'll just be a ticking time bomb full of repressed anger."

Truth (correct original meaning): Things as they really are.  That which is not false. There is such a thing as objective truth.
Truth (postmodern meaning):  A false social construct. As in: "Nothing is good or bad, but thinking makes it so."  Hamlet.

What Lance Armstrong and Cliven Bundy and Sonia Sotomayor all have in common.

THE RULE OF LAW VERSUS THE RULE OF MIGHT MAKES RIGHT

There are legitimate and illegitimate ways to win a football game.  The legitimate way to win goes like this: There are rules, objectively and equally applicable to all participants, and you win by playing in accordance with those rules.

There are even rules for the rules.  They are established in accordance with the bylaws of the league, as established by those who founded the league, or as revised from time to time by the current owners (in accordance with previously agreed upon procedures).  If the bylaws of the league make sense, then proposed rule changes will be discussed and voted on during the off-season, when no one is sure who they will benefit.  The rules are not changed during the middle of a game.  During the game, the rules are enforced by the referees.  Sometimes the refs make bad calls.  But the teams readjust themselves, and determine who is currently in possession of the ball, in accordance with even the obviously bad calls.  They do so because that’s one of the rules, and because to do otherwise would prevent the game from being completed.  If one side, being told they had lost possession of the ball, were to line up in an offensive formation and keep the ball anyway, then the other team would soon disregard the calls they didn’t like.  And the game would devolve into a brawl.

The illegitimate ways to win a game all involve one form or another of refusing to play by or recognize the rules:  Paying off the refs; taking out another team’s star player with a bit of unnecessary roughness; wiretapping the other team’s communications lines so you can hear their play calls; using performance enhancing drugs; or just plain refusing to abide by the rules. The people who engage in these behaviors have decided that winning is the only thing that matters.  But they are wrong.  You can make a living playing professional sports, or get a scholarship to play collegiate sports, because people will pay to watch.  But if the spectators don’t believe what they are watching is real, they’ll eventually stop watching.  And soon the teams playing the game will realize there was something more important than winning after all, namely, not becoming the WWF.  That’s why principled athletes and athletic organizations play according to the rules of the game, understanding that there’s something more important at stake than just winning.  But it’s easy to lose sight of that and become Lance Armstrong.

It’s like that in politics too.  We Americans have strong feelings about our disagreements.  Our Founders provided us with a set of rules which would allow us a system for resolving our political differences peacefully.  That system is important because it keeps us from going to war with each other every couple of years.  People at war end up dead, a condition in which one's politics cease to matter very much.  And even when they don’t end up dead, they end up hungry, unable to peacefully and securely harvest their crops, educate their children, coach soccer, or enjoy a night out at the movies.  Principled people understand that our unified need to maintain civic peace and avoid civil strife are more important than almost any political question which might otherwise occupy our minds.  Therefore, they play politics in accordance with the rules, realizing that they will sometimes lose, their personal policy preferences will sometimes not be implemented, and they will have to live with it, even if they believe, deep within their hearts, that this means the world will become a worse place, or even if the loss affects them personally.  Unprincipled political players have come to believe so much in the infinite wisdom of their own personal policy preferences, that they are willing to cheat in order to see those preferences win the day, no matter what, the ends justifying the means. Principled people know better. They are willing to accept political outcomes with which they deeply disagree (at least until the next election) as preferable than playing outside of the rules: because they understand that if one side starts cheating, the other side will start cheating too, and soon, instead of an orderly process for resolving our legal and political differences, we’ll get a civil war, anarchy, and what civil war and anarchy almost always lead to: tyranny.  Principled people play out political and legal disputes in accordance with the rules, so their country doesn’t become Somalia, just like principled athletic organizations do what it takes to keep their league from becoming the WWF.

Here's a test to determine which camp you, or someone you know, may fall into. How do you feel about 
some recent, or some famous, U.S. Supreme Court decisions?  A non-principled partisan's opinions will always be results based.  If you favor abortion, or gay marriage, or Obamacare, or law X, you will support any judicial decision which upholds or creates (or pretends to find in the Constitution) a right to these things. If you disfavor these things, you will disfavor the rulings which uphold these things, every single time and without exception.  By contrast, if you are a principled person you will, at least once in a while, be able to say something like this: “Personally, I think that law is stupid, but I don’t see how it’s unconstitutional. Elections have consequences.  The congress did something stupid, but the Court has no power to fix it.”  Or: “Personally, I believe we should/should not change the definition of marriage. But I don’t see anything in the Constitution as currently written that requires that.  It’s a political question for the electorate.”  None of us are perfectly capable of intellectual honesty on all political questions.  So this is not a test that will be passed often.  But if you, or someone you know, have never made any such statement, because you believe that each and every one of your personal political opinions are a matter of “Constitutional rights” or "fundamental human rights" and not merely a matter of your own personal policy preferences and political opinions, allow me to suggest that it is such thinking that is part of the problem. Why?  Because it is people who believe such things who end up arguing that the ends justify the means, and that we should resolve all of our differences via assertions of power, unhinged from principle, to get our own way, in a might-makes-right world.  And where there are lots of such people in a nation, they endanger ordered liberty and self-government.

As Dallin H. Oaks has stated: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates."  Likewise, Justice Scalia has called for the issuance of an "SBC" stamp to new judges, which would stand for "Stupid But Constitutional."

In much of the world, no system exists for the peaceful resolution of political and legal differences. People in Somalia don’t get to debate the relative efficacy and fairness of a flat versus a progressive tax structure, affirmative action, same-sex marriage, appropriate grazing fees on land owned by the central government. Instead, people in Somalia have to figure out how to survive and eke out a living in a country where there’s no economic infrastructure or political stability, and whether to join up with or hide from the local warlord and his private army.  If you study the history of places like Somalia, you will find that one of two things is true: they have either failed to ever establish a coherent system for resolving political questions which the citizens generally agreed upon, or, they once had such a system in place, but they have lost it, perhaps due to foreign conquest, or, more often, due to internal strife.  Internal strife is what happens when some political partisans decide to become political Lance Armstrongs, seeking to win at all costs, believing that the ends justify the means, and all that really matters is the acquisition and exercise of raw political power for oneself and one’s tribe, through extrapolitical means if necessary, and the rules be damned.

CLIVEN BUNDY, SONIA SOTOMAYOR, AND THE CLAIM THAT WHAT A PERSON BELIEVES POLITICALLY IS A POLITICAL RIGHT

A couple of political Lance Armstrongs have been in the news of late: Cliven Bundy, and Sonia Sotomayor. Their behavior, if it came to be widely emulated or admired, would do to America what Lance Armstrong did to the Tour de France, taking a widely respected sport and turning it into the WWF, or taking a widely respected country and turning it into Somalia.  At first glance, Cliven and Sonia may not seem to have much in common. They are on opposite sides of both the horizontal political spectrum and the vertical political power structure in America. One is a right-wing white male cattle rancher who holds no political office but has (unfortunately) become (to some) a Conservative folk hero, whose cause was initially championed by one of the more prominent talking heads on Fox News. The other is a Latin-American female who sits as a Justice on the highest Court in the land, enjoying an appointment to that Court made by the most liberal President our nation has ever had.

