BASIC PRINCIPLES OF LAW
By Dr. Lawrence Wilson
© October 2018, LD Wilson Consultants, Inc.
All information in this article is only the opinion of the author and is for educational purposes only. It is not for the diagnosis, prescription, treatment or cure of any disease or health condition.
Modern societies are defined, in large part, by their legal systems. This is a very important idea.
For example, many people, including the former American president, Mr. Obama, believe that all societies are roughly equal in value and quality. They say there is moral equivalency between all societies. This basically means that none are better than the others.
However, if you compare the legal systems of Iran, Russia, Red China and the United States, there is quite a difference. For example, in Iran, rape and murder (honor killing) are permitted. People are assumed to be guilty until proven innocent.
Western societies, in contrast, have advanced legal systems that make them unique and excellent places to live. It is one reason millions come to America, not Russia or Iran. It is not just for economic opportunity, but because this nation offers the best justice system in the world.
We believe there is much too little appreciation for the legal system under which we live. The ideas in this article need to be taught to all elementary school children. Instead, they are rarely taught, even at the university level.
Some of this article is excerpted from the first chapter of Legal Guidelines For Unlicensed Practitioners by this author.
BASIC PRINCIPLES OF AMERICAN LAW
The legal system of the United States is arranged in layers. An analogy is the way a computer works. At the most basic level of a computer is a machine language such as MS-DOS or Linux. Built on top of that is an operating system.
On top of that are the computer programs. Finally, on top of that is a person’s data and modifications of the programs needed for specialized use of the programs.
In a similar fashion, at the most basic level is the belief in the rule of law. This is the idea of having a written code of laws that is clear and must be followed. Some nations do not begin with this basic idea.
The next level are certain principles that are sometimes implied, but should be clearly written into the legal code. In America and some other nations, these include the following, which will be discussed in more detail later in this article:
1. Everyone is innocent until proven guilty.
2. Due process (both substantive and procedural) will be followed. This means that all of the rules and procedures in a case will be carried out properly.
3. Justice will be swift. This means that there will not be long delays between the time one is charged for a crime and the trial and resolution of the matter.
4. Justice will be equal. This means that the law treats everyone the same, regardless of one’s age, gender, race, religion, wealth or other differences between people.
5. Justice will be impartial. This means that, as much as possible, the judge and jury will have a neutral stance as to the innocence or guilt of anyone charged with a crime.
6. Justice will be the same anywhere within one’s jurisdiction or area.
7. No double jeopardy. This means one cannot be tried twice for the same crime.
8. Everyone has a right to legal representation in court. This means that if one cannot afford an attorney, the government will provide one free of charge.
9. Everyone will be judged by a jury of one’s peers.
10. All laws must conform to the national or state constitutions. Constitutions are contracts or agreements between the people and their government.
11. The functions of making the laws, enforcing the laws and judging the constitutionality of the laws will be separated. This means they will be carried out by different people and different departments of government so as avoid concentrating government power in just a few hands.
12. Laws must apply to the person in question, the location in question, the subject matter in question, and the time period in question.
13. If any of the above are questioned, they must be proven or a case may not moe forward in court. This means that if one questions whether a law applies to a certain person, place, activity or time period, the fact that it does must be proven by those bringing the case.
Built on top of these principles are many rules and procedures. What is not appreciated is this layering of principles. Now let us discuss these ideas in more detail.
PRINCIPLES OF AMERICAN LAW
1. The rule of law. This means that:
A. The nation is governed by a code of written laws that apply equally to everyone.
B. The laws are enforced.
C. Due process is followed. This means that all the correct procedures involved in enforcing the law are carried out properly. For example, people are arrested for certain crimes, they are put on trial, and punishment is decided upon and carried out.
The author lived in Mexico some years ago. This nation has a set of written laws. However, some were not enforced. If they were enforced, often due process was not exercised. This means that the correct procedure to carry out the law was not used.
For example, instead of writing a ticket for a traffic violation, police officers just stopped the driver and asked for a bribe. The law against traffic violations existed and was enforced, but due process was not carried out.
In fact, many nations are not even ruled by codes of law. Instead, they have “the rule of men”. This means that there are few fixed laws, or the laws exist, but are not enforced. Instead, rulers, leaders and judges do whatever they please to their people.
2. People are innocent until proven guilty. This critical principle is also not observed in many nations. It means that if someone is accused of a crime, the accuser must prove their case. The person accused is always presumed to be innocent unless and until he or she is proven guilty in a court of law.
