Most people are tricked out of their rights by legalities they did not understand. Beware of legal lingo.
Learn how to avoid the deceptions.
Prerequisite to understanding this essay: Read my blog Your Government’s Definition of the Term “must” only some of which is repeated here.
Those who want to play god are always changing pre-existing word definitions. Even the maxim of law that says meanings cannot change, has now changed. It once said:
But the lawyers changed the definition.
Law dictionary definitions are NOT English dictionary definitions.
THE WORD MUST MEANS MAY. Your Government’s definition of the word “MUST” means “May”
You’ve probably been told that you “Must” file a form, or you “Must” disclose a number. Let’s take a closer look.
Caterpillar Tractor Company v. U.S., 589 F.2d 1040 ( Carpenter v. United States, 495 F.2d 175 (5th Cir. 1974); Adler v. Commissioner, 330 F.2d 91 (9th Cir. 1964). And also see GEHL Co. v. Commissioner of Internal Revenue. 795 F.2d 1324):
“Informal publications of IRS all the way up to revenue rulings are simply guides to taxpayers and taxpayer relies on them at his peril.”
Brinkley v. Brinkley, 56 N.Y. 192: “Must” as used in statutes has been frequently construed not to be mandatory.
THE WORD SHALL SOMETIMES MEANS MAY
Fort Howard Paper v. Fox River Dist. 26 N.W.2nd 661: The word “shall” in a statute may be construed to mean “may”, particularly in order to avoid a constitutional doubt.
Gow v. Consolidated Copper, 165 Atl. 136 (1933): If necessary, to avoid unconstitutionality of a statute, “shall” will be deemed equivalent to “may”.
George Williams College v. Village of Williams Bay, 7 N.W.2nd 891: “Shall” in any statute may be construed to mean “may” in order to avoid constitutional doubt.
US Supreme Court, Cairo and Fulton RR Co. v. Hecht, 95 U.S. 168 (1877): As against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.
Ballou v. Kemp, 95 F.2d 556:
“The word `shall’ in its ordinary sense is imperative. `When the word “shall” is used in a statute, and a right or benefit to any one depends upon giving it an imperative *559 construction, then that word is to be regarded as peremptory.’ But the intent of the act controls, and when the spirit and purpose of the act require the word `shall’ to be construed as permissive it will be done. . . .” [Lewis’ Sutherland Statutory Construction, 2d ed., 1904, p. 1155]
“Whether the language of a statute is imperative or merely permissive depends on the intention as disclosed in the nature of the act and in the context. Although the words of a statute are merely permissive, directory, or enabling, they may nevertheless have the force of words of command where the power or duty to which they relate is for the advancement of public justice or the security and protection of public or private rights. . . .
The word `shall’ in a statute may be construed as `may’ where the connection in which it is used or the relation into which it is put with other parts of the same statute indicates that the legislature intended that it should receive such a construction; but if any right to anyone depends on giving the word an imperative construction, the presumption is that the word was used in reference to such right or benefit. `Shall’ ought undoubtedly to be construed as meaning `must’ for the purpose of sustaining or enforcing an existing right, or when a public body is directed to do certain acts.” [25 R.C.L. § 15, pp. 767-769]
And just to make things more confusing…
SOMETIMES MAY MEANS MUST
Note how “may” is defined in 34 AmJur, Mandamus, section 72:
“Frequently, however, the word ‘may’ or the like as used in statutes relating to the duty of public officers is construed as mandatory, and not merely permissive, Anno: 6 L.R.A. 162; 12 L.R.A.(NS) 340, See STATUTES (also 25 RCL p. 750), and when such is the case, mandamus may issue to compel the officer to perform the duty so imposed. Rock Island County v. United States, 4 Wall. (US) 435, 18 LEd,419; Brokaw v. Highway Comrs., 130 Ill482, 22 N.E. 596, 6 L.R.A. 161.”
US Supreme Court in Mahler v. Eby 264 US 32:
“It is essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise”
AND JUST SO THAT YOU ARE NOT FOOLED, OR MEANS AND.
Take a closer look at section 6001 of the Internal Revenue Code. It uses the deceptive terminology “may require” and “or by regulations”:
“… Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title.”
Concerning the “or by regulations” terminology: This is one of the places where the word “or” really means “and”. If you are going to claim that some people are served notice in person, while others are served notice via the publication of regulations, then I demand the equal protection of the law, equal with those who have been served notice in person. [In statutes the word `or‘ can mean `and‘ unless preceded by a comma.] and of course, “may require” means must require.
