WHAT IS THE LAW OF THE LAND? — PART 1

When I considered the controversy over Kim Davis’ refusal to issue same-sex “marriage” licenses and the comments I received on the post, “THE LAW” VERSUS A CLEAR CONSCIENCE — reblogging Your Sister is in Jail, two things occurred to me:

• The people of the United States profoundly disagree on the definition of “the law of the land.” We have lost whatever consensus we once had on the purpose of government.  If we had to reconstitute our government, we would probably be unable to agree upon a legitimate government. At best, we would be frightened into supporting a tyranny, which perhaps is happening even now.
• The People of the United States no longer share a common set of ideas and beliefs. We differ substantially with respect to philosophy (logos), cultural background (ethos), and what moves each of us emotionally (pathos). Therefore, instead of having some ability  to persuade each other, we speak pass each other (see Ethos, Pathos, and Logos and Aristotle’s Rhetorical Situation).

When a People differs with each other over  the definition of “the law of the land,” especially its purpose, that can lead to civil war. When a People cannot negotiate with each other, compromise is not possible. All that is left is tyranny, a tyrant who divides a People, conquers a People, rules a People, and abuses a People.

Defining The Law Of The Land

So how did we once define “the law of the the land”? Wikipedia’s article on the Magna Carta refers to the depiction above as romanticized. Perhaps they are right. Yet, this statement, Article 39, appears in the Magna Carta.

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land. (from here)

For whatever reason, it appears the barons opposing King John understood that they needed the support of the People to oppose King John. So they mustered support for the Rule of Law.

What exactly is “the law of the land”? Wikipedia, which seemingly has an article on almost everything, has this article, Law of the land. The Law of the land references the citation above and defines the phrase this way.

The phrase law of the land is a legal term, equivalent to the Latin lex terrae, or legem terrae in the accusative case. It refers to all of the laws in force within a country or region, including common law. (from here)

Findlaw Legal Dictionary provides a deceptively simple definition.

What is the “deception”? In its definition, Findlaw uses an equally complex phrase to define “the law of the land.” What is “due process”? In many respects, it is what earlier generations referred to as “the law of the land.” It is because “due process” is so difficult to define that we have lawyers. Fortunately, Findlaw defines”due process” here and provides a longer article on the subject here.

Findlaw’s definition of “due process” references the Fifth Amendment to our Constitution. That amendment provides our counterpart to Article 39 of the Magna Carta.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law (emphasis added); nor shall private property be taken for public use, without just compensation. (from here)

Before our government can use the law against any citizen, our leaders must comply with the due process of the law.

So what is “the law of the land” of the United States? There is no one document that we can point to as “the law of the land.” However, Article VI of our Constitution contains the following paragraph.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land (emphasis added); and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (from here)

Note that the Constitution does not call a man, a legislative body, or a court the supreme Law of the Land. The Constitution points to written documents as the Law of the Land. Thus, in the next paragraph of Article VI, we understand that public officials swear to uphold the Rule of Law, not men.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

What is to follow in this series?

• The Purpose Of The Law Of The Land
• The Means of Persuasion — Ethos, Pathos, Logos
• Why Must We Choose A New Leadership?