Half of the Federal Laws Do Not Apply to All Americans: Explaining Positive vs. Non-Positive Law

Table of Contents

Part I: The Ninth and Tenth Amendments, and Dual Federalism

Part II: Positive Law vs. Non-Positive Law

Part III: Additional Resources

Content

Part I: The Ninth and Tenth Amendments, and Dual Federalism

     It would seem absurd, at first, to suggest that about half of the federal laws do not apply to all Americans. But considering the text of the Tenth Amendment, it should come as no surprise.

     Amendment X to the Constitution for the United States reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

     Many Democrats, and people on the left, will argue this is a “states' rights” perspective - and that this perspective is outdated, useless, and not favored by the current Democratic administration- and use this line of reasoning to conclude that Congress and the national government must reign supreme over nearly every issue. This argument is incorrect, however, and the Tenth Amendment remains the law.

     Furthermore, this is not necessarily a “states' rights” perspective, or at least it is not solely a “states' rights” perspective. The Tenth Amendment guarantees that powers are reserved to the states “or to the people”. “States' righters” and populists both benefit from the Tenth Amendment.

     This populist view is perfectly valid in and of itself, as well, since the Ninth Amendment appears to suggest that our rights don't come from the Constitution, and don't even come from the law. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

     Basically, the fact that not every right is listed in the Constitution, doesn't necessarily mean that that right doesn't exist. Your rights are so numerous that the Constitution couldn't possibly name all of them.

     The Ninth Amendment also suggests that the people's freedoms supersede the needs of our states, if the people wish to refrain from making state-level statutes on all possible policy issues. If our rights don't come from the Constitution, nor from the law, then doesn't our right to thrive necessitate that we have a trade or engage in some sort of work?

     If the state licenses every profession, then those of us who wish to distance ourselves from the state, or boycott it, are reduced to hunting, foraging, and fishing in order to survive. We can survive, but not thrive, if every single profession is regulated by a state-level professional regulation. That is why it is necessary to nullify the states', and the federal governments', supposed authorities to regulate our lives and the way we make a living.

     This is why it is necessary to discuss the Tenth Amendment. I'm not the person who decided to start calling that “the states' rights amendment”, and I wish that it had never been called that. Before and during the Civil War, the State of Wisconsin, and other abolitionists, cited the Tenth Amendment, Jeffersonian nullification, and jury nullification, to oppose the enforcement of the Fugitive Slave Act. The Tenth Amendment can be used as a tool of states to enforce their order, and it can be used to free large numbers of people from slavery and from control of the federal government at the same time.

     The Tenth Amendment was added to the Constitution specifically to prevent the federal government's size and scope from expanding too much. Critics of the amendment may argue that limiting the federal government's power breeds corruption, but term limits are a form of limitations upon government, and many opponents of the Tenth Amendment agree with term limits.

     Limited government, and the Tenth Amendment, are useful, because they help separate national affairs from state and local affairs, and separate national affairs from the people's own business. At least that is what the Tenth Amendment was intended to achieve.

     The concept of dual federalism is that, as it pertains to regulation, the spheres of influence over certain policy topics are split between the federal government and the states. The federal government's powers are specifically enumerated in Articles I through III of the U.S. Constitution – with Congress's powers listed in Article I – while all those powers not mentioned therein, are reserved to the states or to the people.

     Ignorance of the contents of Article I Section 8 – the "Enumerated Powers"; that is, the specifically authorized powers of Congress – has led us to believe that Congress has powers that it simply does not have. These include the supposed powers to regulate the following policy topics at a national level:

- health / Medicare & Medicaid
- energy
- the environment (E.P.A.)
- retirement / Social Security
- welfare
- child support
- federal income taxes
- housing and urban development
- banking (aside from bankruptcies)
- immigration (aside from establishing a uniform rule of naturalization)
- building interstate highways
- building Post Offices
- management of lands outside the District of Columbia
- protecting patents whose durations are routinely increased
- the wages and union negotiations of people not employed by the federal government

     None of these things are authorized by the Constitution, if you read Clauses 1 through 17 of Article I Section 8 as what it is, a list of all powers which have been specifically granted to Congress.

     The following list is a summary of the powers which Congress has:

 - the power to regulate the military
- the power to coin money and regulate its value
- the power to establish post roads
- the power to establish a uniform rule of naturalization
- the power to lay and collect taxes (within certain limits) and borrow money
- the power to regulate interstate commerce with foreign nations, among the states, and with the tribes
- the power to establish tribunals and courts
- the power to protect patents for a limited time
- the power to punish piracy and felonies committed on the high seas
- authority over lands purchased by the government (mostly for reasons essential to national defense)

     This is not an exhaustive list. Please see the original text of Article I Section 8 for the full list of Congress's powers.

     The president and the Supreme Court also have their own powers which I have not mentioned here.

     When the Tenth Amendment says all powers not delegated to the United States by the Constitution are reserved to the states or the people, it means that all powers not specifically mentioned in Article I (Legislative Branch), Article II (Executive Branch) and Article III (Judicial Branch) are just that: reserved to the states or to the people.

