2015/05/09

The futility of offering solutions

As a frequent candidate for elected office I have learned the disappointing lesson that solutions don't sell — at least not to most of the voters. As soon as one gets specific, one loses more support than one gains.

I learned that lesson from managing mail fundraising campaigns. Most such campaigns cost about as much as they bring in. A campaign is a success if it brings in 5% more than it costs. What can work to do that is to arouse emotions with presentation of dire problems. Present any solutions and the campaign loses money. Ask people to help cure heart disease, but don't ask them to help fund a specific remedy, because that dispels the emotionality from requiring people to think.

Now as a candidate I don't shrink from presenting solutions. I know it will lose more votes than it will win, and I accept that. As a Libertarian candidate I don't expect to win anyway,  and use the campaign as a teaching moment to enlighten people and perhaps lay the foundation for some of them to help with solutions down the way. When I offer solutions in a speech, I can watch as most of the audience glazes over, and the rest seize on one of the many remedies to oppose and decide to oppose the rest as well just because they didn't like one. I often present long lists of hundreds of solutions, like my proposed amendments, and instead of members of the audience focusing on one or two they like, they will focus on one or two they don't like, and ignore the rest.

You might think my preferred approach would work with some audiences, and it does work better with some, such as scientists, engineers, and similar professionals, when the solutions are in their professional field, but venture outside their field and one gets the same reaction. Even among professionals one gets many who seize on specifics they don't like.

Now you might think I'm insane for trying to do the same thing over and over and expect a different result, but I don't expect a different result. I hope for a single individual now and then to become inspired to inquire further into the matter. Unfortunately, most of those then go on to trying to develop their own solutions, usually lame, rather than supporting mine, which also might not be perfect but are better than most other people are able to come up with.


I keep doing it because I accept responsibility only for doing my best, not for getting outcomes. But it is disappointing, because at stake is the very survival of our civilization and all that generations of men have fought and died to achieve. Makes me glad I am old enough that I won't be around to see how it turns out.

2015/04/27

Same-sex marriage cases misframed

The Supreme Court is currently hearing the case of Obergfell v. Hodges, addressing the constitutionality of laws restricting marriage to opposite-sex couples. However, most of arguments are abysmally confused.

First there is confusion on what marriage is. As a matter of law it is a contract among two (or more) individuals. (Most can agree it would make no sense to use the term for a contract between an individual and a corporation.) As a custom, it is the physical relationship among individuals, involving activities like living together and having sex. But the relationship can exist without the contract and the contract without the relationship. So what is involved in the litigation? Does it make sense to say that two individuals have a "right to marry" that some jurisdictions are trying to forbid? Do the parties to such a relationship have some right to have the state call it "marriage", as distinct from calling it a "domestic partnership" or some other term?

The simple obvious answer to the last question is no. A state, like an individual, may use any name it pleases for anything it wants. No one has some right to dictate the choice of words anyone or anything must use for anything. Conflicting uses of different words for the same things, or the same words for different things, may cause confusion, but constitutionally there is no right or power to require anyone to use terms in certain ways, as long as there is not confusion or fraud.

Part of the confusion seems to come from regarding official recognition of some relationship as a "marriage" as some kind of license, that could be withheld, or that such a relationship can constitutionally be banned by banning the contract. In the past, in some jurisdictions, that has been attempted, with things like marriage licenses, or criminal prosecution for relationships that were not officially authorized, such as with individuals that were too young, or among more than two, or fraudulently marrying one individual while still being married to another. But there are no more marriage licenses that carry criminal penalties, and officially recognizing a "marriage" is not some kind of license.

Constitutionally, no government in the United States may forbid any two or more consenting adults to enter into any contract to do anything. The activity under the contract might be made a crime, and the existence of a contract deemed evidence of a conspiracy, but, except for fraud, there is no constitutional way to penalize parties from merely entering into a contract of any kind. The courts of a jurisdiction may decline to enforce certain contracts which it disapproves, but not to prevent entry into them.

This case is not about attempts to forbid the relationship. The decision in Lawrence v. Texas established that it is unconstitutional to penalize consenting adults of the same gender from having sex with one another. That disposes of the issue of official restriction of the relationship. But can the state constitutionally refuse to call the relationship "marriage"? Yes. Can it constitutionally refuse to enforce the terms of a contract governing such a relationship? Also yes.  Can it constitutionally withhold benefits to the parties in such a relationship? That depends. It may withhold some benefits to the parties to some relationships and not to others, but not because the parties call it marriage. It is the substance of things, not the names for them, that matters in law. It could, for example, extend benefits to couples with children that are withheld from couples without children.

Many of the issues raised involve benefits like inheritance or hospital visitation. As the first may be consented to by a written will, and the second by a consent form, such as a "living will, then by by calling their relationship "marriage", perhaps in writing so they have something to show to others, the state has no rational basis for discriminating against some wills or consent forms and not others. The appropriate remedy is for the parties to put it in writing.

One of the benefits government can provide is to make available a standard contract that people can invoke by name, without having to renegotiate the terms that have taken millennia to develop. That is a great convenience. Of course, people can refer to the standard contract, but then contract to deviate from the standard or to supplement it in some ways. We call those "prenuptial agreements". Government does that for  many kinds of standard contract, such as between landlord and tenant, employer and employee, or seller and buyer. Having such standard contracts is a great convenience for all concerned. But can government constitutionally forbid anyone from using one of its standard contracts, by merely referring to it by name? No, unless there is fraud, and fraud is a separate issue from entry into the contract, which might be evidence of fraud but is not essentially fraud.

Advocates of government recognition or certification of same-sex marriage also sometimes argue that it is not about licensing the contract or relationship, but about conferring dignity on it, the way churches and other religious institutions have traditionally done in most countries. The explanation is that such recognition or dignity operates to dispel much of the customary social rejection that might otherwise occur. They argue that there is an equal right to having such dignity conferred on their contract or relationship. But is that a constitutional right?

Constitutional rights, at least in the Constitution of 1787, are restrictions on government not to exert some kind of force on individuals. They are not rights to receive a sufficiency of some benefit, no matter how inexpensive it might be, except the benefit of disclosure of information about the operations of government. There is not even a right to have a trial on the legal merits of a dispute, because the parties always have the options of self-help, although self-help by government would be tyranny, or of private courts, to avoid the destruction self-help is prone to bring. On the other hand, if conferring the benefit costs nothing, or almost nothing, there can certainly be an equal right not to have government withhold the benefit.

But how much dignity would be conferred on something if there was indiscriminate recognition of everything for anything? The dignity would be meaningless if it is not withheld from some while being conferred on others. If so, then for whom might the dignity be reasonably and constitutionally withheld, and who decides? Should it be decided by anyone but a jury?