The field of law has a lot of parts, and it is important to define them. Let us begin with the definition of a law:
1. Laws are rules of action. They are a set of regulations used to establish order in a community or nation.
2. Laws are statements of fact. For example, the law of gravity states that objects released near the earth will fall toward the center of the earth.
Procedural due process. This means that the formal procedures described in a law are carried out fully. For example, if a murder occurs, there will be a trial, and if the person is found guilty, there will be sentencing and punishment of a certain type.
Substantive due process. This means that the substance or main thrust of a law will be recognized and applied. Due process is sometimes said to have to do with fairness. However, it is much more than this.
Kinds of laws:
Constitutions are agreements between a nation of people and their government. It sets out what the government will do and which rights and powers are reserved to the people and to the states or provinces.
Statutes are laws passed by legislatures. For example, one such law is called a statute of limitation. This is a law that states that if one wishes to press charges on another person for a crime, they must do so within a set period of time such as 5 years. If nothing is done about a crime within five years, then the one who committed the crime goes free.
Implementing regulations are laws written by government agencies used to carry out statutes.
Executive orders are laws or rules issued by the president of the United States.
Legal Codes are compilations of all of the above.
Procedures and rules are more vague terms found in some laws.
Man-made laws. These are all laws governing behavior in a society. A law prohibiting murder is a man-made law. This article only discusses man-made laws.
Natural laws. These are scientific statements of fact about our universe. The law of gravity, for example, is a natural law. These are not the subject of this article.
Positive laws. A positive law is a requirement, or something one must do.
Negative laws. These are laws that prohibit something.
Oral laws. These are laws that are not formally written down. Instead, they are passed from one person to another by word of mouth. Such laws include customs and traditions, for example. They may be written in books, but are not formally organized into a code of law.
Some older societies use mainly oral laws. The problem with this is that the laws easily become confused and it is hard to sort out which meaning is the truth. For this reason, all modern societies use written codes of laws.
Written laws. These are laws that are written down or codified.
SOURCES OF OUR LAWS
Laws that come from outside versus laws that come from inside. In order to have a peaceful society, behavior must be controlled. The question becomes how much of the regulation will come from outside and how much from inside or self-control.
Free societies, capitalist economies and free market nations depend upon a lot of self-control on the part of their citizens. People need a moral foundation in order to control their behavior.
Communist, socialist and other authoritarian nations such as monarchies, dictatorships and strict religious societies rely less on self-control and much more on outside control or government control. For more on this topic, read Basic Politics and other articles about politics on this site.
The purpose of manmade laws. It is to promote the unfoldment of the potential in each human being. To do this, laws should:
- protect the rights of individuals from unruly mobs or majorities.
- protect the innocent from the guilty.
- provide equal treatment for all.
These qualities combined constitute justice and fairness.
Man-made laws are designed to bring order to societies. Good laws make for a peaceful, prosperous society. Poorly thought-out laws lead to moral, economic and social decline.
As human consciousness has changed, so too have our laws evolved. However, basic legal principles such as the golden rule do not change.
Problems with laws.
Often, laws are used to stifle innovation and competition in the marketplace, to redistribute wealth, to benefit some people at the expense of others, and to manipulate or control people.
Psychology of laws.
Laws are definitely needed. However, a feeling of being out of control that many people feel, at times, can lead to the passage of multitudes of laws in a futile effort to impose control from outside when it should come from the conscience within.
Whenever one considers passing a law, it is important to consider its actual and often unintended effects, even if its purpose seems noble and the effects are unintended.
Today, there is an attempt to create an entirely safe society. This has been used as an excuse to pass an explosion of regulations and licenses in every field.
In health care, education and other fields, many laws stifle innovation, protect outdated and often harmful practices, and protect the status quo. The actual effects of some of these the laws are the exact opposite of their stated goal.
There will never be an entirely safe society. Accidents will happen and innovation requires trial and error. This article will suggest that the best regulatory structure to protect people, while allowing innovation, is the free market system.
This requires strong property rights, full rights to litigate for damages, a minimum of government-imposed regulations, and enforcing the three basic criminal laws. These are:
1. Fraud. Fraud means claiming something is true when it is not true.
2. Misrepresentation. This means claiming one is someone that you are not.
3. Negligence. This is not fulfilling a contract or agreement.
Words are very important in the field of law. This is to prevent confusion. Those that would confuse us know this and deliberately mix up the meaning of words.
