Yesterday, I published Part I of this “Great Debate” between Colin and myself at https://adask.wordpress.com/2015/03/02/a-great-good-debate/
Here’s Part II:
Adask (original comment):
This distinction may be important since, so far as I know, it’s logically impossible to prove a negative statement. For example, I can’t actually prove that I’m not in Washington DC right now.
So, if I were to base some line of courtroom defense on my claim that I’m [not] in Washington, DC, technically, I may not be able to prove that negative statement. Therefore my claim might be dismissed by the court.
Yes you can. If you prove that you’re currently in New York, or Atlanta, or Dallas, or San Francisco, or any place that’s geographically outside of the borders of Washington, DC, then you’ve proven that you aren’t in Washington, DC. Because there’s no secret definition of “Washington DC” that somehow includes the rest of the country.
I assume you meant “not” in DC, based on your previous writing, so I added it—let me know if I’m wrong.
Adask (most recent reply):
First, you are correct; I accidentally neglected to use the word “not” in my original statement.
Second, you are mistaken to suppose that I believe we are all somehow presumed to be “in” Washington DC. I believe government presumes I am not within a State of the Union, but I’m not convinced that government presumes I am in Washington DC. I recognize that explanation might be correct—especially if your address includes a Zip Code.
However, my personal preference runs to a governmental presumption that I am in a territory or state “of the United States” rather than within a member-State of the perpetual Union whose proper name is “The United States of America”.
Third, you’ve not only missed my point, you’ve apparently agreed with my point. As I at least intended to explain, I can’t prove the negative statement that I was not the “man on the grassy knoll who shot Kennedy” back on November 23rd, A.D. 1963, but I can prove the positive statement that I was at the University of Illinois on that date. I was simply trying to say that while it’s my belief that you can’t logically prove a negative statement, you can prove the same fact by stating it as a positive.
If I’m accused of murder, I might not be able prove the negative statement that I was not at the murder scene at the time of the murder. If all I can say is the negative statement that “I didn’t do it,” I’m still a suspect. On the other hand, if I can produce witnesses prepared to testify under oath to the positive statement that I was at some other place at the time of the murder, I have an alibi that should “prove” that I didn’t kill the victim.
Just as you said in your comment, we can prove the positive statement that I was somewhere else when the murder was committed in order to seemingly prove the negative statement that I didn’t commit the murder. But, as I view it, we don’t directly prove the negative statement (“I didn’t do it.”). We directly prove the positive statement (“I was somewhere else.”) and thereby indirectly prove that I couldn’t have been in two places and therefore couldn’t have been at the scene of the murder and therefore did not commit the murder.
I think we’re just debating how many angels can dance on the head of a pin. So far as I can see, we appear to be saying the same thing—even if we disagree about how to say it.
And if your defense is to whatever charge or complaint is that you weren’t in DC, whether it’s a valid defense depends on the law. For example, if you’re accused of rear-ending someone in DC, then a [positive] defense that you were actually in Akron at the time is perfectly valid. If you’re charged with not paying your federal taxes, and your defense is that you’re not located in DC, then your defense would not only be disregarded, you’d probably be fined for making a frivolous argument that has been shot down over, and over, and over, and over, and over, and over again. The idea that the income tax applies only to DC residents or federal employees is completely wrong, and courts treat it that way.
Adask’s recent reply:
I basically agree with you. That particular defense has been shot down repeatedly. But so has the insanity defense, and yet defendants continue to try to rely on it. Just because a particular defense routinely fails, that’s not proof that the particular defense always fails.
As most of the readers of this blog understand, In A.D. 2006 I was added as the seventh defendant to a case prosecuted by the Attorney General of “Texas” since A.D. 2001. Each defendant was charged civilly with the manufacture and distribution of a “controlled substance” (colloidal silver) and threatened with fines of $25,000 per day ($9 million per year—per defendant). I read the relevant drug laws, realized that the drug laws presume the people are just animals. I drafted a freedom of religion defense based on the fact that Genesis 1:26-28 defines man as “made in God’s image” and therefore not animals. (See, https://adask.wordpress.com/2008/06/17/man-or-other-animals-1/)
The Texas AG, after spending six years and nearly $500,000 on pre-trial investigations and pre-trial hearings, simply stopped proceeding against us. The case was officially non-suited in A.D. 2013, but from A.D. 2007 onward, the Texas AG simply dropped the case.
I presume that the Texas AG stopped proceeding because my “man or other animals,” freedom of religion defense was simply too powerful to risk testing in court. But the Attorney General never actually admitted why he dropped the case. Maybe he lost the file. Maybe he got tired of litigating against “crazy people”.