Would it make more sense, or be more constitutional, for government to simply withhold all recognition or other acts that confer dignity? Clearly, it has to recognize some things, and not others, to perform its duties, but if society takes such recognition as the conferring of dignity, that is a matter of custom, not law. If people insist on adopting such customs, then perhaps it would be better for government to get and stay out of the recognition business for any but essential government purposes, and marriage is not one of those. Even default contracts could be published by private institutions. There is no need for government to do so.

The Supreme Court could do us all a great favor by making all of the above points clear. That would mean judgment for the plaintiffs, but not for their arguments.


2015/04/12

Grand jury reform Texas 2015

Statement of
Jon Roland
before the Texas Senate Committee on Criminal Justice
in support to SB 135
March 21, 2015

I am the Founder and President of the Constitution Society, website at http://constitution.org. I urge the Texas Legislature to adopt SB 135, to require all grand juries be selected at random rather than through the “key man” procedure in use in some countries.

This committee may, however, amend this bill, to take it in a more constitutional direction, to provide that grand juries comply with all of the following traditional standards for proper grand juries:

  1. Selected at random from the general public, with perhaps some filtering, but without "stacking".
  2. Selection by a neutral party (not the judge or prosecutor).
  3. Size of 23.
  4. Decision by 12.
  5. Election of foreperson by the members.
  6. Term of service long enough to learn how to do it.
  7. Limits on terms of service to avoid entrenchment.
  8. Adequate training of grand jurors.
  9. Prevention of undue influence by interested parties, especially judge or prosecutors.
  10. Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
  11. Enough time to examine each case, or enough grand juries.
  12. No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
  13. Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
  14. Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
  15. Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
  16. Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
  17. Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
  18. Prevention of misuse during trials of evidence obtained by grand jury.

I urge this committee to amend this bill as outlined above.

See:




Here are a few links of interest:

Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings: http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955

New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.

FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force: http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ . They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.

Tennesee v. Garner, 471 U.S. 1 (1985) which held that:

§ This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)

The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor: http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 . As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law. Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.

According to the source of all knowledge (Wikipedia), 29 states still “employ some form of use grand jury.”

According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).

Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required. In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule. The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.

Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries:

http://www.law.cornell.edu/rules/frcrmp/rule_6 . In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23. As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time. That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.

How grand juries are selected at the state level depends on state law which varies widely:


The Ferguson grand jury was unusual because the proceedings were made public. Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony. This is one reason why we know so little about how grand juries operate. In virtually all cases, no one is talking.

On DA elections: This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections. Here are some re-election figures:


The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections. The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the incumbent success rate when running for office was 95%.

2015/03/24

Darwinian government

A better way to govern ourselves than simple elections might be called a “Darwinian” (or "Darwinoid") process, similar to what is done using genetic (or evolutionary) algorithms. Perhaps the best historical example of that was the Venetian system. It could be implemented in many ways. Consider one design:

1. At the precinct level (using the U.S.model of equipopulous precincts) two equal sized panels are selected by lot, or sortition. Then they select a pool of candidates to the next level (ward) by each panel voting for the best ten percent of the members of the other panel, and together for an equal number of individuals from outside either panel.

2. Candidates from the precinct pool are drawn at random to form two equal sized ward panels. The process is repeated to select two equal sized district panels.

3. The process is repeated to form two equal sized state panels (unless there are political subdivisions in between), and again to form two equal sized national panels.

4. The process is repeated to select a small number, say nine, candidates for the one national pool, from which a single official is selected at random.

A similar multi-step process would be used to select legislators, judges, administrators, etc.

In the judicial track, pairs of grand juries would select members of the next grand or any trial juries, and pose the questions they are to decide, after consulting with witnesses.

So random selection alternates with fitness election in a way that should enable the best and brightest (who don’t necessarily want the job) to bubble up to the top. Each participant in the process has an incentive to vote for the best rather than just a fellow partisan, because an obvious partisan would be less likely to survive to reach a higher level.

Voting rules within panels would use super majority votes, approval voting, or some other alternative to first-past-the-post.



A well-designed constitution should be able to combine many processes with many advantages, including both impartiality and prevention of the domination of the political process by factions, and also a statistically-representative microcosm of the entire citizen body, in order to discover what everyone would think under good conditions. There is no fundamental reason why those elected under some “principle of distinction” must be or become unrepresentative, if it is done in the right way. Having two legislative houses, one selected by sortition and the other by election, might be one way to do that, but we also need processes for executive and judicial questions. I have proposed such solutions at http://www.constitution.org/reform/us/con_amend.htm .

Concerning the Republic of Venice see
http://www.rangevoting.org/VenHist.html
http://www.uni-mannheim.de/mateo/camenaref/cmh/cmh108.html#275

This is not arguing there is a uniquely “best” choice, but there are certainly some that are better than others. The most important decisions that a polity must make are not just matters of taste or fair distribution, but of survival, that is , fitness. There can be more than one way to survive, perhaps giving rise to a fork in evolution, into two or more different lines, but most of the possible decisions lead to extinction. To build on the Platonic analogy, a captain may take his ship safely to any of several favorable ports, if more than one exists, but only one may be within range, and unless he is not very, very good at sailing, he may also take it to the bottom of the sea. Navigation is more a matter of skill, not of luck, taste, or fairness.

A reference can be made to the utilitarian rule of “the greatest good for the greatest number”, but that is too simple. It is the greatest good for the greatest number that is not too inequitable and that does not risk survival. (There is always some risk with any choice, but an optimal strategy improves the odds.)

Representivity is a value, for decisions about taste or distribution (justice), but not the uniquely highest values, which are honor, liberty, and aggregate prosperity, which are always at risk, even if it seems only taste or distribution are at stake.


The Universe is not organized for our comfort or convenience. It allows us to survive, sometimes, for a while, but survival is always nmarginal, and most decisions are a course along the edge of survival, trying to hang on as long as we can. We live in a unique period of easy prosperity when it seems good times will go on forever, however foolish our decisions might be. But that time is not forever, and we can easily bring it to an end sooner than necessary.

Most proposals for some kind of diarchy between advocates and judges neglect to consider that if elites control who may advocate what and how, who may judge, and how the deliberations may be structured or conducted, and what procedures are to be used, then those elites may still steer the “judges” to get any outcome they want.

This proposal does not conflate the functions, but divides them into balanced bodies, and allows darwinian-selected bodies to decide not only judgments but also the questions, structure, and procedures, for themselves and other bodies. There is no one single decisionmaking body, but a complex system of bodies that check and balance one another, while moving decisions to a final stage and to implementation.

