In Loco Parentis………

The Gadsden flag is once again waving over this great country of ours.† Throughout America’s history this flag has flown at many critical moments. It has flown over the decks of the newly minted US Navy as one of the first “jacks” as frigates stood out to sea to stand up to the Barbary Pirates. When the first Marine companies were mustered their yellow marching drums were painted with the motto and the figure of the coiled serpent. The idea, and the spirit of the flag has come down to us with a wonderful, stirring pedigree. Now, once again the flag waves. It waves over the heads of our generation’s patriots.† But, it’s apparent, that it doesn’t point the way.

While the Gadsden flag is an important anchor for the anti-tax movement, and, unquestionably it reiterates a valuable message, that the government should be cautious before it acts in any way against the wishes of a people who are guaranteed a republican form of government, it fails in one important way. It fails to tell us what the next step is. It fails to give us a message that is uniquely our own. That is to say a message that speaks to the fact that this new american revolution needs slogans that show members of the movement and more importantly those that we are confronting what are our core values.

The current Tea Party movement has a solid basis in the values and writings of the founding fathers. The actions of the Tea Party rallies are a visible manifestation of the first Amendment which is, at its base, a demonstration of our common law.† This is the heart of what the Tea Party is doing, demonstrating our rights, the rights that are embodied in our common law.† The rights that are the structure of our common law view of the universe as seen through the lens of our unique American vision.

Common Law, a system that is unique to English and American jurisprudence, is a summation of the people’s view of rights, privileges†and duties. Certainly this view has been tempered and recast by the needs and demands of the ruling elite but the system, nonetheless, is a goldmine of pickets and ammunition for anyone looking to protect and resuscitate freedom.

If you flip casually through Blackstone or Hogue you will come across a concept in common law that is ready-made†for the Tea Party movement. This concept is summed up by the Latin phrase “In Loco Parentis”. Like many tenants of common law it is a concept that seems constructed out of the most basic philosophical common sense. Once it is outlined it has the ironclad aroma of virtue and morality. As a legal concept it lacks only the colorful sophistry that is so often draped over modern legal scholarship†as it¬†strains to strip the most common of us of our basic rights, morality and responsibilities.

For me the newest incarnation of “In Loco Parentis” moved from a dusty page in Blackstone to a vibrant living sword of justice during the Clinton/Lewinsky scandal.† It wasn’t long after the sordid activities of the President came to dominate the news that I first heard a legal scholar stumble onto the phrase as they struggled to outline the connection between the immorality of the President’s actions and the legal implications.† My faulty memory credits Judge Napolitano on Chris Mathews’ Hardball with reviving the phrase. His attempt to explain to the logically bankrupt Mathews why it actually was a violation of the law for a President, an authority figure, to misuse the trust placed in him by the young lady’s parents.

“In essence, under the law, the President is expected to stand in the parent’s shoes and is expected to protect and nurture this young person and his actions are a complete betrayal of the trust placed in him. In the common law this concept is called In Loco Parentis.” Now I am the first to admit that this quote is a complete fabrication from my dicey memory. It may not have been Judge Napolitano at all, it may have been Hulk Hogan or Hunter Thompson I don’t recall but I do remember that during these debates the phrase was once again used as a legal argument.

Now I find myself searching for the correct explanation and justification for the coming actions of the Tea PArty and this phrase once again provides a solid bridge between the morality of our situation and the structure of the law.

In Loc Parentis†- translation -†In the Shoes of our fathers or, perhaps, to hold the seat of the Mother/Father. Blackstone† in Book One, chapter sixteen while discussing the common law and its relation to†the father and the†child discusses a father’s “empire” and†”dominion”.†He outlines the manners in which a parent may assign these rights….†”Yet, till that age arrives, this empire of the father continues even after his death ; for he may by his will appoint a guardian to his children. He may also delegate part of his parental authority. during his life, to the tutor or schoolmaster of his child ; who is then¬†in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.”

Like all of Blackstone’s discussions and, in fact, the majority of common law, the concept is broad and implies protections and responsibilities. The historical cases that have been used as precedent in courts ancient and modern, English and American are clear.† When a person, an adult or citizen finds themselves by the totality of circumstances to be burdened with the role of the parent or guardian of a minor then the common law expects and demands that the person shall excercise that office with the full force and authority of the parent. Further the adult or citizen is afforded the protections that are traditionally given to a parent. Like the concept of the Good Samaritan, the person’s free will and choice is tempered by the necessity to protect the minor, the necessity to safeguard the minor’s well being.† This concept makes sense with a deep uncluttered clarity.† An infant crawls towards a precipice. You have the power to stop it, must you? Of course you must. This is not a standard instance of negligence†it goes much further than that concrete, property based† rules of commercial law.

This brings us to the crossroads that confronts the Tea Party.† As I have mentioned the Gasden†flag has its place. We could certainly bring back the Pine Tree flag or the flag of South Carolina but these symbols have their place and it is firmly in the struggle to create our republic during the 18th century.† Any symbol or slogan from the war of independence we adopt for the Tea Party will serve only to remind us of the tradition of organizing and acting to protect our rights. The Tea Party needs to introduce and display slogans and symbols that show us and others why we are doing what we are doing. Slogans serve to inspire and to educate. They serve as rallying cries and as mottos to clarify our vision.† In this In Loco Parentis comes to us at a time of need. It is a de facto explanation of our authority under the common law to do what we are doing.

It is plain that the Tea party†stands in the shoes of the founding fathers. The founding fathers willed to us a constitutional republic. The republic is a child that is powerless to defend itself from the predation†and potential destruction at the hands of an out of control Federal Buracracy. It is clear that the common law demands that all citizens defend the republic and through its defense defend our inalienable rights. Herein lies our authority to stand up to the Federal Government. Herein lies our moral and legal argument to withhold our taxes until a full redress of our grievances. If there is any question that this is the intent of the framers of the constitution then their extant writings reiterate and summarize their expectations that future generations must protect the constitution.

I’m certain that the next Tea Party rally will see a forest of Gadsen†”Don’t tread on me” flags blowing in the breeze. It is a strong wind indeed that sets these flags fluttering. †Now we need to state our legal argument to those who are silly enough to stand in our way.† We need to fly the flag “In Loco Parentis”. We need to take up the chant “In Loco Parentis” because this explains why we have the right to do as we do, tradition, after all, is on our side. Perhaps the symbol of a child’s small hand in the palm of a parent’s hand is the image for such a flag, I know not, I only know that when I attempt to explain why the members of the Tea Party are called to do what they do this concept of common law seems to be the logical justification.

Tell your friends, better yet, tell those that oppose us…………………In Loco Parentis.


~ by Brad Morrison on June 24, 2010.

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