Your theory of government opposes even smiling despotic power

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Court cases are reported in volumes such as these, available at UTC’s library.

Court cases are reported in volumes such as these, available at UTC’s library.

By David Tulis

You don’t go out of your way to read court cases on the theory that they are turgid, too long and give too much detail about conflicts that don’t concern you or touch some sensitive strand of your view of the world.

But often judges wax eloquent, even though they may be verbose. Listening to lectures on being a pro se litigant , I came across a case that suggests our legal rights are greater than we imagine, that they are more numerous that we might have suspected. Implied in the grand analysis is the existence of a Judge who rules over judges, a law that imposes justices over men’s ordinances and legislatures.

It is important that we acquire a taste for the idea of a free people and what the Tennessee constitution refers to free government. That is a government that is reflective of the interests of the people, and not a claque of wealthy insiders or a dictatorship, where a man’s dicta (or words) become law.

Christianity is historically a great boon to liberty, as many histories of the Reformation will attest. Its conception of sovereignty residing wholly with God makes it easier for men to resist tyrants. As Christ sets people free from slavery to sin, He grants them desire to be free of slavery to men. The promise that a holy lawgiver in heaven delegates earthly authority limits the damage absolutist monarchs or centralized states impose on peoples within their borders.

Rights exist beyond government

“It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is nonetheless a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.

“The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.

“There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

Violence inheres in taxation

“Of all the powers conferred upon government, that of taxation is most liable to abuse. Given a purpose or object for which taxation may be lawfully used and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to levied or the things to be taxed may be imposed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of war, the national defense, any limitation is unsafe. The entire resources of the people should in some instances be at the disposal of the government. ‡

“The power to tax is therefore the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCulloch v. state of Maryland, that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of 10 percent imposed by the United States on the circulation of all other banks than the national banks drove out of existence every state bank of circulation within a year or two after its passage. This power can as readily be employed against one class of individuals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised.

“To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.”

The University of Tennessee in Knoxville operates a school of law. Citizens, in defending their rights, need to be able to exercise them well BEFORE they consult an attorney.

The University of Tennessee in Knoxville operates a school of law. Citizens, in defending their rights, need to be able to exercise them well BEFORE they consult an attorney trained in such a place.

Source: Loan Association v. Topeka 87 U.S. (20 Wall.) 655, 1874

‡ This point by the supreme court is scary. In wartime, the authors suggest, the state is able to make total claims on all  property, and against all rights. So much for the other gracious lines in the opinion that we so feelingly read.

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