So, for example, grand juries can supervise the selection of trial juries and successor grand juries, rather than leaving that to professionals like judges or prosecutors. Grand juries would not just decide whether to indict, but appoint the prosecutor (who could be a private citizen). Jurors would hear all the arguments made to the judge in a trial or hearing, so that they could condition their verdict on what they observed.


Several terms might be used for a system that alternates between random selection and merit screening:

  1. darwinition
  2. eduction
  3. winnowing
  4. winition
  5. fetura — Latin for breeding

How it might be realized

Nothing is going to happen unless or until we have a lot of successful exercises of it at the local and private levels. The Morena party in Mexico provides an example of that for nominating candidates. Election itself was not adopted until it had been successfully tried in many exercises over decades or centuries.

A good place to start would be in public and private schools. That is where most of us first learned at least a simplified version of Robert’s Rules of Order, but that started with the election of class officers, so the indoctrination began early. I can imagine that using a kind of Venetian system might be popular among students.


So it might take a generation or two, and we may not have that long, but we do what we can.

There are several ways sortition could be done in the U.S. without amending the Constitution, although after it was working for a while we might want to amend the Constitution to entrench it:

(1) Selecting the electors of the Electoral College. The method we use now is prescribed by statue in every state. No reason those have to be selected by a popular vote for slates of electors, but might need to begin by changing the law to require electors be elected individually and separately rather than by slate. That might prepare the public for a better way.

(2) Selecting the nominees for U.S. Senate. The 17th amendment now requires a popular election, but says nothing about nomination. Sortition (or more precisely, fetura/eduction/winition — a Venetian-like method) could be used to narrow the alternatives to two, although write-ins would have to be allowed.

(3) Selecting the members, or at least the nominees, for U.S. House of representatives. Even if the statute requiring single-member districts were not repealed, this could be done in each district. Perhaps just for nomination, with election for the last two.

(4) Appointing federal judges not to a particular court, but to a general pool from which they would be randomly assigned to courts for one term, and to cases until the case is decided, including the Supreme Court.

(5) Use eduction for appointing and assigning civil servants, leaving them in one assignment long enough to learn their jobs, but not long enough to “build an empire” there. (This is now done for military personnel.)

(6) Use fetura to appoint and assign most congressional staffers to members, to avoid having them becoming the real power in each house.

(7) Use winition to appoint members of all kinds of boards and commissions.

(8) Require all states to use sortition to select members of grand juries.

(9) Use sortition to select a successor to the president and vice-president in case they both leave office prematurely.


Every one of these appointments is now done according to statute and could be done differently without constitutional amendment.

Adoption of any such reform may be unlikely unless or until we undergo a traumatic event that is blamed on the electoral process. (Although one might think we are already in the midst of such.)


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2015/03/01

Convention of states?

The question is often asked, what good would new amendments do? Wouldn't the powers that be just ignore them like the original?

Actually, there is substantial compliance with the Constitution for those passages that are totally unambiguous. Most of the departures have taken advantage of ambiguities in about 80 terms or clauses, some that are fairly subtle, and the first section of my proposals would go most of the way to clarifying those ambiguities and overturning wrong court precedents that support the departures. See http://constitution.org/reform/us/con_amend.htm However, as you will find in the introduction to the proposals, simply calling an Article V convention and expecting the delegates to come up with proposals, without a long process of hammering out proposed amendments by experts, on which the convention would just vote up or down without changes, would  at best be a disaster. There are fewer than 200 persons alive today with the skills to competently draft amendments, and none of them would be delegates. 

Imagine a joint meeting of the Republican and Democratic conventions trying to agree on a platform, much less on carefully crafted amendments to the Constitution. Congress, with the help of well-paid lobbyists, couldn't draft a competent health care act, and amendments, especially succinct ones,  are vastly more difficult than ordinary statutes. 

That is in large part due to the inability of people to understand the complex systems they seek to manage, with millions of convoluted feedback loops. Better to clarify the original meaning with modern language and leave it at that, except for a few obvious errors and omissions in the original document.

How an Article V convention might go terribly wrong

Can such a convention be instructed or controlled once it convenes? No. There is no enforcement process for any controls. Consider the following scenario:
  1. Convention meets in secret
  2. It proposes entire new constitution which contains no rights or restrictions on governmental powers
  3. The proposal promises large benefits to every citizen or resident of the country, such as a minimum income of $100,000 a year (which would be impossible, but most people won't know that).
  4. It declares it will go into effect when ratified by a national referendum of citizens (or perhaps even non-citizens)
  5. A majority votes for it (and if they do how will anyone overcome that?)
  6. Ruling class use the new government to solidify their control, make everyone dependent on them, suppress all dissent as "terrorism"

See:

  1. Article V convention proposals misguided
  2. Can amendments save the Constitution?
  3. 1832 Call for Article V Convention


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2014/09/02

Making a difference

A number of proposals have been made for reforming government abuses. Here are a few points:

Documentaries

Documentaries have already been done. They have some use in recruiting activists, but almost none for effecting real reforms. If they ever make it to a wider audience, the only result is a downtick in public opinion polls, but no action. Anything less than detailed, step-by-step, daily plans for the coordinated action by tens or hundreds of thousands of dedicated individuals will work, and they need to focus on real changes:

1. Legislation adopted and enforced. (Exact wording provided.)
2. Court decisions made and enforced, after winning on appeal (trial decisions might help parties but don't make real changes). (Exact wording provided.)
3. Removal of officials from office, imprisonment of some, and perhaps replacement by much better ones. (Win elections, remove immunities.)
4. Changes in school curricula and what students are tested on. (Change the teachers and textbook authors.)
5. Changes in the incentives for officials to do the right things, and to open government to intervention by outsiders. (It's the System — structures and procedures.)
6. Get control of the media. (Social media is a start, but that doesn't reach the majority.)

Never arouse concern without providing specific action plans that can be carried out by individuals using the resources under their control. Otherwise the only result is despair and discouragement. Discouraged people don't make reforms. When individuals do take steps, they need to be commended and supported to keep them going to take the next steps.

Recruiting journalists

1. While most journalists may not want to investigate or write stories, they usually know a lot of stories they can convey to you, and thus can be a good source of information. They are worth cultivating for that reason alone.

2. You need to write the stories for them. Most journalists don't know enough about law to write about it. Most news reports are just someone's press releases, so you need to flood the media with press releases that tell the stories you want told, in effect making you the investigative reporter. There are press release distribution services that can do it for you at a cost you could not afford.

3. It is worth cultivating journalists through regular personal encounters to develop your credibility and perhaps get them to cover your own story sympathetically if you get in trouble doing all this.

