Saturday, August 24, 2013

In Search of Mr. Jefferson’s Liberty
I was asked to prepare a talk on the topic of “Jeffersonian Liberty” for Brock’s October PATCON.  I decided to publish ahead of the gathering. 

 Read and reflect at your leisure, as I may abstain from doing a formal talk.  I don’t enjoy public speaking, but I do plan to be in Tarboro on Saturday.

 Permission to republish is granted IF AND ONLY IF the References list is retained in its’ entirety.  This paper is a novel presentation of thoughts assembled from various authors.  There is very little original content, but it is absent traditional formal footnotes to the sources in the References list.
The welfare state and rules ‘malum prohibitum’ chafe upon our life, liberty and property.  We seem to find easy agreement regarding things that offend us.

The question “What binds us together” has been more difficult to address.  Prior to the Spring PATCON, a small group of us met and failed to agree upon a formal explanation for the purpose of an armed Muster.

That discussion led to conversation about the absence of an agreed description for a vision, a desired end-state that could be embraced by all in the liberty movement.

The meeting broke down over my proposal to adopt Jefferson’s’ definition of Rightful Liberty as the goal, the compelling vision for Patriots.

“Rightful Liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.  I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”   
~ Thomas Jefferson

Rightful Liberty received more challenge than constructive debate.  Objections were raised: the definition of liberty has evolved over time; our society is no longer a moral Christian people.  While these observations are valid, they are a distraction.  We cannot enforce the definition of a word any more than we can dictate religious doctrine to our neighbors.  We must look for a solution that can work within our current circumstances.

We are individuals engaged in an outreach program – ‘organizers’ in the Patriot community.  We are dealing with people who struggle to balance autonomy and community.  A very real antagonism exists between liberty and authority.

Recently, a question arose over whether to include or exclude a particular ‘group’ at the PATCON.   

There was no clear criteria by which a decision could be made.  Both the attendees and organizers wish to exercise free choice regarding associations.

Freedom, for a man in nature, is action according to his will regardless of outcome or consequence.  Liberty is different.  Liberty is action disciplined within a social context.

In conducting my research on Mr. Jefferson’s concept of liberty, I learned some things that were unexpected.  I reached some conclusions that are hard to dismiss.


Disunity and lack of cohesion is a survival problem for the Patriot community.  Our isolationism is a natural consequence of “individualism”.  Collectivism and tyranny are our ‘common enemies’.  Attempts to “restore the Constitution” have failed to restore liberty.  A compelling vision for a desirable end-state is absent.

An individual is a natural person, a human being, as opposed to a legal person (e.g. a corporation).  Fundamental human rights are implicitly granted only to natural persons.

Prior to the American Revolution, John Locke, the philosopher of individualism, created “a passable explanation – perhaps one may call it a myth – to account for the existence of individual rights” (Russell Kirk).  “All men are created equal” was a conclusion from postulating the existence of ‘mental substance’, or soul, which accompanies the ‘material substance’ of each human body from conception.

Rights attach to the individual and are recognized as pre-political in character.  Locke’s’ prescription for human interaction derives from natures laws and describes liberty in ‘negative’ or restrictive terms.  This created limits upon monarchial or democratic principles for the purpose of protecting minorities – preventing tyranny of the majority.

 “… each man joins in society with others for the mutual protection of his life, liberty and estates…”  “The … chief end … of men uniting into common wealths, and putting themselves under government, is the preservation of their property.”   
- Locke

Locke’s philosophy was embraced in our Declaration of Independence.  He influenced the checks and balances in our Constitution.  His concept of unalienable rights led to a ‘charter of negative liberties’ which formed the first  ten Amendments – our Bill of Rights.

What should be the real goal of our “restoration” effort?  Should our effort be defense of the Bill of Rights, restoration of the original intent behind the Constitution, or reclamation of our Rightful Liberty as understood in the Declaration of Independence?

Jeremy Bentham, an English contemporary of the American Revolution commented on law, stating: “Every law is an infraction of liberty”.

If we turn to legislative action to restore liberty, how are we different from “statists” and tyrants who coerce others to adopt their preferred culture, norms and behaviors?  People who resort to statutory law and regulation are using force to manipulate other people for their own purposes.


Accept the facts of our current reality and ‘engineer’ a solution.  Begin with the individual as the fundamental unit of human value.  Work to diminish the power and control of the collective and the tyrant.  Abandon legislative action as a means to guarantee liberty, as legal structure is only a mechanism to control others.  Establish conditions that encourage a desired end-state.

