A friend of mine sent me an email based on recent reports that “On Friday, the Senate passed the FISA Amendments Act which gives the government the ability to electronically monitor the phone calls, e-mails and other communications of Americans without a probable cause warrant as long as they can claim that one of the parties to the communication is believed to be outside of the U.S.”
The average American is unconcerned that the FISA Act authorizes the federal government to make warrantless wiretaps of phone calls made from the “U.S.” to Iraq, Iran or Afghanistan. The vast majority of Americans will never make a call to a foreign country “outside of the U.S.,” so the vast majority don’t care if the government can wire tap calls to foreign countries without a warrant. But the average American’s indifference to these warrantless wiretaps is based on the assumption that the phrase “outside the U.S.” necessarily applies only to calls made to foreign countries.
My friend, however, asked, “I wonder if ‘outside the U.S.‘ means to the government what it does to us?”
Like me, my friend subscribes to the hypothesis that “The State” (say, “The State of Texas”) is intended to signify a State of the Union while “this state” (say, “TX” or “STATE OF TEXAS”) is intended to signify a territory. If you can establish that you are within The State of Texas, you’ll have many more rights and far more liberty than if you allow yourself to be presumed to be “in this state”.
Similarly, the phrase “outside the U.S.” could have multiple meanings and multiple jurisdictional authorities depending and whether the government intended “U.S.” to signify:
1) the “several United States” (as seen in Article 1 section 2 clause 3 of The Constitution of the United States);
2) the singular “United States” found in Section 1 of the 14th Amendment; or,
3) some entirely different “plane” or venue.
These distinctions are confusing but also potentially important since a law that might be 100% constitutional and authoritative within the singular “U.S.” might simultaneously be completely unconstitutional within the the plane/venue of the several “United States”.
Therefore, the question of whether the FISA wiretapping laws apply or do not apply to you may depend on whichever “U.S.” the government means when they say “outside the U.S.” in the recent FISA Amendment Act.
If government meant the “several United States” and you–or any party to your phone call is deemed to be within the singular “U.S.,” then your party would be “outside of the U.S.” and the government may be empowered to wiretap and record your call.
Alternatively, if the government meant the singular “United States” when they wrote “outside the U.S.,” and you or any party to your phone call is in the several “United States”–again–government may be able to lawfully and constitutionally tap your telephone conversations.
To paraphrase our former President Bill Clinton, “It all depends on what the meaning of ‘U.S.’ is.”
My friend’s question started me off on another ramble about definitions of words and legal terms. But, as is often the case, I start these “rambles” intending to merely repeat knowledge I’ve previously conveyed but I wind up making new statements of knowledge I hadn’t previously perceived.
My response follows:
• The whole system appears to operate as a bizarre “word game” based on multiple definitions of the same word or term. As I write this email, it occurs to me that the government uses a particular word/term to mean one thing when they know that the people assume it to mean something else.
For example, the government might expressly promise that they will only make warrantless wiretaps on calls to “outside the U.S.” knowing that the average American will mistakenly presume the promise only applies to calls made to foreign countries–when the government meant something entirely different
The problem starts with the Congress being able to define terms in every law on a law-by-law basis. The meaning of the word “state” in one law can be something else in another law and something else, again, in a third law.
Because Congress can create multiple definitions for the same word, it’s virtually certain that the people–who normally presume a word has but one legal definition and that definition is more or less consistent with the people’s “felt” definition–are as confused by today’s “legalese” (a language of conflicting definitions) as they once were by Catholic church ceremonies conducted only in Latin.
Unable to overcome the confusion of multiple definitions, the people are uncomprehending, fearful of their own ignorance, and thereby forced to hire their own attorney as an “interpreter” of the “legalese”.
It occurs to me that there should be words whose meanings are fixed and “universal” throughout a particular legal system. For example the words, “State,” “state,” “unalienable,” “man,” “person,” etc. should each have a fundamental meaning that you can rely on every time you see them in any law passed by the Congress.
The idea of “universally” fixed definitions might seem impossible from today’s perspective, but it’s not. The great advantage of having a legal system based on Latin was the fixed definitions of the words.. Being a “dead language,” the meanings of words written in Latin weren’t subject to legislative decree and did not evolve or change–even over centuries. The meaning of contract written in today would have exactly that same meaning found in an identical contract signed by Julius Caesar in 50 B.C.
It might be hard to become proficient in a “dead language” like Latin, but once you acquired that proficiency, you could read the law of 100 years ago, 500 years ago, 2,000 years ago without having to pay any significant attention to the date of the law. The words would have the same meanings as were understood by Caesar.
