Central to much, but not all, antigovernment doctrine is the belief that the "common law" is all that rightfully governs sovereign individuals. That much is quite clear. What is not so easy to discern is precisely what "common law" means to members of these groups. Typically, arguments contain an imprecise mixture of principles embodied in the Magna Carta, the English common law (as reported in Blackstone's Commentaries), the Declaration of Independence, the United States Constitution and the Bill of Rights. One of the tactics, or typical demands, of the antigovernment groups is to require that the court only apply this "common law.” Where the court fails to do so, the members often effectively terminate the proceeding - becoming disruptive, entirely uncooperative, and usually either filibustering or refusing to speak at all.
As with other areas of antigovernment or sovereign citizen doctrine, the specific arguments vary among the particular groups and among the speakers within those groups. A common theory is that the American Common Law is the "unwritten set of laws that get their binding force from age-old usage and acceptance."31 It is not clear that any particular groups share a common vision of what the "common law" is and exactly how it should be applied, for there does not seem to be a working hierarchy among documents or a general theory for reconciling apparent contradictions among the documents the movement relies on. It does appear clear that the notion of "common law" is as much about a belief in the inalienable sovereignty of the individual and a certain mindset as it is about a given set of usable rules by which to govern a society. In fact, one commentator has described the "common law" as "more than a system of rules to be observed or a set of formal institutions that demand recognition; it is a world in which people live."32
Given this understanding of the "common law," it is easy to imagine the importance adherents to these groups attach to it, and thus makes clear why they make this demand when in the state courts. Essentially, this demand is not so much a tactic as it is a way of doing business. Typically, the member
31
Richard Abanes, American Militias (1996) at 31. Mr. Abanes is the Director of the Religious Information Center of Southern California, and has written extensively on his view of the threat posed by the militia movement.
will be in state court for some purpose. If it is a civil matter, he or she cannot be liable, because the court is corrupt and refuses to recognize the binding law of the Magna Carta, for example (though members have appeared in court as plaintiffs and had no problem using the state's legal system to his or her own ends). If this is a criminal matter, the member will again demand use of the common law, citing – and often shouting – pieces of wisdom taken out of context from one of the great historical documents.33 Herein lies the "tactic": when the court refuses to recognize the member's objection or argument - as the court almost always will - the member will further object, completely disrupt the proceeding, will file an appeal based on the court's failure to adhere to the "proper law," and will sometimes bring a separate, outside suit against the judge for violating his or her civil rights.
In addition to the "common law" demand, members will often incorporate references to the Uniform Commercial code.34 Adherents rely on a belief that, after the case of Erie Railroad Co. v.
Tompkins35 our courts abandoned the use of what we think of as the common law - that judge-made
law that plays an integral role, along with the statutory and administrative law that makes up our system. Rather than the accepted reading of Erie, that is, that there is no federal common law (but that common law in the states is left intact and federal courts apply state substantive law and federal procedural law), these groups believe that the case abolished the use of all common law. To them, this both leaves a gap in our system of laws and is evidence that the Supreme Court declared that "commercial" law is now supreme. For this, they have adopted liberal readings of the Uniform Commercial Code, and demand that tortured readings of its provisions be used as statutory law in the proceedings of which they are a part.
32
See Susan P. Koniak, "The Chosen People in Our Wilderness," 95 Michigan Law Review 1765 (1997)
33
Susan P. Koniak has described the common law courts adherents "jurisprudence" in the following very perceptive way: ".. they believe that in our world, admiralty law prevails and the Uniform Commercial Code has somehow replaced the Constitution of the United States as our fundamental social contract. No one can construct, or reconstruct, a legal order from precepts strung together on a list ...” Id. at 1769-70.
34
See, e.g.. Appendix C, "Movement Documents." 35
304 U.S. 64 (1938).
B. Typical Responses to the Common Law Demand
1. Acquiescence - it has actually been suggested by some commentors that courts just
dangerous, if not absurd, proposition. It may be that such commentors are actually suggesting that the courts sort of "play along" with these groups and their demands. Regardless of the way in which acquiescence is suggested, it is clear that no legitimate tribunal can either apply the "common law" as understood by these groups or "play along" with their demands. This is simply not an option.
2. Continue over objection - this is the likely response to the "common law" argument.
It is, in fact, the only route a court can legitimately take - if it wishes to retain its credibility and legitimacy. Like all responses, this is likely to trigger two things: resistance in the litigant demanding use of the "common law," and an appeal later on. While courts will have to deal with the resistance of the litigants, using traditional devices such as contempt, removal and the like, courts should not fear the results of an appeal - "common law courts" and their attendant jurisprudence have been long held to be legally non-existent.36
36
Subpart 2.4 - Significance of "The Bar"