What could these two possibly have in common?  Quite a lot as it turns out.  Yes. They've both made ill-considered statements which their critics construed as racist, Mr. Bundy having pondered whether “the Negro” was better off under the horrors of slavery than under welfare subsidies, and Ms. Sotomayor having suggested that her ethnicity and gender will make her a better jurist than those who do not share those characteristics with her.  But that's ultimately a cheap-shot comparison (based on the "gotcha" political correctness faux outrage politics that currently so cheapens our national discourse), which doesn't really get us to the issue at hand.  More relevant, they both have a fascinating talent for the subjective use of language, misconstruing words to mean, not what those words have traditionally and objectively been understood to mean, but to mean whatever the speaker wants them to mean. Hence, Mr. Bundy, in discussing the merits of his cause, recasts traditional legal concepts in startling new ways, including concepts such as “mine” (what I believe should be mine) "ownership” (a squatter’s trespassing and holdover possession), and “rights” (what I want).  For her part, Sotomayor can use her linguistic legerdemain to spin, in 50 pages of convoluted prose, an Alice-in-Wonderland fable rewriting MLK’s dream of an America where our children are judged by the content of their character and not the color of their skin, into a nightmare where we are all of us, now and forever, to be judged by nothing else but the color of our skins in perpetual perpetuity.

It is the second of these two similarities that is closest to the relevant point, but that point goes deeper still. 
The deepest similarity between Sonia and Cliven is that they are both perfect examples of unprincipled political Lance Armstrongs.  They both want to win more than they want to win in a legitimate way.  In pursuit of their own favored causes, neither is capable of an intellectually honest response to any counterarguments.  They both believe that the ends justify the means, might makes right, and that their own personal policy preferences are not just correct, as a matter of their own personal opinion, but create legal rights, just because they say so. The level of support they both enjoy should be deeply unsettling to anyone who believes in Constitutional government, because it suggests the prevalence of a deeply and widely held belief in America that the Constitution can be treated as an etch-a-sketch, and any parts of it that we don’t like can be magically wished away.  

I happen to be sympathetic to Cliven Bundy’s plight.  I believe that he, and other ranchers, have seen their ability to acquire permits for grazing on Federal land unfairly restricted by policies which I think are stupid and onerous.  But lots of people have livelihoods that are dependent to some extent on what the Federal Government is doing (vendors to U.S. Military bases facing closure, businesses renting property from the government or near National Parks), and when the risks of that arrangement don’t work out, they don’t get to go to war over these unfortunate outcomes.  It is a wholly unremarkable proposition that your landowner can, upon your lease's expiration, offer you a new lease on less favorable terms, or no lease at all.  A tenant who refuses to sign a new lease on terms which are not good enough for that tenant cannot reasonably suppose that he may thereafter, and without consequence, pretend that nothing has happened, refuse to sign that new lease, but stay in possession anyway, cease paying rent, claim to have "fired" his landlord, cease recognizing his landlord's existence, ignore court orders for his removal, vow in sworn testimony to do whatever it takes to physically obstruct his removal, and then feign outrage and surprise if, eventually, armed men come to stop his trespass. This is true even if your landlord happens to be the Federal Government which so many so deeply despise.  The ability to graze your cattle on public land is, ultimately, a privilege, and not a right, similar to a concession the county might alot to a favored few to open retail stores in the limited space available for such in a county airport.  There is no "right" to a renewal of such a concession, especially if you choose not to sign the terms of a new lease that is offered.

CLIVEN BUNDY'S ETCH A SKETCH VERSION OF THE CONSTITUTION

Cliven Bundy has been photographed with a copy of the Constitution in his shirt pocket.  His followers erected a large banner quoting the opening lines of the Constitution: “We the people” and many of them wear U.S. flags on their t-shirts.  These are strange props for the supporters of a man who has repeatedly violated orders of U.S. District Courts established by Article III of the Constitution, stood down executive branch agents acting under authority of Article II of the Constitution, and declined to believe that any laws passed by the Congress under Article I of the Constitution with which he disagrees are applicable to him.  This is a man who says he does not recognize the U.S. Government as even existing, and has acted on that belief now for 20 years.  If you don’t believe in Article I, or Article II, or Article III of the U.S. Constitution, or even in the existence of the U.S. Government created by that Constitution, what part of the Constitution do you actually believe in?  Just “We the people” and then skip to the First and Second Amendments?   Cliven Bundy wants one thing: to win. And if he can’t win under the rules, then he’ll win by ignoring the rules and by armed resistance instead.  He and his supporters are dangerous because they do not understand the price that will be paid by such a victory.  What happens when someone else starts grazing their cattle on Cliven Bundy’s converted allotments and he wants to kick them off?  What happens if two of Cliven’s militia men get into a brawl with each other?  Having refuted the authority of the Courts and the recognized agents of the law to resolve disputes of this nature, and having flouted the rule of law, where will Cliven and his friends turn?  To the rule of Cliven?  Cliven Bundy's arguments are based in the fringe and extremist views of the "sovereign citizens" movement, the ideology of which has been repudiated by one of the highest-ranking leaders in Mr. Bundy's church, and should not be countenanced by anyone who wants America to avoid becoming Somalia.

http://www.forbes.com/fdc/welcome_mjx.shtml

http://www.ldsinfobase.net/liberty/DHO_citizenship.html

(Let me digress to field briefly a commonly heard refrain: But, the founders broke the law too!  And where would we be without them?  And what about MLK and Rosa Parks?!?  Here's the deal: the founders broke the law because they discovered they had no political rights to change the law.  They realized they were not Englishmen, but Americans living under subjugation to a foreign power.  Taxation without representation. The lack of representation was what gave them the moral right to object with arms to the taxation, since they had no ability to object in the voting booth.  Cliven Bundy may not like Nevada's Senators, but he has as much of a right to vote for them as anyone.  As soon as our founders established representative self-government, they were quick to suppress, militarily, those who believed they could foment secession and rebellion against that government through extra-political means, away from the voting booth, no matter how sympathetic the rebels' grievances may have been.  (See, Washington and Hamilton's response to Shay's Rebellion and the Whiskey Rebellion.)  And a good thing too. Washington's support for the military suppression of Shay's Rebellion, and his personal involvement, as commander in chief, on the field leading the troops which put down the Whiskey Rebellion, is what kept this Country's revolution from turning into what the French Revolution turned into: "a pile of headless corpses with a dictator on top" (Margaret Thatcher).  Cliven Bundy is no Washington.  Indeed, Washington would have known exactly what to do with Cliven Bundy and his little band of so-called militia, and he would have led the charge.  As for MLK and Rosa Parks, the laws they opposed were immoral by any objective standard, including on the basis of Thomistic natural law theory relied upon by MLK, and they were willing to call attention to that fact by paying the price for their civil disobedience, and being arrested to draw attention to unjust laws, in peaceful and expressly nonviolent resistance. Cliven Bundy's supporters point their guns at federal agents and use fringe and historically inaccurate non-Constitutional and non-Thomistic "sovereignty" ideology to support their cause.  MLK and Rosa Parks would not be amused by the comparison.)