Today, if you want to know what a law means, you must first calculate when the law was enacted. If it was enacted prior to A.D. 1933 it might have one meaning, while it could have significantly different meanings if it was enacted prior to A.D. 1948, prior to A.D. 1968, prior to A.D. 1971 or after A.D. 1971. Identical words and seemingly identical laws could have significantly different and even contradictory meanings depending on the time of their enactment.
• It also occurs to me that including a list of providing unique definitions of terms is commonplace in private contracts. I might sign a contract with you where we agreed to the meanings of several words. I might sign another, similar contract with someone else where we agreed to define the very same words but with different meanings. Thus, changing and evolving definitions would be acceptable in private law because those changes only applied to the two (or more) parties to the contract.
But I wonder if changing definitions in the public law might not be prohibited. Every time Congress redefines a term for a specific law, they are essentially changing our language. I’m not talking about Congress adding and defining new words that might not have existed even five years ago. I’m talking about taking the meaning of a word that’s been established by history and changing it.
When Congress changes the meanings of words by law, Congress changes our culture. When Congress introduces a multiplicity of definitions for the same word, Congress creates the modern equivalent of a “Tower of Babel” where each of us is speaking a unique language and is unable to understand the language of others or be understood by others.
Does Congress have the power to change our language? Does Congress have the power to change our culture? Does Congress have the power to redefine words so as to confuse the language and divide the culture just as God divided the workmen on the Tower by giving them different languages? Maybe. But it shouldn’t.
So, I’m wondering–if giving words unique definitions in private contracts is OK, is it possible that a similar propensity to provide unique definitions of words in “laws” is evidence that those laws are “private laws” rather than “public laws”? I doubt that’s true. Even if it is true, I doubt that I could prove at this time. But I wonder . . . .
• I recognize that the meanings of words usually evolve and change “naturally”–by the custom of the people. The word’s “cool” and “gay” had one meaning when I was a child but have come to assume significantly different meanings today. Congress didn’t cause those changes; the people did.
Still, should the Congress be empowered to impose new definitions by law that only confuse the people?
Congress would almost certainly argue that when they define the meaning of word for a particular law, they do so in order to enhance the law’s specificity and clarity. That might be true relative to a particular law, but it is not true relative to the body politic? As the multiplicity of legal definitions grows, communication–and resulting agreement–is not enhanced but is, instead, diminished.
The people should have confidence that the word “United States” means the same thing today as it did when the Constitution of the United States was adopted. The people should have confidence that the terms “direct Taxes” and “States” (as seen in Article 1.2.3 of the Constitution of the United States) have the same meanings today as they had when the Constitution was ratified.
The people should have confidence that the laws are written in a language they can comprehend with definitions that are ultimately decided by the sovereigns (the people) rather than the servants (the Congress).
• Much of what I’m advocating is at least unlikely and perhaps impossible. Still, it seems to me that there should not be several different definitions for a fundamental term like “State” for each section in the United States Code. At most, there might be list of unique definitions for each Title of the USC (even that would allow for 50 different definitions for a particular world within the entire USC). There shouldn’t be a multiplicity of definitions for all the sections within each of the 50 Titles. More, there should 20, 50, perhaps 100, fundamental words that are commonly used in law and are therefore expressly defined at Title 1 of the USC and declared to apply in every instance where they’re used through the entire 50 (?) Titles of the USC.
If we’re correct in thinking that the government has supplanted our States of the Union with territories defined as “this state,” or “STATE” or some such, then the whole system would collapse if we could simply cause Congress and the courts to admit that the exact, capitialized word “State” and only “State” was defined to mean States of the union–and that any other word that defined a political subdivision that was not a State of the Union had to avoid using the word “State” and be expressly defined as something other than a State of the Union.
• I’ve previously written that “definitions are the law of the law“. In other words, the meaning of a law enacted by Congress depends on the definitions of the words used to express that law. But, today, I’m seeing even more truth in that statement than I have in the past.
What’s the ultimate meaning of any law? Sometimes, a word or phrase in a law is clearly ambiguous in meaning. A strict reading of the word or phrase will show that it might mean “A” or it might mean “B”. Even though the two definitions (“A” and “B”) are contradictory, both definitions can be reasonably inferred from the context of the particular law.
Therefore, the courts are sometimes called upon to decide whether a particular word or phrase in an enacted law means “A” or “B”. How does the court ultimately determine what the ambiguous word or phrase means? They read the Congressional Record, the journals of the committees that first hashed out the proposed law. The meaning of the words in a law is ultimately decided by the discovering the intent of the Congress when they drafted and enacted the law. The courts have ruled that the meaning of any law is not necessary what the law says in a strict reading of the words, but rather what the Congress intended to law to mean when they wrote those words. If Congress made a mistake in the language of the law, the laws means what Congress intended, not what Congress expressly wrote.