4. The most receptive journalists are likely to be found in foreign or foreign-owned media, such as the British Guardian and Telegraph (Ambrose Evans-Pritchard, a friend from 1995 when he investigated wrongdoing in the U.S., is now the editor of the Daily Telegraph.), or Al Jazeera. They are also more likely to follow through on a story over a period of time. Once they pick up on a story, that makes the story news and provides domestic media some cover to pick it up themselves. Fox News has been somewhat receptive, especially since some of their associates and commentators are lawyers.

5. Television media are reluctant to do stories without visual media that can hold the attention of their viewers. Often their decisions to cover are based more on good video footage than on the merits of the story. The problem with coverage in this field is that so much of what would make good visuals is barred from cameras, so you may need to be clever about it. (That is the main reason judges ban cameras from courts.) The good news is that they are increasingly susceptible to using your footage rather than having to shoot their own. But if you give them a copy (always keep the original), do it with a contract that allows them first public use, while you retain the copyright.

6. Some reporters learn about law by serving as courthouse reporters, although they may be most fearful of losing access by reporting the wrong stories or reporting the wrong way. Most reporters, however, will only know enough to understand abuses involving evidence, rather than abuses of due process or other areas of law. For them, you may need to focus on the evidence rather than confusing them with precedents.

7. In jurisdictions where judges are elected, their election campaigns make stories about them more newsworthy, and provides opportunities to insert critical material.

8. Keep in mind that the overwhelming majority of judicial judicial abuse is combined with prosecutorial abuse, because most such cases involve the government as a party, or at least as an interested background party. Indeed, the prosecutorial abuse is likely the leading component of the overall problem. You can't fix one kind of abuse without also fixing the other. And journalists are sometimes more receptive to going after prosecutors than judges.

9. You can become a "stringer" for a media organization, feeding them stories at a lower cost than from their regular journalists. After feeding them with enough good material on general topics, you can then start slipping in material on this more specialized topic.

10. Always keep copies of all the evidence you gather in a safe place that will be disclosed if anything happens to you. Have more than one copy in more than one safe place, because the opposition is likely to always be able to find at least one of them. Don't let your story die with you, as happened with Danny Casolaro or Gary Webb, who were "suicided".

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2014/08/20

Lay v. legal versions of originalism

There has been a recent debate on the Volokh Conspiracy and the Originalism blog here, here, here, here, and here among Ilya Somin, Michael Ramsey, and Timothy Sandefur, over whether the meanings of the terms used in the U.S. Constitution should be taken from lay English of 1787, or from legal English. My responses are as follows:

The Constitution provides critical guidance on how to strike the balance between ordinary and specialized legal meanings of its terms: It calls for most important legal issues to be adjudicated in jury trials, with juries selected more or less at random from the general community, which hopefully results in a panel of twelve mostly reasonable persons, or who become more reasonable when thus empaneled. But the original meaning of "jury trial" was that all legal issues be made to the jury, not just to the judge, so that in reaching a verdict, the jury is also reviewing the legal argument and the decisions on points of law made by the judge. Many trials will involve subtle legal issues with which the jurors will not be familiar at the outset, but for which they hopefully will become sufficiently knowledgeable by the time they are asked to render a verdict. That essentially defines a standard of interpretation that is accessible to ordinary people during the intense legal education that is a trial, but not necessarily known to them before that process begins.

There is also guidance from the way the Constitution was ratified: By conventions in each state, elected by the people, but composed of a high proportion of lawyers, who also dominated the debates.

Finally, we see the process during the Philadelphia Convention, when members unsure of the meaning of some of the proposed language (such as "ex post facto") referred to Blackstone or other legal authorities to settle the question. That is a microcosm of how they expected other constitutional terms to be resolved.


The people who elected the ratifiers mostly did not do so on the basis of subtle understanding of the Constitution. They seldom if ever even debated most of the issues we consider important for deciding cases today. Some had a general support (based on the expectation Washington would be the first president), or opposition (fear of change), but mostly because they liked and trusted the ratifiers as personalities.

And these three points are not about a single resolution, but insights into a more general interpretative regime the Framers and Ratifiers expected to play out, sometimes pulling in one direction, sometimes in another. There is not an algorithm to be found.

But they did expect the Constitution to be interpreted by legal elites, as they expected legal issues generally to be. That's what they had courts and lawyers for. But those courts were open to lay interpretation in one important way: the jury. However, while legal issues were originally supposed to be argued in the presence of the jury (unlike the practice today), the jury, along with the judge and opposing lawyers, expected the trial process to be an intense exploration of the laws involved, in which all participants learned to understand the legal issues, and when in doubt about what legal terms meant, to consult legal authorities. As independent-minded as they might be, respect for expert authority was the prevailing paradigm, and one they not only expected would continue, and could not conceive of doing things otherwise, but comprised an essential part of the meanings of the terms used, not only in the Constitution, but in law generally.

Yes, one of the "populists" was Chief Justice John Marshall, largely self-taught in the law and ignorant of legal history, when he invoked lay meaning of the term "necessary" as "convenient" in McCulloch v. Maryland. Jefferson and Madison didn't agree, and I am disposed to go with their Whig approach to interpretation, as distinct from Tory ("Mansfieldism"), or Monarchist. There were those three schools of common law interpretation, and at the Founding, the prevailing one was Whig, at least during the Jeffersonian Era.

Proper interpretation (or construction) is not a matter of following a rule to be found, but a complex process constrained by structures, procedures, and common law rules of interpretation, represented in part by the legal maxims.

After many decades of research, I have reached the point where I can quickly resolve almost any constitutional question in  a way that seems congruent with the thinking of the Founders, to the extent that can be discerned. But if graphed it would look like an extremely complicated flow chart, that even includes some nondeterministic decision nodes. Imparting that to others, however, is a challenge.

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

The insistence on unlearned use of words in serious fields, over learned usage, is a much later development, mostly among uneducated rural Western and Southern persons in the late 19th century, and largely among recent immigrants, who felt belittled by the educated. That disdain of the uneducated by the educated and resentment by the uneducated was not a cultural divide in the 18th century. There were social distinctions, but everyone respected the educated.
Dick:
The first thing we do, let's kill all the lawyers.

Cade:
Nay, that I mean to do.

Henry The Sixth, Part 2 Act 4, scene 2, 71–78
There has always been tension between laity and the elites, between surrender and defiance, but the opening of the frontier of the New World transformed that tension in an important way. The bargain between laity and elites became not deference, but the lay demand that the elites persuade them by explaining what they propose and asking for their consent. They in turn agree to make the effort to understand well enough to decide wisely. That is not full expertise, but it is just enough expertise, hopefully, for a particular decision, to get through the day.

