Constitution

Energy Currency

2012-01-29T20:48:00.003-06:00

The following links are to various sites that discuss the alternative of energy currency, consisting of, or convertible, to units of energy. See also Digital Currency.

Energy-Backed Currencies — Proposal to denominate international trade not in dollars or other national currency, but in energy units.
- Energy Standard — Proposal to denominate international trade not in dollars or other national currency, but in energy units.
Return to gold? — Argues against gold as a viable backing for currency in today's economy.
Energy Backed Money vs. Gold Standard vs. Fiat Currency — Chapter 7 of Proposal to denominate currency in energy units.
Banking on Energy, by Chris Cook, Former Director of the International Petroleum Exchange — The Oil Drum, discussion about energy alternatives.
Is an "Energy-Linked" Currency in the Cards?, by Izabella Kaminska — Advisor Analyst, discussion about energy alternatives.
Energy-Backed Currency, by Jeff Eisen, Ph.D. — The Evolutionary Advantages.
Energy Currency — Article in Appropedia, a wiki devoted to "appropriate" technology.
- Energy Theory of Value Literature Review — Scholarly papers on the proposal.
Energy Backed Money instead of Gold? — Discussion on the Daily Paul for Ron Paul supporters.
The Perfect Currency — Proposal to use energy units for currency.
Local currencies — Wikipedia article, with links to alternatives.
Energy backed currency — Google search results.

Fixing the grand jury

2012-01-22T12:53:00.000-06:00

As a long-time advocate of grand jury reform I am often asked to summarize how we might do that. I have a website and a sub-site dedicated to that, containing several articles, but it is again time to outline the subject.

To understand what to do we need to cover several points:

How the grand jury was supposed to work in the Founding Era, recognizing that then as now implementation was sometimes imperfect.
How the grand jury is supposed to work today in each state and at the federal level, based on laws on the books.
How grand juries are actually being used today, abusively or neglectfully.
The historical steps that took us from the Founding Era to today.
The things the grand jury needs to do things today for which it was not originally designed.
The points of departure from original standards or today's needs that can be a checklist for reforms needed.
The best strategy and tactics for getting those reforms made.
Popular misconceptions that lead some reformers astray.

Now let us examine some in more depth. But I will start with (6) and visit the others later.

Here are the main standards that a grand jury needs to meet:

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

Next, let us examine how we might get the standards met.

Flaws in the Branson approach. Ron Branson, founder of the J.A.I.L. proposal, has led several efforts that deserve commendation for what they seek, but some criticism for their method.

Creation of a "new" kind of "special" grand jury with new powers. Actually, the traditional grand jury could do all those things, and while some other kind might seem "new" by comparison, and might "shock" the system, it may work better to try to reform the existing grand jury system to return it to original standards.
Trying to institute the reform with a state ballot initiative, without the level and kind of support needed to overcome opposition, get it passed, and get it implemented and used if passed. The shortcoming of this approach was most clearly shown in the effort in South Dakota, where despite a high level of low-intensity public support shown in polls, the establishment united to discredit it and the proponents lacked the resources to counter that. It also seems likely that the vote count was rigged to defeat it.
Failure to appreciate how deeply entrenched departures from original practice are, making it infeasible to accomplish reform just by passing some legislative act for which there are not enough internal champions to make it happen. If there is not enough buy-in on the part of at least a few key players within the system, anything on paper will just be ignored or defied.

However, the efforts had great value, even in failure, for public education. As "political theater" they did accomplish something.

Reforming an entrenched legal culture. Laypersons commonly view laws as having some magical power to influence human behavior, and imagine that if they can just get laws adopted that direct reforms for things like grand juries and allow for no departures, those reforms will be carried out and the departures avoided. But human beings in general, and officials in particular, don't operate that way. There are already enough laws on the books concerning grand juries that, if they were conscientiously followed, would go most of the way toward the return to original standards being sought by reformers. The departures are symptoms of a deeper problem. If enough of the key internal players were conscientious, the departures would be reduced or eliminated.

One of the critical design elements for the design of the Constitution was separation of powers. The Framers didn't just rely on procedural protections. They recognized that to ensure procedures were properly carried out, powers needed to be structurally set in opposition to one another and provisions made for different roles differently filled so that adversarial processes would take place. They tried to avoid having competing roles fall into the "same hands", that is, controlled by one faction with interests in conflict with those of the general public.

That is exactly what has happened. In the original design, there were almost no professional public prosecutors, lawyers were not bound under "state bars" controlled by judges, and there were no "unauthorized practice of law" statutes. There were no law schools "accredited" by a single Bar Association, with standardized bar exams that drive legal education. There was official immunity from judgment for actions within one's jurisdiction, but not from suit to determine whether the actions were pursuant to law. Legal arguments were made to trial juries, and juries were used for almost all cases. People were better educated about their duties as jurors, both trial and grand.

