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Constitutional education, history, commentary, reform, compliance, and interpretation.

2013/06/18

A defect in the Constitution

A defect in the Constitution that allows much of that to which we object arose from the presumption on the part of some Framers, who we can call Tories, that federal courts would have jurisdiction over common law crimes, and the presumption of others, who we can call Whigs, that it would not, without the two groups discussing the point or resolving it. Common law crimes included offenses like murder, manslaughter, mayhem, riot, kidnapping, false imprisonment, arson, theft, assault, trespass, fraud, forgery, perjury, blasphemy, sedition, seditious libel, treason, contumacy, official  misconduct, and various sex crimes. Thus we have language that allows for removal from office for treason, bribery, or high crimes or misdemeanors, but only specific authority to punish for treason, not for bribery or high crimes or misdemeanors. There is also authority to punish for counterfeiting, piracy, felony on the high seas, offenses against the law of nations, and military crimes, but nothing else. I suspect the people who wrote that presumed those offenses could be prosecuted as common law crimes, but when Republicans (appointees of Jefferson) prosecuted Hudson and Goodwin, editors of the Hartford Courant, in 1806, for criminal libel (for incorrectly reporting that Jefferson illegally transferred $2 million to France to purchase Western Florida, then owned by Spain), the defense was that there was no authority for common law crimes under the U.S. Constitution. It took until 1812 for the case to make it to the Supreme Court, by which time the issue was so settled that prosecution counsel didn't even bother to show up in court, and Justice William Johnson, Jefferson's first appointee to the Supreme Court, writing for a unanimous Court, rightly decided that defense arguments were correct, and that there was no authority for common law crimes. The case is discussed on our site at http://constitution.org/ussc/007-032jr.htm

In that case we see the playing out of the longstanding tension between the Whigs and the Tories, then represented by Republicans and Federalists. The case had originally been brought by Republicans, partisans of Jefferson, making Tory arguments against those who had been taking Tory positions, and ultimately decided by a Jefferson appointee, supporting the Whig position. This tension continues to play out into our own time.

The point here is that there is missing authority in the Constitution to hold officials accountable. My proposed amendments address this by:

1. Making crimes of violations of the Constitution by officials.
2. Removing obstacles to criminal prosecution by private parties.
3. Authorizing grand juries to remove official immunity from officials, and to decide which court, state or federal, has jurisdiction (thus largely eliminating removal jurisdiction by federal courts of state criminal cases).

Taken together, my amendments carefully re-weave the web of government activities to make it much more difficult to commit the abuses we now suffer. But you have to analyze them carefully to see how the pieces work in combination. 


See also:
  1. Excerpt from The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of ..., Bruce Ackerman
  2. Thomas Jefferson v. The Courant 
  3. Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony Fejfar, 2009.
 
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