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This is an odd article. It started out as a quick reply to a comment posted by “Roger” on my blog and grew into something far more substantial. I expected to write one or two hundred words. I wrote over five thousand.It’s as if I started out intending to take a trip to the 7-11 to pick up some milk and wound up in Singapor. I was diverted. It’s not the journey I’d planned and expected, but it was kinda interesting, just the same.
The article starts with a conflict over the concept of individual sovereignty as viewed by the Supreme Court in the Chisholm vs Georgia case of A.D. 1793 and the Wong Kim Ark case of A.D. 1898:
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Roger’s Comment
@Toland
Wong Kim Ark, quoting State v. Manuel: The sovereignty has been transferred from one man to the collective body of the people…
Exactly, and the members of this sovereign “collective body of the people” are what Chisholm v. Georgia calls “sovereigns” (plural) “without subjects”, by virtue of their being “joint tenants in the sovereignty”.
But wait, “without subjects”? See this:
Wong Kim Ark, quoting State v. Manuel: The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law…
If citizen = subject, how then are the “sovereigns” (plural) “without subjects”?
Answer: The people as “sovereigns” (plural) – that is, the people as individuals – are indeed “without subjects”, because the “proper sovereignty” (Chisholm v. Georgia) of the “sovereigns” (plural) is only exercised at the collective level. Thus, only the “collective body of the people” has subjects: i.e. the “citizens of the State.”
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My reply:
The “answer” (or at least, “another answer”) to the apparent conflict between Chisholm (A.D. 1793) and Wong (A.D. 1898) is that the courts have seldom been consistent in their opinions. More, the government itself has had a vested interest in quashing whatever evidence of individual sovereignty might be found in our founding, organic documents.
I.e., if you and I are each a sovereign, the government must be our public servant. It’s axiomatic that government always serves the sovereign(s). If government is our public servant, government employees must be our public servants.
But government doesn’t want to serve.
Government wants to rule.
Not just our government. Every government. Therefore our government enacts laws and creates court decisions that help destroy both the people’s sovereignties and the government’s correlative servitude.
The Supreme Court that decided Chisholm vs Georgia in A.D. 1793 accepted government’s status as public servant and was dedicated to protecting the people’s revolutionary freedoms, liberties and individual sovereignty.
The court that decided Wong Kim Ark in A.D. 1898 (over 100 years after Chisholm) was dedicated to growth of government power and sovereignty and therefore equally dedicated to reducing the people’s status from sovereigns to subjects.
Wikipedia describes the Wong Kim Ark case as follows:
“United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a United States Supreme Court case in which the Court ruled that practically everyone born in the United States is a U.S. citizen. This decision established an important precedent in its [the Supreme Court’s] interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.”
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First, Wong expanded the powers of the 14th Amendment and federal government by declaring that anyone “born in the United States” was a “U.S. citizen”.
How many of you believe that the 14th Amendment (A.D. 1868) was designed to enhance the American people’s liberties and freedoms? Not many, I’d bet.
How many of you believe that the Founding Fathers could’ve even imagined adding the 14th Amendment to the Bill of Rights (A.D. 1781)? The 14th Amendment would’ve been deemed anathema by the Founders. They probably couldn’t have even suggested the 14th Amendment because it enhanced the powers of the federal government and diminished the rights of the people of the States of the Union.
How many of you believe that the post-Civil-War 14th Amendment was designed to reduce our liberties and freedoms? Lots, I’d bet.
If the 14th was designed to reduce the people’s liberties and freedoms, why would anyone be surprised that the Wong case was “interpreted” by the Supreme Court to diminish our liberties and status as individual sovereigns?
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Second, if the Wong case decided that virtually anyone born “in the United States” was therefore a “U.S. citizen” (roughly, a citizen of the federal government), where, pray tell, is the “United States”?
The 4th edition of Black’s Law Dictionary (A.D. 1968), provides the following definition,
“UNITED STATES. This term has several meanings. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in family of nations, it may designate territory over which sovereignty of United States extends, or it may be collective name of the states which are united by and under the Constitution. Hooven & Allison Co. v. Evatt, U. S. Ohio, 65 S.Ct. 870, 880, 324 U.S. 652, 89 L.Ed. 1252.”