We can't fix just one thing. When corruption is deeply entrenched even replacement of all the actors won't durably fix it, because the system will just replace them with more of the same. The corrupt are organized now to keep reformers out. We need to cultivate a steady stream of reformers to move into key positions and bring in more reformers. There are several main approaches:

Electing reformer judges and prosecutors. In previous times people demanded these positions be filled by election in many jurisdictions precisely to provide the opportunity to remove corrupt ones. Today reformers are often afraid to challenge corrupt incumbents, but occasionally it is possible, and we need to seize on any opportunities.
Legislative reforms. It is sometimes possible to get a legislator to champion some reform that actually slips past the opposition. A single such reform is unlikely to be sufficient, but a steady stream of reform legislation from many directions can have an effect.
Litigation. This can be costly and unlikely when it challenges entrenched corruption, and no single effort is likely to suffice, but a flood of litigation from many directions can work.
Public pressure. This begins with public education, proceeds through organization, and leads to massive demands for specific reform. Remember that most of the rights we are supposed to have were originally won by angry mobs surrounding courthouses. There is no substitute for numbers of intense people. Being right is not enough. One has to have supporters.

None of these are easy, but we need to work on them all. We may not get some single comprehensive reform, but we can get instances of return to original standards on each of the points listed above, jurisdiction by jurisdiction. It will take steady pressure over years or decades.

SOPA and PIPA unconstitutional

2012-01-20T12:32:00.001-06:00

The recent opposition to two bills, the House Stop Online Piracy Act (SOPA) and to the Senate Protect IP Act (PIPA) has made almost exclusively policy arguments. There have been a few mentions of the First Amendment being violated, but there is a lack of discussion of how the bills would exceed the authority of Congress under the Constitution as originally understood, even without the First Amendment.

Let us examine the provisions of the Constitution upon which patent and copyright statutes are based:

Art. I Sec. 8: "The Congress shall have Power ... "

Cl. 3: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

Cl. 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Cl. 10: " To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;"

Cl. 18: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Art. II Sec. 2 Cl. 2: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

So how does one get from these provisions to statutes that make the "theft" of "intellectual property" a crime, and in particular, "piracy"? The answer is, one can't.

It is a reasonable interpretation of Clause 8 to recognize a copyright in a "writing" or a patent in a "discovery". However, it is a stretch to extend "writing" to other forms of artistic expression. It is also a stretch to extend "limited times" to the lifetimes of the "authors and inventors". Clearly what the Framers had in mind were short periods of time, just long enough to enable the author or inventor to make a profit on his investment, and no longer. The original standard for that was 14 years, extendible in rare cases to 28 years.

But does the power to "secure exclusive right" confer a power to impose criminal penalties? No. Only to establish a civil claim the offended party could pursue in court. The powers to "promote" and to "punish" are two different kinds of powers, and Clause 18 does not authorize the exercise of a different kind of power for "carrying into execution" some power. That is only to make a certain kind of effort, not to do whatever might seem likely to achieve a desired outcome. It is only to do incidental administrative things.

This point is emphasized in these excerpted words of Thomas Jefferson, enacted by the unanimous vote of the Kentucky House of Representatives, November 10, 1798:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;"

That means there is no power to make it a crime to commit "theft" of "intellectual property".

What about "piracy"? Congress has power to punish that, but from the usage of the term "piracy" in 1787 we get that it consisted of warlike acts by a nonstate actor against parties foreign to him. There had to be an element of violence, and it couldn't be against someone from the same country. Misappropriation of copyrighted or patented things might be objectionable, but that is not "piracy".

What about the treaty power? Can Congress or the President acquire a new power by entering into a treaty with a foreign nation to exercise that new power? No. This was discussed in Reid v. Covert, 354 U.S. 1 (1957):

The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is no authority in the Constitution to make theft a crime on state territory. Arguably, Congress might have that authority on territory to which it has exclusive legislative jurisdiction:

Art. I Sec. 8 Cl. 17: "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

Art. IV Sec. 3 Cl. 2: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;"

So one might plausibly argue that Congress has authority to make copyright or patent infringement a crime within federal enclaves or in nonstate territories, but not within state territory, or outside the United States. Again, from Reid v. Covert:

This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.

Clearly, therefore, Congress has no authority to make it a crime to infringe on copyrights or patents except perhaps within a few small territories. But what about infringements that extend into such territories from outside them?

Art. III Sec. 2 Cl. 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

That means territorial jurisdiction is limited to the location at which the crime has been "committed", but what did that mean? It meant the concurrence of mens rea and actus reus, the point at which the criminal act became irreversible, not the location where harm may have been caused, if the harm was caused in a different territorial jurisdiction. See Conflict of Criminal Laws, Edward S. Stimson (1936). That means an offender may only be constitutionally prosecuted for a crime he did while within territory where the statute making it a crime applies.

