The Honorable Richard L. Voorhees
US District Judge for the Western District of North Carolina
250 Charles R. Jones Federal Building
401 West Trade Street
Charlotte, NC  28202
November 20, 2012

RE: Sentencing of Bernard von NotHaus; US v. von NotHaus
Docket No: 5:09CR27-001

Dear Judge Voorhees,

Does morality precede law or does law precede morality? Are all laws necessarily moral? Should a judge insist on sticking to the letter of a law, no matter how immoral it may be? If he does so, what does that say about the judge?

What is the value of a man’s conscience?

These are not new questions. In many criminal cases, they are not even germane. But in the case of Bernard von NotHaus, they are highly relevant.

Few people know that, after defeating the British, dissidents who didn’t support the established church in their state were still required to pay a levy in support of it. Just a decade before that, while America was fighting a revolution, ministers in these dissident churches were required to get a permit. 240 years earlier, a man named Tyndale was burned at the stake for issuing Bibles in English. Three lessons emanate from these data points.

First, the progression of history is towards more tolerance of individuality.

As a result, and second, history is cruel to those who dishonor individual conscience. We look back at these events and wonder how people failed to see their error.

Third, we are all endowed with conscience. That endowment led James Madison, author of the First Amendment, to say, “Conscience is the most sacred of all property.”

I do not envy the task before you. You are being called upon to sentence a man for no crime. A crime necessarily requires a victim. Here, there is none.

The State cannot claim that it is a victim, for the State is a fiction. It is a creation of the people, endowed with awesome and dangerous powers. Yet it has no rights of its own. The State’s only claim to legitimacy, the only time we can say it’s “governing,” is when it protects the rights of actual human beings.

By that clear standard, no true victim was found in this case.

Mr. von NotHaus did what he believed was right. Others joined with him, voluntarily and usually eagerly, because they too believed in the righteousness of this cause. Each honored their duty to conscience.

The State has no conscience; only persons do. Perhaps that’s why only The State claims injury in this case. The State, in this instance, is no longer servant. It is master.

So, we must ask, “Why is The State motivated to call Mr. von NotHaus a terrorist, to steal the wealth of thousands of people, and imprison him, for what may well be, the rest of his life?”

I can only imagine how that question must weigh heavily on you – on your conscience. All of us sometimes wonder how history will judge us.

Your conscience is no minor matter. And history will judge you. It’s likely, at this point, that posterity will decree that von NotHaus was a Tyndale, should you “throw the book at him.” Significantly lessening his sentence encourages your prospects under the microscope of history, while simultaneously reducing his power as a martyr.

It is truly amazing that a country that boasts about its freedom is punishing a man for going in competition with a “service” that The State provides. It’s very American to wonder aloud, “If it can be provided privately, then why is it being done by a coercive, monopolistic power?”

It’s hard to think of something more American than competition. We cheer it in virtually every aspect of our national life, from sports, to politics, to the marketplace. We recognize that competition improves quality and even regulates the behaviors of actors in a given arena.
 
Why is currency different? Here, we recognize another injustice – one that is outside the judicial system.

The Federal State borrows massive amounts of money. It encourages debt in all levels of society, from inferior governments down to the man or woman with a credit card. This appetite is salted and then satiated by the creation of digits and paper, all backed by nothing. The results are being played out on our TV sets, and we can see our future in places like Greece.

No voluntary or private system could do the same and expect to get away with it. If individuals do not have such power, even when they join together to form corporations, then how is it that The State, who gets its power from these same individuals, suddenly – magically – has this power?

You’ve likely heard the arguments about the negative effects of this system from other correspondents to your court, if not from Mr. von NotHaus and his counsel. I’ll spare you further digression on those aspects. But there is a matter of judicial morality, in this instance.

Like all members of our government, you swore an oath. That oath is a set of binding chains.

The Constitution itself is clear, if actually read in plain language. This supreme law of the land indicates that there are a limited, countable number of powers granted to The State. This, as you know, is the concept of Enumerated Powers. Judicious use of those powers means only using the amount of power necessary, not every iota of power that’s permissible.