The same bargain applies to citizens, lawmakers, and law. Lay citizens don't expect to have expert knowledge of all law, just enough to make decisions in their own lives, but that includes consenting to the laws that do affect them, especially the Constitution, which affects everything and everyone.

But for making decisions in legal cases, the lay jury provides the standard. The key element, which has been largely removed from current court practice, is for all legal arguments made to the judge to also be made to the jury, not for them to decide motions of law, but to review those decisions and then either grant or withhold their consent in their verdict. It doesn't work to "protect" them from being "confused" by the legal argument. If they can be confused, then the problem doesn't lie in presentation of the legal argument, but the soundness of it. Current practice, by withholding legal argument from juries, also destroys the fundamental bargain on which constitutional legitimacy rests.

The problem, of course, is that the initial adoption of a constitution and the knowledge required to do that wisely, may not be sustained for the followthrough needed to maintain compliance indefinitely. In many ways, that requires more knowledge and talent than founding did, because there are far more competing forces to deviate from it. Our species may not be up to the challenge.

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2014/06/30

Anwar al Awlaki

The issue with Anwar al Awlaki is not whether he was a citizen, or even where he was. If we examine the legal history of the right of due process, we find that it was not confined to citizens (or "subjects" in the English context), or to the soil of the nation. However, it was confined to those over whom personal jurisdiction is established, as by holding one in custody. That means it excepts, until they are made prisoners:

1. Foreign military personnel engaged in hostilities against us or our allies.
2. Pirates, engaged in warlike acts against assets of nations other than their own.
3. Traitors, U.S. citizens engaged in warlike acts against assets of their own nation.
4. Violent felons, while actively engaged in crime.

It is that personal jurisdiction and custody that defines the boundary between whether it is permissible to apply deadly force without due process, or whether it is not. Citizenship and location are irrelevant, except as to whether one is a traitor or a pirate.

Presuming the premise that Anwar al Awlaki was actively engaged in hostilities (warlike acts) against the U.S., as a U.S. citizen, that makes his activity treason. If he were not a U.S. citizen, and since he was a nonstate actor, it would be piracy.

But he was not in custody, and it is a well-established principle of law that while we should always try, if it can be done safely, to secure custody of an offender, when it cannot the offender stands as an "outlaw" — someone outside the protections of law.

The same principles apply to a self-defense situation: While the offender is threatening injury or death one may kill him. but once he surrenders one may not.

So the only questions are, (1) whether he was engaged in warlike acts against the U.S. or its allies, and (2) whether it was safe to capture him. If the answers were yes and no, respectively, then it was permissible to kill him. And, yes, the president, and other officials, do have the power to make that determination, subject to review. If after a review it is found the determinations were incorrect, then the officials may be held liable.

2014/06/28

Magna Carta

Much has been written, and miswritten, on the Magna Carta. It expressed several key principles of law that were incorporated into the U.S. Constitution, and most other national and state constitutions. Of course, most of it is no longer applicable. It was written for the legal situation in feudal England in 1215, covering issues that just don't arise in modern republics.

The key point that remains controversial today is in two parts:

a. Officials, including the chief executive (the king) is subject to the same laws as everyone else.
b. Those officials are personally liable for the injuries they do, contrary to law.

What is presumed is that officials only have limited powers. The king is not the sovereign, because he is subject to higher laws — the laws of nature — which honest men can discover and apply, in principle. (In practice they tend to "find" that the law favors them, but that is a separate question.)

That's why it was deemed so outrageous for Nixon to say, "It's legal if the president does it."

But Nixon's comment is revealing, because while these principles are accepted by almost all officials, at least in public, the problem comes when they or their appointees decide whether what they are doing is lawful. If it is lawful, they can't be held liable for injuries, but if a suit for damages is not even allowed to be heard on its merits, there is no way for an independent forum (a jury) to decide whether it was lawful. The problem with "qualified immunity", as currently practiced, is that the injured party can't get a trial on the merits.

"Sovereign immunity" is not the same as official immunity. That is about the state being liable, rather than the official. Again, it makes some sense to restrict how one who might get a judgment against the state may collect, generally from a fund established by the legislature to pay such claims. If judgment creditors could seize any state property they can find, the courts that grant such judgments would have the power to destroy the state. However, that does not mean a claimant should be prevented from getting a trial on the merits, by requiring that he must get the consent of the state to even get a trial.

The right to redress (which is in the Ninth Amendment, not the First) requires that one be able to get a trial on the merits, even if the options for collecting a judgment, or to get injunctive relief, are limited. It should certainly always be possible to get a declaratory judgment on any legal question, even if that brings no other relief than the support of public opinion.

As I have often said, the problem is not that we have "lost" our rights, or that, since every right must have at least one remedy, we have "lost" our remedies. The problem is that access to our remedies has been put out of the reach of most people, at an affordable cost. That is a problem of custom, policy, practice and procedure, not the law per se.

Any real reforms need to open the legal system to intervention by outsiders who are not controlled by it. That means both structural and procedural reforms, not just aspirational laws.

Some write about the Magna Carta as though it was some unprecedented breakthrough in legal affairs, if not in Europe, then at least in England. Not really. Almost all monarchs in Europe of that time, even if some claimed rule by "divine right", were subject to being deposed by a class of aristocrats, and to having a new one elected by them. The barons at Runnymede were just pushing back against monarchical overreach, but they did codify their position in terms that, while it was initially intended only to protect them, also came to be understood to protect common people as well.

One precedent was actually in Spain, the 1020 Fuero de León, followed by the Cortes de León in 1188, which set up one of the first parliaments since ancient times. Another precedent was the Holy Roman Empire, which despite its name, was ruled by an elected "emperor" with limited powers. The "electors" — princes of the "states" of that confederation — did not meet together as a parliament regularly, but did have to consent to any laws the emperor might make. Emperor Frederick II did establish the Liber Augustalis, or, Constitutions of Melfi (1231), an early model for constitutions.

It did not take long for King John to start ignoring the Magna Carta, and his successors further ignored it. Finally, Simon de Montfort, Earl of Leicester, revolted against King Henry III, established the first English parliament with the Provisions of Oxford, but those reforms died with him at the Battle of Evesham. (Had he lived political and legal history might have been advanced by 600 years.) However, although the Provisions were suppressed, the idea could not be completely, and that led to the Confirmatio Cartarum (1297), which united Magna Carta to the common law by declaring that the Magna Carta could be pled in court. Once court precedents began to be built on it, the line of legal rights it began slowly gained ground over the centuries that followed.