While we are on the subject, we may as well cover trademarks, the third kind of "intellectual property". What is the authority for protecting those, since they are not really "writings" or "discoveries"? The authority cited is not Art. I Sec. 8 Cl. 8, but Cl. 3, the Commerce Clause. Now "commerce" was not a word commonly used in the United States before 1787. It is a French word, and the authority usually cited is the Swiss scholar Emmerich de Vattel, who in The Law of Nations (1758), Book I § 92, defined it:

... commerce consists in mutually buying and selling all sorts of commodities.

Not economic activity in general, only the transfer of title and possession for a valuable consideration of physical objects. And commerce "among the states" would be from a seller outside a state to a buyer within it. The power to regulate such trade would extend to things like labeling, which could include trademark symbols, but the power would not commence until the sale was initiated and would end when the item was delivered and accepted.

The original meaning of the power of Congress to protect "intellectual property" is extremely limited, and if we don't want our rights trampled we need to hold it strictly to that original meaning, without exception. If those claiming intellectual property want Congress to have more power to protect it, then they should propose and support amendments to the U.S. Constitution.

Muckrakers needed

2012-01-06T19:09:00.000-06:00

"Th newspaper does ivrything f'r us. It runs th' polis foorce an' th' banks, commands th' milishy, controls th' ligislachure, baptizes th' young, marries th' foolish, comforts th' afflicted, afflicts th' comfortable, buries th' dead an' roasts thim aftherward". -- Finley Peter Dunne, writing as "Mr. Dooley".

In what is sometimes seen today as the golden age of print journalism reporters saw their main duty to be to investigate and expose corruption in all its manifestations. They had the backing of their editors, publishers, and advertisers in doing that, and readers paid for the best exposes. That was the day of the Fourth Estate, when it was largely the newspapers that kept government and the corporate sector, if not honest, then at least less dishonest and abusive than they might otherwise have been.

I watched the decline of that legacy. By the time I published a series of four articles in the Seguin Gazette in 1962 it was only after the other newspaper in town refused to publish, and the editor of the Gazette admitted he got a lot of heat from the town's rich lady who backed the corrupt officials I exposed.

I watched the crusading columnists fade from the pages of more and more major papers, until it was down to Jack Anderson, and his death ended the tradition for many years. As a reformer I have taken many stories of corruption to reporters, only to have them refuse to pursue them, citing their fear of lawyers, judges, the government, large advertisers, or their corporate owners, even if the fears were usually overblown in practice.

Now we have a new age: The Internet Changes Everything.

But the habits of timidity persist, leaving too many people to think that corruption is something that only happens in other countries or in the movies. That is wrong. It is deeply entrenched in our society and destroying it from within. See A Lawyer's View of the Justice System, by Joseph H. Delaney.

Your mission as online journalists, if you choose to accept it, is to focus on investigating and exposing corruption. If somebody is not trying to kill you, you' re not doing your job.

Foolish call to "end corporate personhood"

2011-12-11T10:55:00.001-06:00

Los Angeles Poised To Be The First Major U.S. City To Call For End To Corporate Personhood

The notion that somehow "corporate personhood" is the problem and needs to be abolished is abysmally foolish, ignorant, and stupid. It reflects a profound incomprehension of the fundamentals of law that have been painfully evolved over more than 2000 years.

One more time:

A "PERSON" IS A ROLE, NOT THE ACTOR WHO PLAYS THE ROLE.

Repeat that to yourself 1000 times, reflecting on it each time, until it is burned into your consciousness.

Each individual is not one person, but many. In each of many roles we are a legally distinct person, each with its own rights, powers, and duties, and only a role, not the actor, can appear as a party in a court of law. Anything else would destroy the foundations of law of any meaningful kind. Moreover, it would be a denial of our right to associate to impede us from acting with one another in concert as a single person. That would be tyranny. And people acting in concert is the essence of what a "corporation" is. It means, literally, a "co-operation".

The problem, as complex as it is, is basically the same general problem we have always had: Excessive and unbalanced concentrations of power. That has two main components:

1. Organizations that are too large, and emergent behaviors that function like organizations even if they are not formally organized.
2. Imposition of fiat currency on all of us by statutes that make legal tender of something other than gold, silver, energy, or other physical assets, abetted by us acquiescing in that imposition.

Yes, concentration of excessive power in large corporations is a problem, but that has nothing to do with them being corporations. It would be the same problem if they were sole proprietors or just herds of players all playing the same strategy at the same time. It has largely been that herd behavior that has prevented shareholders of large organizations from reining in their managers and their foolish and dangerous practices. Greed can be good if many players each play a different strategy. When they all make the same moves together the result is disaster. It makes no difference how or whether they are formally organized, because the results are the same.

Thoreau and Gandhi had specific, well-defined objectives. For Thoreau it was to end the war with Mexico. For Gandhi it was to end British rule of India. What do the Occupiers seek? They seem to neither know or care to make the effort to learn.