“Force and conquest, in England as elsewhere, constituted the actual cement of society …”  - Russell Kirk, intro to Lockes’ 2nd Treatise on Civil Government

At the conclusion of the American Revolution, the “cement” of the English monarchy had been eliminated and the “bricks”, the former Colonists, embraced a philosophy of individual sovereignty within the governance of their 13 independent Republics.

But if every human is an independent and sovereign entity, to what or whom do we submit?  

And WHY ?

In the United States as in England, the common law derived its legitimacy from obedience to a sovereign.  But in the States the people were sovereign.  They consented rather than submitted to the common law.  Courts transformed from being instruments of a single, distant, authoritative voice, into institutions belonging to the people, and operating by their consent.

Americans, more than the English, understood the common law to be the product of natural law and reason.  In the hands of the people it was no threat to liberty.
(Constitutional Rights in Common Law World – Tvrdy)

James Madison, however, (architect of the Constitution) believed that liberty required more than the mere absence of coercive authority.  His vision of Liberty as a personal, social, and political ideal was dependent upon the existence of certain affirmative social and political conditions.  For Madison, freedom required a social balance between diverse, often competing, social interests.  (Federalist Papers 10 and 51)

Positive liberty was a form of collective regulation for a social and political world.  The Madisonian concept of democracy was a ‘popular government’ in support of ‘popular sovereignty’, but was fundamentally in opposition to individualism.  The distribution of power across groups and citizens was envisioned to check the influence of minority factions.  

Consequently the rights of the “smallest minority”, the individual, were at risk.

The Constitution was designed to not operate directly upon individual persons.  Most ratifying conventions hoped the “more perfect union” would be a minimal structure, to facilitate Jefferson’s’ procedural and instrumental legislation among the several States.

The first ten Articles of Amendment to the Constitution attempted to guarantee that natural rights of individuals would not be violated by the newly created general government.  The language in the preamble to the Bill of Rights made this very clear:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: …”

Liberty was doomed by the time the Convention of 1787 had concluded.  This statement may seem to conflict with the adoption of the Bill of Rights in 1791, but in fact the BoR was an attempt to breathe liberty back into the corpse of a confederation subsumed by the new national government.

The initial influence of the new “general government” was small, however, and at the local level the people lived their lives under common law and enjoyed their “rightful liberty”.

Jefferson dismissed the “overarching social interest” expressed by Madison, stating “The rights of the whole can be no more than the sum of the rights of individuals.”  From Jefferson’s’ perspective the Constitution made no provision against the destruction of liberty by factions.

What might the product of the convention of 1787 have looked like if Jefferson had not been exiled to France?  What do we need to live more like Jefferson?


Articulate a vision of liberty for free minds and free markets.  Embrace individual sovereignty and act in a consistent manner.  Reject all collectivism and repel coercion from any source.  Withdraw consent from legislative jurisdiction.  Seek voluntary collaboration with other free men.

At the time of Jefferson, common law was the form in which Natural law was expressed and presented in the courts.  It was the ‘operational’ basis of John Locke’s’ formal and abstract statements of political philosophy.

Jefferson integrated a Lockean description of negative rights into his understanding of common law and social interaction.  He grouped rights into two categories:  natural and unalienable – inherent in man, derived from natures’ laws; and procedural or instrumental –to preserve free government, issuing from affirmative law.  An example of the first is freedom of religion; an example of the second is freedom of the press.

“Affirmative” legislation evolved to become a mechanism to provide benefits to those who consented to participate in society.  Legislative law however should never violate natural law.  Any positive law that violates natural law is a void law, regardless of the excuses or arguments made for its’ need. [Note]

An unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void and ineffective for any purpose.  No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.  (16 Am Jur 2d, Sec 177 late 2d, Sec 256)

The ‘bad seed’ of affirmative legislation had been planted.  A few generations after the introduction of positive liberty came the Progressive idea that rights did not need to be regarded as pre-political checks on democratic process.  Rights could be generated by affirmative legislation.

After 200 years of progressive, affirmative legislation, we live in a world of entitlements where the government expects you to believe that individual and unalienable human rights are subject to legislative enactment.  Once the transfer from faith in God to reliance on the State had been accomplished, natural rights are no longer relevant.