     This means that the first list that you see above, is a list of policy topics, and problems, which are supposed to be regulated, and solved, by the people or their state governments; not the federal government. Also, it means that the second list consists of what the federal government is allowed to do and the states are not allowed to do (except for the power to lay and collect taxes, which both are allowed to do).

     What this all means is that, whenever the federal government is attempting to enforce a law on health, environment, education, retirement, welfare, etc., it is actually breaking the law (the law I'm referring to, being, of course, the Constitution, and specifically Amendment X). The federal government is in violation of the Tenth Amendment – which is both a law and a limitation upon the federal government's ability to create law – whenever it tries to enforce acts of Congress which pertain to that first list of policy topics.

     But the point of this article is not to focus primarily on the Ninth and Tenth Amendments, nor on the delineation that is supposed to exist between the national government and our state governments. I have included this information only for its use as a review of the background for the point of view that approximately half of federal laws are not binding upon all Americans.

     It is necessary to review the Ninth and Tenth Amendment – and dual federalism, and how they limit Congress and the rest of the national government – to illuminate us as to why this radical view should be acceptable in the first place.

     It is one thing to assert that the Ninth Amendment, the Tenth Amendment, and dual federalism still hold meaning and value in today's society; in 2021, nearly 250 years after the Constitution was ratified. But it is another thing to prove that these laws on health, environment, welfare, and retirement were never constitutional, and never binding law upon all Americans, in the first place.

     But we can prove that that is the case, through the study of the difference between positive law and non-positive law; and then, by understanding which sections of U.S. Code are positive law, and which sections are non-positive law.

Part II: Positive Law vs. Non-Positive Law

     Positive law is called positive law because it posits something. That is, it takes a position that somebody is obligated to perform a positive action. Positive law is law that obligates people to do something.

     Positive law is binding upon all Americans, and the set of sections of U.S. Code which are positive law, include those which outline how the military is supposed to behave, and how the flag is supposed to look, and other things related to basic official duties of the government, as a government.

     Non-positive law, on the other hand, is law which does not obligate people to do anything, unless they are part of a certain class of people. Unless you elect to engage in certain behaviors – such as committing federal crimes like piracy or treason, or earning income which is legally taxable by the federal government – then the law in question does not apply to you.

     If you belong to a federally protected group of people, or a certain class of people which is obviously under the national government's regulatory purview and protection (such as the military, and all federal workers), then sections of the U.S. Code which are non-positive law, may apply to you.

     The reason why all American workers didn't get their wages increased to $10.10 an hour, after President Obama appeared to call for that, is because the federal government can't raise the wages of people it doesn't employ, except for those employees whom are covered under the federal government's minimum wage law protections as outlined in the Fair Labor Standards Act of 1938 (F.L.S.A.).
     State governments decide whether state employees get raises, and private entities decide whether their employees get raises. Additionally, state governments are free to set their minimum wage rates higher or lower than the federal government's, and this is completely legal and constitutional.

     A new federal minimum wage raise has been projected to affect only 0.2% of non-tipped workers, which is less than 1 in 500 workers considering that tipped workers exist as well. So why, if far less than one percent of American workers will be affected, are people jumping up and down at the thought that they're going to get a raise?
     Could it be because they're reading articles such as the one below? Author David Cooper claims that raising the federal minimum wage to $15 by 2025 would "lift wages for 33 million workers". That is probably true; if the federal minimum wage were to apply to all American workers, which it doesn't. Mr. Cooper evidently made his projection based solely on mathematics and his own hopes, without allowing the issue of which workers the federal minimum wage pertains to, to enter into the equation.
     http://www.epi.org/publication/minimum-wage-15-by-2025/
     The Wikipedia entry for "Minimum wage in the United States" says, "Employers generally have to pay workers the highest minimum wage prescribed by federal, state or local laws." However, that sentence does not have its own source. Furthermore, not only are states free to set lower minimum wages than the federal government's minimum wage; two states are still doing it (Georgia and Wyoming). Additionally, five states have not even adopted a state minimum wage: Alabama, Louisiana, Mississippi, South Carolina, and Tennessee.

     This is happening because not all American workers are subject to the wage protections to which the federal minimum wage laws pertain. Only the lowest-paid federal workers, and the lowest paid workers covered under the F.L.S.A. will see their wages increase, if the federal minimum wage increases.

     Read this table about minimum wage laws in the United States. Under "jurisdiction", next to "federal", you will see that it says "Fair Labor Standards Act". This is because only the workers covered under the Fair Labor Standards Act are the ones who are subject to the federal minimum wage law protections.
     http://www.dol.gov/agencies/whd/state/minimum-wage/tipped

     When Obama called for a $10.10 minimum wage, he was referring to the Minimum Wage Fairness Act, which Tom Harkin proposed and co-sponsored in 2013. Harkin was the sole co-sponsor, so it's likely that Obama's support - and maybe even Harkin's as well - were intended solely as symbolic moves. The Minimum Wage Fairness Act never passed. The current federal minimum wage is $7.25, the same as it has been since July 2009 (Obama's first year in office). Obama subsequently supported an increase of the federal wage to $9 per hour.
     The Minimum Wage Fairness Act would have amended the 1938 F.L.S.A. if it had been passed and signed into law. The entry for the Minimum Wage Fairness Act on www.congress.gov is available at the following link:
     http://www.congress.gov/bill/113th-congress/senate-bill/1737