They are like a dumb animal in distress who utters inarticulate cries of distress. But how can anyone respond to that? A physician might ask an articulate patient questions, or conduct tests, to try to make a diagnosis. But the physician is out, and even if he were in, he doesn't have a clue what to do, because he is part of the malady.

Make no mistake. We are all stupid here. We confront a challenge that requires almost all of us to be vastly more intelligent and knowledgeable than human beings can ever hope to be individually. The only chance we have is to become more intelligent and knowledgeable collectively, but the only institutional framework that might enable that to happen has been largely abandoned: the framework set forth by the Constitution of 1787-91, as originally understood. Either we return to strict compliance with it, and other nations do likewise, or we will descend into a new Dark Age from which civilization may never again emerge.

Corporations as a form of organization are no less accountable as a matter of law than any other form of organization, other than governments (which are also corporations). The difficulty with holding them accountable is that they are large, politically well-connected, and individuals within them are surrounded by henchmen that can make it difficult to prove a case against them. It makes little difference whether the entity is a for-profit manufacturer or distributor, a utility company, a labor union or trade association, a foundation, church, hospital or university, or a crime syndicate. If they can unduly influence public officials it can be difficult to hold them accountable, but the only way that can be done through campaign media still requires voters to buy the advertising messages, and if they are derelict in exercising good judgment about that, it can't be blamed on the source of the funding for the advertising.

The main ways large entities influence politicians is by influencing public opinion, and the responsibility for that rests on the public, not on the entities that provide the funding.

As for lobbying, the main way lobbyists gain influence is not by donating money to campaigns. It is by doing the expert staffwork for legislators that their staffs lack the time or talent to do for themselves. I used to do that kind of thing myself for a couple of years on Capitol Hill. I didn't have money or votes but I gained influence by reviewing and drafting bills and speeches better than the staffers could. The staffload needed by members exceeds by a couple of orders of magnitude what their paid in-house staffers could ever do, even if they had the knowledge, which they mostly don't.

The real threat that no one is adequately addressing is the herd behavior of all these large entities. They are like eusocial insects. Ants and bees are individually stupid, but they are wired to respond in certain ways to inputs that cause them to seem to collectively act intelligently, with no central direction. This is called Swarm intelligence. But it only works for certain kinds of situations for which they have adapted and evolved over millions of years. On the other hand we can see how lemmings can emerge into a mass migration that can lead them to their own destruction. No one lemming makes the decision or provides direction. And none of them can see far enough to avoid large bodies of water they might not be able to swim across. Many attempts have been made to devise regulatory interventions to prevent speculative bubbles, and no one has found a way that does not get overwhelmed by the fervor that infects the political process as much as it does the market.

What's Wrong with Wall Street

2011-12-06T00:30:00.000-06:00

If financial institutions wanted to play games with monopoly money of their own creation, like the inhabitants of Second Life might do with their Linden Dollars, what they did would affect only them. That includes bailouts by the Federal Reserve, which creates the fiat currency they use.

The problem is that they impose their funny money on the rest of us, so that we can't get payment for labor or debt, pay bills including taxes, or have banks accept deposits or issue payments, in anything except that funny money. The problem is legal tender statutes, and the U.S. statute making federal reserve notes legal tender everywhere in the U.S., besides being unconstitutional, is the key legislation that needs to be overturned.

Here is an interesting question for the forum: Who actually owns federal reserve notes? Not the party in possession any longer, if he ever did. Now it may be forfeited unless the possessor can prove it is "his" to at least use. But who has equitable title.

The answer is not the U.S. Treasury. Apparently it is only the Federal Reserve banks, collectively. None of the FRNs in your wallet or bank account are really yours. You are only allowed to use them in certain ways as long as you are playing the game. When the owner of the monopoly game calls the game over, he gets to take the game board and all the monopoly money home with him (except he is already at home, so that means you have to go elsewhere).

The solution is for the rest of us to abandon fiat currencies and deal only in things backed by real assets.

Bill would end the Internet as we know it

2011-12-03T12:10:00.001-06:00

The "Stopping Online Piracy Act (SOPA) — HR 3261 — and its counterpart in the Senate, "PROTECT IP," will LIMIT Internet freedom and commerce, and will give unprecedented power over the Internet to the government and law enforcement.

The House's Stop Online Piracy Act (SOPA) and the Senate's PROTECT IP Act would censor the Internet and create massive regulations for every website that utilizes user-generated content. That means sites like YouTube, Twitter, Facebook, and popular political blogs will all be under the watchful eye of the federal government. And if ONE PERSON posts ONE VIDEO or ONE IMAGE that has not been properly credited; THE ENTIRE SITE CAN BE SHUT DOWN, WITHOUT A COURT ORDER.

If passed, this bill will force almost all Internet business to leave the United States, beyond the jurisdiction of Congress. We would all have to move our servers off-shore and use IP numbers instead of domain names within the United States.

