Kirks Law Corner LLC

[06/22/21]   Because reading actually means reading.
"In law" and "in equity" means in the body politic, police/policy and having to do with "land".
Article III Section 2
The judicial power shall extend to all cases, ***in law and equity***, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming ****lands*** under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
versus
AT LAW. This phrase is used to point out that a thing is to be done according to the course of the common law; ***it is distinguished from a proceeding in equity.***
2. In many cases when there is no remedy at law, one will be afforded in equity. See 3 Bouv. Inst. n. 2411.
LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain what part of the English common law is valid and binding. To run the line of distinction, is a subject of embarrassment to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and where it is founded in reason and consonant to the genius and manners of the people.
3. The phrase "common law" occurs in the seventh article of the amendments of the constitution of the United States. "In suits at common law, where the value in controversy shall not exceed twenty dollar says that article, "the right of trial by jury shall be preserved. The "common law" here mentioned is the common law of England, and not of any particular state. 1 Gallis. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. ***The term is used in contradistinction to equity, admiralty, and maritime law.*** 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill & John. 62; Sampson's Discourse before the Historical Society of New York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628; 2 Stew. R. 362.
And lets not forget that Bills of Rights are the common law as well, at least some of them anyway.
16 Am. Jur. 2d Constitutional Law § 100
American Jurisprudence, Second Edition | August 2017 Update
A constitution is usually a declaration of principles of the fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution or mere restrictions upon the power of the legislature to pass laws.1 However, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing,2 that is, operative without any necessity for further legislation.3
Criteria which may be relevant in determining whether a constitutional provision is self-executing or not include a description of the right in detail such as the means for its enjoyment and protection; the absence of any directive to the legislature for further action; a particularly informative legislative history as to the provision’s intended operation; and a consistency of self-execution with the scheme of rights established in the constitution as a whole.4
Observation:
Even without the benefit of a declaration that they are self-executing, ***constitutional provisions in Bills of Rights and those merely declaratory of the common law*** are usually considered self-executing, as are provisions which specifically prohibit particular conduct.5
A clear distinction exists between the questions whether a constitutional provision is mandatory or directory and whether it is self-executing or requires legislation in order to give it effect.6 A provision may be mandatory without being self-executing,7 and a provision may be self-executing even though it contains some mandatory language.8
Footnotes
1 State ex rel. Stephan v. Finney, 254 Kan. 632, 867 P.2d 1034 (1994); Kraus v. City of Cleveland, 42 Ohio Op. 490, 58 Ohio L. Abs. 353, 94 N.E.2d 814 (C.P. 1950), decree aff’d by, 89 Ohio App. 504, 46 Ohio Op. 132, 58 Ohio L. Abs. 360, 96 N.E.2d 314 (8th Dist. Cuyahoga County 1950).
2 Birdsey v. Wesleyan College, 211 Ga. 583, 87 S.E.2d 378 (1955); State ex rel. Stephan v. Finney, 254 Kan. 632, 867 P.2d 1034 (1994); Kraus v. City of Cleveland, 155 Ohio St. 98, 44 Ohio Op. 103, 97 N.E.2d 549 (1951).
3 § 101.
4 Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924 (1995).
5 Robb v. Shockoe Slip Foundation, 228 Va. 678, 324 S.E.2d 674 (1985).
6 State v. South Dakota Rural Credits Board, 45 S.D. 619, 189 N.W. 704 (1922).
As to whether a constitutional provision is mandatory or directory, generally, see §§ 97 to 99.
7 Leser v. Lowenstein, 129 Md. 244, 98 A. 712 (1916); State v. South Dakota Rural Credits Board, 45 S.D. 619, 189 N.W. 704 (1922).
8 In re Larsen, 655 A.2d 239 (Pa. Ct. Jud. Discipline 1994).
Let's not forget that there is, in fact a private side and Public side in our society. Let's read from Hale v Henkel
If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness, he could refuse to produce the books and documents of such corporation upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of corporation with respect to the production of its books and papers, ***we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. He owes no such duty to the State, since he receives nothing therefrom beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.*** Among his rights are a refusal to incriminate himself and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights.
Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to
Page 201 U. S. 75
act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not, in the exercise of its sovereignty, inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose. The defense amounts to this: that an officer of a corporation which is charged with a criminal violation of the statute may plead the criminality of such corporation as a refusal to produce its books. To state this proposition is to answer it. While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.