     The article "Who is Covered by the Fair Labor Standards Act?" is available at the following link: http://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter2-2.html#:~:text=Employers%20Who%20Are%20Covered,law%20covers%20nearly%20all%20workplaces.
     In that article, author Barbara Kate Repa explains that there are two classes of workers, as it pertains to the F.L.S.A.: 1) workers whom are exempt from the F.L.S.A.; and 2) workers whom are not exempt from that law.
     Repa writes, "The FLSA applies only to employers whose annual sales total $500,000 or more or who are engaged in interstate commerce. You might think that this would restrict the FLSA to covering only employees in large companies, but in reality, the law covers nearly all workplaces. This is because the courts have interpreted the term interstate commerce very broadly"
     Repa's observation should come as no shock to anyone who has read my previous essays about the overly broad interpretation of the interstate commerce clause (which I have written about the most in reference to national health insurance policy). Repa continues: "courts have ruled that companies that regularly use the U.S. mail to send or receive letters to and from other states are engaged in interstate commerce. Even the fact that employees use company telephones or computers to place or accept interstate business calls or take orders has subjected an employer to the FLSA."
     Repa continues, "A few employers, including small farms--those that use relatively little outside paid labor--are explicitly exempt from the FLSA."
     The preceding facts should establish the following: 1) some employees are explicitly exempt from the F.L.S.A., and hence, the federal minimum wage protections; and 2) there are some employees who are currently being covered by the F.L.S.A. and its wage protections, who wouldn't be subject to those protections if the interstate commerce clause were not interpreted in the overly broad way that it is now.
     These facts affirm that it is only due to the misinterpretation of the Constitution that certain federal laws on domestic policies are thought, and are being held, to do things they are not explicitly authorized to do, and which they arguably never had the appropriately delegated authority to do in the first place.

     The preceding facts should make it clear that the claims that the federal minimum wage law still applies in these seven states, hinge on two flawed notions: 1) that all workers are covered by the federal law which outlines the federal minimum wage; and 2) that the federal government can make its own minimum wage laws applicable upon workers only tangentially engaged in interstate commerce (and not even physically) in states which are exercising their Tenth Amendment recognized authority to set wages as they please.
     The federal minimum wage law does not apply to all workers. Thinking that it does, lulls us into a false sense of security about our corrupt government. It only buys our corrupt government more credit, and a little more time to keep fooling around behind the scenes, before we realize it is not working in our interests.

     The F.L.S.A. amended Section 29 of the U.S. Code, which pertains to "Labor". Section 29 is non-positive law. It only applies to certain groups of people, based on their industry, profession, location, or federally protected status. Just like the federal laws on hospitals (found in Section 24), environmental conservation (Section 16), agriculture (Section 7), education (Section 20), retirement (Section 42), and other titles of non-positive law which also "happen to be" topics that aren't specifically mentioned in Article I Section 8 of the U.S. Constitution.

     Our ignorance on the law has led us to assume that the federal government has powers that it simply doesn't have. We have allowed the federal government to promise to do things for us which it is incapable of doing, and which it is literally illegal for the federal government to do (because it's not explicitly authorized by the Constitution).

     This is happening because we don't understand the Constitution, and don't read it anymore; and because most of us have never heard of positive law and non-positive law.

     Acts of Congress are not automatically law just because they are passed by both houses. The president needs to sign it into law, or else Congress has to override the president with a supermajority. Additionally, the Supreme Court has to refrain from declaring it unconstitutional.

     But another step has to occur before that act of Congress can become part of the positive law. It has to be enacted.

     According to us.code.house.gov, every title in the U.S. Code, which is in a section of the code that is positive law, is a federal statute. Each one of those titles has been enacted, as a whole, by Congress, because, in a way, Congress regards it as complete. This is to say that a statutory text which appears in a positive law title, is regarded as having Congress's “authoritative imprimatur”(seal of approval) with respect to the wording of the statute.

     When Congress enacts positive law titles, the original enactments are repealed. One reason for this is that it is not necessary to include things like enabling clauses in the actual set of applicable laws; this would make the U.S. Code even longer than it already is.

     It is not the act of Congress which is being enforced; what is being enforced is a federal statute based on the original act of Congress that changed the law. Each new act of Congress which doesn't create a new section of federal statutes in the U.S. Code, must necessarily amend some certain previously existing section of the code. This means that turning a section of the code from non-positive law into positive law, is probably a very detailed and time-consuming process.

     It has been said about the U.S.A. P.A.T.R.I.O.T. Act, that it is a law which it would take weeks and weeks to read, because you have to have the entire U.S. Code in front of you in order to understand it. The Patriot Act includes numerous references to very specific parts of the code, and details the changes which are to be made to that code.

     In July 2018, legal blogger Sam Wice explained positive vs. non-positive law for a blog called Notice & Comment, which is billed as “A blog from the Yale Journal on Regulation and ABA [American Bar Association] Section of Administration Law & Regulatory Practice.”. In his July 25^th, 2018 article “When to Refer to the U.S. Code Versus the Underlying Statute”, Sam Wice wrote, “This year, the Office of the Law Revision Counsel has prepared for Congress a bill to enact Title 6 of the U.S. Code as positive law.”