This unconstitutional legislation is being backed by a powerful cabal of commercial interests that don't care about our rights. Only about their profits. This legislation wouldn't even be good for their clients, but they don't care to think through the implications. And they have a lot of political clout. This is a battle for freedom and our Constitution, and the forces against us are well-funded.

SOPA is being marked up on December 15th. Our Internet Freedom is under assault. We must get our message to Congress IMMEDIATELY and tell them to OPPOSE SOPA! This has the potential for GREAT abuse by our government, and as freedom-loving citizens, we MUST take action now. Flood Congress with your Faxes and tell them to oppose this legislation and protect free speech and free enterprise in America.

The link below takes you to a site where you can send email to members of Congress, but email is largely useless. Send faxes or make phone calls!

First stop the lying

2011-11-26T19:50:00.001-06:00

When Gorbachev set out to reform the Soviet Union one of the mottos he adopted was glasnost, “openness”. Or as he put it, “First we have to stop the lying.” He recognized that the problems with the Soviet system could not be solved unless or until people faced some unpleasant truths. We are in a similar position in the United States and the world today. Our way of life is threatened by our lies and our eagerness to believe them. There may not be easy solutions, or even any solutions at all, but without being brutally honest with one another, we have no chance.

Lies of our leaders

Leave the details to us. Demanding a reform without providing the details is not asking someone to do something for us. It is asking for something to be done to us.

We know what to do. No they don’t. There is not a single person in a position of power anywhere who really understands our problems or knows how to solve them, and neither does anyone else. All we’ve got are guesses and hopes for luck.

Tricky titles. Beware of titles of legislation that promise much and are better designed to be counterproductive: Patient Protection and Affordable Care Act that does not protect or care for patients and is not affordable. Patriot Act that isn’t. Jobs bills that destroy more jobs than they create.

Government needs taxes to pay its bills. No, it can always create money out of thin air to pay its bills. Taxes are to remove enough money from circulation to offset the money created so it doesn’t produce runaway inflation that would hurt investors.

Debt-based currency is good. No, it is recipe for disaster and the disaster is about to fall on us. Money not backed by something of stable value that cannot be created out of nothing has always let to disaster, through history. There may not be enough gold or silver for coins, but we could use units of energy to back our currencies.

Judges can be trusted to decide the law. No, most become judges because they couldn't make it as lawyers, and learn law from the cases that come to them, but without having time to research or reflect deeply, and often lack the disposition to avoid bias or political pressure. That is why juries were invented, to review the decisions of judges in rendering a verdict.

Prosecutors and police can be trusted to only go after the bad guys. Not when they advance their careers by getting convictions regardless of injustice. That is also why juries were invented, and if you sit on a jury don't believe any of them.

The income tax, federal reserve notes, and entitlement spending are constitutional. No they’re not. They are nothing but a hoax, and people are gullible enough to fall for it.

Lies we love

Taxing the rich will be enough to avoid spending cuts. No it won’t. Even taxing not just 100% of the income of the rich, but 100% of their assets, would bring in nowhere near enough, and it would drive the money out of the country.

All we have to do is [something simple]. Probably not. Simple remedies will almost never work, and are more likely to backfire. If its simple, obvious, and easy, it is almost certainly a bad idea, and likely a disastrously bad idea. Public policy is not simple, obvious, or easy, any more than medicine or engineering. The simple solutions that work have probably already been in use for hundreds of years.

All we have to do is pass a law against [something].There are only a few countries in the world in which people obey laws without intense enforcement, and most not even then. The United States used to be one of them, but Prohibition and traffic laws have largely wrecked that kind of civic virtue. The reality today in most countries is that the only laws that most people are likely to obey are the ones that just codify what they are already disposed to do anyway. That especially applies to treaties. The U.S. is one of the few countries in which one can go to court to get a treaty enforced. In most a treaty is only enforced by a credible threat of war. That is why most environmental treaties are exercises in hypocritical window-dressing. No one is going to war to enforce them, and therefore they will be ignored in practice in almost every country.

Electing X will save us. Not just one X, and electing better people is only part of what is needed. We need better people in public office, but there are not enough who might be able to at least guess right to replace all the ones that need to be replaced. We need to cultivate a new crop, and it is very late to start. They need to institute fundamental structural and procedural reforms that are very complicated and subtle, reforms that almost no one grasps.

Major party nominees have been vetted. No, in many contests they are just the only ones who filed. Most major party nominations go to the candidate who spends the most money, who may not represent the rank-and-file of that party.

Voters decide wisely. Do you decide wisely? And if you don't, what about others? You and everyone else need to research election choices carefully, not just vote on the basis of habit or vague feelings.

A vote for a minor party candidate is wasted. No, it is not wasted if it influences public policy, and a vote for a minor candidate may do that better than one for a better-known and supported one. The election outcome is very unlikely to depend on one vote.