[06/09/21]   Hello everyone. I'm free from being kidnapped. See you all for Friday Night Fun Night and tonight for Wednesday Night Workshop for those on Patreon.

🔴 LIVE: President Donald Trump, Others Speak at the 2021 NC State GOP Convention 6/5/21

Trump is about to speak at this event.
https://youtu.be/-LwdxF5Sm4U

🔴 LIVE: President Donald Trump, Others Speak at the 2021 NC State GOP Convention 6/5/21 Saturday June 5, 2021: Please join RSBN at the North Carolina Republican Party for their annual State Convention in Greenville, North Carolina. South Dakota ...

[05/21/21]   My response to a question regarding making term limits on Congress.

Read the Constitution. There are already term limits. I know not in the same sense as limiting the amount of times one man can be elected like the President, but the reality here is that it's not really about fixing the real issues.

For instance,

1. All Elections have been rigged for a very long time and became exponential in the late 50 early 60s.

2. The Legislature/Congress has the power to expel members and that power has not really been exercised because most of them are corrupt and bought off (in BOTH PARTIES), so there's not enough of them to actually expell a member unless it's one of the ones causing problems for the corrupt.

3. We are not supposed to have "Parties". Where in the Constitution does it talk the process and qualifications for Electors for the "Parties"? Red = Republican & Blue = Democrat. What were the colors of the British again? We're all being dupped.

4. We are NOT a democracy. We are a Capitalist Confederate Republic with Capitalism as our economy, which means we have the Right to contract our labor as we see fit uninhibited by ANY governmental interference and are entitled to the entire fruits of our labor without taxation. There shall be no law impairing the obligations of a contract. None, zero, period!

5. And this may come to a surprise to a lot of people. The BAR, British Accreditation Registry, is from the Roman Catholic Church, the Crown Temple BAR which grants the Title of Nobility of Esquire. They have invaded our government, in all 3 Branches of government and completely taken over the Judicial Branch, control the legislature and make "code" as the law.

Question; why does the Legislature make amendments to the "code" when the code is not the law? Allegedly it is supposed to be a compilation of the statutes as prima facia evidence of the statutes as the "code commission has no legislative authority" and "the Idaho code is NOT THE LAW" (EMPHISIS ADDED) see Peterson v Peterson Idaho Supreme Court, judge Eisman 2014. The code commission is made up of 7 members of the BAR that the Governor selects and then they vote on which 3 of them write, publish and copyright the volumes of books called "The Idaho Code". This is why they say we have to have a "license" (license means seeking permission to do a thing that would otherwise be illegal, not unlawful, because "legal" is contracts and the "Terms and conditions" of the contract are the law, but not Law) to "practice" THEIR law..."code". Because it's their "BAR CODE". The alleged "license" is a "membership card" to their "Club"... an Association, like the National Rifle Association. Do they have the power to issue "Licenses"? ABA, American BAR Association was created in 1878. What did we ever do for "assistance of council" from 1776 - 1878?

6. Are you aware of what the "Birth Certificate" really is and what it really does? Ships are "birthed", mankind is "born". We are NOT persons, subjects, Citizens or human. Do you know what the social security number is really about? Do you know what the Cestui Que (vie) Trust Act of 1666 is about?

7. We are being human trafficked by the BAR. Through all of the above and a little bit more called "Bonds".

8. Do you know what the "Great Reset is really about? Are you aware of the Reconstruction Acts of 1871 that fundamentally altered this Nation called America into a Corporation known as "United States Inc", U.S. Inc, United States of America Inc, etc.? Do you know that the third and final bankruptcy came to end in 1999? Then the Inc's were foreclosed on and terminated in 2012 and bankrupted in 2020?

You awake yet? Do you want to learn what we can do to effectively defend ourselves, Lawfully? I've been teaching this stuff for over 4 years on FB & YT. 1.5 years before that on Blogtalkradio. I've been studying the real Law, the history of Law, the de facto law/code for 26 years. I've been down many rabbit holes you wouldn't even begin to believe. Things that have been going on clear back to 400BC. It's not pretty and can be overwhelming for someone who has little to know clue. Fyi, that doesn't mean you are "stupid" or "dumb", you simply are just not aware.