My point is that a lot of “patriot” legal defenses may sound crazy but some of them have occasionally worked. But when they do work, it’s my experience that they “work” at the pre-trial stage and result in the government simply dropping the case. There’s no record of the victory, because the case never went to court. If government can see that a “crazy” defendant knows some issue that the government doesn’t want to face in public and on the record, the case is simply dropped before it gets to court.
Dropping the case is a victory for the defendant, but there’s no official record of that victory in a court decision. Result? The defendant (and his “crazy” argument) won—but there’s no court case or official record that anyone can point to and verify the victory and verify that the “crazy” defense actually worked.
I’ve seen a handful of “crazy” defenses that resulted in dropped prosecutions over the years. The defenses apparently succeeded but there is no official record of their success to inspire others to try the same line of defense.
But just because there’s no official record of our occasional victories, doesn’t mean that once in a while, that little guy named “David” might not kill Goliath, but still manages to scare Goliath into running away. But if David doesn’t behead Goliath, there’s no record of the victory.
I’ve reached a point where I tend to view all court room battles as evidence that the defendant has already lost. I won’t say it’s true in all cases, but if you’re going to court, you’re not really going to a “trial” so much as a “sentencing hearing”. I.e., if you don’t stop the government prosecution administratively, before you get to court, you’re going to be found guilty about 98% of the time. The fact that a defendant is going to court is, to my thinking, evidence that he’s already screwed up so badly that it’s a virtual certainty that he’ll be found guilty and then sentenced.
Of course, if you do stop a prosecution administratively, before you get to court—there’ll be no official record of your victory. There’ll be no judge who explains in his decision just why the defendant’s argument was so brilliant and properly presented, that the judge was legally compelled to rule “not guilty”.
Point: The vast majority of “patriots” who go to court lose. But some “patriots” still manage to win before they go to court, but that pre-trial victory produces no official recognition of the patriot’s success. Without that record of victory, it’s easy to disparage patriot arguments as crazy. But some of those arguments are rational, although only a very rare “patriot” has enough knowledge and communication skills to “make the pitch” to the jury.
But what if–instead of claiming that I’m “not in Washington DC,” I expressly claimed under oath that I was within the border of The State of Texas–a member-State of the perpetual Union styled “The United States of America”?
You could just say “in Texas.” The extra words don’t do anything, whether in a court of law or a common conversation.
Adask most recent reply:
I’m amazed that you’d make such a statement. My understanding of law is that it’s all about linguistic precision. I know that’s not necessarily true in equity, but at law, you must dot all the “i’s” and cross all the “t’s”—and that includes precisely stating the name of the parties to a case.
For example, you suggest that saying or writing “in Texas” is sufficient—there’s no need to all the “extra words” in the term “The State of Texas”. I don’t believe that’s true—but even if it is true, where’s the harm in writing “The State of Texas—a member-State of the perpetual Union styled “The United States of America”? According to the congressional Act of March 30th, A.D. 1870, the proper name for this State of the Union is “The State of Texas”. According to the Articles of Confederation, the proper name for that confederation and Union is “The United States of America”.
Is precision in the courts now deemed to be unnecessary or even offensive?
More, “Texas” was not always “The State of Texas,” or even a member-State of “The United States of America”. There was a time when “Texas” was an independent nation whose proper name was “The Republic of Texas”. During the Civil War, “Texas” claimed to be a member of the Confederacy. I don’t know what the proper name for “Texas” was during the Civil War, but I’ll bet it wasn’t simply “The State of Texas”. (Perhaps it was “The Confederate State of Texas”.)
In any case, given the history of “Texas,” it’s important to use all those “extra words” to signify whether we’re talking about the independent Republic, the State of the Union, or the confederate State of “Texas”. And I didn’t even mention the proper name for “Tejas” when it was part of the nation of Mexico.
I’ve just mentioned four different “Texas’s”. There’s an amusement park down here called “Six Flags over Texas” that’s based on the idea that over the past two centuries “Texas” has existed in six different political manifestations. So, we need those “extra words” to distinguish which of the various political manifestations of Texas we’re talking about.
But more importantly, if we know there were six manifestations of “Texas” over the past 200 years, what’s to say that there couldn’t have been seven or more of those manifestations? Could there be a current “administrative territory of Texas”? How ‘bout a “state of Texas” that’s a “state of the United States” rather than a State of “The United States of America”?
And how can we distinguish between all of these various real or imagined manifestations of “Texas” if we don’t use those “extra words”? Without that linguistic precision, there is opportunity for much confusion over whichever “Texas” we’re talking about.
Adask original comment:
More, if I swear under oath that I’m within the borders of a State of the Union, anyone who wants to prove I’m not will either have to swear that I’m not within the borders of “The State of Texas” or they’ll have make a positive statement that I am in some district, territory or state which is something other than a State of the Union.