     Well, what is Title 6 of the U.S. Code? That happens to be the section on “Domestic Security”! It seems clear, based on these facts, that the Patriot Act was a massive reorganization of domestic security laws, which paved the way for the transformation of Title 6 on Domestic Security from non-positive law into positive law.

     The following 26 sections of U.S. Code are positive law:

- Section 1. General Provisions
- Section 3. The President
- Section 4. Flag and Seal, Seat of Government, and the States
- Section 5. Government Organization and Employees (incl. Federal Advisory Committee Act)
- Section 9. Arbitration
- Section 11. Bankruptcy and Bankruptcy Rules
- Section 13. Census
- Section 14. Coast Guard
- Section 17. Copyrights
- Section 18. Crimes and Criminal Procedure, incl. Unlawful Possession or Receipt of Firearms
- Section 23. Highways
- Section 28. Judiciary and Judicial Procedure
- Section 31. Money and Finance
- Section 32. National Guard
- Section 35. Patents
- Section 36. Patriotic and National Observances
- Section 37. Pay and Allowances of the Uniformed Services
- Section 38. Veterans' Benefits
- Section 39. Postal Service
- Section 40. Public Buildings, Property, and Works
- Section 41. Public Contracts
- Section 44. Public Printing and Documents
- Section 46. Shipping
- Section 49. Transportation
- Section 51. National and Commercial Space Programs
- Section 54. National Park Service

     It is plain to see, from a comparison between this list, and the first list in this article (the list of powers specifically delegated to Congress), that the positive law titles consist of powers specifically authorized in Article I Section 8 (such as the various military powers, the monetary powers, copyrights, bankruptcy) and in the rest of the Constitution (such as the Census).

     The other topics mentioned, are there because they have been inferred as Congress's powers based on the Necessary and Proper Clause (such as the Postal Service section). Section 51 on National and Commercial Space Programs is probably justified based on the defense-related implications of the space program.

     This all seems to check out, with the exception of Highways and the National Park Service. Section 23 on Highways is likely justified based on the need to establish post roads, which arguably can be done without actually building those roads. The National Park Service is probably justified based on the need for the government to own lands essential to national defense.

     But aside from those two exceptions, it's easy to see how the vast majority of positive law titles derive from the set of powers specifically mentioned in Article I Section 8.

     It's also easy to see how the non-positive law titles do not derive from Article I Section 8, when you compare the names of the sections of non-positive titles of the U.S. Code against the first list in this article. When you compare it to the second list in this article - the list of policy topics which the federal government is not authorized to regulate, but does anyway as it pertains to certain classes of eligible people – it becomes apparent what is going on here.

     The federal government is attempting to enforce laws that were never authorized by the Constitution, and which the people don't want badly enough to bother enshrining it into the U.S. Code permanently (by either turning it from non-positive law into positive law, or passing a constitutional amendment which would authorize the Congress to have exclusive jurisdiction over a policy topic which the states previously had the authority to regulate).

     The following is a list of non-positive titles in the U.S. Code:

- Section 2. The Congress
- Section 6. Domestic Security
- Section 7. Agriculture
- Section 8. Aliens and Nationality
- Section 12. Banks and Banking
- Section 15. Commerce and Trade
- Section 16. Conservation
- Section 19. Customs Duties
- Section 20. Education
- Section 21. Food and Drugs
- Section 22. Foreign Relations and Intercourse
- Section 24. Hospitals and Asylums
- Section 25. Indians
- Section 26. Internal Revenue Code
- Section 27. Intoxicating Liquors
- Section 29. Labor
- Section 30. Mineral Lands and Mining
- Section 33. Navigation and Navigable Waters
- Section 34. Crime Control and Law Enforcement
- Section 42. The Public Health and Welfare (including Social Security, which includes child support titles)
- Section 43. Public Lands
- Section 45. Railroads
- Section 47. Telecommunications
- Section 48. Territories and Insular Possessions
- Section 50. War and National Defense
- Section 52. Voting and Elections

     [Note: There is not currently a Section 53 of the U.S. Code.]

     Given this list, it makes sense that non-positive laws only pertain to certain classes of people. Section 25 on Indians only pertains to Native Americans. Section 8 on Aliens and Nationality only pertains to immigrants. Section 2 on The Congress only pertains to the U.S. House and the U.S. Senate.

     It's easy to see how sections 7, 15, 19, 20, 21, 22, 24, 27, 30, 34, 45, 47, and 48 could pertain solely to certain classes of people and workers as well, and people in certain locations and industries. It's likely that a lot of the New Deal -era legislation ended up in Section 7 on Agriculture, Section 12 on Banks and Banking, Section 15 on Commerce and Trade.

     In all federal and state courts, positive law titles constitute legal evidence of the law. Non-positive law titles, on the other hand, have only “prima facie” evidence of existing. This is to say that the evidence only exists on the face of the law. These laws exist in name, or on paper, only. Prima facie evidence is evidence which would be sufficient to prove a particular proposition or fact, unless that evidence is rebutted.