Spending cuts will save or create jobs immediately. No. They will help in the long run, and may avoid economic collapse in the short run, but in the short term all of the alternatives are likely to make things worse. Our choices do not include keeping things as good as they are now. We had those choices 40 years ago but we don’t now. Our only choices now are between bad and worse.

Deregulation will save or create jobs immediately. Not much in the short term. We have to do it for the long term but jobs have gone off-shore because capital investment has, and there is no easy way to get it to come back unless conditions elsewhere get so bad that this country looks safer. The good news is those jobs are coming back. The bad news is that when they do they will be done by machines.

Reduced emissions and green energy will save jobs. We have to do it, but it won’t do much for jobs other than avoid losing even more of them. China alone is increasing its emissions far faster than we could ever reduce ours. Only something like solar collectors on the moon beaming power to Earth might work, and not enough people understand the merits of that.

The market will save us. It is likely to be better in the long term, but as long as financial institutions are too big they will fail in ways that hurt all of us. No amount of regulation will avoid that, or save their stakeholders from their own mismanagement. They just have to be broken up into very small pieces, and that has to be done everywhere on Earth.

We can feed seven billion people. Yes, but probably not for much longer, because they won’t be able to pay for it, and neither can we. Things are going to get rough.

A good college degree will get you a good job. Get real. The main purpose of a college education is to learn how to learn all kinds of things, and to acquire a common cultural base and civic awareness, not to train for a narrow specialty.

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Help countries write new constitutions?

2011-11-09T17:00:00.000-06:00

This is a comment to an article on the Comparative Constitutions blog.

It is correct that few Americans or other Westerners are skilled at constitution writing. Indeed, looking at the amendments to the U.S. Constitution, proposed and adopted, since the first ten, it seems we have not had anyone competent since James Madison, and with the benefit of hindsight we can find some flaws in his work as well. We can also discern that much of the incompetence that got into earlier proposals was due to political influence.

It is also correct that our suggestions to drafters in these countries may not receive our suggestions well, or even understand them. However, since they seem to take much of what they do from our models, which they often don't understand (nor do we), it may be of some value to try to explain our own models, and let them take from that what they will.

However, Nathan Brown's article seems to suggest that the principles of constitutional design are more a matter of political culture and taste than they are. Despite differences in political or legal culture, the natural restrictions on constitutional designs that can actually work in the long run are more severe than he seems to think. I find those principles of design to be dictated not just by human nature, but would be similarly constrained for any broadly human-like species, anywhere in the Universe.

Even if they do not listen to our suggestions, it is worth making them if only to discuss among ourselves, as a way to learn better how to do this kind of thing. If some of them happen to listen and and learn something, that is all well and good.

Much can be learned by examining constitutions for how they have applied similar design principles, how they have deviated from those principles, and how that worked out. I find the recent attempt to forge a "constitution" for the European Union to be particularly instructive for how not to do it.

There are a few principles I would urge:

1. Keep out all the aspirational crap. A constitution is a law, not a political manifesto. It should stick to specifications of structures, procedures, rights, powers, and duties, and strike the right balance between specificity and coverage of every contingency that can be anticipated.

2. The main purpose of a constitution is to protect rights, and everything needs to lead to that. A well designed constitution will try to anticipate all the ways rights can be violated and provide remedies for each of them.

3. A constitution must never mandate the expenditure of a sufficient amount of any scarce resource. It must be realizable even when there is nothing to share and nothing except the efforts of unpaid volunteers to carry out its provisions.

4. Power needs to be divided in a way that allows for checks and balances, but which does not prevent action when action is urgent. That is tough, but it can be done. Generally, those to be checked should not have a hand in selecting those who must check them.

5. The key to republican government is not equal representation. There will never be equal representation. The key is deliberation, with equal opportunity to have one's concerns deliberated upon. It is, however, a good idea to create veto blocks against actions that may disadvantage individuals or minorities. That is one of the functions of courts.

6. Have as much of government done at the local level as possible without producing fragmentation. Local juries or shura should be an important part of any sound design.

Reforms to prevent wrongful convictions

2011-10-09T11:53:00.000-05:00

There are limits to what legal reforms can do to prevent convictions of innocents if the prosecutors are determined to commit misconduct. A law is needed requiring investigators and prosecutors to share all evidence, not just exculpatory evidence, with the defense, but not the reverse, because prosecutors bent on misconduct could use disclosures by the defense to engage in misconduct in other ways.

One has to wonder how many other innocents have been wrongly convicted for whom there is no DNA or other evidence that could exonerate them. Such evidence is unlikely in most cases of wrongful conviction, so there must be a great many of them remaining to receive justice.

There is a larger problem here: the lack of sufficient evidence to prove guilt beyond a reasonable doubt. That the DNA evidence could exonerate indicates the remaining evidence did not meet the burden of proof, and the judge and jury should have recognized that. Evidence of opportunity is not enough. There must also be evidence of motive, method, and in the absence of eyewitnesses, evidence of a pattern of behavior with which the crime was consistent.