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I know that these multiple definitions of the term “United States” were provided in A.D. 1945 in the Hooven case—not A.D.1898 in the Wong case. But one of two things must be true. Either Hooven’s multiple definitions of “United States” must’ve been true ever since We the People created this country, or one or more of the three definitions seen in Hooven must’ve been created by edict of the Supreme Court rather than by the Constitution enacted by the People.
If Hooven’s several definitions of “United States” have always applied, then they applied when the Chisholm case was decided in A.D. 1793, when Hooven was decided in A.D. 1945 and today. But, according to the last three editions of Black’s Law Dictionary, the Hooven definitions no longer applies. Today, according to Black’s 9th, the term “United States” means “United States of America”—but note that there’s no reference to “The United States of America” which is the proper name of the confederation and perpetual Union created by the Articles of Confederation of A.D. 1781. Given that that Union was declared to be “perpetual,” it’s still here. It appears to me that while “United States” and “United States of America” may be synonymous, “The United States of America” (created by the Articles of Confederation in A.D. 1781) and “United States” (created by the Constitution of the United States in A.D. 1788) are two different entities, jurisdictions, venues. The law of one is not necessarily the law of the other. The power that government can exert in one may be limited while the power it can exert in the other is almost limitless.
It seems odd to me that the Supreme Court was more than willing to offer several definitions of “United States” in the Hooven case but, so far as I know, never offered a definition of “The United States of America”. To me, that seems like an oversight.
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• If the several Hooven definitions haven’t always applied to the term “United States,” where and when and where were they created? What part of the Constitution authorizes that creation? Who has authority to change the meaning of the term “United States” created by the People in the Constitution? Who has authority to add new definitions of the term “United States”? Were these several definitions created to enhance the people’s liberties or the government’s powers?
If some element of the federal government (say, the Supreme Court) is adding one or more definitions for the term “United States,” won’t those additional definitions confuse, contradict and even violate the people’s original meaning in the Constitution?
I understand that Black’s Law Dictionary is not a legal authority, but almost every licensed attorney and judge probably has one or more copies of that text and deem the definitions to be credible. I also understand that Black’s is too well-established to change or add definitions without having seen some legal cause to do so. My point is that, unless Black’s arbitrarily assigns its own definitions to fundamental terms like “United States,” the changes from Hooven’s several definitions seen in Black’s 4th through 6th editions . . . to the missing definition (for “United States”) in Black’s 7th . . . and on to the equivalence to “United States of America” in Black’s 8th and 9th . . . are all evidence that the definition(s) of the term “United States” are in a constant state of flux.
I have to presume that the Supreme Court is the author of these multiple and changing definitions because, so far as I know, the Supreme Court has never officially rejected any of these several definitions.
Which brings me back to some fundamental questions:
When some cop, court, lawyer or law refers to “United States,” which “United States” are they talking about? Did that “United States” exist for a while and then disappear? Does that specific “United States” still exist? Which “United States” has authority over me? Which does not? And, when the Supreme Court declared in the Wong Kim Ark case that, practically everyone born in the United States is a U.S. citizen, which of the several “United States” were they talking about?
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• The second of the three definitions of “United States” provided by the Supreme Court in the Hooven case reads, “UNITED STATES. . . . may designate territory over which sovereignty of United States extends.” Hmph. Interesting.
Confusing, too.
It’s a fundamental rule of etymology (dictionary science) that definitions should not include the word that’s being defined. I.e., you shouldn’t define the word “red” as “the color red”. You have to find words other than “red” to define “red”.
Likewise, it seems doubtful that Hooven’s definition of “United States” as “territory over which the sovereignty of United States extends” is a proper definition. After all, Hooven itself declares that there are (at least) three definitions of “United States,” so which “United State” is the one whose sovereignty extends over the “territory” that could be called “United States”? You’d think that the wordsmiths on the Supreme Court could do a better job of defining a term as fundamental as “United States”—unless they chose not to.
In any case, as you may know, as I read Article 1 of the Constitution to tells us that the “United States” federal government has only limited powers within the borders of the States of the Union. I.e., the feds aren’t sovereign within the States of the Union.