     According to the U.S. Code website, “A non-positive law title of the Code is prima facie evidence of the statutes it contains”. This means that a non-positive law title of the U.S. Code is not exactly permanent and enacted law, but more accurately it is evidence of a law. On its face, it is evidence that a law has been passed; i.e., an act of Congress. But acts of Congress are sometimes declared unconstitutional. And just because an act of Congress hasn't been declared unconstitutional yet, that doesn't mean that it won't.

     Non-positive law titles are the law, but they are only the law until it is proven otherwise. Again, the Tenth Amendment is a law, but it is also a limitation upon the federal government's ability to create new laws. Proving that certain federal laws are unconstitutional, will prove that it was never legal for those to exist in the first place. Once an unconstitutional law is proven unconstitutional, it's as if it never existed in the first place. That's certainly how it feels when the Supreme Court declares a law unconstitutional. The people simply stop observing the law, and it ceases being enforced. Nobody has to suffer through that unpopular, unconstitutional law any more.

     The American people have every right to demand that all federal laws which are unconstitutional, be recognized as such by all courts from now on. And the American people have a right to fight to transformation of non-positive law into positive law, because that means making more laws obligatory upon all Americans, and it risks permanently expanding the size and scope of the national government.

     They have been passed by Congress, but they pertain to only a certain group of people, such as those who are specifically protected, or those who elect to be affiliated with the federal government for purposes outside those listed in Articles I through III.

     For all other people, the federal law should not apply. Yet here we are, still having income taxes levied against us, using currency that's backed by neither gold nor silver, and allowing the federal government to trample upon our states' authorities to regulate their own domestic affairs.

     In effect, federal laws on health, retirement, education, welfare, etc. are encroaching upon the limited sovereignty which the states are supposed to be exercising. The states are supposed to be sovereign in those policy spheres, while the federal government is sovereign on money, mail, military, and other things. The federal and state governments are supposed to be “co-equal sovereigns”. Yet they cannot be so, if the federal government is “stepping on the toes” of the state governments, and making it impossible for states to regulate their own domestic affairs without being pressured to accept federal funds and federal laws.

     These laws should therefore be considered null and void. They should be considered “waiting to be declared unconstitutional”. Not all Americans are obligated to obey federal laws pertaining to policy topics not specifically mentioned in the Constitution.

     Here are some more facts about what, specifically, it means, for something to be a non-positive titles of the U.S. Code:

     - Non-positive law titles of the Code are compilations of statutes.

     - The Supreme Court may deem – or has deemed – provisions of non-positive titles, to be inaccurate descriptions of the law (which is why the original enactments are repealed when non-positive law becomes positive law).

     - Non-positive law titles might not constitute legal evidence of the law in all federal and state courts, but only in some courts. If a court deems Congress's seal approval with respect to the wording of the statute in question, to be either nonsensical, unenforceable, or not authoritative, then that court should be able to declare that the prima facie evidence that the law exists, is not sufficient or important enough that it should be considered a law. [Note: This is basically a description of Jeffersonian nullification, the process by which a state nullifies a federal law.]

     - A non-positive title of the U.S. Code is comprised of many federal statutes, which have been enacted individually, and have been compiled and organized into the title.

     - A non-positive title of the U.S. Code has not yet been enacted.

     If a non-positive title of the U.S. Code hasn't been enacted yet, then it is not the law yet. Courts are still free to deem it as unconstitutional, and treat it as if it were not the law.

     The American people have every right to allow unconstitutional federal laws to lapse into non-enforcement and desuetude (i.e., obsolescence and “unenforceability”). Non-enforcement of these laws is more desirable then their continued enforcement, but repealing them is the best outcome.

    For those federal laws which are clearly unconstitutional, and are unquestionably still being enforced, whomever has standing to sue, should file a lawsuit, and resist the continued application of laws which vast swaths of the country have long considered to have never been authorized in the first place.

     Such lawsuits must occur before the federal government's defenders begin to argue that “these laws don't need to be repealed, because they aren't being enforced anymore, and therefore they don't affect us anymore”. That is not good enough for us, and it is not good enough for our children to turn the federal government into a mousetrap that snaps their neck in two the moment their parents die.

     We must treat unenforced laws as if they could come back at any moment. Just as we should remember that registration for the Selective Service has not ended, and that therefore the military draft could come back at any time.

Part III: Additional Resources

     Please see the following articles, which I wrote, to learn more about how I believe that Article I Section 8 of the Constitution should be interpreted, and other background information which will help explain why I think many federal laws do not apply to all Americans:

- "How to Easily and Permanently Memorize the Enumerated Powers of Congress" (February 2020)
http://aquarianagrarian.blogspot.com/2020/02/how-to-easily-and-permanently-memorize.html

- "What is Congress Allowed to Do and What is it Not Allowed to Do (Without an Amendment)?" (January 2021)
http://aquarianagrarian.blogspot.com/2021/01/what-is-congress-allowed-to-do-and-what.html

- “Letter to Political Science Professor David T. Canon on Constitutional Law” (January 2021)
http://aquarianagrarian.blogspot.com/2021/01/letter-to-political-science-professor.html

     Please read the U.S. Code, and articles about it and positive and non-positive law, at the following links:

- http://www.yalejreg.com/nc/when-to-refer-to-the-u-s-code-versus-the-underlying-statute/

- uscode.house.gov

- http://libguides.stonehill.edu

- http://libguides.stonehill.edu/c.php?g=16657&p=92624

- http://uscode.house.gov/codification/legislation.shtml

- http://uscode.house.gov/codification/term_positive_law.htm#:~:text=The%20bill%20repeals%20existing%20laws,Code%20are%20compilations%20of%20statutes.

