The following curious email exchange took place in December between myself and a friend who prefers to remain unnamed. The exchange touches on the difference between “The State” (of the Union) and “this state” (the unincorporated association/territory/implied charitable trust of the singular United States) and especially on the bizarre importance of “belief” in our legal system.
The conclusions (or at least suspicions) about “belief” are somewhat challenging to understand and hard to “believe”. Nevertheless, I think those conclusions/suspicions may be roughly correct.
In essence, I’m using this email exchange to explain what I “believe” about “belief”.
In order to appreciate the unexpected power of “belief,” you should read definitions of “belief” in Black’s Law Dictionary—especially in some of the older editions which make clear that all “belief” is hearsay. That is, all belief is not based on personal perception (direct knowledge), but rather on the opinions of others. I.e., when I was a child I never actually saw (had direct personal knowledge of) Santa Claus, but I believed because my mother told me Santa was real. My opinion on Santa Claus was based on hearsay (what I’d heard others say, but hadn’t personally witnessed). All of your beliefs are likewise based on whatever you’ve been told by others. All of your beliefs are based on hearsay.
Hearsay is not admissible evidence in a court of law or in an evidentiary hearing. However, belief based on hearsay is admissible in “argument hearings” and even in administrative or equity courts as premises in arguments—rather than as statements of facts. Thus, it’s possible to be convicted of a crime or an offense in modern courts based on mere beliefs (hearsay) rather than facts entered into evidence.
The email exchange follows:
Alfred Adask <firstname.lastname@example.org> wrote:
I haven’t read this case, but the summary (below) suggests that all “qualified immunity” may be based on nothing more than “reasonable belief“. If an official merely could have “believed” his acts were constitutional, then those acts cannot be challenged as unconstitutional.
This makes some sense “in this state” insofar as “this state” is at least not under a State constitution and is only under the federal Constitution insofar as the federal Constitution applies to “territories”. Technically, “this state” has almost no relation to any constitution, and is probably directly under Congress (rather than constitutions) and, as such, the “officials” need merely know the congressional statutes—but not the federal Constitution.
Insofar as “this state” appears to be an unincorporated association of “private” entities, there is really very little reason for the officials/employees of “this state” to know anything about any State of federal constitution. And yet, the courts will occasionally hold the officials/employees of “this state” to some constitutional obligations—but why? Could it be that if the “victim” expressly declared his “belief” that the “official/employee” was an officer of The State (of the Union), that the victim’s “belief” created the “official’s/employee’s” constitutional obligations?
This whole line of insight grows curiouser and curiouser.
In any case, here’s the case excerpt:
U.S. 1st Circuit Court of Appeals, December 17, 2009
Mosher v. Nelson, No. 09-1636
“In plaintiffs’ civil rights action brought following the death of their son against a facility operated by the Massachusetts Department of Corrections that serves as both a prison and a mental hospital, its superintendent, and others, summary judgment for defendants is affirmed where:
“1) defendant-superintendent is entitled to qualified immunity as a reasonable official in defendant’s place, given the circumstances and the legal standard, could have believed that allowing a certain practice to continue would not lead to events that would violate a patient’s rights;
“2) commissioner is also entitled to qualified immunity as a reasonable official in his position could have reasonably believed that staffing that met the hospital’s recommendations was sufficient to avoid constitutional violations; and
“3) the district court properly dismissed the plaintiffs’ state law claims as barred by the Eleventh Amendment. Read more…
My friend’s response:
Yep, to take away the presumption of official immunity, we have to put them on notice of where we believe we are and that we don’t contract with them. It is a war of beliefs.
Exactly. A “war of beliefs”.
We might be well-advised to file our own “Declaration Of Beliefs” into the county record.
If the Officials can claim “qualified immunity” based on their beliefs, why can’t we? What if I “believe” that I don’t need to fasten my seatbelt, or “believe” that I don’t need a drivers license? Of course, we can’t simply make “this state” and its onerous, de facto “officers” disappear by simply declaring we “don’t believe” in them. But if we could support our “disbelief” with evidence, we might give ‘em a real challenge.
And what about the courts’ occasional references to “sincerely-held beliefs” as part of a 1st Amendment, religious freedom issue?
It is a “war of beliefs”. A kind of “jihad” going on right here for over 70 years. At bottom, this is a kind of “holy war of beliefs”—spiritual warfare.
Curiouser and curiouser.
My friend’s response:
I have facts. I have the Texas Declaration of Rights. It exists. I can see it, touch it, feel it. It is real. I stayed in Texas. I never left. I can see Texas. I can stand on it. I can dig in it, plow it, and bury the dead in it.
The U.S. citizens left Texas. They went down the rabbit hole to this state. They ain’t in “Texas” no more. They are presumed “in this state,” but they cannot see this state. They cannot feel it, or touch it. They may have the illusion that they are in “Texas,” but they are in na-na land. They are the ones that must believe.
I have reality, I have evidence, and I don’t have a contract with them. That’s my story and I’m sticking to it. I don’t need to “believe”.
For most of 15 years, I’ve been fixated on the idea that “trust relationships” (more so than contracts) are the primary mechanism by means of which the people are ensnared by the “system” (this state). I’m not saying contracts aren’t important, but I’m still inclined to “believe” that trust relationships are more important.