It is sometimes, mistakenly, argued that the Magna Carta laid the basis for grand juries or trial by jury. But the council of barons was a precursor of a parliament, particularly of a House of Lords, not of a grand jury, and at that time the customary method of deciding cases was combat or compurgation (getting twelve people to swear you were telling the truth). No, the grand jury for indictment, and the trial jury for a verdict, has its roots in the juries of ancient Greece, Israel, and Rome. The size of the jury comes from Hebrew law, the sanhedrin, which got its name from the Greek synedrion, and developed under Greek rule.

The struggle for legal rights and republican government has had a long, complicated history, with advances and retreats all across Europe and other parts of the world. We document much of that history on our site. So don't get discouraged. Our battles are just the latest episode in a long saga.

2014/06/24

Intent of 14th Amendment

To my 2000 article Intent of the Fourteenth Amendment was to Protect All Rights I make the following clarifying points:

1. The 14th Amendment did not confer U.S. citizenship on individuals born on U.S. soil, whose parents were not subject to the jurisdiction of a foreign power. That was already the established rule, inherited from English law, and U.S. citizenship arguably began on non-state territory with adoption of the Articles of Confederation (ratified 1781) and the adoption of the Northwest and Southwest Ordinances (1787), which transferred sovereignty of the western territories, previously subject to conflicting claims by the states, to the emerging United States (a term that originated during the earlier (1774) Articles of Association under which the War of Independence was fought.

2. Adoption of the U.S. Constitution made all persons born on the soil of any of the states U.S. citizens as well as those born on any of the non-state territories, and conferred on Congress the power to make rules for naturalization.

3. The U.S. Constitution put restrictions of the states in Art. I Sec. 10, and since all restrictions on government powers are rights, or more precisely, immunities, it thereby established rights of U.S. persons (not just citizens) in the states against their states, justiciable in U.S. courts.

4. The language of the Bill of Rights (1791), except that of the First Amendment, seemed to apply equally to the U.S. and state governments, and like Art. I Sec. 10, to make an exception to the omission from Art. III of federal court jurisdiction over cases between a citizen and his state, but it attached rights to persons, not just citizens. (The Framers, in writing Art. III, presumed a person who was a resident of a state would also be a citizen of that state, and did not anticipate states would later assert a different position.)

5. However, the states defined state citizenship as well, and in ways that did not include the same individuals as were included in U.S. citizenship, such as blacks.

6. Some of the southern, slaveholding, states belatedly realized that if the Fifth Amendment Due Process Clause applied to them, and federal courts had jurisdiction, slaves could sue in federal courts for their freedom, as deprivation of liberty without due process of law.

7. This led to two main cases. Barron v. Baltimore (1833) and Dred Scott v. Sanford (1857). In Barron, slavery was not the issue. The Takings Clause of the Fifth Amendment was the issue. But it was realized, when it got to the Supreme Court, that if the Court decided in favor of Barron, it would establish a precedent that would allow slavery to be challenged, so it decided against him, and CJ Marshall (wrongly) held the U.S. courts did not have jurisdiction to decide cases over the Bill of Rights between a citizen and his state.

8. In Dred Scott slavery was the issue. The problem was that the federal courts could not avoid jurisdiction because persons of different states were the opposing parties. The Bill of Rights, and other provisions of the U.S. Constitution, associate rights with personhood, not citizenship, and it was already established precedent that blacks were persons, so CJ Taney for the U.S. Supreme Court weaseled out of the trap by (wrongly) holding that blacks were not and could not be citizens, and thus, federal courts would not have jurisdiction, since Art. III uses the term "citizen" instead of "person" in defining jurisdiction. The effect was to make the rights of persons not citizens non-justiciable in federal courts, contrary to the obvious intent of the Bill of Rights.

9. By the time the view developed that both precedents had to be overturned, and that it would take an amendment to do that, many more precedents had been built on those two cases. So it was not enough for an amendment to just refer to the two cases and explicitly overturn them. It had to adopt general language that would cover the entire system of precedents based on them, past and future.

10. That left the problem that the states could not be allowed to deny rights to persons on their territories by defining them as noncitizens. That could make the U.S. Constitution a nullity in such states, by doing something outlandish like defining Jim Bob and Red Neck as the only citizens. So what the 14th Amendment did do was make all U.S. citizens state citizens if they reside in the state (although it neglected to define residency). That included blacks. However, it also neglected to make clear that most rights belong to persons and not just citizens.

11. Some would argue that the language they chose was not very clear, and that a better wording was needed, but if one tries to find better language, it is not all that easy. (If I had been there, I could have done it, as I have above, but I was born too late.)

12. There is actually no U.S. Supreme Court decision that sustains the offspring born on U.S. soil of parents who have entered U.S. soil illegally to be natural born U.S. citizens. Such parents are arguably not "subject to the jurisdiction" in that they did not seek and obtain consent to enter. All the cases have either been parents who entered legally, or for which the legality of their entry was not before the court. There is a presumption that those born on U.S. soil are natural born citizens, subject to proof to the contrary, and in the absence of someone to argue that position, the presumption stands. If someone wants to get a precedent to that point, one needs to take a case to the U.S. Supreme Court.

2014/05/20

Indictments of Chinese for spying

The AG is just grandstanding in this case, and while it might play well domestically, on the international stage it is a mistake.

First, the grand jury had no business returning an indictment, which must find sufficient evidence that:
1. A crime was committed.
2. The accused did it.
3. The court has jurisdiction.

It fails on predicates (1) and (3). To have criminal jurisdiction the act would have to either be committed on U.S. soil, or committed by a non-state actor, as an act of piracy. Clearly, the perpetrators were state actors, and committed the acts outside U.S. soil, so the alleged act was perhaps an act of war, but not a crime over which any U.S. court would have criminal jurisdiction.

Contrary to current practice, the locum jurisdiction of a criminal act is the location of the actor when he acted irreversibly ("committed"), not the location where any harm might have occurred.

Even if committed on U.S. soil, unless it was on the territory of a federal enclave, the Constitution confers no authority to make the alleged act a crime, unless it can be considered piracy, and that only if done by nonstate actors.

Last I checked, China does not elect members to the U.S. Congress to make laws for Chinese territory. The government of the U.S. is not the government of the world.

This indictment only makes the U.S. look silly in the eyes of the world, and to anyone with even a rudimentary knowledge of the law of nations as of 1787. From contacts with members of the DoJ, it would seem that no one there has a clue on that subject.

2014/04/27

Schuette decision

Discussants of these issues have been making a muddle, confusing themselves and others. Let us try to sort things out.