- http://cmlawlibraryblog.classcaster.net/2017/07/05/what-is-positive-law-and-why-should-you-care/

- http://en.wikipedia.org/wiki/Desuetude

- Michael Badnarik's Constitution Class
     http://www.youtube.com/watch?v=wp-48d_jSb4

Written on January 31st and February 1st, 2021

Edited and expanded on February 1st, 2021

Published on February 1st, 2021

How to Be Friends with a Libertarian: Protecting the 9th Amendment and Stopping the Regression of Freedom

      Most liberals - and many conservatives and progressives, too - like to justify depriving people of rights, based on the fact that some people lack rights, while other people are not using theirs.

     People like this will base their ideas about what we all should do, on the lowest common denominator of rights that somebody has. If one person lacks rights, then everybody else – so this line of logic goes - needs to have rights taken away from them, in order to make things equal. Or if a person tolerates one injustice, or has in the past, then they should tolerate other injustices in the future.

     They say, "If you need car insurance to own a car, then you should need health insurance because you own your body."

     Also, "If you take drugs from strangers, or eat McDonald's, then you should have no problem taking what's in the vaccine."

     Alternatively: "If you need a license to operate a car, then you should need a permit to operate a gun, because they're both deadly weapons."

     To that, I say "fuck that shit". The fact that you are wasting your freedoms does not mean that I have to give up mine.

     The idea that I should give one freedom up because I seemed to surrender another, is a false equivalency. In part, because it assumes that everybody thinks about rights, and connects them to each other, in the same way. It assumes that if they tolerate one thing, they should tolerate another. It assumes that people are ideologues who do and should behave predictably.

     What you see as me "surrendering a right" might just have been me making a decision. The only right you surrender, in the act of making a decision, is the right to know what will happen if you make a different decision. It does not mean your future decisions all have to be consistent, nor that they all have to conform to somebody else's ideas of consistent logic.

     The lines of logic used to justify this mode of thought do not even make sense. First, it's arguable whether we really "own" our bodies, or whether we are our bodies. Second, you can't avoid having a body as easily as you can avoid having a car or a gun.

     Third, a person has the freedom to put into their body anything they want, as long as they don't harm others. So if a person's feelings about drugs, food, and medicine do not conform to your preconceived notions about how a person should make decisions about health, then just remember... that is somebody else's body you are talking about.

     Mind your own business. If they want your advice on health or safety, then they will ask you for it.

     Moreover, there are about eight hundred toxic chemicals which are inside of our bodies right now, many of which are legal and F.D.A.-approved. Some came into our lungs after we breathed polluted air; others came from cheaply made consumer products. And some of them are more common and thus more difficult to avoid than others.

     Should the fact that I tolerate one toxic chemical (because I can't avoid it), mean that I should tolerate a second? What about a third? And so on, until I'm tolerating the fact that my body is full of 800 of them? Simply because I smoke weed, or take LSD at a festival, or eat Burger King every once in a while? Hell no! [I mean, if I'm smoking cigarettes, feel free to remind me that several hundred toxic chemicals are found in them. Especially if I started smoking near you without asking you if it's OK first. As Ron Paul has said, "Freedom is the right to tell people things they don't want to hear."]

     The fact that you were recently exposed to a certain level of toxic chemicals, does not, and should not, mean that you ought to be exposed to more (unless that is your wish). If anything, it means that you have probably had all the toxins that you can take for a while, and that you deserve to take a break from being full of toxins.

     Stop expecting people to go on suicide missions solely for the sake of appearing to remain consistent to you. Just as "the Constitution is not a suicide pact", neither is a friendship. We should build each other up - and say "I believe you and I encourage you if you say you're trying to quit this substance" - instead of knocking each other down and holding them to how "cool" or "chill" or "lax" they have been in the past.

     Life is about more than chilling out, and tolerating other people's (or your own) bad behavior and moral back-sliding. It is about defeating evildoers, and overcoming the obstacles necessary to achieve your goals. We can't afford the costs of holding each other back.

     The Obamacare mandate to purchase health insurance is not currently being enforced, because it's dying in the courts. So why not use this opportunity to say "If I don't need health insurance (to own my own body), then I shouldn't need car insurance either"?

     We don't even really "need" health insurance, nor car insurance; we just think we do because people older than we are, made laws that require us to have those things. You don't die if you run out of money, or insurance; you die if you run out of air, water, food, and medicine, or if one or more of your major organ systems collapse.

     If we don't need insurance or money to live, and alternative accreditation systems exist outside the state and yet are not in violation of its laws - then why not say "I don't need a license or a permit to do anything, because I was born free, and because of the content of the 9th Amendment"?

     [Note: Amendment IX affirms that we have rights which are not listed in the Constitution. These are called "unenumerated rights", which is distinct from the concept of Congress having unenumerated powers.]