However, I also read Article 4.3.2 mean that the Congress (“United States”?) has exclusive legislative jurisdiction within the territories of the “United States”. I read Article 4.3.2 to mean that Congress is sovereign over the territories.
Congress is definitely sovereign over some places (territories) and it’s not sovereign over other places that are within the borders of the States of the Union. How do we know for sure if we are living and acting within the borders of a State of the Union (where Congress is not sovereign and we are not subjects) or in some sort of “territory” of the United States (where Congress is sovereign and we are therefore subjects)—especially when “United States” has multiple definitions?
Inquiring minds . . . .
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• Further, note that, although the Supreme Court provided three definitions for the term “United States” in the Hooven case, it did not expressly declare that the term had only three definitions. Instead, the Supremes expressly declared that the term “United States” has “several meanings”. They named three, but there could be four, or ten or even twenty.
Have these multiple definitions always existed, or do they rise and fall, change or disappear from day to day, month to month, year to year to suit the government’s convenience?
It’s not necessarily true, but wouldn’t you think that the “Constitution of the [singular] United States” (the document that created the “United States”) would have only created one “United States” with a single, constitutional meaning?
If several lawful definitions of “United States” can be inferred from the Constitution, should we change its name to the “Constitution of the Several ‘United States’”?
My point is that Supreme Court’s loyalty to the revolutionary ideas and values and to the Constitution was much higher in A.D. 1793 when the court seemed to affirm the concept of individual sovereignty in the Chisholm case than it was in A.D. 1898 when another Supreme Court seemingly denied the concept of individual sovereignty in the Wong case.
You can’t assume that the courts of A.D. 1793 and A.D. 1898 are equally honorable and dedicated to preserving the People’s liberties. You can’t assume that the Chisholm case (A.D. 1793) and the Wong case (A.D. 1898) should be consistent.
My point, crudely put, is that the treasonous a-holes on the Supreme Court make this “sh-t” up as they go along. Routinely, the Supremes don’t tell us what the law established by the sovereign People is—they tell us what they and the government public servants want the law to be. More, rather than protect the people’s interests, our later courts are determined to protect and expand the government’s interests.
If the shysters on the Supreme Court can “make up” the law as they go along, the “law” is as plastic and malleable as a lump of wet clay. Today, we can make the law into a flat plate. Tomorrow into a jug. The day after that, a bust of General Ulysses S. Grant.
Once upon a time, our fundamental law was the People’s law, the sovereigns’ law—the Constitution and associated Organic documents. Today, our fundamental law is the government’s statutory law and administrative regulations which generally translate into “heads, the government wins; and, tails, the people lose.”
People who believe that case law is fixed are fools. It can mean anything at any time that the court and/or jury feels is necessary, desirable or even amusing. The “law” is the law of the moment; the law of impulse; it’s whatever the courts and government think they can get away with.
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Third, under the Wong case of A.D. 1898, does birth in all of the “several” defined instances of “United States” confer U.S. citizenship on a child? Or is U.S. citizenship conferred only when a child is born in one (two?) particular definition(s) of “United States”?
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Fourth, the third definition of “United States” in Black’s fourth edition is particularly interesting: “or it may be collective name of the states which are united by and under the Constitution.”
Note that although Black’s referred to “collective name,” they didn’t use the word “a” (indefinite article) or “the” (definite article) to describe the term “collective name”. Is “United States” the one and only “collective name” for the “states which are united by and under the Constitution”? Or, is “United States” one of several different names that might be construed as “a collective name” for said states?
Curiously, the failure to use a definite or indefinite article before “collective name” is the fault of Black’s rather than the Supreme Court. According to Findlaw.com, the Supreme Court actually declared in Hooven that,
“The term ‘United States’ may be used in any one of several senses. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations. It may designate the territory over which the sovereignty of the United States ex- [324 U.S. 652, 672] tends, or it may be the collective name of the states which are united by and under the Constitution.”
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The Supreme Court declared “United States” to be “the” (meaning one and only) “collective name of the states which are united by and under the Constitution”.