The contemporary result is that men are now forced to pay for “social benefits’ (e.g. Affordable Health Care Tax).  We are bound in involuntary servitude, even though such action is expressly forbidden by the Thirteenth Amendment to our Constitution. [Note]

The decision whereby Chief Justice John Roberts declared Obamacare a “tax”, and therefore ‘constitutional’, puzzled me greatly until I discovered a passage in an obscure Senate publication from 1933 (Contracts Payable in Gold, top of pg 13):

“The ultimate ownership of all property is in the State; individual so-called “ownership” is only by virtue of Government, i.e. law, amounting to mere user; and use must be in accordance with law, and subordinate to the necessities of the State.”

This short passage exposes the perverse logic of how governments extract rent called “property tax” from people who hold no mortgages.  And by extension, the tax called “Obamacare” is justified as a form of rent for the continued use of our physical persons – a property ultimately owned and operated by the State, not ourselves.

I am not sufficiently knowledgeable to provide advice regarding how to withdraw consent and challenge legislative jurisdiction.  But I am persuaded from my research that there are no legislative bodies in America that have any authority to make laws, rules, or regulations that can be forced upon any free individual – absent his consent.

Any tacit consent that violates the rights of individuals is the result of fraud and deception. [Note]  This is the point of departure from which we must reclaim liberty


Recover Rightful Liberty through restoration of common law.

The common law is understood through “maxims of law”.  These are foundational principles which cannot be lawfully violated.  They are statements grounded in logic, reason, common sense, and truth.  Lists of maxims are published and available.  A few examples will suffice here: [Note]

  • A man cannot give any thing, power or authority he does not have
  • No one has the right to force an obligation on another with impunity
  • The people, as individuals, in America are sovereign
  • In America the government is the servant of the sovereign people
  • Truth is paramount and the objective of the rules of law
  • Might does not make right
  • Thou shall not steal
  • Thou shall not bear false witness
  • A person is innocent until proven guilty
  • All presumptions of law are rebuttable
  • Written law cannot lawfully or morally violate rights of a free man
  • Force, perjury, or subornation of perjury, voids all
The third Maxim has been a source of much debate over the years.  Is sovereignty an attribute of an individual, the people as a body politic, a State as a member of the Union, or the general government?

Article IV, section 4 of the Constitution states: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

A Republic is a government in which supreme power is held by citizens entitled to vote and is exercised by elected officers and representatives governing according to law.

Our guarantee of a Republican form of government does not ascribe sovereignty to the States.  Sovereignty was not delegated to the general government in the limited grant of powers enumerated in Article 1 Section 8.  The supreme power, sovereignty, is retained by the people to be exercised through delegation to officers.

A citizen, as an instance of ‘the people’, has placed himself in the service and legislative jurisdiction of a government in return for protections and benefits.  This involves an explicit or implicit consent which allows for encroachment or infringement upon rights.

Ultimately all powers derive from the sovereignty of the individual who may at any time withdraw consent and resume the direct enjoyment of all rights and prerogatives.

As a consequence of the first Maxim, a man at liberty under common law should be able to directly exercise the same powers that he delegates to government.  No officer in our current governments would acknowledge this possibility or tolerate the act.

At liberty under common law, with a strict adherence to natural law, an individual may do with his actions, possessions, and persons, anything he may see fit, without the consent or approval of any other individual, government, or human power.  [Note]

The laws of nature only constrain him insofar as he may not create damage, violate the liberty or possessions of other, or create an obvious danger.  This is known as living within the common law of the land. [Note]

DHS and local law enforcement have labeled men at liberty “sovereign citizens” and claim they are a threat to peace and order – enemies of the state.  The label is an oxymoron as a citizen has ceded sovereignty, and a sovereign is not bound by the obligations of citizenship.

LEO warns of anarchy and attempts to scare people from seeking and achieving Rightful Liberty.  

People must be educated to understand that anarchy does not happen because people violate statutory or positive law – regulation and malum prohibitum.  Anarchy only happens when people violate natural law.  [Note]

Logic dictates that when the maxims of law are followed, truth, justice and fairness prevail in a high percentage of cases.  It is virtually impossible to manipulate maxims of law in order to create fraud or injustice in the way an attorney can manipulate statute and regulation to cause confusion and create injustice. [Note]

So let us reflect on the problems facing our Patriot community.

What is the primary difference today between the ‘community organizers’ who are collectivists and our efforts as individualists to organize the Patriot community?  Collectivists embrace legislative force to achieve their “ends”; individualists rely upon voluntary cooperation.