Laws are specific. Every law applies only to 1) specific individuals or groups, 2) specific situation(s), and 3) a specific area, nation, state or other place. We can state this important idea in the following way:
1. Who is the law for. In legal language, this is called the named persons. For example, a law may apply to everyone in a nation, state or province. However, some laws only apply to those who enter the nation illegally, or to those who steal or murder.
2. What is the law for. In legal language, this is called the subject of the law. Laws are written on many subjects such as education, medicine, manufacturing, farming, contracts and hundreds of other subjects.
3. When and where does the law apply. In legal language, this is called the jurisdiction. For example, some laws only apply in one town or city. Others apply to the whole nation. Some laws apply to the ocean, while others apply to the skies or the land. Some apply to the roadways, while others apply only on private property such as homes.
II. A VERY BRIEF HISTORY OF THE LAW
For most of recorded history and in most nation-states, power and authority flowed from the ‘gods’ to the leader, who then made the laws for his subjects. Might makes right was the rule.
This is still the situation today in much of the world. It is veiled in fancy terms such as communism, socialism, and others. However, the situation is that a small group or perhaps even a single person makes the laws, enforces or carries out the laws, and judges the laws.
In these nations, the average person has very little input regarding laws. Also, the leaders are generally exempt from the laws. They do not have to pay taxes, and they can do things such as steal and murder without penalties.
INFLUENCE OF THE BIBLE UPON OUR LAWS
The Ten Commandments of Moses in the Hebrew Bible represented a great step forward in the evolution of law. The commandments these are simple, are to be obeyed by everyone, and would be enforced by a higher power rather than by a king.
Many of our present legal principles can be traced back to admonitions found in the Old Testament of the Bible. For example, the principle of having three branches of government – an executive branch, legislative branch and a judicial branch, is from the Bible, which states that God makes the laws, carries out the laws and judges the laws.
HEBREWS WARNED NOT TO HAVE EARTHLY KINGS
An important lesson is given in 1 Samuel, verse 8. The Hebrews were told not to set up an earthly king or other idols. This follows from the Second Commandment. However, they insisted on having a king.
Speaking through Samuel, Jehovah warned that a king would tax them dearly, take the men to fight in foreign wars, and enslave the young women in his harem. The people insisted on having a king anyway - and the warnings proved correct.
THE DIVINE RIGHT OF KINGS
Around the world, the divine right of kings was the doctrine under which monarchs justified controlling the population. It basically stated that the king or queen had a right given by God to rule over the people.
Beginning around the year 1000 AD, landowners and nobles in England, mainly, whittled away the power of the king and gained more power themselves. This culminated in documents such as the Magna Charta (written in 1200 AD), a precursor of the American Bill of Rights.
Still, the king retained ultimate power.
EFFECT OF CHRISTIANITY ON THE LAW
Christianity definitely had a civilizing effect upon European law. It taught the10 commandments of Moses and the Golden Rule,which are powerful principles of behavior.
However, the church became a new power center that also came to control the people.
THE BRITISH LEGAL SYSTEM
This system of laws developed during the Middle Ages and Renaissance – from about 500 AD to 1600 AD. In this system, there was a set of laws for the royalty (kings, queens, dukes, duchesses, princes, princesses, knights, and others). There was a separate set of laws for the church, and a separate set of laws for the commoners or the rest of the population.
This system of laws is very important because it was the system in Great Britain when America was formed. It has since been more or less abandoned in favor of one legal system for everyone.
THE FLOW OF POWER IN AMERICA
The American colonists, fed up with the tyranny of the English king and the Church of England, decided to abolish the position of king and to prohibit any state religion. The flow of sovereign power in America would be as follows:
- Ultimate authority or sovereignty flows from the Creator directly to each sovereign Citizen (not to the leaders, not to groups, not to majorities and not to bureaucrats).
- The Citizens delegate (meaning assign or entrust) specific powers to the local, state and federal governments. This occurs by means of contracts called constitutions. These specify which powers are entrusted to the government and which are retained by the people. Governments may pass laws, but they must conform to the contract or constitution.
- All powers not specifically delegated to the government remain with the people.
- People are innocent until proven guilty.
- No double jeopardy. This means that a person who is tried once for a crime cannot be tried again.
These were, and still are, radical doctrines. For millions of people around the world, they are only a dream. These principles have also been forgotten by many judges, lawyers, teachers, presidents, bureaucrats and others in America.
For the past 150 years or so, powerful forces have sought to reverse the flow of power, making the states and the people mere subdivisions of the national government. This has caused much loss of individual liberty and social decay in America.