     We rarely cite the fact that others are more free than we are, any more, to justify getting more freedom instead of less.

     [Note: an important exception to this, is the 14th Amendment incorporation clause, which empowers people to have their freedoms recognized in their states, because other states have recognized their own citizens' freedom to do the same, and the federal government cannot logically say that something is a right in one state but not in another.]

     In the Trump era, many of his supporters have used the fact that other countries are "shitholes" run by tyrants, who mistreat dissidents and people who try to come into their countries illegally, to justify gassing protesters and gassing people at the border. This is not acceptable; it is "what-about-ism". It is the idea that if somebody else did something worse than what you did, then what you did is OK.

     Likewise, when someone tries to tell you "You should put up with Y injustice because you put up with X injustice in the past", just tell them either "I was wrong" or "I could tolerate X, but I can't tolerate Y, and that's my decision." Unless it affects them directly, they have no right to interfere in your decision. They can complain all they want, because they have free speech, but they cannot rightfully interfere unless you betrayed them or harmed them, or your decision will harm them.

     People who use one example where we tolerated a deprivation of freedom, or a slipping of standards, in order to excuse or rationalize or justify another, should stop talking about what “we” supposedly have to do, and start making their own decisions about their own personal food and health choices and about their safety. Otherwise they might as well be inviting other people's advice, because they can't live without meddling in other people's decision-making and without subjecting them to nonsensical lines of logic that limits their freedom to change their mind.

     If you don't want people telling you what to do, then don't tell others what to do!

     You do not get to tell others that they have to accept ever-declining standards, just because they have made several poor or inconsistent decisions in their lives. You do not have the right to berate someone who changes their mind, unless you have signed a contract with them.

     We do not have to do jack shit. The only thing we need to do is stop writing laws that make it harder and more expensive for us - and more profitable for the government - for us to exercise our rights.

     If you respect me and my rights – and want your own rights respected – then you will respect my boundaries and the fact that I am an individual (and the fact that individuals, alone, make decisions), and you will leave me alone to fix my own problems, and refrain from giving me unwanted advice or pressuring me into accepting unwanted assistance from you or the government.

     If you want to respect my boundaries, as a libertarian – that is, as a person who values the need for informed consent above all else – then you will not aggress against me nor threaten me, you will not pressure me to spend money that I do not have or haven't earned yet, and you will not tell me that I have to sacrifice my boundaries or my needs in order to hang out with you.

     This includes my right to safety, and to peace and quiet, and to staying out of handcuffs!

     If you respect me, and my right to be informed about what's going on around me, then you will not steal or commit other crimes while you are around me without notifying me first. And that should go whether the crime or infraction has victims or not.

     I can't tell you how many times I've been shopping with friends, only to discover at the checkout line that they intended to steal. It creates a huge imposition on me and puts me in a dilemma! It is not fair to spring something like that onto somebody with little notice.

     It's not that I think someone shouldn't consider shoplifting if they're desperate, and I am certainly not trying to defend the police or wealthy sellers and big corporations. If you are my friend, and you need something so badly that you're considering stealing it, then I will buy it for you! Just ask me. I don't want either of us to go to jail!

     If you have a child or a pet to take care of, and you're in public holding on to them while committing crimes, then you are not a responsible person. Whoever you're with, while you're stealing or getting arrested, is going to have to figure out what to do with your dog or your kid while you're in jail.

     The level of carelessness that some people make excuses for having in their lives is really astounding sometimes. Not that I am entirely blameless. I can't tell you how many places I've possessed marijuana without getting the permission of the proprietor. But I at least know well enough not to use my family and friends as getaway cars after buying marijuana. You have to think about the consequences of your actions, from the perspective of the worst possible way it could potentially affect someone.

     You may say, "Yeah, but it's not wrong." So what? Something "not being wrong" is not a good enough reason, in and of itself, to do something. You should want to do things that are right, not just things that are "not wrong".

     Who do you think pays for the losses from shoplifting? Insurance companies, if the stores are insured. But those costs don't come out of the C.E.O.'s pocket; they're borne (like the majority of the company's costs) by the company's lowest paid employees. Those are the people who get shafted in order to pay for other things the company thinks it needs. 

     But do companies really need security, and on-premises detention of shoplifters? No, they need to lower their fucking prices to something we can afford, so the markets can clear, so the foods aren't left rotting on the shelves, necessitating toxic preservatives that harm our health, in order to keep them "fresh" and marketable.

     So if we're at a store together, please, don't make me into your unwilling accomplice, and risk me going to jail, just because you want an extra item in your pantry. Even if it's a gift for me! I didn't ask for it.

    Don't fucking do things to people without their consent and knowledge, whether it affects them positively or negatively!  [Unless, of course, you're giving them a surprise gift and you know they like surprises, and aren't bothered by the attention involved in having their birthday celebrated, etc..] Do this for the simple reason that "one man's trash is another man's treasure".

     In economics, affecting people positively or negatively without their awareness and consent, is called externalizing transaction costs. You are imposing a cost upon them, as the price of hanging out with you. That price takes the form of bullshit surprises that you spring on people, which make them uncomfortable, and pressure them into helping you over helping themselves.