Voluntarism among individuals may result in a loss of certain liberties (sovereignty), but voluntarism is elective and reversible.  The Constitution was ratified by voluntary actions of representatives of nine States and, at the time, none believed their decision was irrevocable.

Can patriots learn from community organizers to achieve our goals without intrusion upon rightful liberty?  Any contemporary statist, whether they call themselves Republican, conservative or constitutionalist, who endorses the use of force by the state to deliver goods and services or otherwise achieve social / political / financial outcomes, is using collective power to enslave individuals.

Over the course of the 19th and 20th centuries, government and the courts have engaged in silent judicial encroachment.  They presume that all citizens have submitted their private lives, affairs, and property to the domination of government.  By this presumption of law men are obligated to abide by, and be obedient to, legislation. 

We have been conditioned since birth to accept and consent to some form of man made authority.  Our founding fathers never dreamed that the people of today would accept feudalism without concern. [Note]

The question each of you should be asking yourself at this moment is: “Given the American proposition that sovereignty resides in the people, as individuals, from where did any legislature acquire the supreme right to make laws that can force obligations and violate the rights of private people?” [Note]

The act of withdrawing consent removes the obligation to submit to legislative authority.
Withdrawal of consent restores all that was compromised or aliened by the former social compact, parts of which were clearly implemented by fraud.

In so doing, men become morally free to resist all forms of coercion with retaliatory force – in all domains of life.  To the extent of one’s courage, any man may once again enjoy rightful liberty.

“Rightful Liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.  I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”    
~ Thomas Jefferson

The law that is often “but the tyrant’s will” is that affirmative legislation and regulation enacted to wrest control our lives, liberties and estates and fix them under legislative jurisdiction.

A return to common law is a necessary prerequisite to restore Rightful Liberty, the object and desired end-state of all free men.

Our task is to learn and practice common law among ourselves, and in defense of encroachments by collectivists and their presumption of law.

A focus on common law and Rightful Liberty will direct our attention toward what we value, and minimize “division” within the Patriot Movement.

I may continue to pay tribute /taxes to the governments that claim jurisdiction over me – but I do so at present under protest and duress.

I have begun to withdraw my consent …

Hans Mentha
on a quest to live in Rightful Liberty in the NC woods
24 August 2013

Quotes in closing:
“One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation.” 
 – Thomas B. Reed

“Anarchy does not happen because people violate written or positive law.  Anarchy only happens when people violate natural law.”  
– Robert Hart

“I am free, no matter what rules surround me.  If I find them tolerable, I tolerate them;if I find them too obnoxious, I break them.  I am free because I know that I alone am morally responsible for everything I do.”   
 - Robert Heinlein


Of Civil Government – 2nd Treatise, John Locke
Gateway Edition, 1955, 1971 – Introduction by Russell Kirk

Challenge Jurisdiction: Shifting the Burden of Proof

Citizen / Slave: Understanding the American Sovereign Spirit – Robert Hart
[Note] I have used numerous sentences from this book, and paraphrased others, as their inclusion suited the theme of this paper.  I believe my excerpts are legitimate under “fair use” and create no damage in common law to the intellectual property or the economic well being of the author.  Full credit is given and the absence of traditional detailed footnotes should not be construed as intent to plagiarize.  The commercial link below the book title is a good faith gesture to strengthen the economic interests of the author.
Common Law and Uncommon Courts

Common Law Court – Rules of Procedure

Common Law Practice

Constitutional Rights in a Common Law World

Contracts Payable in Gold – George C. Thorpe, US GPO 1933

Defining Liberty and Authority

Favorite Jefferson Quotes

Forced Consent – Lysander Spooner

Is The Founders’ Intent Gone Forever?

Freedom and Liberty Defined

Henry Thoreau and ‘Civil Disobedience’

John Locke: Natural Rights to Life, Liberty and Property

John Stuart Mill – On Liberty

Lockes’ Political Philosophy

Malum Prohibitum: The Evil Legal Language of Progressivism

Maxims of Law – 1852 Law Dictionary, John Bouvier

Path to Freedom

A Quest to Pursue Rightful Liberty

The Provenance of Liberty and the Evolution of Political Thinking in the United States

Sovereignty Education and Defense Ministry (SEDM)

A Third Theory of Liberty: The Evolution of Our Conception of Freedom in American Constitutional Thought

What Would Free Men Do ?

Who Are We ? What Holds Us Together ?

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