But we know that Congress routinely refuses to even read the laws that they vote to enact. Not one Congressman read the Patriot Act before they voted for it. How many read ObamaCare before they voted for it? (I doubt that Barack Obama has read ObamaCare to this day.) I guarantee that no more than 10% (and probably 1% or less) of the Congress read ObamaCare before the majority of the Congress voted to enact it.
So, what’s the “congressional intent” behind a law that Congress have never read? How can a meaning be “intended” for a law that Congress have never read? How can there be “congressional intent” if the Congress hasn’t even read (let alone understood) the laws they enact? How can the definitions in laws that Congress hasn’t even read have any legal force if there was no “congressional intent“?
• We’re told that “ignorance of the law is no excuse”. But when we’re faced with a multitude of definitions, it becomes virtually impossible for anyone to understand the law.
We routinely have 5-4 decisions on the Supreme Court. 5 Justices say the law means “A”; the other 4 Justices say, No, it means “B”. The majority prevails. But if the 9 Supreme Court justices can’t even agree on what the law means, it implies that even the Supreme Court justices don’t all “know” what the law means, and that implies that even the Supreme Court justices are routinely “ignorant of the law”. If the Supreme Court’s ignorance of the law is tolerated, why must the average American’s ignorance be rejected as “inexcusable”?
• I’m increasingly convinced that one of the most powerful lines of defense against government prosecution is to simply inquire about the definitions of their most important terms. I believe this may be especially true early on, when they send their first Notice. I respond with questions. I include questions concerning the meanings of fundamental terms that appear in their Notice. I might look in Black’s Law Dictionary for any term in the Notice that’s of interest. Black’s will probably offer two or more definitions of that term. Black’s may thereby establish that the term is ambiguous since it it is recognized as having several definitions. That “official” recognition makes my questions about the meaning of the particular word or term “reasonable”. I’ll ask if the authors of the Notice used the particular word with the meaning specified in definition 1, 2, or 3 found in Black’s or perhaps some other definition not found in Black’s.
After all, doesn’t the 6th Amendment mandate that “In all criminal prosecutions [by the federal government], the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation”? How can the government inform me of the “nature and cause” of the accusation against me without the use of words? How can I understand the meanings of the words intended to inform me of the “nature and cause of the accusation” unless I know the definitions of those words?
Of course, the government could defeat my demand for definitions under the 6th Amendment under the pretext that the 6th only applies to criminal prosecutions–and this is not a criminal case. That’s fine with me. As soon as they admit the case is not of a criminal nature, I’m going to file a counter-claim since the case must be of a civil nature.
They might claim their suit is penal rather than criminal or civil. But, my understanding of “penal” is that it’s a civil suit with attached criminal penalties. Penal is civil in nature.
I strongly suspect that once I start making inquiries about their definitions, their interest in prosecuting me may diminish or even disappear.
Once they admit that we’re in a civil proceeding, I believe that I can rely on “procedural due process” to encourage the gov-co to answer my questions. Procedural due process consists of 1) Notice; and 2) Opportunity to be heard. As I’ve speculated in some of my articles on Notice, I don’t think any Notice is complete until the recipient agrees that it’s sufficient to apprise him of all the relevant facts and law of the case. If so, the right to procedural due process opens the door to asking questions–including questions about the definitions of the terms used in the Notice.
• The whole system appears to function as a giant, almost incomprehensible word game. From government’s perspective, the game depends on your ignorance concerning words, definitions and grammar. But once you begin to comprehend the words and their definitions, the game ends. If you can overcome your ignorance, government will have a very hard time in prosecuting an accused. That doesn’t mean that no prosecution will take place. It doesn’t mean that no prosecution could possibly succeed, But it does mean that any prosecution will be less probable.
The government’s “word game” is based on deception, fraud, breach of fiduciary obligations, and treason. This “word game” absolutely depends on the sophisticated use of language.
This game is wicked but it’s not new. 2,000 years ago, the Christ warned “Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.” Luke 11:46
How do you suppose the lawyers of the Christ’s time were able to “lade men with burdens grievous to be born”? With guns, clubs, knives and whips? Or with the sophisticated use of words and language? Men were trapped and enslaved with mere words 20 centuries ago. Men are trapped and enslaved with mere words today.
The process is undoubtedly wicked.
Still, there’s one good thing about this “word game”. It can be stopped with a diligent pursuit of knowledge about words, definitions and grammar. Guns and bombs may not be required to win–only books and dictionaries.
Learn the language or accept your status as a slave.