     This is called being interpersonally exploitative. In each transaction and social interaction, we should make sure that the interests of everybody involved, are aligned; but that doesn't mean that each person should feel empowered to shamelessly take advantage of every situation to ensure that they benefit the most.

     More reasons not to give people gifts for which they didn't ask, include the facts that: 1) what you think will help a person, might be something they think of as causing them to become more dependent upon you for that thing; and 2) they might not know whether and how to get you back for it.

     When we shop together, I don't want you to get arrested, but if you act like an idiot, and it's either you or me, the fact that you are my friend does not obligate me to cover for you. Certainly not instead of myself. Certainly not when I would have to make up a lie and put myself in danger for a friend's stupid thoughtless decision. Shoplifting is not always wrong, but that doesn't make it a good idea that's worth going to jail for! If you're going to steal, and there's nothing I can do about it, then at least let me know ahead of time, so I can run, or else be prepared to sock a security guard in the face.

     Do you have any idea how uncomfortable it is to have to consider asking your friend, "Hey, uh... You're not gonna steal from Wal-Mart, are you?" before there's any indication that they would, because of their past history? Do you know how awkward it is to ask someone, "You paid for that, right?" or "You're gonna pay for that, right"? and hear them shush you?

     I don't play that shit. That creates an imposition on me to shut up about your bullshit. You do not have the right to get your friends in trouble and then pass it off as harmless fun. Some people are trying to work and maintain normal jobs and have families and avoid jail. That's different from being a buzzkill. If you have a child, then you shouldn't be stealing in front of them, unless you're prepared to defend that decision with force.

     Not that I don't have sympathy for people who steal, or for my friends. If you're reading this and you're thinking, "Just don't hang out with people who steal, or are likely to steal", then to that, I say, "Easier said than done, asshole." At least half of Americans are living from paycheck to paycheck. Nobody has any money. Shoplifting is the least of my concerns, morally. But that doesn't give people the right to make me into an unwilling accomplice of theft without my consent or knowledge.

      Consensual transactions and interactions require informed consent, which requires knowledge of the choices available, and a total lack of external pressure, and the right to make your decision final without others continuing to ask you a question you have answered over and over again.

     Don't ask me if I want to do something until I say yes. That is "not taking 'no' for an answer". That may be acceptable in sales, but it is certainly not acceptable in the bedroom, and it shouldn't be acceptable in public social interactions.

     Not taking "no" for an answer sexually is what a rapist does; so take "no" for an answer socially, or you will be the social version of a rapist.

     Voluntary exchange requires mutual benefit, in addition to consent. If someone is sacrificing in order to participate in a social interaction or an economic exchange, then it should be asked: “Why is that person sacrificing, while others are not?”

     But this should be asked, not in order to punish those who are not sacrificing, but rather, in order to make sure that nobody is sacrificing (unless it is necessary and they genuinely want to).

     If a social interaction, or an economic transaction, does not benefit all people involved and affected, then it should not occur, and the people involved should go their separate ways. That is how you produce free decisions that are also fair.

     Decisions which don't harm anyone, but do benefit everyone involved (or at least they don't harm anyone involved), are called Pareto improvements, after the Italian economist Vilfredo Pareto. These are the necessary conditions for mutually beneficial voluntary exchange.

     We must end the culture of pressuring others to accept lower standards. We must stop brow-beating each other into prioritizing consistency over self-growth and self-improvement.

     We must also stop tolerating people who we reasonably believe are deliberately ignoring our boundaries just to mess with us or to test us. 

     It's time to start respecting others. It was always time to respect others. But if we don't bother to find out what each other's boundaries, limitations, and needs are, then we aren't going to understand how to respect them.

     People need to communicate with each other. We can't just have people committing crimes around their friends and having awkward conversations in the middle of the store about whether we'll be paying for this.

     We can't have protesters and counter-protesters coming up to each other and trying to quash each other's right to be there while they're right there on the sidewalk and there are no police officers around to resolve the dispute.

     We can't go on just not coordinating with each other. We must deliver on our promises. But we also must find away to avoid punishing people too severely for changing their minds, and one of the ways to do this is to make sure we are not pressuring the people around us to set unrealistic goals.

     And we must not expect others to allow their moral standards to slip just because they have agreed to hang out with us.

     This is how we stop the back-slide, and the regression, of freedom. This is how we stop a society desirous of freedom, from collapsing into a "slippery slope" to tyranny that refuses to recognize that freedom is (almost) free, and doesn't require any trial by fire. We are born free and innocent, so why should we come into the world owing anybody anything?

     The only cost of freedom is the effort we expend respecting others' freedom. The only costs of freedom are self-responsibility, self-control, humility, and adequate communication with others.

     This is how to respect me. What about you? Does this sound unreasonable? Or just familiar?

     To read a more in-depth discussion of Ninth Amendment issues, and how license and permit systems limit our freedoms, please read my 2015 / 2016 article "Papers, Please!?: Freedom vs. Permission", which is available at the following link:
     http://aquarianagrarian.blogspot.com/2015/12/papers-please-freedom-vs-permission.html

Based on a post published in early January 2021

Edited and expanded on January 7th, 2021