Thus, we have two main problems in need of reform:

The incentives that induce prosecutorial misconduct, and the lack of disincentives to discourage it; and
Lack of training of judges, and especially jurors, on how to judge both evidence and the law.

1. Prosecutorial incentives

The main incentive is re-election or re-appointment as prosecutor or election to a higher office, with the conviction rate being touted as the basis for that. As long as candidates get elected by winning convictions and not by refraining from prosecuting innocents, the problem will persist. That suggests two key reforms:

a. A limit of two terms for a prosecutor in the same jurisdiction.
b. A requirement that a prosecutor not seek or accept any other elected office, state or federal, for ten years after one or two terms as a prosecutor.
c. Make prosecutorial misconduct a crime and open the process to private prosecutors to prosecute them, which means opening grand juries to hear indictments from private citizens who it might appoint to prosecute.
d. Require all arguments of law be made to the jury, not just to the judge, because some wrongful conviction comes from the jury not getting all sides on what the law is. The judge may have to rule on motions on points of law, but the jury needs to review how such decisions were made in reaching a verdict.
e. Forbid plea bargains and reduced penalties for giving evidence.
f. Require juries in all criminal trials, even if the defendant pleads guilty. There are also falsely entered pleas, and a jury needs to be involved to spot that.

2. Training

Prior to about WWI people got training in how to serve as competent jurors in school, in public gatherings, and by serving on juries. In the 1950s my mother served on a jury about once every two years, and on almost every jury there were some members who had previous experience as jurors. They all took their duty very seriously, and were determined to do a good job as jurors. That situation deteriorated during the 20th century. That suggests we should:

a. Teach law and judicial process to high school students in courses on American government.
b. Teach evaluation of evidence in science courses.
c. Teach resistance to propaganda and logical fallacies in English and history courses.
d. Have students observe actual trials and interview participants.
e. Have students conduct their own innocence projects.

More at Trial Jury Reform.

Binding precedent is unconstitutional

2011-10-08T08:48:00.000-05:00

It should be understood that binding precedent is not authorized orrequired by the Constitution, and indeed may be inconsistent with itbeing the supreme law. It is entirely prudential, for convenience of thecourt, and "public policy", not law.

From Wapedia :

3. 1. 3. Formulation of federal precedent

Unlike the states, there is no plenary reception statute at the federallevel that continued the common law and thereby granted federal courtsthe power to formulate legal precedent like their English predecessors.Federal courts are solely creatures of the federal Constitution and thefederal Judiciary Acts. [37] However, it is universally accepted thatthe Founding Fathers of the United States, by vesting "judicial power"into the Supreme Court and the inferior federal courts in Article Threeof the United States Constitution, thereby vested in them the impliedjudicial power of common law courts to formulate persuasive precedent;this power was widely accepted, understood, and recognized by theFounding Fathers at the time the Constitution was ratified. [38] Severallegal scholars have argued that the federal judicial power to decide"cases or controversies" necessarily includes the power to decide theprecedential effect of those cases and controversies. [39]

The difficult question is whether federal judicial power extends toformulating binding precedent through strict adherence to the rule ofstare decisis. This is where the act of deciding a case becomes alimited form of lawmaking in itself, in that an appellate court'srulings will thereby bind itself and lower courts in future cases (andtherefore also impliedly binds all persons within the court'sjurisdiction). Prior to a major change to federal court rules in 2007,about one-fifth of federal appellate cases were published and therebybecame binding precedents, while the rest were unpublished and boundonly the parties to each case. [38]

As Judge Alex Kozinski has explained, binding precedent as we know ittoday simply did not exist at the time the Constitution was framed. [38]Judicial decisions were not consistently, accurately, and faithfullyreported on both sides of the Atlantic (reporters often simply rewroteor failed to publish decisions which they disliked), and the UnitedKingdom lacked a coherent court hierarchy prior to the end of the 19thcentury. [38] Furthermore, English judges in the eighteenth centurysubscribed to now-obsolete natural law theories of law, by which law wasbelieved to have an existence independent of what individual judgessaid. They saw themselves as merely declaring the law which had alwaystheoretically existed, not making it. [38] Therefore, a judge couldreject another judge's opinion as simply an incorrect statement of thelaw, like how scientists regularly reject each other's conclusions asincorrect statements of the laws of science. [38]

The contemporary rule of binding precedent became possible in the U.S.in the nineteenth century only after the creation of a clear courthierarchy (under the Judiciary Acts), and the beginning of regularverbatim publication of U.S. appellate decisions by West Publishing.[38] It gradually developed case-by-case as an extension of thejudiciary's public policy of effective judicial administration (that is,in order to efficiently exercise the judicial power). [38] It isgenerally justified today as a matter of public policy, first, as amatter of fundamental fairness, and second, that in the absence of caselaw, it would be completely unworkable for every minor issue in everylegal case to be briefed, argued, and decided from first principles(such as relevant statutes, constitutional provisions, and underlyingpublic policies), which in turn would create hopeless inefficiency,instability, and unpredictability, and thereby undermine the rule oflaw. [40] [41]

[38] Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoffv. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235F.3d 1054 (8th Cir. 2000).

