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From: Legal Reality
Sent: Saturday, May 31, 2008
Subject: LDS, West Texas -- Kidnapping and organized crime?

31 May A.D. 2008

Clarance Darrow didn't care about the politics. He cared about the rule of law. It mattered that it applied equally, no matter what the politics of the day were.

This note should not be misconstrued in any way to be some sort of promotion of polygamy. Maybe it's Scriptural; maybe it's nuts. That's not the point of focus here. That said, let's look at some law.

The Texas state appellate courts worked pretty swiftly on this one. Not only that, but also, to the surprise of many, they actually "corrected" the "officers" who stormed the polygamists' property and took all those people into custody.

Why the speed, and why that ruling?

Speed takes the matter out of the "press" that much more quickly, and that interest may correlate directly with the ruling, itself.

A question has come up for which I don't (yet) have any more information than the person asking the question. In the exact same way that the early question as to whether there's a connection with the TransTexas Corridor matters, this one also matters.

Here's the question: How many of those parents were married via a "license?"

Here's why it matters. Where those children are not a commercial product of a "licensed," commercial act, then it's entirely possible that [THE] STATE OF TEXAS never had the remotest of authority to touch those people. Should it turn out that there never existed any authority whatsoever to bother those people, we can but hope that they have the presence of mind to make a huge financial demand on and against those who kidnapped them. Kidnapping is one of the criminal acts that triggers application of the "organized crime" punishment enhancement provisions. See Tex. Penal Code § 71.02(a)(1). If the kidnapping was committed with a firearm, then we may also be talking about "aggravated kidnapping."

The rest of this, which is pretty short, focuses on the "license" concept.

Why do "licenses" exist? They exist to regulate commerce. Period. Plumbers are "licensed," because they are engaging in commercial activity where the "choice of law" is that of the "place" called "this state." Electricians are "licensed," because they are engaging in commercial activity where the "choice of law" is that of the "place" called "this state." Dentists, doctors, attorneys, accountants, hair stylists, "drivers," etc., are "licensed," because they are engaging in commercial activity where the "choice of law" is that of the "place" called "this state."

What, then, is the commercial activity that is "licensed" via a "marriage license?" In the beginning, it may very well have had to do with the fact that the churches would not permit interracial marriage. So, the "state" stepped in and allowed it, via the mechanism of the "marriage license." But, there was likely more to it than that, even from the beginning.

The concern is that there may be, in the "state's" point of view, a commercial activity of the specially manufactured goods variety that is uniquely related to marriage, namely, "making babies." Thus, one angle on the "marriage license" is that the commercial activity of "making babies" may very well be the mechanism by which "this state" obtains the "authority" to tell "parents" where and when and how to raise and educate and medicate "their" children. If the children born to "licensed parents" are really "property of this state," then there are a lot of things that make very self-consistent sense, from the legal perspective.

Applying that premise, STATE OF TEXAS runs into a problem "bigger 'an Houston" where the polygamists had sense enough NOT to volunteer into the commercial activity of "making babies."

And, this would give the jurists who are thinking along this line a high degree of motivation to end the matter before it becomes any bigger of a media circus.

Commercial activity is ALWAYS voluntary. Always, always, always. Commercial activity is ALWAYS voluntary. Signing up to engage in commercial activity is ALWAYS voluntary. "Choice of law" is ALWAYS voluntary. Always, always, always.

So, if the polygamists happen to assert a different "choice of law" than that of "this state" as the law by which the marriage agreements are to be evaluated, cf. Ogden v. Saunders (the law governing the agreement is necessarily incorporated into the agreement), and where they have NOT volunteered to "make babies" for "this state," then it's entirely possible that they've been kidnapped (via the use or display of a firearm?) in violation not only of Texas Penal Code § 20.03 (kidnapping) and § 20.04 (aggravated kidnapping) but also of Chapter 71 of the Texas Penal Code, which is the "organized crime" punishment enhancement provision.

Harmon L. Taylor
Legal Reality
Dallas, Texas

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P.S. Regarding "making babies" -- as a direct result of Roe v. Wade, which is a "right to life" case, not an "abortion" case, the "right to life" attaches to a "quickened" fetus. The reason for mentioning this is the irony. It's a good question whether that "right to life" attaches outside of "this state".


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