LAWS MEAN WHAT CONGRESS INTENDED IT TO MEAN, but cannot exceed a Constitutional purpose.
Justice Felix Frankfurter, in 47 Columbia Law Review 527 (1947), expressed:
“To go beyond [the statute] is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.
THE WORD INCLUDES IS INCLUSIVE UNLESS IT IS NOT
The word “Include” is an inclusive term. It cannot be expanded to include items outside the category being defined.
Inclusio Unius Exclusio Alterius This Latin phrase means, including one excludes others.
The inclusion of a specific term in a particular context may be safely interpreted to indicate the writer intented to exclude other terms.
For example, if a sentence specifically refers to items in commerce, this rule forbids lawyers and judges from expanding the writer’s intent (e.g., the intent of Congress, your state legislature, or even an opposing party).
By referring to commercial purposes only, a sentence may not be “interpreted” as also referring to privately owned items.
It is not the authority of courts to expand what a law or regulation beyond what it specifically says!
If a sentence you encounter at court makes specific mention of “motor vehicles”, one is permitted to interpret it as including trucks, buses, motorcycles, automobiles, and other motor-driven vehicles used in commerce.
If a statute makes specific mention only of “commercial use”, (your state’s jaywalking laws for example) then inclusio unius, exclusio alterius forbids interpreting that sentence to include pedestrians who are not in commerce. (such as jaywalking laws).
The word “include” is from Latin inclaudere to shut in, to keep within. In other words, include means everything within the list excludes anything outside the list.
Every Law Dictionary will tell you:
Black’s Law Dictionary did not have the new definition of Include until the 1933 edition. It can now mean “in addition to” or “and”.
But the word inclusive still excludes everything else.
U.S. Supreme Court in Colautti v. Franklin:
“It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Colautti v. Franklin, 439 U. S. 379, 392, and n. 10 (1979). … As judges it is our duty to 485* construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it.” Meese v. Keene, 481 U.S. 465, 484-485 (1987).
Note 10 of Colautti Ibid, reads:
“ … As a rule, “[a] definition which declares what a term `means’ . . . excludes any meaning that is not stated.” 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978).”
Federal Regulation shows clearly that congressional legislative decrees do not expand the scope of things included beyond the use of general class of things so defined:
“The term ‘includes’ and ‘including’ do not exclude things not enumerated which are in the same general class.” –27 CFR 72.11.
This Latin phrase translated means “of the same type”.
If the meaning of some words are plain, but the context is confusing, i.e., the way they appear in a sentence can make it unclear what is meant.
Example: a statute defines the word individual by a list of artificial entities but the list includes the word persons. Since people are needed to give life to the artificial entity, the only person intended by the statute are the ones responsible for running the artificial entity.
Applying ejusdem generis, general terms at the end of specific lists include only things of the same type as those specifically mentioned in the list.
For example, suppose you read “apples and oranges and other fruit”.
What “other fruit”?
The rule of ejusdem generis limits “other fruit” to mean other tree grown fruit. strawberries and blueberries are not included.
By the rule of ejusdem generis if a “continuing” phrase (e.g., etcetera) appears at the end of a list of similar things related in some fashion, then the continuing phrase may only refer to additional similar things related in the same fashion.
In Pari Materia
The Latin means “compare with the material” or “consider from the related substance”.
When the meaning of one sentence is uncertain, its meaning may be taken by reference to other sentences within the same paragraph or section.
Taken together (since they are in the same paragraph and therefore in pari materia) each may be used to explain the other.
Reddendo Singula Singulis
This Latin phrase means “refer each separate”.
Reddendo singula singulis requires that modifiers (adjectives, adverbs, or modifying phrases) at the end of a list refer only to the last item in the list and may not be applied to those items appearing earlier in the list.
Reddendo singula singulis refers phrases to their object, whereas Referendo Singula Singulis refers words to their separate subjects.
Generalia Specialibus Non Derogant
Here the Latin tells us general terms may not detract from special terms, i.e., that a later sentence (or statute, for example) making general reference to some topic may not be interpreted as overruling or repealing what was said earlier in specifics.
In doing your legal research, you will notice that language in earlier revisions of a law are often left off of the current revision. If congress had wanted to repeal the earlier version and replace it, they would have done so.
If your state’s driving laws leave off the all-important single object of the legislation, or the single object of the department of motor vehicles, then you will have to apply Generalia Specialibus Non Derogant to conclude that the driving laws are only for commercial purposes of making a profit by using the public roads.
