Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence

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  Amendment V: Introduction  
"The heavens declare the glory of God; and the sky above proclaims his handiwork.
Day to day pours out speech, and night to night reveals knowledge.
There is no speech, nor are there words, whose voice is not heard.
Their measuring line goes out through all the earth, and their words to the end of the world." 1

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; nor shall private property be taken for public use, without just compensation.

Most of this amendment adds reinforcement to due process, and is therefore helpful in assuring that the government avoids perpetrating bloodshed against its citizens. There is nothing obviously wrong with any of the 5th Amendment, except one phrase. (i)Holding for crime without grand jury indictment / presentment; (ii)double jeopardy; (iii)self-incrimination; and (iv)deprivation without due process; are all made illegitimate here for the sake of keeping our courts honest and government powers safely constrained. These constraints are worthy safeguards that deserve our praise. But the last phrase is extremely troublesome. The phrase, "nor shall private property be taken for public use, without just compensation", in contrast with the other phrases, gives government extraordinary powers to take, and it is therefore troublesome. This last phrase is commonly known as the takings clause. All the previous phrases are essentially safeguards installed by the jural society to help it to curb bloodshed, without itself becoming a perpetrator of bloodshed. But the last phrase tends to be an institutionalization of government-perpetrated bloodshed.

Where do we get off claiming that the takings clause tends to be bloodshed? — No human government, organization, institution, or individual has a lawful right to violate the property rights of another human being. According to the hermeneutical prologue, taxation is the closest thing to an exception to this claim. According to the hermeneutical prologue, taxation is lawful under certain circumscribed circumstances. If takings are lawful, then they must abide by the same basic set of restrictions to which lawful taxation conforms. That’s because every lawful tax is in fact a taking. 2 Taxes are a form of taking. Since the 5th Amendment states that all takings must be justly compensated, it follows rationally that all taxes must be justly compensated. Common sense demands that taxation is nothing but a breed of taking. The government takes tax revenues. In other words, the government uses confiscatory methods to procure taxes. This is proof that taxes are takings. So everything that the hermeneutical prologue proves – based on Biblical principles – about the nature of lawful taxation, it in essence simultaneously proves about lawful takings. We will start proving our claim that the takings clause tends to be bloodshed, by reviewing the nature of lawful taxation (lawful takings).

Any given social compact has two distinctly different functions: jural functions and ecclesiastical functions. The jural functions have their jurisdiction delineated by the only human law prescribed in the global covenant: "Whoever sheds man’s blood, By man his blood shall be shed" (Genesis 9:6; NASB). By defining the terms in this mandate as practically and rationally as possible, we come to understand what bloodshed is, and we come to understand that the response to bloodshed is a mandate to every living human being. So every human being, like it or not, is mandated by Scripture to execute retribution, restitution, or injunction against perpetrators of bloodshed. But without a more refined understanding of this global mandate, it appears to be a mandate to vigilantism. The fact is that many people, perhaps most, lack capacity to execute justice against perpetrators of bloodshed, because they’re too weak, too sick, too old, too young, too busy with other pressing issues (like child-rearing), or subject to many other possible disabilities that mark those who lack capacity. So, to satisfy this global obligation, people have historically formed jural societies. Jural societies are composed of people who have both the ability and the calling to function as enforcers against bloodshed. To satisfy the global obligation to execute justice against perpetrators of bloodshed, people who live within the geographical jurisdiction of the jural society are obligated to pay taxes to support the jural society. This obligation to pay jural taxes is lawful as long as the payor lives within the jural society’s geographical jurisdiction, 3 and as long as the jural society doesn’t devolve into an institutionalized perpetrator of bloodshed itself. — If takings are lawful, then this is one of the mechanisms that make them so. If takings are lawful, then they must be lawful because they are a jural taking.