Trust relationships are particularly dangerous because a judge can find that an “implied trust relationship” exists between a plaintiff and defendant even though neither party has used any word that associated with trusts, and neither party has a clue to what a “trust” is. Once the judge “finds” (believes in) the existence of an implied trust relationship (which is not enforceable) between the parties, he can “construe” and elevate that implied trust relationship to the status of a “constructive trust” relationship that is enforceable against the defendant (implied-fiduciary).
So far as I can tell, these implied trust relationships can be grounds for the plaintiff’s complaint against the defendant—even if the plaintiff has no conscious understanding of trusts, implied trust relationships, etc. Essentially, the judge can “find” (believe in) the existence of an implied trust relationship based on 1) the plaintiff’s mere conduct and 2) the defendant’s failure to expressly deny having voluntarily entered in to a fiduciary relationship with the plaintiff.
What I’m groping for is the idea that the “implied trust relationship” exists solely as a consequence of the plaintiff’s and/or judges “belief” that the defendant owes some moral obligation to the plaintiff that is implied (“believed to exist”) but never expressly stated (as would be required in a contract) or expressly agreed to by the defendant.
The defendant could be fined or go to jail based on the plaintiff’s mere “belief”. These penalties could be imposed based on the defendant’s failure to expressly deny the plaintiff’s implied beliefs. If the defendant remains silent concerning the plaintiff’s foundational—but unexpressed “beliefs”—I believe that it will be presumed by the court that the defendant has assented to and provides a second (but silent) witness to the validity of the plaintiff’s “beliefs”.
On the other hand, if the defendant can anticipate or recognize the plaintiff’s foundational “beliefs” and expressly deny them, the whole process would be badly destabilized and, in theory, stopped.
I.e., “I deny under oath that I’ve voluntarily and knowingly entered into any fiduciary relationship with the plaintiff/prosecutor/this state. It would be unreasonable for the court to find the existence of such a fiduciary relationship where no such voluntary relationship, in fact, exists. More, it would constitute a violation of the 13th Amendment to subject me to such servitude without my voluntary consent. ”
The “implied” trust relationships are ultimately based on the plaintiff’s and/or judge’s mere “beliefs”. These beliefs can be implied—that is, silent and unexpressed. (In fact, within the courts of equity, the words “implied” and “believed” might be so closely associated as to be almost synonymous.)
If so, then if a defendant were to expressly challenge the existence of the plaintiff’s ground for believing in the existence of an implied trust relationship, the whole equitable (and perhaps administrative) proceeding could probably be derailed. Why? Because, normally, the plaintiff has no idea of what a trust, trust relationship, or implied trust relationship might be. I.e., if the defendant were to deny the existence of any implied trust relationship between himself and the plaintiff, the plaintiff would normally be too ignorant concerning trust relations to refute or even understand the defendant’s denial.
If a plaintiff were asked under oath if she had ever entered into a fiduciary or trust relationship with the defendant, the vast majority of plaintiffs would admit that they had no idea of what a trust/fiduciary relationship was. That admission would tend to indicate that despite the plaintiff’s apparent “conduct,” that she could not be reasonably deemed to believe in the existence of a trust relationship if she didn’t know what a trust relationship was.
If the plaintiff’s attorney and/or the judge tried to “lead” the plaintiff into claiming that the defendant owed some “moral obligation” (a basis for implied/believed/argued trust relationships) to the plaintiff, the defendant would have to be prepared to deny such “moral obligation,” or claim a different “morality” or some such.
Those few plaintiffs who were clever enough to expressly claim that they believed there was a fiduciary relationship between themselves and their defendants, could then be asked if they had evidence that the defendant had knowingly and voluntarily entered into that trust relationship as a fiduciary. If there’s no evidence that the defendant had voluntarily agreed to assume the role of fiduciary, imposing that obligation upon the defendant without evidence of his consent (and despite his express, sworn denial of having consented) would constitute an act of “involuntary servitude”—prohibited by the 13th Amendment.
A similar line of defense could be used with contracts. The plaintiff/prosecutor might “believe” that the defendant had voluntarily and expressly contracted to transact “in this state,” but how could there be a “meeting of the minds” if the defendant had no idea that “this state” was something entirely different from “The State”?
If you read subsection (d) of the Texas Penal Code section 1.04 (Territorial Jurisdiction of “this state”) you’ll see that “This state includes the land and the water and the air space above the land and the water over which this state has power to define offenses.” Apparently, there are no geographic boundaries to “this state”. In theory, the territorial jurisdiction of “this state” of TX could extend into Mexico, up to Illinois, or even on to Mars. Without geographic boundaries, where does “this state” exist? Without geographic boundaries, how can it be said that the required “meeting of the minds” took place in a contract deemed to have been negotiated “in this state”? If there was no “meeting of the minds” as to the situs of the contract, how can the courts of “this state” claim jurisdiction?
It’s hard to “believe,” but increasingly I do “believe” that this whole G.D. system is running on “beliefs” (presumptions, implications, premises etc.) in things that are false.
Insofar as we believe in lies, we become subject to lies, subject to “authorities” that do not, in fact, exist.
I am beginning to feel a little like Lewis Carroll.