Two paragraphs later, the Supreme Court in Hooven again refers to “the collective name”:
“The relation of the Philippines to the United States, taken as the collective name of the states which are united by and under the Constitution, is in many respects different from the status of those areas which, when the Constitution was adopted, were brought under the control of Congress and which were ultimately organized into states of the United States. See Balzac v. Porto Rico, 258 U.S. 298, 304 , 305 S., 42 S.Ct. 343, 345, 346, and cases cited.”
Twice, the Supremes defined “United States” in Hooven to sometimes mean “the collective name” of the “states which are united by and under the Constitution”.
Twice, the Supreme used the phrase “states which are united by and under the Constitution”.
That strikes me as odd.
The phrase “states which are united by and under the Constitution” seems clumsy and overly verbose. Isn’t there a shorter, easier way to describe those “states”?
In fact, when I stop to think about the phrase “states which are united by and under the Constitution,” I’m led to infer that there may also be “states which are not united by and under the Constitution.”
It’s like telling a friend, “You can have all the apples on my tree that are bright green.” Doesn’t that statement imply that there must also be some apples that are not “bright green”? (Red, for example?)
If there are no red apples and all the apples are bright green, why not simply say “You can have all the apples”? Or even, “You can have the apples”? Why qualify the gift apples by adding “that are bright green” unless there are also some other apples that are red (or even pale green)?
Similarly, why did the Supreme Court qualify its reference to “states” by adding that such “states” are united: 1) by the Constitution; and also, 2) under (subject to) the Constitution?
Don’t those two qualifiers at least imply that there must be some other kind of “states” that, though similar, are: 1) not united by the Constitution; and 2) not united under the Constitution?
Does the Hooven decision support the proposition that “states of the United States” and “States of The United States of America” are two separate and mutually exclusive kinds of “states”?
Fifth, what exactly, are the “states which are united by and under the Constitution”? The Constitution of the United States was drafted and ratified by the States of the Union. Those individual States were created by the Declaration of Independence (A.D. 1776). They were subsequently united into the confederation and perpetual Union styled “The United States of America” under the Articles of Confederation of A.D. 1781.
The States of the Union were already united under the Articles of Confederation (A.D. 1781) before they ratified the Constitution in A.D. 1788. I don’t see how the States of the Union that were already united under the Articles of Confederation were also subsequently “united” (for a second time) by . . . the Constitution”.
Could it be that the Hooven case’s third definition of “United States “ (“states which are united by and under the Constitution”) refers to a second kind of “states” that are not States of the Union?
Further, insofar as the Constitution was drafted and ratified by the pre-existing “States of the Union,” the Constitution and resulting “United States” would seem to be inferior to and subject to the Union and/or the States of the Union. I.e., the States of the Union created the Constitution. As its creators, how could the States of the Union be fully “under [subject to] the Constitution”?
Again, we see evidence that the “states which are united by and under the Constitution” may be a second kind of “state” that is fundamentally different from the States of the perpetual Union styled “The United States of America”.
Modern Titles in the United States Code refer to “states of the United States”. Are the “states of the United States” identical to, or fundamentally different from the “States of The United States of America”?
Sixth, the Hooven decision is also a little confusing insofar as the Supreme Court wrote,
“The relation of the Philippines to the United States, taken as the collective name of the states which are united by and under the Constitution, is in many respects different from the status of those areas [territories?] which, when the Constitution was adopted, were brought under the control of Congress [again, that sounds like territories exclusively subject to Congress under Article 4.3.2 of the Constitution] and which were ultimately organized into states of the United States. See Balzac v. Porto Rico, 258 U.S. 298, 304 , 305 S., 42 S.Ct. 343, 345, 346, and cases cited.”
It seems certain that the court’s reference to “areas” at the time the Constitution was ratified by the people in A.D. 1788 must refer to territories rather than to the thirteen States of the Union.
These territories would differ from the States of the Union in that, before joining the Union under the Articles of Confederation, those first, thirteen “States” were independent nations created by the Declaration of Independence in A.D. 1776.
However, virtually all of the subsequent “states” (Ohio, Indiana, Nebraska, California, etc.) started out as territories that were first “brought under the control of Congress” and which were initially subject to the exclusive jurisdiction of Congress under Article 4.3.2 of the Constitution. Congress, having exclusive legislative control over the territories, was always sovereign over the territories. Therefore, within the territories, individual men and women could not be sovereigns. They had to be subjects of Congress.