1. The original concept of "affirmative action" was to make efforts to encourage underperforming students to meet common standards, not to lower standards so that more of them could have the appearance of success but not the substance of it. It did not contemplate quotas.

2. But "efforts" can't be measured, so because minorities were not immediately advancing in proportion to their numbers, and because it was presumed that aptitude and motivation were equally distributed among every group, there was a leap to using quotas as a way to measure effort, to remediate the conjectured effects of past unfair discrimination, and to attribute continuing underperformance to further unfair discrimination. These are mistakes that need to be corrected.

3. Each individual is solely responsible for educating himself. The young are not passive vessels into which education can be poured. They have to want to learn, and to have the ability to learn. If they don't, no amount of effort or resource expenditure will educate them to any particular level we might set for them.

4. More talented and industrious people tend to marry similarly talented and industrious people and are more likely to produce more talented and industrious offspring. Over the course of generations, this will tend to result in stratification of society by talent and industriousness. Of course there will always be some from the lower levels who will have what it takes to rise to higher levels, and they should be encouraged and the way cleared for them, but this stratification can be expected even if there is no unfair discrimination against the less fit. Discrimination based on merit is not unfair.

5. Lack of motivation to become educated is not just the result of family or community cultures that don't value educational advancement or that discourage educational achievement, and those things are not just the legacy of past unfair discrimination. Many groups have suffered unfair discrimination throughout history and responded with increased determination to advance. We need to examine how the lack of such determination may be a rational choice based on accurately perceived lack of personal aptitude. The less-talented generally are aware they are less talented and adjust their expectations accordingly. They may also hate themselves for their shortcomings and angrily inflict that hatred on others. We might want them to try harder, but there are limits to how much that desire will increase their motivation, and legal interventions are likely to be counterproductive.

6. We also need to confront the evidence that aptitude is not uniformly distributed among all groups. That is not just the result of flawed measures. Some of the measures might be flawed, but even if we correct for flaws we still have the evidence that does not support the aspirations almost all of us share that there be no such differences. If there are differences we need to deal with that reality, not ignore it or attempt to explain it away. "Nature cannot be fooled."

7. In this case the Supreme Court was being somewhat disingenuous in holding the decision should be left to the voters, because they agreed with this decision by the voters. If the voters had decided to do something unfairly discriminatory, they would have overturned that decision, and properly so.

8. These issues may not have satisfactory solutions until we can genetically engineer our offspring to all be superior by present standards, not only in aptitude but in character. But we also have to anticipate that such engineering will not always be done or have salutary results. For at least the next century things are likely to get rough.

2014/04/22

Justice Stevens’ Proposed Six Amendments

Former supreme court justice John Paul Stevens has just published a book, Six Amendments, in which he proposes some very poorly worded reforms, and some that are misguided in their intent. Here are the amendments, with the key changes made in present provisions in bold:

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) — This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
     
  2. Political Gerrymandering — Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
     
  3. Campaign Finance — Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
     
  4. Sovereign Immunity — Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
     
  5. Death Penalty (Amend the 8th Amendment) — Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
     
  6. The Second Amendment (Amend the 2nd Amendment) — A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.
This demonstrates that even one whose job was to decide constitutional cases does not thereby acquire the knowledge and skills needed to competently draft amendments to the U.S. Constitution. I estimate there are probably less than 200 such persons alive, and none of them are on the federal bench.

Drafting competent constitutional amendments is awesomely difficult. My attempt to do so is at http://constitution.org/reform/us/con_amend.htm and I am still making revisions from comments. I have not seen better ones from people one might expect should be able to do this kind of thing.

There are several things wrong with his proposed amendments.

First, an amendment should not restate what is already in the Constitution, but only refer to what is being added or revised.

Now to discuss the flaws in each of his proposals, similarly numbered:

  1. The wording is unclear as to whether it makes state actors federal and subject to federal command, or omits to provide such authority, making his amendment a nullity.
  2. Void for vagueness. My approach is to eliminate single-member districts and go to a system of proxy voting for the lower house of both Congress and the state legislatures. I also have a non-amendment proposal for using a computer to randomly draw districts using a mathematical algorithm.
  3. Interpreted strictly it would enable making campaigning a crime, perhaps selectively enforced, which would not only be ineffective but highly counterproductive of any rational benefit. Horrible idea.
  4. His amendment only provides for construction of the U.S. Constitution, but does not address immunity based on state constitutions or judicial doctrine, federal or state, that don't reference any constitution. Stevens lumps sovereign and official immunity and covers only liability for violation of federal statutes or Constitution. My amendment states: "Sovereign immunity of a state or the nation shall not be a bar to suit, only to execution of judgment against assets not provided by an act of Congress or the state legislature for payment of claims." I address official immunity in a separate amendment that provides a procedure for removing it. "No person shall be unreasonably impeded from access to a randomly selected grand jury of 23, who, if they should return an indictment or presentment, may appoint that person or any other to prosecute the case, and shall decide which court, if any, has jurisdiction, and whether any person shall have official immunity from suit." Stevens only provides for states, state agencies, or state officials, and not federal actors, and not private actors acting at the direction or instigation of public actors. I extend these reforms to federal actors and to private actors under government instigation.
  5. Surplus language. Could have been simply stated: "The death penalty shall not be imposed."
  6. Vaguely tries to suggest that "militia" is only some kind of government-directed activity, while I make it clear it is any defense activity, including solitary unorganized activity or preparation for defense.
Readers are encouraged to submit suggestions for better wording of my amendments.

2014/02/04

Article V convention proposals misguided

We have recently seen a flurry of movements to convene an Article V convention to propose amendments to the U.S. Constitution (links at the end). They are driven by the realization that only amendments might reverse wrong directions taken by the federal government, and because many of those amendments would need to reduce the powers claimed by Congress, the development of proposed amendments is not something we can expect Congress to do. They are right about both points, and we have developed our own proposed amendments, but we also offer a far better strategy for getting such amendments adopted and implemented.