One of my first cases as a lawyer involved representing the owner of a bulldozer which had been damaged while in the possession of the lessee.  The damage happened like this: there were two rock and sand and gravel mining companies occupying adjacent properties.  One of the two had in its possession a piece of mining equipment leased to it by a third party. When they stopped paying the lease payments, the owner transferred the lease to their neighbor, but didn’t bother to transfer the actual piece of equipment.  He left the recovery and repossession to the new lessee, which went to its neighbor’s property to seize the object and, pretty soon, people were climbing into bulldozers and using them as armored tanks, going to battle with each other, ramming into one another and tipping over pieces of heavy equipment (my client’s bulldozer was one of the many damaged in the melee).  The battle finally ended when someone got shot.  That’s what happens when people forget we have a court system to resolve these issues peacefully.

SONIA SOTOMAYOR'S ETCH A SKETCH VERSION OF THE CONSTITUTION

But in order for the citizenry to trust the courts, the courts need to remember the limits of their own authority and power.  Their decisions have to be based on logic and reason and an at least arguably proper application of the facts to the law.  If our judges act instead like referees who have been paid off before the game, repeatedly making decisions which are obviously designed to reach a pre-desired political end, even if doing so requires leaps of logic that a 5th grader could see through, they will find themselves so disrespected as an arbiter of our legal disputes that no one will want to utilize them for that function.  They will find that we have all become Cliven Bundy, refusing to recognize the authority of tribunals that are interested only in power, not in principle.  Judges who are guilty of this misuse of their power deserve to have us question their authority.  "The judge who forgot the admonition in Proverbs, 'Do not favor the rich, neither favor the poor, but do Justice,' who set aside the laws, or who 'interpreted' them in a way he considered 'more fair' was, for all his good intentions, robbing the populace of an actual possession (the predictability of the legal codes). He was graciously giving away something which was not his."  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

That’s what makes Sonia Sotomayor’s dissenting opinion in the recent Schuette case so discouraging, and the support she has garnered in certain pockets of the left so similar to the support Cliven Bundy has received among certain people on the right.

The “equal protection” clause of the U.S. Constitution means what it says: the government can’t discriminate against you (or prefer you) because of the color of your skin, or due to some other immutable characteristic, or on the basis of characteristics (your religion) that are protected elsewhere in the Constitution. Nevertheless, public institutions have done just that, passing laws giving preferential treatment to minority owned businesses bidding for public works contracts, and allowing discriminatory preferences to minority applicants for public universities.  These laws have been upheld by the U.S. Supreme Court under various theories limiting the application of or creating exceptions to the equal protection clause.  I happen to disagree with affirmative action,  (i) on principle, such that I disagree with the cases which have upheld it as Constitutional, (ii) based on its lack of efficacy (read Chapter 3 of Malcolm Gladwell’s book, David and Goliath, if you want to understand why we would have far more minority doctors and lawyers and scientists in America today if it weren’t for affirmative action admissions policies at our universities) and (iii) due to the fraud it encourages (let me know how many “MBE’s” and “WBE’s” you've worked closely with that you haven't eventually learned to be a front diverting money to some white guy).  Nevertheless, I understand that both the constitutionality and the efficacy of affirmative action is an issue on which reasonable minds can disagree, so long as the argument is being played out under the correct rules.

The subject of this blog post isn’t whether I agree or disagree with the underlying political policy preferences of Mr. Bundy and Ms. Sotomayor, but, rather, how I feel about both of their equally disreputable methods. While I disagree with a lot of past U.S. Supreme Court jurisprudence on the affirmative action question, I have to credit most of those decisions as having at least been honest about the question before them: “May a government violate the equal protection clause of the U.S. Constitution in order to remedy the effects of past discrimination, or in order to advance some other governmental interest –diversity or some such excuse– which warrants granting the government an exception to the equal protection clause, and if so, under what circumstances?” Whatever you think about how the Court has ruled on cases raising that issue, those rulings can't be seen as activist in nature.  They have generally upheld what the government had previously decided it wanted to do. They did not judicially impose a requirement of racial discrimination, but upheld such a policy that some governmental entity had adopted.

The question in the Schuette case was different, and much more simple.  Faced with a voter referendum in which the citizens of the State of Michigan decided that the time had come to end race-based admissions standards to public universities, the question became: “May the government of a State, or its people, uphold the equal protection clause and decide not to seek an exception to the Constitutional rule?”  Well, duh.  Any idiot can answer that question.  Of course the government doesn't HAVE TO engage in racial preferences and discrimination.  But Sonia Sotomayor is not just any idiot.  And her response to this question has been to say “No.”  You, Mr. Governmental entity or public institution, may NOT abide by the Constitution.  You are REQUIRED to violate it.  You are REQUIRED to read it the way I read it, as saying just the opposite of what it actually says.  Affirmative action policies (I am not making this up, her dissent indicated that she really wanted the court to rule this way) are not just acceptable despite the plain language of the equal protection clause, they are mandated by that language!   (No, really, I’m not kidding, she thinks we would buy this, that we’re just that stupid.  She really, really, and for truly does.) Sonia Sotomayor believes so much in affirmative action that she will not just allow you to have such policies, she will require you to do so.  It's like some one announcing that marijuana use won't just be legal in your State, it will be mandatory. What is more, if your State has the unmitigated gall and temerity to disagree with her, she believes she has the right to impose her personal policy preference upon you.  The Supreme Court has done this before of course, and gotten away with it far too often by declaring Constitutional rights to exist in the Constitution’s so-called "penumbras" and "emanations" which appear no where in its text.  But Sonia Sotomayor takes this judicial arrogance further than has ever heretofore been seen.  She is not simply finding rights in the Constitution which don’t actually appear therein, she is taking rights which are there, in black and white, in the text, namely, the right to be treated equally under the law, and transforming them into their opposites, in order to protect her own chosen policies and preferred politics, and advance the cause of her own fellow liberal tribesmen, all in violation of the principles of democracy, and the principles of common sense, and the principle of reading plain English to mean what it says, and what it was intended to say.  If she was a cow grazing on the land Cliven Bundy claims to own, she could not be having less coherent thoughts.

Nevertheless, all of the usual government-by-judicial-oligarchy suspects lined up to praise the "courage" of Sotomayor's dissent, each of them playing the usual power politics and each of them, with willful blindness, intentionally ignoring the true nature of her argument.  The constitutionality of affirmative action is not what was at issue in Schuette, the constitutionality of democracy is what was at issue in Schuette.  May the people of Michigan democratically amend their Constitution to require what the U.S. Constitution already requires: equal treatment by the government of the governed regardless of race? Or may the U.S. Supreme Court impose upon them a requirement to do otherwise?  Anyone who calls Sotomayor's dissent courageous is an unprincipled political Lance Armstrong, a person who believes it is more important for his or her personal policy preferences to "win" than it is for our system of self-government to "win" by being recognized.