Liberty, privacy and the supremacy of the individual over the state are absolute values. They cannot be bargained away or compromised without impairing the entire fabric of society. This truth is rarely taught in school, and we are living with the results.
THE HIERARCHY OF LAWS
Based on the above, there is a hierarchy of laws in America. This is very important to understand. The hierarchy is as follows:
I. Biblical principles are the legal and spiritual basis for the American legal system.
II. These Biblical principles were incorporated into British legal system English Common Law embodied the Biblical principles and was the unwritten legal tradition in 18th century Europe. America adopted the Common Law of England at the time of the American Revolution (1776).
III. Constitutional law consists of the contracts between the sovereign people of America and their federal, state and local governments.
IV. Statutes or public laws are laws passed by local, state and federal governments.
V. Implementing regulations are rules that accompany each public law in order to carry out the law.
VI. Case law consists of interpretations of the law made by judges and juries over the years. Important cases are called precedents.
Let us consider each kind of law in more detail.
Biblical principles such as “Thou shall not kill,” “Thou shall not covet” (which includes using any means to get what you want), “Thou shall not steal” and “Thou shall not bear false witness” (which is lying, fraud and perjury) remain the basis for American law. The Bible traces the maturing of mankind from the slave state in Egypt to a state in which one is totally responsible for one's acts and thoughts. The Ten Commandments are the basic requirements for taking responsibility. The Hebrew word for commandment means a signpost, not a rule. The intent was that if one follows the signposts, one will be led to a better life. Other Biblical laws include the 613 rules given in the books of Leviticus and Deuteronomy, and the golden rule in the New Testament.
Though rarely discussed, the Common Law is very important. English Common Law was the major body of law in use at the time of the American Revolution. The US Internal Revenue Service law book contains a good definition the Common Law. Page 5041.1, Section 222.1 states:
"(The) Common Law comprises the body of principles and rules of action relating to government and the security of persons and property which derive their authority solely from usages and customs or from judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs."
The Uniform Commercial Code or UCC is a single American federal law containing some of the original common law pertaining to contracts. UCC 1-103.6 states that:
"The code (UCC) is complementary to the Common Law, which remains in force, except where displaced by the code."
The American Declaration of Independence and Constitution are Common Law documents. They were written within the framework of the Common Law, the system of law then in force in the American colonies. To understand the original intent of these documents (and your rights to practice) requires understanding them within the context of the Common Law.
A constitution is the contract established between the sovereign People and their creations, the state and federal governments. The word People is capitalized because it denotes a group of empowered citizens rather than a group of slave-like sheep. A constitution enumerates which powers and responsibilities are delegated to the government and which are retained by the People. Our state and federal constitutions also set forth the three branches of government and important details about the operation of the government. The federal Constitution is a relatively short and simple document that should be read and understood by everyone. Chapters 11 and 12 discuss the federal Constitution and Bill of Rights.
Constitutional law also consists of the state and federal constitutions and their amendments. Commentaries such as the Federalist Papers offer more insight about the intent of the federal Constitution. The first ten Amendments to the federal Constitution are called the Bill of Rights. All state constitutions also have a Bill of Rights. Many times the protections offered by the state constitutions are greater than those of the federal Constitution.
The state and federal constitutions permit local, state and federal legislatures to pass public laws or statutes. Statutes must conform to the state and federal constitutions. If not, they can be struck down as unconstitutional. Statutes have slowly replaced the common law in America. However, all state constitutions acknowledge the common law as binding unless superceded by statute. The U.S. Code or USC is a series of volumes of federal public laws or federal statutes. Each state also has its book of laws.
Among the statutes are the state medical practice acts. These govern the practice of the healing arts and the issuance of licenses. An excerpt from the California Business and Professions Code, "Unlawful practice of medicine defined”, reads as follows:
"Any person who practices, or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, injury, or other physical or mental condition of any person, without having at the time of doing so a valid, unrevoked, or unsuspended certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor."
One can argue that the above violates the constitutional prohibition against passing laws that abridge the right to contract freely (Article I, section 10). However, courts have so far upheld these laws under another, newer and dubious doctrine called the police powers of the state. This is defined as the power to:
"prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity." - from Barbier v. Connolly, 113 U.S. 27, 31 (1885).
The extent to which the police powers may infringe upon constitutional rights to contract freely and protect one's property is an open question. The trend has favored giving up more and more rights and powers to the government!