On the other hand, there are innumerable numbers of rights. These rights are not grants from The State. Whatever you believe The Source to be, they are in a word, natural.

Therefore, even if a trial was held where procedure was followed, even if a Congress wrote a law that would seem to empower an action that is beyond the scope of the enumerated powers, it is incumbent upon all actors who’ve take the oath and are called to enforce said law in whatever capacity, to honor that oath, above and before, conceding to the process or to political pressure. The process itself may be unjust. If so, each actor must do what’s right.

At the end of the day, we rely on human beings, such as you, to feel duty to their oath and then, as a result, to honor their conscience with their actions. No one said it would be easy. Power can be awe-inspiring. It’s always a dangerous thing. This thin thread of conscience, by individuals sworn to defend the rights of persons when The State merely doesn’t like what we do, is all we have.

You, sir, are all we have to protect our rights.   

Your oath binds you to first judge the law before you judge the man. Even if you find Mr. von NotHaus’ actions to be undesirable or you do not like him personally, your oath means you must ask yourself the question, “Has Mr. von NotHaus engaged in an act of political expression that did no violence, to a person or to the property of other readily identifiable victims?” (Is there any human being who, on their own, has a claim of action against this man for the charges brought before you?) You must ask this question because you agreed, by oath, that Mr. von NotHaus has the right to engage in non-violent political expression, even if – especially if – powerful actors in The State may loathe it.

You swore to protect that right when it came before you.  

For the last few years, one of the organizations I manage, DownsizeDC.org, has been promoting a bill in Congress. It is called the “Free Competition in Currency Act” (HR 1098). It does two things that are relevant to this case…

1. The Honest Money portion would repeal the legal tender law, which gives the Federal Reserve a monopoly over the money supply.
2. The Competitive Currency section would repeal the words of Title 18 Section 489 of the U.S. Code, which gives the United States government a monopoly over the creation of coins for use as currency.
Had this been the law of the land, von NotHaus would not have been brought to your court. I’m aware that, strategically, Mr. von NotHaus is not a fan of this bill. He believes the present law is un-Constitutional, and that this method of political action only validates what should be an invalid law. Yet, I am writing to you, on his behalf, anyway!

I assume you would agree that it is our right to petition the government in the fashion I’ve chosen. I have little doubt that you believe I’m engaged in moral, democratic behavior, bringing this idea into the political arena, where it can compete for attention and seek to win support. I suspect you would be disturbed if I, and the people whom I’ve encouraged to write their Congressmen were declared “terrorists” or enemies of The State, for so doing.

Mr. von NotHaus chose another path. He chose to demonstrate that non-inflatable currency -- honest money -- could compete. From toasters to TV shows, Americans enjoy the liberty of choosing things without having to lobby another soul. They vote, in the marketplace, on more frivolous things than the value of their exchange mediums. They can select from 31 flavors, without consulting their neighbors. Mr. von NotHaus gave regular Americans a vote that didn’t require them to do the consuming and expensive work of seeking political change – the complex path that I’ve chosen.   

Free Competition in Currency. Liberty Dollar competition. Both are morally legitimate, even democratic actions. The State has no right to protect its reputation at the expense of the liberty of expression, in either case.

Therefore, I encourage you, as man of his word (for that’s all an oath is, but a word): Consider the Liberty Dollar action, no matter how undesirable you may believe it to be, to be an act of political expression. Honor it, knowing that not only is Mr. von NotHaus facing judgment, but so also will you, by history. And if there’s any strain of empathy residing in you, then use your powers to “re-encourage” Mr. von NotHaus, as he honors his conscience.

During the trial, you indicated that the evidence presented did not support the claim of paragraph 33 of the indictment. You even removed that paragraph from the indictment. Yet after the verdict, the prosecution blatantly misrepresented your ruling to the court of public opinion. Such malfeasance should not be rewarded, even by neglect.

For all the reasons contained herein and in the interest of justice, I pray that you will grant Bernard von NotHaus a new trial.

Thank you for considering my plea,

Jim Babka, President
Downsize DC Foundation