The role of a judge in our society is similar to the role of a referee during a football game.  They are not to be partisan players, but to ensure our legal and political disputes are fought in accordance with the pre-established rules.  For Supreme Court Justices applying the U.S. Constitution, that means they are to apply the Constitution, not amend it from the bench.  A system for democratic amendment already exists, thank you very much.  Just as we should have nothing but scorn and contempt for a referee who we learn has money on the game and has been making biased play calls, Sonia Sotomayor likewise deserves our scorn and contempt for having assumed that her role is not to adjudicate, but to play for one of the teams.  I may be wrong about the merits of affirmative action, and Sonia Sotomayor may be right.  But in that case, she should have gotten out her SBC Stamp and called the voter referendum to which she objected "stupid but constitutional."  Instead, she lends credence to the Cliven Bundys of the world, and others like them, who can't distinguish between a political preference and a constitutional right.  If Sonia Sotomayor, sitting on the bench, can't draw this distinction, why should an Nevada rancher with no legal education, training or experience be able to do so?

The biggest issue any constitutionally governed society faces is how to ensure that the constitution is complied with.  Judicial review is the system which we have developed in America to deal with this problem. But that system comes with a huge risk: the temptation of the judiciary to falsely equate and conflate their own personal policy preferences and their own political views with what the Constitution actually says, and thereby to unmoor us from Constitutional governance and tether us instead to governance by unrestrained judicial oligarchy. Those members of the judiciary who give in to this temptation have corrupted our system and violated their oaths of office.   Again, they have "robb[ed] the populace of an actual possession (the predictability of the [Constitution]" thereby "giving away something" which was not theirs to give.  David Mamet, The Secret Knowledge, On the Dismantling of American Culture (Sentinel 2011) at p. 151.

THE VICIOUS CYCLE

Cliven Bundy and Sonia Sotomayor are both dangerous for the same reason: because they are both anti-Constitution.  Cliven feels he can ignore the existence of the government established by the Constitution, as well as its Courts, and executive branch officers and legislative branch legislation.  Sonia feels she can ignore the plain text of that Constitution and personally rewrite it to say the opposite of what it clearly says.  Both are unprincipled win-at-all costs partisans who believe that political questions can only have one proper answer: the answer that allows them to win, and recognizes their own power to get their own way no matter what, and if they don’t, to throw a spoiled child's temper tantrum. Sotomayor’s dissent in the Schuette case is the mirror image of Cliven Bundy’s stand in choosing not to recognize the existence of the government: both positions ignore the plain text and meaning of the Constitution.  Sonia's dissent does some other things that resemble Cliven too.  Just as Cliven refuses to believe that the State of Nevada is not the ultimate arbiter of his rights on Federal land, Sonia ignores the principles of Federalism where they do actually apply, pursuant to which the U.S. Government is a government of limited and delegated and enumerated powers and the States are political entities of general jurisdiction.  She turns a State question of a State’s admissions policies at State Universities into a question of Federal concern, which it is not.  And her dissent answers that question by borrowing Cliven Bundy’s Etch-A-Sketch version of the Constitution, so Sotomayor, like Bundy, can be provided with a Constitution which she can pretend says what she wants it to say, instead of what it actually does say.

One of the best defenses of the rule of law ever written may be found in this exchange from Robert Bolt's play about Sir Thomas More:

"Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

Robert Bolt, A Man for all Seasons

Substitute "the Federal Government" or "Republicans who want to democratically end affirmative action" or your own personal bogeyman in place of "the Devil" and hopefully you'll get the point.

It's a point which eludes both Sonia and Cliven.  And it is not the only thing they don't understand.  Their extrapolitical power plays create a vicious cycle, each feeding on the other and strengthening those who they most oppose.  Sonia's insistence that the Constitution can be read as mandating that which it expressly forbids is so utterly preposterous that, the more frequently it is accepted by the majority of her fellow Justices, the more it deprives the Court of any moral right or claim to be treated with legitimacy.  It would make the vast majority of Americans want to become Cliven Bundy, each of us refusing to recognize the authority of a tribunal which would require us to live under the rules handed down by such absurd and ridiculous jurists.  I won't discuss here the pros and cons of judicial review, but given the judicial veto power over democracy inherent in that doctrine, and its obvious potential threat to self-government, that kind of public sentiment against an overly arrogant Supreme Court is the kind of thing that can lead to war, if the people feel their right to live in a democracy has been unreasonably withheld from them. Has led to war in fact. Abraham Lincoln became a little bit of a Cliven Bundy in his disregard for the Dred Scott decision, which strengthened Northern resolve to carry out the Civil War.  (Sometimes the backlash is less violent. Roe v. Wade arguably led to the election of Ronald Reagan, and won the Cold War. But I doubt Sonia would see those events positively, in the way I do, and so she might want to take them as a cautionary tale.)   Similarly, Sotomayor's inability to differentiate between her own personal political preferences and the mandates of the Constitution further fractures a system which requires its citizens to make distinctions between rights and privileges, politically desirable policies and human or constitutional rights. If someone in her position can't do it, how should the rest of us be able to do so?

Cliven Bundy's actions, similarly, strengthen the very Federal Government which he opposes. In promising to do whatever it takes to prevent the federal government from carrying out federal court orders on land owned by the federal government, Cliven only encouraged the heavily armed response which his supporters felt was so overwrought.  But the more his non-supporters learned about the facts of the case, the more they supported the militarized federal response. Go read the comment sections to some of the liberal anti-Bundy stories on the internet. There are people calling for the U.S. Government to use drone strikes against Bundy. Whose to blame for those kinds of sentiments?  In large part, Bundy himself is.

If this is the way politics are going to be played in the future (and the support which Cliven and Sonia have garnered from many who ought to know better suggests this may be so), on the basis of unprincipled assertions of raw political power, which ignore the rule of law and discard the text and plain meaning of the Constitution, then America’s experiment in ordered liberty and self-government will soon be doomed. Fortunately, not all conservatives sided with Cliven, and fortunately a majority of the Court rejected Sonia’s “reasoning” including even one of the liberal justices.  But the support both of these unprincipled political  might-makes-right power players received at their respective ends of the political spectrum does not bode well for America's future.

Welcome to Somalia?

Why this conservative does not support Cliven Bundy

An open letter to anyone seeking my vote for an elective office created by the Constitution of the State of Nevada

Dear office seeker: I am a registered Republican who will be voting in all upcoming primary and general elections. I am a political conservative who has rarely if ever voted for the Democratic candidate for any office.  I support western land reform, including allowing more Nevada land to pass into the hands of private ownership. I also support cattle ranching, and believe the Federal Government’s need to balance environmental concerns with the economic needs of the ranchers has, for many years now, been out of balance, and that cattle ranchers have been subjected to overly onerous, harsh, and arbitrary regulations and permitting conditions.