The only thing for evil men to prevail is for good men to do nothing. Edmund Burke.

My people shall perish for lack of knowledge.

Semper Fidelious.

GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT

This is a section out of the Brief, Memorandum of Law that I wrote for Timothy Holmseth's case. Enjoy

What is Domestic Violence?

As we can read and comprehend (unless you didn’t pass grade school) and understand (stand in agreement) what Domestic Violence actually is, as it is written in law, it is about “invasion”, an attempt to “overthrow” our form of government, which is exactly what Congress has done in 1994 and the reauthorization act of 2005 by redefining domestic violence, which the people and/or Congress have no authority to alter and creating the Violence Against Women Act, VAWA, an “usurpation of power” which is a declared act of a tyrant, our declared “enemy” in the Declaration of Independence July 4, 1776. It is the conduct and characteristics of a tyrant that makes them our enemy. Which giving aid to our enemies is Treason. “He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:” Then a few other declared acts of tyranny, This SMU, “Civil Process” when it is “criminal in nature” and is supposed to follow the criminal process under criminal law, assault/battery, but goes through “Family law”, “Family Court/Juvenile Court” deprives one of the most basic fundamental rights of due process of law “For depriving us, in many cases, of the benefits of trial by jury;” as no man shall be deprived of Life, Liberty or Property with the CONSENT of a Lawful Jury. More importantly the right of Jury Nullification. “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.” by creating “Police Forces”, “Social Workers”, “Child Protection Services” (CPS), which are “standing armies”, “He has kept among us, in times of peace, standing armies, without the consent of our legislatures.” Which they receive their “wages”, “Emoluments” that end up paying for their homes, “For quartering large bodies of armed troops among us;” and at the end of a barrel of a gun take our Children, Fathers/Mothers, Husbands/Wives and other Family members by force and violence and sometimes even murder them. “For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states;” then protect the murders/batterers from any punishment by doing “internal investigations” and they are most often not punished and our complaints are discarded. It’s like the “fox guarding the hen house”. Furthermore, pursuant to the “Protection Order” the “Right of the people to keep and bear arms” is arbitrarily taken away without due process of law, a Bill of Attainder/Bill of Pain and Penalty which is a Right that cannot be taken away, as it is a Natural Right as part of the Law of Nature to defend our Life, Liberty, Property and the Pursuit of Happiness, not only from criminals, but from a tyrannical form of government, fundamentally and principally in accordance with the American Common Law, the Law of Nature and the Supreme Law of the Land which prohibits ANY infringement of any of our private rights. Government was not instituted to dictate to the people what our rights are and how we exercise them, in fact it was instituted to SECURE these rights from a despotic government.

Commentaries on the Constitution, Book 3 Chapter XLI. Pgs. 677-678. Chief Justice of the Supreme Court of the United States of America, Joseph Story. 1833

GUARANTY OF REPUBLICAN GOVERNMENT MODE OF MAKING AMENDMENTS.

§ 953. The fourth section of the fourth article is as follows: " The United States shall guaranty 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."

§ 954. The want of a provision of this nature was felt, as a capital defect in the plan of the confederation, as it might in its consequences endanger, if not overthrow, the Union. Without a guaranty, the assistance to be derived from the national government in repelling domestic dangers, which might threaten the existence of the state constitutions, could not be demanded, as a right, from the national government. Usurpation might raise its standard, and trample upon the liberties of the people, while the national government could legally do nothing more, than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law ; while no succour could be constitutionally afforded by the Union to the friends and supporters of the government. But this is not all. The destruction of the national government itself, or of neighbouring states, might result from a successful rebellion in a single state. Who can determine, what would have been the issue, if the insurrection in Massachusetts, in 1787, had been successful, and the malecontents had been headed by a Caesar or a Cromwell? If a despotic or monarchical government were established in one state, it would bring on the ruin of the whole republic. Montesquieu has acutely remarked, that confederated governments should be formed only between states, whose form of government is not only similar, but also republican.