Congress did not have exclusive legislative jurisdiction over the States of the Union. Within those States of the Union, Congress was definitely not sovereign and the people may have been individual sovereigns. (It’s not hard to imagine that Congress would’ve relished the role of sovereign over the territories and dreamed of being sovereign over the States of the Union, as well.)
All of this conjecture suggests that out of the current “50 states,” the original 13 started as separate nations and the remaining 37 started as “territories”—with one, maybe two, exceptions: Texas and, perhaps, Hawaii.
Before it joined the perpetual Union, Texas was an independent nation—just like the original 13 States.
Hawaii had been taken by military conquest by the U.S. before it became a territory and then a “state”. I don’t know enough about the rules of war, conquest, etc. to say whether Hawaii was therefore an independent nation (like the original 13 States and Texas) before it became a “state” or if it was a true territory.
I don’t even know if the distinction between “states” that started as nations or that started as territories is important or even valid.
Still, the importance of whether a particular “area” started out as a territory or independent nation is suggested by the Hooven court’s reference to,
“. . . areas which, when the Constitution was adopted, were brought under the control of Congress and which were ultimately organized into states of the United States.”
I can’t prove it and my speculation is improbable. Still, I’m beginning to strongly suspect that the “States of the Union” (States of “The United States of America”) and the “states of the United States” are two entirely different kinds of “states” and the fundamental difference between them might be whether they were territories of independent nations before they became some kind of “states”.
The first 13 States of The United States of America started as independent nations and may still be very close to being independent nations, while the modern “states of the United States” may be more like territories or administrative districts. If this speculation is roughly correct, the people of the States of the Union may have standing to claim individual sovereignty. The citizens of the “states of the United States” are deemed individual subjects of the Congress and/or federal government.
My speculation seems (to me, at least) to be consistent with the Hooven court’s observation that the “areas” that were “first brought under the control of Congress” started out as territories which were later “organized into states of the United States”. I.e., some or all of the “territories” became “states of the United States” where the people were not individual sovereigns.
But, maybe, maybe, the “areas” that did not start as territories but instead began as independent nations (like the original 13 States, plus Texas and maybe Hawaii) could not be “ultimately organized” into “states of the United States” and might still be presumed (or at least argued to be) “States of The United States of America” (the perpetual Union). If so, the people of those States that started as independent nations might have better standing to claim individual sovereignty.
Maybe.
Seventh, I’m always wary of the term “collective”. Did the Hooven’s third definition of “United States” define a “collective” (noun) in the sense of all collectivist political systems (like communism, socialism and democracy)? Or did the Hooven court merely use the word “collective” as an adjective meaning something like “associated” or “assembled”?
The actual text in the Black’s 4th definition of “United States” (“collective name”) uses “collective” as an adjective rather than a noun. So does the Supreme Court’s text.
Still, the Hooven case was decided in A.D. 1945 when the idea of communism was already gaining ground in the world and deemed a threat to the American people. Therefore, the term “collective”—no matter whether it was used as a noun or adjective—would probably be “politically incorrect”.
So, it strikes me as odd, even suspicious, that the Supreme Court used the term “collective” twice (even as an adjective) to describe the “United States”. Couldn’t they find a synonym (like “associated” or “assembled” or even “incorporated”) that conveyed the same meaning but didn’t suggest that at least one definition of “United States” applied to a collective and a collectivist form of government?
• I know that this will come as a shock to some of you, but government—including our “honorable” courts (gasp!)—is largely a criminal enterprise—a “necessary evil” to some, but an evil nevertheless—bent on stealing the people’s wealth, rights and powers and keeping that booty for itself and/or whatever special interests government sometimes serves.
The fact that some two-bit, tin-horn shyster (even if he even graduated from some exalted law school like Harvard’s) wrote an opinion in A.D. 1898 that contradicts the revolutionary concept of individual sovereignty that animated the American Revolution a century earlier, proves nothing other than the People’s ignorance and indifference to their own liberties and best interests.
Wong Kim Ark is an interesting opinion, but all it proves is that on a particular day and time some shysters on the Supreme Court who favored big government wrote an opinion that disfavored the concepts of individual sovereignty and, therefore, limited government.