However, I also support the rule of law, and not the mob, and do not want to see the Constitutional form of government by the people, for the people, of the people, which I was bequeathed by George Washington and James Madison and Alexander Hamilton replaced with a government by the most powerful demagogues with the most guns, for the most powerful demagogues with the most guns. I do not believe that my own personal political and policy preferences with respect to the causes of western land reform (upon which reasonable minds can disagree without raising issues of fundamental human rights or morality) are so compelling as to justify even civil disobedience (let alone violent or armed resistance) to existing law. I also do not believe that these causes are well served by those who feel they have the right to take the law into their own hands, or who believe they may live their lives as though they were above the law or beyond its scope and reach. Rather, I support the Nevada Constitution, which protects my rights, as John Adams put it, to live in a republic "of laws and not of men."

I am proud of my Republican party's Lincoln legacy, as the party that preserved the Union and ended
legalized slavery. The office you are seeking requires you to swear an oath to “support, protect and defend the Constitution and Government of the United States, and the Constitution and government of the State of Nevada, against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance and loyalty to the same . . .” NRS 282.020. The Constitution of the State of Nevada which you will swear to uphold was written during the Civil War, and was designed to ensure that the claims of would-be secessionists would not be recognized in this State.  It provides, in pertinent part, as follows:

“[T]he Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State . . . to . . . perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any . . . people . . . attempt to . . . forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.”

In recent weeks, an unregulated and unauthorized group of citizens of Nevada and other states have collected themselves within Clark County, Nevada, some of whom purport to be members of one or more “militia[s]”. However, none of these persons are, with respect to the events described in this letter, acting under the authority of a lawful militia “licensed by the Governor” as required by Nevada Revised Statutes 412.026. Rather, they are in my opinion instead acting in violation of Nevada criminal law, NRS 203.080, which makes it unlawful for “any body of individuals” who are not acting under proper statutory authority, “to associate themselves together as a military company with arms without the consent of the Governor.”

These individuals and other supporters have recently engaged in conduct within the State of Nevada which violates and thwarts the principles of the Nevada Constitution which I quoted above. In contravention of that Constitution, they have taken up arms to “forcibly resist the Execution of [the Federal government’s] laws” by armed officers of that government, and they have engaged in other acts “to impair, subvert, or resist the Supreme Authority of the government of the United States.”

They engaged in this conduct in order to support a man named Cliven Bundy, who had, prior to 1993, previously held an ephemeral grazing permit (issued with respect to land that does not consistently contain enough forage to sustain livestock) to graze his cattle on public land owned by the U.S. Government, which lies near his private ranch property.  Permission to graze cattle on public land is a privilege, not a right, which may be revoked at the discretion of the government. Light v. United States, 220 U.S. 523, 535 (U.S. Supreme Court 1911)(grazing permits on federally owned land do not confer vested rights).  This land had been held by the U.S. Government since 1848, when it was acquired as part of the property ceded to the United States by Mexico pursuant to the Treaty of Guadalupe Hidalgo, and the U.S. Government’s rights to control, allow or not allow, limit or extend, grazing on this U.S. Property has been repeatedly recognized.  Mr. Bundy declined to sign a new permit in 1993, because he objected to the landowner’s permit terms.  Nevertheless, Mr. Bundy’s cattle remained on the property, although he then also ceased paying any grazing fees.  This put him in essentially the same position as anyone else who leases property rights from a property’s owner, but who stays in possession after his lease has expired without paying any further rent: He was a holdover squatter trespassing on land he did not own and did not have any right to possess.

Based thereon, Mr. Bundy was ordered in 1998, and, again, in 1999, by Judges of the U.S. District Court for the District of Nevada (whose powers derive from Article 3 of the U.S. Constitution which your oath of office will also require you to uphold) to remove livestock from property “owned by the United States and administered by the Department of the Interior through the Bureau of Land Management and the National Park Service” upon which Mr. Bundy had been found to have no lawful authority, at the time the orders were issued, to be grazing his cattle.  Mr. Bundy did not obey these orders.  Indeed, beginning in 2000, Mr. Bundy began allowing his cattle to graze on land for which he had never held any permit. Based thereon, in 2013, Mr. Bundy was again ordered to remove his trespassing cattle from federally owned property.

Mr. Bundy admits he has never obeyed any of these three Orders and he also admits having disobeyed orders requiring him to pay fines and penalties as a result of this disobedience. However, he excuses his conduct because he states that he does not recognize the United States Government as even existing (a statement he made in an interview on the Dana Loesch radio program), and on the basis of other legal arguments of a similarly frivolous nature which he has raised in Court filings and which have been repeatedly rejected. For example, Mr. Bundy claims the jurisdiction of the U.S. Courts is fictional, and that the“Sovereign” State of Nevada actually owns the land on which he has been trespassing, even though numerous legal authorities have held otherwise, based on the language of the Treaty of Guadalupe Hidalogo, and other relevant law, including the Nevada Constitution, which expressly indicates to the contrary.

Mr. Bundy's assertions that he does not recognize the U.S. Government as even existing, and his arguments that Nevada is its own sovereign state, all seem to indicate that Mr. Bundy has adopted the legal theories believed in by members of the so-called "sovereign citizens" movement, or other similar "sovereignty" legal theories derived from this movement.  For example, according to Court filings, Mr. Bundy has made threats to "sue" federal employees he has encountered on federal property which he claimed to be his land. Filing such lawsuits, or threats to file such suits, against government employees, are a common practice among members of the sovereign citizens movement, and Mr. Bundy's assertion of State sovereignty, and refusal to recognize the existence and legitimacy of the U.S. Government are also common themes within this movement.

The sovereign citizen movement has been identified by the FBI as an extremist organization, some of whose members may be considered to be dangerous domestic terrorists.
http://www.fbi.gov/news/stories/2010/april/sovereigncitizens_041310

The legal theories advanced by advocates of "sovereignty" theory have been criticized by legal scholar Dallin H. Oaks, a former University of Chicago law professor, former Utah State Supreme Court Justice, former President of Brigham Young University, and current Apostle of the Church of Jesus Christ of Latter-day Saints (a religion to which Mr. Bundy happens to belong, although he has not, apparently, become very conversant with his religion's leaders' take on his unique political ideas).  Mr. Oaks has thoroughly analyzed the various arguments made by earlier generations of "sovereignty" theorists, found them to be wholly without merit and bogus, and concluded as follows with respect to those who would rely on such theories as grounds for violating federal court orders and laws:

"I feel sad that persons can be so misled. The wise will beware of teachings on the Constitution that are based on peephole history and selective readings of historic documents. They should also beware of the related advice of persons who advocate private armies or the collection of heavy weapons or extraordinary quantities of private arms. Responsible citizenship has no shortcuts when the going gets tough--not draft avoidance, not tax evasion and not eccentric theories that purport to free us from the obligation to be subject to the constitutions and laws of our states and our nation."  Dallin H. Oaks "Some Responsibilities of Citizenship"  America's Freedom Festival, Provo Utah, July 3, 1994.