The other type of lawful taxation relates to the ecclesiastical society. In the same way that the bloodshed mandate is the impetus behind the jural society, the fundamental propensity of human beings to form contracts is the impetus behind the ecclesiastical society. The ecclesiastical society’s in personam jurisdiction is radically different from the jural society’s in personam jurisdiction. That’s why it’s critical to keep them separate and distinct. The ecclesiastical society’s in personam jurisdiction includes only the parties involved in any given contract dispute that comes before the ecclesiastical society. So if parties bring a contract dispute into an ecclesiastical court, it stands to reason that such parties should pay the court a fee to resolve their dispute. So that’s the natural and reasonable taxation that exists under the ecclesiastical society. It’s not taxation in the sense that it applies to everyone. But it is taxation in the sense that it is fees charged to people who use the ecclesiastical courts and the ecclesiastical police powers. Such taxation is not global, but local. It even has a very specific and confined in personam jurisdiction. — There are two ways that ecclesiastical taxation can be a lawful form of taking: (i)Parties to a contract that falls into the jurisdiction of an ecclesiastical compact give – by way of the contract – explicit or implicit consent to paying fees to the ecclesiastical courts whenever the latter adjudicates a dispute over the contract. (ii)Parties to the social compact give prior consent to having their property taken to satisfy an ecclesiastical need. — The first type of lawful ecclesiastical taking exists in both secular social compacts and religious social compacts. But the second type of ecclesiastical taking can be lawful only under a religious social compact. That’s because of the restricted nature of secular social compacts. Secular social compacts, by definition, presume to encompass all religions and belief systems. They therefore have Biblically sound authority to execute only those police powers that pertain to all people. They are therefore proscribed from assuming that they have a lawful power to take for non-jural (i.e., ecclesiastical) reasons. But religious social compacts do not suffer these constraints. They do not presume to have an in personam jurisdiction over all religions and belief systems. It’s conceivable, even probable, that a lawful religious social compact might have prior consent from all parties to take for non-jural, ecclesiastical reasons. But if parties to a secular social compact give prior consent to have their property taken to satisfy an ecclesiastical need of the secular social compact, it’s not a taking, but a gift, and for the sake of keeping the secular social compact contained within its strict guidelines, the gift needs to be immediate, and it needs to be used within those strict guidelines. — The compacts that supply legitimacy to the governments of the united States are all secular, not religious. That’s because these social compacts all claim to be inter-religious. Secular social compacts, by their very nature, never have non-jural (i.e., ecclesiastical) takings that are preceded by prior consent (except to pay ecclesiastical court costs). 4

A secular social compact has authority to collect taxes for specific purposes, and in specific ways. If tax revenues are spent on lawful jural functions, then it’s lawful for the taxes to be collected through coercion, i.e., in a confiscatory manner. In other words, lawful jural taxation can be confiscatory towards all parties who live in the geographical jurisdiction. This authority derives from the fact that every human being with capacity who lives within the geographical jurisdiction of the social compact has a duty to abide by the bloodshed mandate. No lawful secular social compact has lawful authority to collect taxes (or takings) willy-nilly to pay for governmental functions. How does the 5th Amendment takings clause fit into these constraints on jural takings, if it does at all?

Even though all taxation is a form of taking (by common sense), the taking indicated in the 5th Amendment is a special form of taking. That’s because, in traditional Anglo-American jurisprudence, the taking indicated in the 5th Amendment damages a very specific set of individuals. The generalized taking can be either specific or general. But the traditional Anglo-American taking is almost always specific. The 5th Amendment takings are inherently confiscatory. They are inherently confiscatory because the specific party (or parties) making the donation is being forced to make the donation regardless of whether he wants or consents to make it. It’s as if someone came up to you on the street, poked a gun in your face, and said, "What’s the going price for your coat?". This thug may give you a decent price for your coat, but that doesn’t change the fact that you were coerced. If the coercion exists to pay for a lawful jural function, then perhaps the coercion is lawful. For any other reason, this coercion is clearly not lawful. Do takings exist to pay for lawful jural functions?

Under the global covenant, confiscation of property – excluding ecclesiastical court fees because such fees are based on contracts, on consent, and are therefore not confiscatory – cannot be justified except for the sake of paying the lawful costs of a jural society. If the government takes "private property" by way of this takings clause – i.e., by way of a presumed sovereign claim to eminent domain – and if this taking is lawful, then the "private property" being taken must be getting taken to fulfill a lawful jural function. — Even if it is taken to satisfy a lawful jural function, how can the government’s confiscation of such "private property" be justly compensated? — Taking is inherently bloodshed. An act of bloodshed demands retribution, restitution, or injunction, regardless of whether the perpetrator is a criminal or a civil government. But at the same time, all people are mandated by Genesis 9:6 to execute justice against perpetrators of bloodshed, and most people lack capacity to do that. So those who lack capacity pay a special class of people, a jural society, and their payment fulfills their mandate to execute justice, and does so by proxy. So the mandate to execute justice against bloodshed is global and non-negotiable, and satisfaction of the mandate by proxy is a reasonable adjunct to the global mandate. But when the jural society does anything other than (i)execute justice against bloodshed and (ii)take for the sake of executing justice against bloodshed by proxy, jural society slips from being a source of justice, into being a source of bloodshed. When a jural society operates within its lawful jurisdiction, and takes to fulfill its lawful function, anyone from whom the jural society has taken for the sake of executing justice by proxy, is compensated justly (i)by being able to live in a peaceful society and (ii)by having the jural society fulfill by proxy their obligation to execute justice.

The hermeneutical prologue discovered that a jural society has a lawful license to take under these very limited circumstances. So this explains how just compensation is given by any lawful jural society to anyone who pays taxes to the jural society. But it doesn’t explain how just compensation is given by the jural society to someone who suffers this special breed of taking indicated in the 5th Amendment. In this special breed of taking, a specific subset of the citizenry is being selected to suffer condemnation of their property. From where does secular government derive this presumed sovereign right to exercise eminent domain?