Such movements are not new. There have been many in the past. They've all failed, because they've all made the same few mistakes, are making the same mistakes again, and seem unable to learn from those mistakes. Here are the common mistakes:
  1. They underestimate the difficulty of composing sound amendments. Except for the first ten, the Bill of Rights, almost all that have been proposed or adopted have been sloppily written and did not work out as intended. Recent proposals by most reform groups are even worse.
  2. They imagine an Article V convention will be composed of persons who can and will compose sound amendments. There are probably less than 200 persons alive with the skills to compose sound amendments, they don't agree on any, and  none of them would be delegates at any Article V convention.
  3. They ignore the careful preparatory work needed to develop sound amendments by teams of experts meeting to hammer them out with extensive public discussion. We do need conventions, but not a comprehensive Article V convention. We need to assemble as many of those constitutional amendment experts as we can to develop proposals for reversing specific  court precedents, probably separate conventions for each wrong precedent.
  4. They seek a few sweeping amendments that will reform everything, when the only thing can can work are amendments narrowly tailored to overturn specific lines of court precedents. Because amendments are so difficult to get ratified, they seek to do too much with too few, generally between one and ten. That won't work. Broad amendments would have to be written in broad language that would have the same kind of ambiguities that have allowed the misinterpretations to which we object. The Constitution needs greater specificity, and if that takes more than 100 amendments, then that is was we need to develop and ratify.
Our proposals avoid all these mistakes, yet the various movement proponents seem unable to grasp why ours is the proper approach.

The standard model for such conventions would be for each state to decide how to appoint its delegates. Voting would be by state, with the vote of each state determined by a majority vote among its delegates. If appointed by state officials we can have some expectation of the composition from the partisan balances in each state. If appointed by governors, there are 30 Republicans, 19 Democrats, and one Independent. If appointed by legislatures, there are 27 Republican-controlled, 18 Democratic-controlled, 4 split, and one nonpartisan. However, if delegates are elected we might expect a breakdown that resembles the last election for the U.S. Senate, now at 54 Democrats to 45 Republicans, or the votes for president, for which 24 states went Republican and 26 went Democratic. None of these methods of selection promises to send delegates who have the skills needed to competently draft amendments to the U.S. Constitution, much less the concerns of the advocates for such amendments. It would more likely resemble a joint meeting of the Republican and Democratic national conventions trying to agree on a platform, and they don't do that very well even when they meet separately and have most of the work done in committees that meet for months before the convention.

The purpose of an Article V convention is to provide a way to develop proposals, especially if Congress is reluctant or unable to do so, but as we have seen from all the proposals developed at conventions of all kinds, they are simply not forums that are competent to do the difficult work of developing sound proposals. The appropriate forums are gatherings of experts on particular departures from constitutional compliance by courts, that can specialize on developing one or a few specific proposals. Those would not be official Article V conventions, but privately convened special conventions, perhaps a series of several on each issue, conducted over a period of years, with public comment between sessions. Only after the proposals are thoroughly worked out, and perhaps tested at the state level, should a movement seek to get each of several state conventions to support the exact private proposals, with no changes, and demand Congress adopt them, again with no changes, as proposals to be submitted back to the states for final ratification.

There is no role in this process for an Article V convention. If private gatherings can develop the language of proposals, there would be no need for one. All the work for one would already be done. That is the way we need to seek amendments.

How an Article V convention might go terribly wrong

Can such a convention be instructed or controlled once it convenes? No. There is no enforcement process for any controls. Consider the following scenario:
  1. Convention meets in secret
  2. It proposes entire new constitution which contains no rights or restrictions on governmental powers
  3. The proposal promises large benefits to every citizen or resident of the country, such as a minimum income of $100,000 a year (which would be impossible, but most people won't know that).
  4. It declares it will go into effect when ratified by a national referendum of citizens (or perhaps even non-citizens)
  5. A majority votes for it (and if they do how will anyone overcome that?)
  6. Ruling class use the new government to solidify their control, make everyone dependent on them, suppress all dissent as "terrorism"


See further:


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2014/01/22

Preamble meaning and purpose

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Preamble of the U.S. Constitution can best be understood and explained as a statement of purpose for the document that follows. Its functional meaning, by the common law rules of construction, is to restrict what follows to the purposes it expresses. Thus, a delegation of power that might seem to be plenary is to be interpreted as constrained to those purposes. As such, no delegations of power in the Constitution are plenary.

For example, consider the Elections Clause. Congress is granted pre-emptive powers over state laws to prescribe the time, manner, and place of congressional elections, except the place of senatorial elections. On a plain understanding of the words, that would seem to empower Congress to require congressional elections to be conducted within a one-nanosecond timeframe, while balancing on one's fingertip, at a polling place on the moon. Obviously absurd? Of course, but if you seek a textual basis for excluding that, it can be found in the Preamble.

2014/01/21

"Dead hand" problem for originalists?

In a recent post to his blog, "A simple (and serious) puzzle for originalists",
Eric Posner states "All originalists acknowledge the “dead hand” problem, and so all agree that the normative case for originalism depends on the amendment procedure being adequate for keeping the constitution up to date."

First, this originalist does not acknowledge the "dead hand" problem, as a general proposition. If a constitution is sufficiently well-written at the outset there is not necessarily any need to amend it to keep it "up to date". A constitution is written for human nature that has not changed much in 40,000 years and won't change much until we genetically engineer ourselves into having quite another nature.

Most of the demands to "update" the Constitution are demands to enable redistribution of wealth, or to enable arrogant people who delude themselves that they are capable of managing complicated systems if only they are given powers to "make us better". Lots of luck with that. Better not to let them try.

That is not to say that the U.S. Constitution could not use some amendments. I have proposed several. They fall into three categories. The clarifying amendments are to overturn wrong court precedents. They add no new powers or offices, and change no procedures. They would merely return us to what was originally understood. The remedial amendments are to correct some errors and omissions made by the Framers that they should have made shortly after ratification, but didn't. The substantive amendments would make structural and procedural changes, but mostly not to redistribute wealth. Mainly to provide additional protections for rights against the actions of officials.

Now we turn to the absurd arguments about voting rules. They are absurd because the votes of human beings are not independent random events. If they were law and government would be impossible. They are the result of an equilibrium among competing diffusion processes. A position in favor of some change initially develops among a few people, then spreads to others, while a position in opposition to that change develops in others and similarly spreads. Through public deliberation a stable balance is eventually reached, perhaps after decades, and if those favoring the change are sufficient in number, the change is adopted.

Of course, even this model is somewhat oversimplified, because for constitutional amendment to occur the balances must develop in each of several states and in the Congress. The main obstacle is not, however, the states, but Congress, if the amendment demanded would reduce their claimed (but often unconstitutional) powers, as many of my proposals would do. The main reason it seems so difficult to amend the Constitution is that most of the impulses to do so would be attempts by Congress to expand its power, generally at the expense of the states, and the states not being willing to let that happen. That is not a defect in Article V, but precisely the way it was supposed to work. The defect, which I address in one of my amendments, is allowing Congress to block amendments that would reduce its claimed powers. Since that is what most of my proposed amendments do, it is highly unlikely Congress would ever propose any of them to the states for ratification. From my originalist standpoint, it is Congress that is the problem, not the amendment process once the states get the proposed amendments.

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