There is another perspective regarding the constitutionality of the medical practice acts. Note that the acts begin with: "Any person who practices..." A 'person', legally defined, includes corporations and partnerships. These entities are creations of the state. Such creations have no constitutional rights. If a medical practice act stated that "Any Citizen who practices...", it would likely be declared unconstitutional. We will return to this topic in chapter 3.
It seems that the statists, or those who favor more government power, have tricked the population into thinking of themselves as mere “persons” (corporations), rather than remaining sovereign Citizens whose rights cannot be taken from them.
An implementing regulation must accompany each statute in order for the law to have effect. For example, a statute might establish a board of medical examiners. However, the legislature does not write all the rules and procedures to carry out the law. They delegate this task to an agency or even to the board itself. Federal implementing regulations are found in a series of volumes called the Code of Federal Regulations, or CFR. Each state also has a book of state implementing regulations.
At times, a statute is fair but its implementation is not. Such corruption occurred, for example, with the National Labeling and Education Act of 1990. The intent of Congress was not to use the law to take nutritional supplements off the market. However, the American Food And Drug Administration (FDA) interpreted and perverted the law, writing the regulations in such a manner that they could remove products from the store shelves at whim.
CASE LAW AND PRECEDENTS
Statutes and implementing regulations are general in nature and cannot cover every case. When judges and juries consider specific cases, they further refine the meaning of the law. This is called case law.
Precedents are important cases decided by judges or juries. For example, the law says an unlicensed practitioner may not diagnose disease. However, when does an assessment, a guess or an evaluation become a diagnosis? This issue must be decided by a judge or a jury. All such specific cases form case law. Lawyers look to case law to see how an issue was handled in the past. Sometimes the intent of a law is just, but its interpretation by the courts changes its meaning entirely.
LEGAL DOCTRINES THAT AFFECT ONE’S WORK
The remaining sections of this chapter introduce important legal doctrines that affect one’s practice. The first of these is a critical principle:
1. GOVERNMENT IS FORCE, AND THAT GOVERNMENT IS BEST WHICH GOVERNS LEAST.
This important principle means that government, by its very nature, is coercive and to be feared. Therefore, the less government that is required, the better.
This is the opposite of the statist view – that government is good, and therefore the more government, the better. Today, many professors and news commentators try to convince us that government is good, in spite of the evidence of waste, fraud, abuse, mismanagement and tyranny by governments around the world. The American founders feared the government, and I suggest so should you.
2. SELF-GOVERNMENT REQUIRES A VIRTUOUS PEOPLE (Self government means a smaller government with more decisions left up to the People.)
This legal principle is attributed to George Washington. It is critical today because many of the Citizens are not that virtuous, so some liberties may need to be curtailed, such as legalized drugs, prostitution, pornography and more, for example, until more people are virtuous. This is where I disagree with many libertarians, who forget that self-government requires a virtuous people.
Jurisdiction of a court is its right or authority to hear and try a case. Jurisdiction also means the sphere of authority or power of a governing body. The issue of jurisdiction is the issue of whether or not a particular law applies to you, to your location and to your type of business.
Jurisdiction may depend upon a geographical area, the subject matter, or the person who is on trial. A simple example of geographical jurisdiction is that a court in a particular state has the authority to hear only cases that pertain to that state. Some states view natural health care differently than others. One state may be more lenient and therefore an easier place to work.
A very important principle of jurisdiction is that in order to hear a case, a court must have jurisdiction over both 1) the person and 2) the subject matter.
"If any tribunal (court) finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed." - Louisville RR v. Motley, 211 US 149, 29 S Ct. 42.
Another important aspect of jurisdiction is that once it has been challenged, it must be proven. If it is not challenged, jurisdiction is assumed to exist. Many people have lost their case in court because they challenged the subject matter of the case, when they should have challenged the jurisdiction of the court to hear the case at all.
For example, let us imagine one is charged with practicing medicine without a license. Let us also say that one does not consider oneself a 'person' under the law. The statutory laws are written for persons and the courts today are for persons. One would need to defend oneself by challenging the jurisdiction of the court. If one does not challenge jurisdiction, it is presumed that one accepts the court’s jurisdiction and one can only argue the subject matter.
4. ENUMERATED POWERS
Enumerated powers means that governments may only exercise powers that are delegated to them by the People (sovereign Citizens) in the constitutions. All other powers are reserved to the People or the states. James Madison wrote in Federalist Paper #45:
“The powers delegated by the proposed Constitution to the federal government are few and well-defined. Those which are to remain in the States are numerous and indefinite.”