• Most people who follow this blog distrust the government. And yet, many of you persist in referring to court decisions as if they were God’s own word. They’re not. They are just the words of men who, being lawyers and law school graduates, are generally all trained, professional liars. Their opinions are can be useful or damning. They can’t be ignored. They should be read and understood. But they should not be worshipped as prophecy.
Since the American Revolution, our government has evolved and become increasingly unconstitutional, corrupt and antagonistic to individual freedom. No one seriously doubts that generality.
Our “honorable” Supreme Court routinely picks away at our rights and freedoms in order to enhance government powers–often under the pretext of a “balancing test” between the people’s freedoms and government’s interests. But, when this country started, the government had no constitutional interests other than serving the people. Today, it seems that the people have no “interests” other than serving the government.
• When you evaluate the meaning of a court case, consider the decision’s date. Court cases like Chisholm (A.D. 1793) were written by men who’d fought in the American Revolution and had a good grasp of our revolutionary principles. Court cases like Wong (A.D. 1898) were written by men who may have fought in the Civil War but had far less knowledge of, and respect for, the American Revolution’s principles.
The genius of the Constitution of the United States is that it’s an anti-government document. It limits the powers of the federal government (Article 1) over the people/sovereigns of the States of the Union. It provides for our rights to expose government corruption and even treason (1st Amendment freedoms of speech, press and assembly). It provides for protections against government abuse in courts with the 4th, 5th, 6th, 7th, and 8th Amendments. (Interesting, hmm? Half of the Bill of Rights were intended to directly protect us against abuse of judicial powers and oppression by the courts. It seems that the Founders were extremely distrustful of the courts.) The Constitution even provides the means for us to attack federal government if its despotism became unbearable (2nd Amendment).
We have constitutional “checks and balances” and guarantees of three branches of government—all designed to protect us from what the Founders knew would be our own government’s inevitable determination to overpower the people, destroy their rights and reduce them to servitude and bondage and freely engage in treason.
• It is the nature of every government the world has ever known to obsessively seek more power at the expense of its people. The Founders tried to protect the American people against our own government’s inevitable obsession with acquiring more power and control by reducing the people to subjects. Wong Kim Ark is simply another manifestation of the government’s war against the people, against their freedoms, liberties, and even claims of individual sovereignty.
Unfortunately, the American people (and people in general) are less interested in their freedoms than they are in free lunches. So long as government can provide free lunches, most people will merrily follow government and abandon their freedoms. It’s human nature. It’s also a tragic flaw.
But there’s always a remnant of malcontents who understand that government is not “here to help us” but is, instead, here to oppress us. They understand or at least dimly suspect that the principle enemy of every people is their own government. Such malcontents hang out on blogs like this one, read books that focus on ideals rather than “How To Make More Money” and once in a great while, even succeed in overthrowing a government (as in the American Revolution), resisting their own impulse to oppression, and establishing a government that (however briefly) actually seeks to serve rather than rule its people.
The Chisholm vs. Georgia case (A.D. 1793) was written in an era when the American Revolutionaries still held power in our federal government and worked to serve the people and protect their freedoms. Wong Kim Ark (A.D. 1898) was written in an era where the government was populated by a bunch of bureaucrats and big-government advocates who, in their hearts, dismissed the concepts of individual liberties and individual sovereignty as quaint, even dangerous relics of the past that were contrary to the natural order of things. They deem that natural order to be a world where government doesn’t serve—government rules.
If you’re going to understand Chisholm vs Georgie and Wong Kim Ark, you need to pay attention to their historical context. And don’t forget that all lawyers and judges are trained, professional liars. You shouldn’t automatically give any court opinion any more respect than you’d give to the text of a known, pathological liar. Some of their opinions are brilliant. Others are treasonous. Don’t automatically assume that every Supreme Court opinion is brilliant. Expect to see more lies than truths. Those lies may be skillfully concealed, but they’re usually there.
Don’t think so?
Then tell me which “United States” you’re in right now, and which “United States” does the government presume you’re in?
I’ll bet that 99% of the American people can’t comprehend that question, let alone answer it.
Americans didn’t achieve that level of ignorance without the help of government in general and the courts in particular.