The only time this would come up would be if the dispute were about your physical location: was the defendant in Dallas or Akron? (I guess there could be a dispute about whether you were on an Indian reservation, military base or post office, which could affect the jurisdiction of a federal court for certain crimes and torts—but those are clearly defined and well-understood places.) There’s no legal trickery about whether you were in Texas-the-state or Texas-the-territory, because Texas is Texas is Texas. It’s all the state, the state of the union, the State of the Union, etc. It’s really as simple as it sounds.
Adask’s most recent reply:
These “extra words” in the name of “The State of Texas” don’t simply implicate a place or “physical location”. They also implicate jurisdiction.
For example, the law recognizes the possibility of “concurrent jurisdiction” where two or more “governments” may claim separate jurisdictions over a particular place. Apparently, it’s possible for both the US and “Texas” to claim jurisdiction over the same place. How do defendant’s identify those jurisdictions, determine whether only one or both jurisdictions are implicated and then try to challenge each of those jurisdictions—if the prosecutor doesn’t use all those “extra words” to specify whichever jurisdiction is controlling?
I believe that the ambiguous term “Texas” might signify any one of several jurisdictions, while “The State of Texas” can signify only one—that of a State of the Union.
Adask’s original comment:
All of this is conjecture based on the unproven “The State” of the Union vs. “this state” “of the United States” hypothesis is roughly correct.
It is not even roughly correct.
If your hypothesis were at all correct, or close to it, law professors would be all over it. It would be the hugest news in legal scholarship since Lochner. Law professors would be pounding out articles about it, exploring the ramifications, as fast as they could, competing to be the expert in this weird new trick. Where are all those articles? Where are the cases acknowledging this bizarre hypothetical jurisdictional mumbo jumbo? They don’t exist, because the idea has only the most casual, flirtatious relationship with reality. I’m sorry, Alfred, but this idea is as wrong as wrong can be.
Adask’s most recent reply
How do you know?
How do you know that the “The State” of the Union vs “this state” “of the United States” hypothesis is “wrong as wrong can be”?
Do you know all the law? Does any living man know every bit of law that’s been squirreled away in every court case or statute that’s ever been written?
You can say that the proposed hypothesis strikes you as improbable, but you cannot claim to “know” that the hypothesis is so wrong as to be impossible because you don’t and can’t know all of the law.
And what if one particularly charismatic defendant persuaded a jury that the hypothesis were true? What if one particularly rebellious jury decided to agree with some “crazy” defendant that the hypothesis was true? Would these aberrations prove that the hypothesis was, in fact, true?
Nobody knows what, exactly, the law is. If an exact knowledge of law was possible, why would we have any need for appellate courts—just to debate facts?
If an exact knowledge of the law were possible, why are the majority of Supreme Court cases decided by 5 to 4 ratios? Even the 9 Justices on the Supreme Court can’t usually agree on what the law is or should be.
If the Supreme Court can’t agree, it’s apparent that even they don’t know what the law is. If the Supreme Court doesn’t know what the law is, how can you reasonably claim to know whichever opinions on the law are right and which are “wrong as wrong can be”?
Your argument that no law professor has written about this hypothesis is semi-reasonable, but not convincing. The fact that there were no articles written about the Grand Canyon in the 1500s did not prove that the Grand Canyon did not exist. The fact that the law professors had not written any articles about the “man or other animals” defense I drafted in A.D. 2006 does not prove that that defense was “wrong as wrong can be”.
The Supreme Court regularly comes out with new opinions that overturn previous law or recognize legal principles that have previously been unrecognized or even unsuspected. Even if the Supreme Court hasn’t expressly recognized my hypothesis as valid, who’s to say that the Supremes won’t recognize it as valid tomorrow or next year or even next decade?
Not me. Not you, either.
The truth is that the law is a form or martial arts. Every court case is a fight, not a debate. Anyone can win in a particular court case. Sometimes the powerful win; sometimes the weak. Sometimes the good prevail; sometimes the wicked.
In the end, the law isn’t fixed in stone. Instead, it’s as rowdy and unpredictable as a crapshoot. Even when the dice are loaded, they sometimes turn up in ways no one—not even professors of law—could predict.
I can’t yet prove that the “this state” vs The State hypothesis is true. That’s why I typically refer to that idea as an “hypothesis”–to remind readers that the idea is unproven. But, if I can’t prove it’s true, you still can’t prove it’s false by simply saying it’s “wrong as wrong can be”.
Again, I’m drawn to the seeming oddity that, despite the Article 1.10.1 mandate for using gold and silver within the States of the Union, we haven’t had any gold of silver in domestic circulation for at least 45 years. I read that dichotomy as evidence that today’s “state governments” are something completely different from those of the States of the Union. If that’s true, then there are (at least) two kinds of “states” that we might be presumed to be inhabiting: one within a State of the Union (a State of The United States of America), and the other outside the Union and a “state of the United States”.