The Tenth Amendment to the United States Constitution states:
“The powers not delegated to the United States (government) by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the People.”
An example of violation of the principle of enumerated powers was the attempt in 1993 to institute socialized medicine in the United States. The merits of it are one matter. The federal government, however, is nowhere empowered to take over the health care industry. A Constitutional Amendment is required to nationalize an entire industry.
Often laws are passed without the constitutional authority to do so. This abuse is widespread. The FDA often writes rules for herbs, vitamins, foods and other products, although they are not a legislative body. They have no constitutional authority to write laws. They also enforce their own laws, often with gun-toting SWAT teams, although they are not a court of law and they have no power to judge the law. Over 100 federal agencies do the same thing. This brings us to another important American legal principle.
5. SEPARATION OF POWERS
This is a critical American legal doctrine. In 18th century England, the king or queen passed the laws, executed or carried out the laws and judged who broke the laws. This gave the monarch absolute power. Every dictatorship must combine these three powers yet today.
To establish and preserve the liberty of the people, the founders of America decided to separate these powers. They asserted that no one person or group of persons would have the power to 1) pass, 2) execute and 3) judge the laws. They divided these functions as follows:
Š The legislative branch of government enacts or passes the laws. Legislative bodies include local city councils, county governments, state legislatures and the two houses of the Federal or National Congress.
Š The executive branch of government carries out the laws. Executive bodies include city mayors, state governors, the president of the nation, the vice president and the cabinet.
Š The judicial branch of government judges guilt or innocence. This is performed by judges and by juries of one’s peers (the sovereign Citizens).
6. THE FULLY INFORMED JURY
Juries of one's peers were to be the ultimate judges of guilt or innocence in America. However, the jury also has the power to judge the validity of the laws. For example, one might be guilty of breaking a law. However, the law can also be declared null and void by the jury. Chapter 15 discusses this important subject in more detail. It is a very important legal doctrine that has been more or less ignored in America and elsewhere today.
7. SEPARATION OF FUNCTIONS
Another critical legal concept I want to emphasize is the idea that certain government functions are best handled by the federal government, while others are best handled at the state level, and others at a local level. The distribution of government functions is a very important subject if we are to retain out liberties.
Declaring war, foreign trade, making treaties and valuing the money are federal or central government functions according to the US Constitution. Education and building roads are traditionally state functions. Police and fire protection are generally considered local functions. In the 20th and 21st centuries, the American federal government has assumed more and more of the functions of state and local governments. Some say this is the only way to assure a minimum standard for all Americans. The truth, I believe, is that it is just a grab for more centralized government power.
The problems with centralized government include micromanagement, unfunded mandates and big brother tactics that deprive individuals and localities of their rights and powers. Others are waste, fraud and abuse. Any time another takes responsibility for our welfare, control and power are also taken away. Also, no constitutional authority exists for many of these functions. One might answer that times have changed and the old principles no longer apply. Perhaps, but perhaps not.
8. GOVERNMENTAL VERSUS PRIVATE FUNCTIONS
Another extremely important legal principle is that some tasks within society are best handled by governmental bodies, while others are best taken care of by the private sector of society.
The founders of America reasoned, for example, that only those functions that individuals cannot handle by themselves such as declaring war, making treaties, building roads, regulating commerce, and a few others should be handled by the government.
Everything else, such as building houses, repairing automobiles, manufacturing, retail sales, and industries such as health care, social welfare, and education are best taken care of by the private sector or non-governmental sector of society. They also reasoned that this would create a much smaller government, which is therefore less corrupt and less likely to abuse power.
The problems in American and European health care today, for example, I believe have resulted in large part from violation of the important principle of which functions are proper for the government to assume. I believe that the concept that a government bureaucrat, often with minimal knowledge of your needs, knows more about your health care needs and is more qualified than you and your health care practitioner to make life and death decisions for you, is simply wrong. Yet this is exactly what modern statists believe and attempt to implement through legislation such as Obamacare, Medicare, Medicaid and similar “National Health Care” proposals in many nations of the world.
The above is a very brief summary of how the American governmental system is supposed to operate. It is quite a work of genius, and it worked extremely well for over 120 years, although tampering with it began early in the history of the American republic.
Today, this entire system has been turned on its head. It is the result of a grab for power by the federal or central government. For example, regulatory agencies such as the Food and Drug Administration, in fact, make their own rules, enforce their rules and judge who breaks them. This is a far cry from what the founders of America had in mind when they wrote the Declaration of Independence and the federal Constitution.