Throughout 2011, Mr. Bundy refused numerous offers to meet with BLM agents and other government officials to resolve the impasse between himself and the Federal Government.  In April 2012, Mr. Bundy declined an offer to resolve the matter by having him cooperate with an effort to impound his trespassing cattle by shipping them to a facility of his choice and provide him with the proceeds from the sale.

Because of Mr. Bundy’s failures to comply with the lawful injunction orders for the removal of his cattle, the third of these U.S. District Court Orders authorized government agents to seize and remove and impound Mr. Bundy’s trespassing cattle, and further ordered that Mr. Bundy “shall not physically interfere with any seizure or impoundment operation” so authorized.  Contrary to claims by some of Mr. Bundy’s supporters that any operations so authorized amounted to “stealing” Mr. Bundy’s cattle, the BLM obtained the impoundment order, rather than simply acting on its own authority, before engaging in the impoundment operations, in order to expressly comply with Nevada law, NRS 565.125, which allows impounded cattle to be resold with the proper brand inspection clearance certificates, only if a Court Order for impoundment has preceded the seizure.  Legally, under the supremacy clause of the U.S. Constitution and federal legal preemption doctrines, this was not necessary.  Nevertheless, the BLM engaged in this step in order to cooperate with the reasonable requests of local authorities, and cooperatively defer to their practical needs and requests.  Thus, the U.S. Government showed far more deference to Nevada law in this matter than did Mr. Bundy.  Mr. Bundy was provided prior notice, as required by the court, of the government’s intention to undertake the operations authorized by this order. Instead of utilizing the notice period to attempt to cure his unlawful squatting and trespass upon federally owned real property on which he has no recognized grazing rights, or to otherwise resolve or cure the situation, Mr. Bundy, according to news reports declared a “range war” and called upon State officials to come to his aid against the federal government’s operations, which would have required those officials to violate the provisions of the Nevada Constitution quoted above.  This was consistent with earlier statements which Mr. Bundy had made, under oath, in the litigation leading to the aforestated orders, in which Mr. Bundy had testified that he would do “whatever it takes” to physically resist any legal officers’ actions to remove his cattle from land he did not own, in an effort to “physically stop” such conduct and that he would call upon and solicit “the assistance of neighbors, friends, family” and other “supporters” to do so.

Under the authority of a U.S. District Court's lawful order, armed agents of the United States therefore sought to carry out impoundment operations. While some of their conduct in carrying out these operations have been criticized as overly intense, Mr. Bundy’s indications of an intent to resist and create a “range war” would seem to be a likely source for the armed nature of the government’s operations. Mr. Bundy’s supporters were, for example, asked to limit any protest actions to a specified First Amendment area, in an apparent attempt to prevent his friends and supporters from physically interfering with the Government removal operations, as Mr. Bundy had sworn under oath he would solicit them to do.  I will not comment here on whether this request was a Constitutionally appropriate time, manner, and place restriction on Mr. Bundy’s supporters, in light of the circumstances and Mr. Bundy's promises in sworn testimony of what he would ask his supporters to do, but I will note that many of his supporters gave support which went beyond speech, by, for example, throwing themselves or their ATV’s in front of vehicles which were involved in the operation, in order to prevent those vehicles from accessing roadways.  The events which followed were highly publicized and Mr. Bundy soon found himself surrounded by and perhaps in putative control of armed supporters, including those claiming to be operating as a militia. Mr. Bundy’s armed supporters resisted the completion of the government’s operations, thereby violating the Nevada Constitution and its express recognition that “the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people . . . to . . . perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.”

Mr. Bundy’s supporters have been successful in carrying out the goals of their unlawful enterprise to thwart the U.S. Government from carrying out U.S. Court Orders on real property owned by the U.S. Government, and in their armed resistance (in violation of the Nevada Constitution) to the lawful conduct of the federal agents who were seeking to enforce court orders of a country whose existence Mr. Bundy does not recognize. More specifically, due to the conduct of certain of Mr. Bundy’s supporters in facing down enforcement agents, the federal authorities withdrew to avoid the possibility of violence erupting over the situation.

Mr. Bundy and his supporters have remained in place, such that, as of this writing, a little corner of my State is under the de facto political control of Mr. Bundy and his private outlaw militia, rather than being controlled by the lawful government in whose jurisdiction this territory rightfully belongs, including with respect to property not only under the jurisdiction of, but legally owned by, the U.S. Government. In a little portion of my beloved State of Nevada, the rule of law has been replaced with the rule of anarchy and mob rule.

Dear candidate, the more I have thought about these events, the more these events have sickened me. I have deep roots in Southern Nevada. I was born and raised here in Southern Nevada. My maternal ancestors are buried in Bunkerville, Nevada. My paternal grandfather was instrumental in creating the Las Vegas Convention Center. My parents and my wife’s parents both attended Las Vegas High School in the 1940s, and my wife and I both received our K-12 education here in Southern Nevada. I am a practicing Nevada attorney and my first job after Law School was to work in Carson City as a Law Clerk to a Justice of the Nevada Supreme Court, where I was privileged to work on cases involving the application of the Nevada Constitution to cases and controversies of our State’s good citizens. I love, honor, and cherish the Nevada Constitution.

I do not wish to live in a third-world mobocracy, where local warlords or drug cartels or their ilk, together with their private armies, have authority over territory which should properly be controlled by the lawful government of the civil state. But it now appears that portions of my beloved State of Nevada have fallen prey to this kind of unlawful rule. I do not support Mr. Bundy and his unregulated little band of outlaws, who are assisting him in his continued squatting and trespass on lands he does not own, and it sickens and frightens me that they have won the day and have been successful in their unlawful enterprise. I am also deeply concerned that certain local political candidates have taken up the cause of populist demagoguery in support of Mr. Bundy, and that many of these politicians come from my Republican party.  I had always thought the Republican party stood for upholding the U.S. Constitution, and honored its Lincoln legacy in standing against would-be secessionists.  I do not understand how we can uphold the U.S. Constitution when we support a man who does not recognize the existence of the government established by that Constitution, and has called upon armed support to physically resist executive branch officers acting under Article II of the Constitution, enforcing legislation enacted pursuant to Article I of the Constitution, under Orders issued by U.S. District Courts established by Article III of the Constitution.  If we conservatives are going to support this man, then what part of the U.S. Constitution do we exactly believe in?

As you are seeking public office, I would like you to answer for me and other voters the following questions:

1. If you obtain the office you are seeking, will you take the oath you are required to take, to uphold the Constitution of the State of Nevada?
2. If so, will you uphold that oath, by opposing “any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States” and recognize that “the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority”? Or will you violate your oath and stand with those who “forcibly resist the Execution of [the Federal Government’s] laws” and support those, like Mr. Bundy and his followers who oppose the aforestated principles of the Constitution of the State of Nevada?
3. In the event that, upon your taking office, Mr. Bundy remains in violation of the law, any of his cattle remain on Federal land without lawful authority, or he or any of his supporters remain in apparent de facto political control of any territory under the lawful jurisdiction of the State of Nevada and the United States of America, what acts will you take to remedy each and every one of these situations so as to ensure that those portions of the Nevada Constitution quoted above are upheld, mobocracy is put down, and the rule of law is restored?
As a Nevada voter I feel I am entitled to an answer to these questions, as I feel they directly relate to your fitness for the office which you seek.