If the taking in the 5th Amendment is lawful, it is clearly a special breed of delict that the jural society has a license to perpetrate, under the global covenant. In the hermeneutical prologue, we discovered that the penalties inherent in a rational definition of bloodshed are limited to retribution, restitution, and injunction. (i)Retribution is never compensation to the victim. It’s a penalty to the perpetrator. (ii)Restitution compensates the victim. An obvious goal of the jural society is to make such compensation "just". (iii)An injunction never compensates anyone. It merely prevents delicts. — Clearly, the taking in the 5th Amendment is of the type that demands restitution.

According to the global covenant, "just compensation" should be given as restitution regardless of what the government may take. If it takes normal jural taxes to pay for its jural functions, then whoever supplies what gets taken is compensated (i)by being able to live within a geographical jurisdiction in which bloodshed is expertly combated and (ii)by combating bloodshed by proxy rather than personally. If this special type of taking that applies to specific individuals and specific properties – rather than globally to everyone within a geographical jurisdiction – is taken for lawful jural functions, then the takee is compensated to some extent by the same ability to live within a geographical jurisdiction in which bloodshed is expertly combated. But the victims of such takings suffer more than normal payors of taxes (more than normal takees). So they deserve to be compensated more. So if the taking is lawful, extra compensation is demanded. So from the point-of-view of the global covenant, the sovereign right to exercise eminent domain may be legitimate if it’s limited to doing things like, for example, installing a military base, or a police station, at some specific location. But according to the global covenant, we’re also bound to conclude that if takings exist for more frivolous enterprises, like building "Post Offices", "post Roads", highways, railroads, airports, ditches, canals, pipelines, shopping malls, etc., then it is inherently bloodshed, because these things are not lawful jural functions. Such abuses of authority were condoned in medieval, feudal, and other inherently flawed systems of law and lawlessness. They have been presumed lawful in the united States. But such takings are absolutely not lawful under the global covenant. Every instance of a taking under the general government’s immediate jurisdiction, in the whole history of the united States, has occurred without the takee’s prior consent. 5 So takings cannot be condoned as a form of ecclesiastical taking – at least not under a secular social compact. So if takings are lawful, they must somehow be a form of jural taking.

In conclusion, we claim that consistency with the hermeneutical prologue demands the following: If the taking happens under the following conditions, then it may be lawful under a secular social compact: (a)The taking is executed strictly to satisfy a need of a lawful jural society. (b)The victim of the taking receives "just compensation". To show how to apply this conclusion to American jurisprudence, we’ll consider the following: (i)the original intent of the framers with respect to this takings clause; (ii)the basics of free market economics; 6 and (iii)how America was settled. After examining these three things, we’ll overview the nature of takings under our early 21st century secular governments. 7


1Psalm 19:1b-4a; English Standard Version.

2Here we’re marking "taking" with a special font (See typography.) to indicate that it refers to anything lawfully confiscated by way of a social compact, from parties to the compact, to satisfy needs of the compact that are lawful according to the hermeneutical prologue. We’re using this font to distinguish the general "taking" under the hermeneutical prologue from the more specific type of taking generally acknowledged under the 5th Amendment. The hermeneutical prologue demands that "taking" in the 5th Amendment must conform to the constraints of the hermeneutical prologue’s taking. But the 5th Amendment is also typically understood to be a specific type of "taking". — In some contexts, taking may also sometimes indicate the general procurement of valuables (real property, "money", chattels, etc.) by a government, regardless of whether the government or the taking is lawful.

3The payor thereby benefits from living in a society in which bloodshed is banned. The payor is thereby justly compensated.

4In a civil suit, an ecclesiastical court might order one of the litigants to pay something to the other litigant, or some related party. This is not a taking because it’s not a transfer from a citizen to the government. It’s a transfer from one party to another. If the civil suit pertains to a delict, then there is probably no prior consent, and no contract, which means that this is not an ecclesiastical case, but a jural case. If the civil suit does not pertain to a delict, then the case inevitably pertains to a contract, making it ecclesiastical. Any resulting court-ordered transfer of property is not a taking, unless the ecclesiastical court is either operating outside its lawful authority, or is operating under a religious social compact. Conclusion: Because of the limited nature of a lawful secular social compact, ecclesiastical takings (excluding court costs) don’t exist under such a compact.

5Many people have agreed to the taking after the government offered "just compensation". But this does not constitute prior consent because the consent happened after the condemnation, not before it. Also, there may be some instances in which people have donated property to the united States. But these are gifts, not takings.

6We need to look at the basics of free market economics because the free market is the only type of economic system that is rationally consistent with a secular social compact. It is the only kind of economic system that can develop out of a secular social compact in a manner that’s consistent with the founding principle of such a compact, the founding principle being the necessity of consent / assent in all human relations that eschew bloodshed.

7If it is correct, then this has huge implications for the "hidden tax" that is constantly being levied against the entire American population by Federal Reserve inflation. To understand how this "hidden tax" works, see The Creature from Jekyll Island, pp. 155-170, Chapter 8, "Fool’s Gold".

copyright © 2013 Charles Raleigh Porter, III
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