From the Annotated Constitution Source: https://www.law.cornell.edu/constitution-conan/article-4/section-4/guarantee-of-republican-form-of-government

GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT

The first clause of this section, in somewhat different language, was contained in the Virginia Plan introduced in the Convention and was obviously attributable to Madison.333 Through the various permutations into its final form,334 the object of the clause seems clearly to have been more than an authorization for the Federal Government to protect states against foreign invasion or internal insurrection,335 a power seemingly already conferred in any case.336 No one can now resurrect the full meaning of the clause and intent which moved the Framers to adopt it, but with the exception of the reliance for a brief period during Reconstruction the authority contained within the confines of the clause has been largely unexplored.337

In Luther v. Borden,338 the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.”339 Texas v. White340 held that the action of the President in setting up provisional governments at the conclusion of the war was justified, if at all, only as an exercise of his powers as Commander-in-Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the courts in any matter,341 a status from which the Court’s opinion in Baker v. Carr,342 despite its substantial curbing of the political question doctrine, did not release it.343

Similarly, in Luther v. Borden,344 the Court indicated that it rested with Congress to determine the means proper to fulfill the guarantee of protection to the states against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened that required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795,345 authorized the President to call out the militia in case of insurrection against the government of any state. It followed, said Taney, that the President “must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress,”346 which determination was not subject to review by the courts.

In recent years, the authority of the United States to use troops and other forces in the states has not generally been derived from this clause and it has been of little importance.

Footnotes

333 “Resd. that a Republican government . . . ought to be guaranteed by the United States to each state.” 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF

334 Thus, on June 11, the language of the provision was on Madison’s motion changed to: “Resolved that a republican constitution and its existing laws ought to be guaranteed to each state by the United States.” 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 193–194, 206 (rev. ed. 1937). Then, on July 18, Gouverneur Morris objected to this language on the ground that “[h]e should be very unwilling that such laws as exist in R. Island ought to be guaranteed to each State of the Union.” 2 id. at 47. Madison then suggested language “that the Constitutional authority of the States shall be guaranteed to them respectively against domestic as well as foreign violence,” whereas Randolph wanted to add to this the language “and that no State be at liberty to form any other than a Republican Govt.” Wilson then moved, “as a better expression of the idea,” almost the present language of the section, which was adopted. Id. at 47–49. [Back to text]

335 Thus, Randolph on June 11, supporting Madison’s version pending then, said that “a republican government must be the basis of our national union; and no state in it ought to have it in their power to change its government into a monarchy.” 1 id. at 206. Again, on July 18, when Wilson and Mason indicated their understanding that the object of the proposal was “merely” to protect states against violence, Randolph asserted: “The Resoln. has 2 Objects. 1. to secure Republican government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.” 2 id. at 47. Following speakers alluded to the dangers of monarchy being created peacefully as necessitating the provision. Id. at 48. See W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 2 (1972).

336 See Article I, § 8, cl. 15.

337 See generally W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (1972).

338 48 U.S. (7 How.) 1 (1849).

339 48 U.S. at 42.

340 74 U.S. (7 Wall.) 700, 729 (1869). In Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1868), the state attempted to attack Reconstruction legislation on the premise that it already had a republican form of government and that Congress was thus not authorized to act. The Court viewed the congressional decision as determinative. [Back to text]

341 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Portland, 223 U.S. 151 (1912); Davis v. Ohio, 241 U.S. 565 (1916); Ohio v. Akron Park Dist., 281 U.S. 74 (1930); O’Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms Dairy v. Agnew, 300 U.S. 608 (1937). But in certain earlier cases the Court had disposed of Guarantee Clause questions on the merits. Forsyth v. City of Hammond, 166 U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).

342 369 U.S. 186, 218–32 (1962). In the Court’s view, Guarantee Clause questions were nonjusticiable because resolution of them had been committed to Congress and not because they involved matters of state governmental structure.

343 Subsequently, the Court, speaking through Justice O’Connor, raised without deciding the possibility that the Guarantee Clause is justiciable and is a constraint upon Congress’s power to regulate the activities of the states. New York v. United States, 505 U.S. 144, 183–85 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991). The opinions draw support from a powerful argument for using the Guarantee Clause as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988).

344 48 U.S. (7 How.) 1 (1849).

345 1 Stat. 424.

346 Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849).

GUARANTEE OF REPUBLICAN FORM OF GOVERNMENT The first clause of this section, in somewhat different language, was contained in the Virginia Plan introduced in the Convention and was obviously attributable to Madison.333 Through the various permutations into its final form,334 the object of the clause seems clearly to have been more than an au...