D. Chris Albright
Las Vegas, Nevada
April 21, 2014

Bundyland (Now With a Timeline)

THE BASIC TIMELINE AS I UNDERSTAND IT AND MY OPINIONS OF THE BUNDY MATTER:

1. Prior to 1993, Cliven Bundy held an ephemeral grazing permit (for land that does not consistently contain enough forage to sustain livestock) to graze his cattle on public land owned by the U.S. Government, near his private Bunkerville Nevada area ranch.  

2.  Permission to graze cattle on public land is a privilege, not a right, which may be revoked at the discretion of the government. Light v. United States, 220 U.S. 523, 535 (U.S. Supreme Court 1911).  This is an important point worth spending some time on.  Many people who support Bundy's lawless refusal to abide by public agency determinations and Court Orders with respect to the disposition of public land where his cattle have been trespassing have insisted that some "right" was being violated.  However, Bundy's personal political policy preferences, and those of his supporters, do not rise to the level of Constitutional rights.  I wanted a different outcome in the last election, but I had only a "right" to vote and to campaign, not to win.  As Dallin Oaks has explained: "[I] urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates." 

http://www.mormonnewsroom.org/article/fundamentals-of-our-constitutions-elder-dallin-h-oaks

3.  The publicly owned land where Mr. Bundy previously held grazing permits has been held by the U.S. Government since 1848, when it was ceded to the United States Federal Government by Mexico, pursuant to the Treaty of Guadalupe Hidalgo.  

4.  This federally owned land is administered by the Department of the Interior through the Bureau of Land Management and the National Park Service, pursuant to Congressional legislation granting these agencies the power to do so. 

5.  Mr. Bundy declined to sign a new permit in 1993, because he objected to the landowner’s permit terms, which would have reduced his allotment to 150 head of cattle, due to environmental concerns, including allegations of possible harm to the desert tortoise, which is listed as an endangered species.  Notwithstanding his failure to have any permit for the grazing of any cattle after 1993, Mr. Bundy’s cattle remained on the property without permit, but as trespassing cattle, and he then also ceased paying any grazing fees.  In social media postings, one of Mr. Bundy’s daughters has described Mr. Bundy’s decision to not sign the new 1993 permit as a decision by him to “fire” the BLM as his manager, according to which rather fanciful theory the BLM was somehow Mr. Bundy's hired manager, rather than the entity appointed by congressional legislation to manage the land for the property owner, namely the U.S. Government.    

6.  Mr. Bundy was ordered in 1998, and, again, in 1999, by the U.S. District Court for the District of Nevada (whose powers derive from Article 3 of the U.S. Constitution) to remove his trespassing livestock from the property where he had previously held a permit. Mr. Bundy did not obey these orders.  

7.  Beginning in the year 2000, Bundy began allowing his cattle to graze on land for which he had never held any permit (described in later court filings as “New Trespass Lands.”)

8.  In 2013, Mr. Bundy was again ordered by a U.S. District Court to remove his trespassing cattle from federally owned property.

9.  Mr. Bundy admits he has never obeyed any of these three Orders and he also admits having disobeyed orders requiring him to pay fines and penalties as a result of this disobedience. However, he excuses his conduct because he states that he does not recognize the United States Government as even existing (a statement he has made in media interviews), and on the basis of other legal arguments of a similar nature which he has raised in Court filings and which have been repeatedly rejected. For example, Mr. Bundy claims the jurisdiction of the U.S. Courts is a self-created fiction, and that the sovereign State of Nevada actually owns the land on which his cattle have been trespassing.  

10. These assertions regarding the non-existence of the U.S. Government and the fictional nature of its Courts' jurisdiction and Nevada’s status as its own sovereign State are not mainstream legitimate legal arguments.  Rather, they derive from and reflect the ideology of the "sovereign citizens" movement (albeit with some customization unique to Mr. Bundy's purposes).  For example, according to Court filings, Mr. Bundy has made threats to "sue" federal employees he has encountered on the federal property where his cows were trespassing, which he claimed in his encounters to be his land. These types of threats to bring suits against government employees are a common practice among members of the sovereign citizens movement.

11.  The sovereign citizen movement has been identified by the FBI as an extremist organization, some of whose members may be considered to be domestic terrorists.  

http://www.fbi.gov/news/stories/2010/april/sovereigncitizens_041310

12.  The legal theories advanced by advocates of "sovereignty" theory, as a basis for refusing to comply with federal laws and court orders have been criticized by legal scholar Dallin H. Oaks, a former University of Chicago law professor, former Utah State Supreme Court Justice, former President of Brigham Young University, and current Apostle of the Church of Jesus Christ of Latter-day Saints (a religion to which Mr. Bundy happens to belong).  In 1994, Mr. Oaks, having thoroughly analyzed the various arguments made by earlier generations of "sovereignty" theorists, found them to be wholly without any legitimacy, and concluded as follows with respect to those who would rely on such theories as grounds for violating federal laws:  "I feel sad that persons can be so misled. The wise will beware of teachings on the Constitution that are based on peephole history and selective readings of historic documents. They should also beware of the related advice of persons who advocate private armies or the collection of heavy weapons or extraordinary quantities of private arms. Responsible citizenship has no shortcuts when the going gets tough--not draft avoidance, not tax evasion and not eccentric theories that purport to free us from the obligation to be subject to the constitutions and laws of our states and our nation."  Dallin H. Oaks "Some Responsibilities of Citizenship"  America's Freedom Festival, Provo Utah, July 3, 1994. [Emphasis added.]

13.  Throughout 2011, Mr. Bundy refused numerous offers to meet with BLM agents and other government officials to resolve the impasse between himself and the Federal Government.  In April 2012, Mr. Bundy declined an offer to resolve the matter by having him cooperate with an effort to impound his trespassing cattle by shipping them to a facility of his choice and provide him with the proceeds from the sale.

14.  Because of Mr. Bundy’s failures to comply with the lawful injunction orders for the removal of his cattle, the third of these U.S. District Court Orders authorized government agents to seize and remove and impound Mr. Bundy’s trespassing cattle, and further ordered that Mr. Bundy shall not physically interfere with any seizure or impoundment operation so authorized. This was not an action to “collect a bill” as some have characterized it, but to enforce an injunction for the removal of trespassing cattle from property where they had been grazing without a permit for over a decade, including from some property for which no permit had ever been held.   

15.  Mr. Bundy was provided prior notice, as required by the Court, of the government’s intention to undertake the operations authorized by this Order. Instead of utilizing the notice period to attempt to cure his trespass upon federally owned real property on which he has no recognized grazing permission, Mr. Bundy, according to news reports declared a “range war” and called upon State officials to come to his aid against the federal government’s operations.  