Last Antecedent Rule
Statute Construction is NOT interpretation
THE DEFINITION OF REGULATE KEEPS CHANGING.
The first two editions of Black’s Law Dictionary used the Webster’s definition. The third edition, in 1933 after we lost our right to own gold coins, and after Congress changed our national anthem to one that did not mention God, added:
“Power to regulate is power to establish reasonable limitations but does not generally include power to prohibit.”
Then they added separate lengthy definition for Regulations for an Executive Department (editions 4 to 6, but not later editions), and a separate definition for Regulations plural (editions 5 and 6, but not later editions).
Black’s Law Dictionary sixth edition in 1990 was the first to have no definition for Regulate singular. It is no longer in their vocabulary.
Then Black’s Law Dictionary seventh edition in 1999 dropped these two definitions (Regulations for an Executive Department and for Regulations plural) but defined Regulation to include restriction — even though the third edition said “does not generally include power to prohibit”.
How do you like that? The same legal system that originally told us that pre-existing definitions cannot change, now insists that you must be fooled.
“Regulate” and “Regulated” are used in the U.S. Constitution. To regulate interstate commerce, to regulate the value of coins, and a well regulated militia, etc. They can mean different things.
Don’t be fooled by the word “regulated” in the phrase “A well regulated militia”. It does not mean “disciplined” nor even subject to a chain of command. The word regulated means governed by rules, or “subject to governing principles”. From Latin Regula “a general rule”.
We are already regulated by “a general rule” that created government. According to Blackstone’s Commentaries This rule of conduct applies with equal obligation to individuals and to nations.
The U.S. Constitution Article 1, Section 8 gives Congress the authority to regulate interstate commerce among the several states.
But since no state can impair the obligations of contracts under section 10 and since the federal government was subordinate to the states that created it, they would not dare assume powers not delegated — it was assumed for the longest time that the term “regulate” commerce could only mean “promote” commerce. James Madison insisted that the Constitutional phrase “regulate” was to take it’s regular meaning “to make regular”.
For a long time people thought the Constitutional words “regulate commerce among the several states” referred ONLY to promoting commerce, not restricting commerce, after all, “one of the objectives of the Philadelphia Convention was the promotion of commerce” according to an analysis of the Constitution published in 1996 by the Congressional Research Service in Senate Document 103-6.
Example: the first agriculture department in Pennsylvania was created to help farmers sell eggs OUTSIDE of the Commonwealth, and to run a state fair, promoting Pennsylvania grown produce. THAT’S IT! That was the understanding of the Constitution clause regulating commerce among the several states.
The Original Meaning of the Commerce Clause” by Randy E. Barnett- (University of Chicago Law Review Vol 68, No 1, winter 2001):
“To regulate” generally meant “to make regular” — that is, to specify how an activity may be transacted — when applied to domestic commerce, but when applied foreign trade also included the power to make ‘prohibitory regulation’….
according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and both regulate and restrict the flow of goods to and from other nations and the Indian tribes, for the purpose of promoting the domestic economy and foreign trade.”
REQUIRED DOES NOT MEAN MANDATORY
LAWS ARE MERELY DIRECTORY if they try to regulate a right.
Beverlin v. Beverlin, 29 W.Va. 732. 1887.
“… a natural right, and one that existed independent of statutes, any commands which a statute may give … should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what is done in disregard thereof. … “
U.S. Supreme Court in Meister v. Moore 96 U.S. 76 in 1888 ruled that
“Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common law right…”
U.S. v. Tallmadge, 829 F.2d 767:
“… One who relies on a legal interpretation by a government official assumes the risk that it is in error… it has also been held or said that `the government could scarcely function if it were bound by its employees unauthorized representations'” Goldberg v. Weinberger, 546 F.2d 477
The United States Supreme Court warned you that it is your duty to make sure government employees act within the law. Federal Crop Insurance Corp. v. Merril, 332 U.S. 380 (1947):
… Anyone entering into an arrangement with the government takes the risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority … and this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.”
U.S. v. Stewart, 234 F.Supp. 94 (1964):
United States Government officer may be sued only if he acts in excess of his statutory authority or in violation of the Constitution for then he ceases to represent government.”