16.  Had Nevada state officials come to Mr. Bundy’s aid in his resistance against U.S. law and U.S. Court Orders, they would have been violating the Nevada Constitution which, having been written during the Civil War, was designed to ensure that the claims of would-be secessionists would not be recognized in this State, providing as follows: “[T]he Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State . . . to . . . perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and perpetuate its existence, and whensoever any . . . people . . . attempt to . . . forcibly resist the execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority. 

17.  Mr. Bundy’s requests for a range war was consistent with earlier statements which Mr. Bundy had made, under oath, in the litigation leading to the last of the aforestated orders, in which Mr. Bundy had testified that he would do “whatever it takes” to physically resist any legal officers’ actions to remove his cattle from land he did not own, in an effort to physically stop such conduct and that he would call upon and solicit the assistance of neighbors, friends, family and other supporters to do so.

18.  Under the authority of the U.S. District Court's order, armed government agents therefore sought to carry out impoundment operations.  Mr. Bundy’s supporters resisted, and, as the matter received increasing media attention, supporters of Mr. Bundy’s cause, many of whom were armed and characterized themselves as “militia” members soon arrived.  It should be noted that a lawful Nevada militia must be “licensed by the Governor” as required by Nevada Revised Statutes 412.026. Otherwise, it is a crime in Nevada, under NRS 203.080, for any body of individuals who are not acting under proper statutory authority, to associate themselves together as a military company with arms without the consent of the Governor.  

19.  An expert on the fringe “sovereign citizens” movement, reporting for Forbes magazine, has reported that much of the rhetoric employed by those who arrived indicated their affiliation with this movement. 

  (www.forbes.com/sites/jjmacnab/2014/05/02/context-matters-the-cliven-bundy-standoff-part-2/) 

Although the FBI has indicated that certain members of the "Sovereign Citizens" movement may be considered to be domestic terrorists, I would not personally label any of Mr. Bundy's actions or those of his militia to be "terrorism" as they have not directed violence against civilians to spread fear.  However, their use of arms to essentially play chicken with and stand down the lawful agents of the Federal Government, seeking to enforce a U.S. District Court Order on U.S. owned land, certainly qualifies, in my opinion, as domestic criminality, and had shots been fired, the terrorist label may at some point have become appropriate.

20.  In order to avoid violence, the BLM eventually ceased its impoundment operations and released all of the cattle which it had impounded to date.  As of this writing, so-called “militia” members apparently remain on the ground in the Bunkerville area, to prevent any future efforts by the U.S. Government to enforce U.S. Court Orders on property owned by the U.S. Government, under the apparent, but facially absurd, theory that it would be invalid or wrongful for the U.S. Government to enforce U.S. District Court Orders on property owned by the U.S. Government.    

21.  Everyone can make up their own mind regarding the foregoing.  As for me, whatever sympathy I may have had for Mr. Bundy’s position in 1993, when the BLM restricted his grazing permit, is now irrelevant, given the conduct which Bundy has engaged in for the past 20 years, since that date, and the fringe ideology and extremist movement he has supported to justify his conduct.  Armed resistance to the activities of executive branch officers of the U.S. Government who derive their executive authority from acts of Congress and are acting to enforce Orders of a United States District Court, authorized to issue those Orders under Article III of the United States Constitution, seems to me to be inherently anti-American, anti-Constitutional conduct.  I support the Constitution of the United States and I oppose those who do not.  


22.  Nor are any issues of human rights involved in this matter which might justify civil disobedience to legal authorities.  This is a question of the government’s use of government owned land, not an issue of extreme religious or ethnic discrimination.  As was stated by Dallin H. Oaks: “At a clear and extreme level, violations of inalienable rights by a government might excuse citizens from the performance of some obligations of citizenship. But . . . any such exceptions would have to be . . . extreme . . . .  As long as a government provides aggrieved persons an opportunity to work to enlarge their freedoms and relieve their oppressions by legal and peaceful means, a Latter-day Saint citizen's duty is to forego revolution and disobedience of law. Our doctrine commits us to work from within. Even an oppressive government is preferable to a state of lawlessness and anarchy in which the only ruling principle is force and every individual has a thousand oppressors. . . . We remain committed to uphold our governments and to obey their laws. One of the most important of the great fundamentals of our inspired Constitution is the principle that the sovereign power is in the people . . . .  However, it does not follow from this principle that each citizen is free to determine which laws he will obey or that one or more citizens are free to redefine the concept of sovereignty. That would result in anarchy, a system in which the only source of power is the sword. In that system, no person is free.”


COMMENTARY: 

So what exactly are we supposed to call the territory which is now under the de facto control of Cliven Bundy and his private militia, who have successfully ousted therefrom the agents of that Federal Government which still claims political jurisdiction over the territory’s citizens and ownership of much of its real property? Bundyland? That seems a proper fit. Since Cliven Bundy is not required to recognize or abide by any federal laws or any federal court orders or to even recognize the existence of the United States government, it is a very safe bet that he, and he alone, will be the only law in Bundyland. So it should probably be named after him.

More importantly, what are the boundaries of Bundyland? A certain perimeter around the Bundy home? The entirety of the Bunkerville grazing allotment which was cancelled when Cliven didn't renew his permit, but on which his cattle have continued to graze, without license from the property’s owner, and without paying any fees, for 20 years? Or are the boundaries flexible, tied to his chattel, and moving wherever his sacred freedom cows move?

This is an important point. If we are going to become Somalia, where the national government holds power over our territory in name only, but where local warlords and their private armies are actually in control on the ground, then we are all going to need to know the basics of which warlords are controlling which areas, so we can bring appropriate amounts of tribute money, or whatever else they take as payment, if we want to travel and need to pass through their borders. (I’ve heard that in Somalia, children are usually accepted.) Will the Bundylandian militia be setting up a toll booth to collect on the I-15? Or will they use pirates in Mad Max cars? I’m sure they’ll want to be paid. They need to eat after all, and they can’t leave Bundyland or the Feds might pull an Abraham Lincoln and try to take it over again. And who wants a big giant Obama statue in our nation’s capitol, sitting next to Abe? Are you kidding me? So, it’s only right that we should pay them. They are, after all, protecting our freedoms. Or so they keep ensuring us.

I’d like to thank George Washington and John Adams and Alexander Hamilton and James Madison et al., for having bequeathed unto us a government of laws and not of men. It was great while it lasted guys, it really, really was. But apparently we’ve decided to forego all that now and pursue a more dynamic and, um, libertarian, direction. Because, you know, there are important rights involved here. I’m not sure what they are. The right to point guns at government employees and call it free speech? Or the right to use government owned land for free? I can’t seem to find anyone who will tell me the specifics, but they are apparently very, very, important. Real MLK natural higher law type stuff if you know what I mean. And people seem to be really, really, happy about it, and to be rallying around this Bundy guy and his little desert oasis of freedom like he’s the greatest thing since sliced bread. And when has something like that ever gone wrong?  So I’m sure it’s going to turn out just swell. But thanks for the memories. It looks like Bundy’s followers are going to keep your vintage flag (although I’m not sure I understand the logic there), so hopefully the other warlords will follow suit. It will be nice to enjoy that nostalgia.

Chris Albright
April 18, 2014