U.S. Constitution Article 1, section 10: prohibits any State from passing ANY law impairing the Obligation of Contracts. So how can they shut down lemonade stands on private property for not getting a business license, food establishment permit, food safety permits, health inspections, requirements for on-site running water and refrigeration, approved fire extinguisher, federal and state tax registration, proof of waste disposal contract for the lemonade stand not just for the address, etc. According to John Stossel’s investigative report it takes a minimum of 65 days to start a lemonade stand.
US Supreme Court in U.S. vs. Minker, 350 U.S. 179 at page 187 explains that an administrative summons cannot compel testimony: “” an official command, … has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for what appears to be an official command, or because of their reluctance to test the … validity by litigation.”
The Amish do not have business licenses for their businesses. Maybe we could learn something from them.
And, by the way, the original food safety law said that vendors of food shall sell none but wholesome food. It was then up to a jury to determine a violation.
Fields v. US, 27 App DC 433: Words like “may,” “must,” “shall,” etc., are constantly used in statutes without intending that they be taken literally.
Municipal Corporations are legal fictions.
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way. For example, the rules of the United Kingdom Houses of Parliament specify that a Member of Parliament cannot resign from office, but since the law also states that a Member of Parliament who is appointed to a paid office of the Crown must either step down or stand for re-election, the effect of a resignation can be accomplished by appointment to such an office. The second rule is used to circumvent the first rule.
Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. A common example of a legal fiction is a corporation, which is regarded in many jurisdictions as a “person” who has many of the same legal rights and responsibilities as a natural person. Legal fictions are mostly encountered under common law systems.
Quotes about legal fiction:
• If this statement by Judge Cooley is true, and the authority for it is unimpeachable, then the theory that the Constitution is a written document is a legal fiction. The idea that it can be understood by a study of its language and the history of its past development is equally mythical. It is what the Government and the people who count in public affairs recognize and respect as such, what they think it is. More than this. It is not merely what it has been, or what it is today. It is always becoming something else and those who criticize it and the acts done under it, as well as those who praise, help to make it what it will be tomorrow.
◦ Charles A. Beard and William Beard, The American Leviathan: The Republic in the Machine Age (1931), p. 39.• The corporation is not a person; it is a legal fiction backed up by guns and police and jail cells and taxing authorities and the regulators called government.
◦ Jerry Brown, on Corporations and Jobs, We the People Radio Network archives, December 1995/January 1996.• It is a fiction, a shade, a nonentity, but a reality for legal purposes. A corporation aggregate is only in abstracton—it is invisible, immortal, and rests only in intendment and consideration of the law.
◦ Edward Coke, Case of Sutton’s Hospital (1612), 5 Rep. 303; 10 Rep. 32 b.• Law makes long spokes of the short stakes of men.
◦ William Empson, “Legal Fiction” (1928), line 1; cited from John Haffenden (ed.) The Complete Poems (London: Allen Lane, 2000) p. 37.• Paternity may be a legal fiction. Who is the father of any son that any son should love him or he any son?
◦ James Joyce, Ulysses, Ch. 9: Scylla and Charybdis.• It is unconscionable in a defendant, to take advantage of the apices litigandi, to turn a plaintiff round, and make him pay costs where his demand is just. Against such objections every possible presumption ought to be made, which ingenuity can suggest. How disgraceful then would it be to the administration of justice to allow Chicane to obstruct Bight; by the help of a legal fiction contrary to the help of the fact!
◦ Lord Mansfield, Morris v. Pugh (1761), 3 Burr. Part IV. 1243.
Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 92-93.
• A fiction of law shall never be contradicted so as to defeat the end for which it was invented, but for every other purpose it may be contradicted.
◦ Lord Mansfield, Mostyn v. Fabrigas (1775), Cowp. 161.
• Fictions of law must be consistent with justice.
◦ William Henry Maule, J., Whitaker v. Wisbey (1852), 6 Cox, C. C. 111.
• Fictions are allowed against all the King’s subjects for the furtherance, but never for the hindrance, of justice.
◦ Lord Mansfield, Lane v. Wheat (1780), 1 Doug. 314.
• When Courts adopt a fiction they must necessarily support it.
◦ Richard Arden, 1st Baron Alvanley, C.J., Gray v. Sidneff (1803), 3 Bos. & Pull. 399.
• No fiction shall extend to work an injury, its proper operation being to prevent a mischief or remedy an inconvenience which might result from the general rule of law.
◦ 3 Black’s Commentaries (21 ed.).
• In fictione juris semper cequitas existit: A legal fiction is always consistent with Equity.
◦ 11 Rep. 51.
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