[39] Michael J. Gerhardt, The Power of Precedent (New York: OxfordUniversity Press, 2008), 59.

[40] Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle andPolitics in Constitutional Law (New York: Oxford University Press,2008), 70-71.

[41] Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595-602 (1987).

Also see How stare decisis Subverts the Law, especially thelaw review articles linked from it.

News from the Constitution Society 2011/09/24

2011-09-24T19:44:00.001-05:00

This has been a busy month.

No lack of things to report. Here are a few of the salient ones.

Nullification

I was asked by the Tenth Amendment Center to prepare a model bill for my proposal for a Federal Action Review Commission. This has been on my to-do list for a long time, so I finally did it, and you can see the result, Draft bill proposing amendment to Texas Constitution for establishment of a state grand jury for the review of the constitutionality of the actions of United States government officials and agents, and to authorize state grand juries to investigate public administration.

It is posted on the Tenth Amendment Center site at http://www.tenthamendmentcenter.com/legislation/10th-amendment-commission/

Note that it does not just establish a Nullification Commission for federal usurpations. It would also establish state grand juries with a mandate to investigate state and local official misconduct and public administration, and it would not be tethered to any particular court or prosecutor, so could remain independent of both.

You are welcome to ask questions or offer suggestions for improvements. It is not too late to fix it if there are any problems.

I can write versions of the proposal for any other state if someone is willing to push it there.

Redistricting

Once again the Republican-dominated Texas Legislature adopted congressional and state district maps based on the 2010 census, once again they were challenged in lawsuits by Democrats and minority groups, and once again I filed an action in intervention, proposing abandonment of maps being drawn by human beings and leaving it to be done my computers, drawing random maps according to well-established mathematical algorithms that do not favor or disfavor anyone based on party, voting history, ethnicity, or incumbency. The federal trial concluded this week in San Antonio, and as of this writing I have not gotten the decision of the Court, but I would expect it to make a few tweaks and call it the map, leaving it to any disgruntled parties to appeal it. I of course can't afford to do that, but one of the advantages of filing an intervention instead of only an amicus curiae brief, besides enabling me to make motions, call witnesses, and argue the case in court, is that on appeal my intervention will be carried up the appeals chain along with the rest of the case file. If my proposal ever made it to the U.S. Supreme Court, there are indications that my proposal might be adopted there.

You can help us financially by clicking on the ads on our sites

We have broken down and finally begun inserting Google Adsense ads on our most popular pages, especially the gateway pages with multiple links to other pages that most people are not going to want to print or copy. For the few exceptions, we offer a "printer friendly version" link to a page without ads.

Every time you click on a different ad that interests you somewhere in our site or on one of our affiliated sites it earns us about $0.46, without it costing you more than a few minutes of your time.

We also earn revenues from people clicking on ads with our YouTube videos. See http://www.youtube.com/user/JonRoland1787 If you view them, don't forget to click on the "Like" buttons of the ones you want to help "go viral".

You are not encouraged to click on ads just to earn us revenue. Only click on the ads that interest you as a prospective purchaser. That helps Google know what kinds of ads to present. We have a stake in having people with a connection to constitutional topics advertise on Google and have those ads presented on our sites. This can encourage them, and in that way help advance the cause.

Want to purchase something from Amazon.com? Please do it through one of the web forms on our site, including the one on our home page, and we earn a referral fee. It won't cost you anything extra and it will benefit us.

If you have a Kindle e-book reader, please be aware that the Constitution Society is a Kindle publisher, and you can help us by downloading our offerings to read. Look for them, and let us know if there are any you would like that we haven't offered yet.

Please ask all your friends to do the same.

You can boost our search rankings

A new development on Google is that if you search on "constitution" we now come up twice: Position #6 for the home page and position #7 for the U.S. Constitution itself. For many years Google presented just the home page. Then for the last year just the U.S. Constitution (which of course also leads to the rest of our site). Now they do both, and it has boosted page views and Adsense revenues.

Our pages are highly ranked for searches on many other terms as well, but it seems that rankings are based in part on how many people doing a search first click on a given page in the search report. So please, whenever you do a web search, before clicking on a page other than one of ours, scan through the first several pages of the search listing, and click first on one of our pages. Again, please encourage others to do likewise. Make it a habit that will pay off for freedom.

Needless to say, if you have a website or blog, link to pages on our sites at every opportunity. You might also want to become a Wikipedia editor, because constitutionalists are outnumbered among the editors, and the others tend to give a statist point of view. It would not take that many to overcome them, but it does take some time and skill. For pages of special importance see http://www.constitution.org/refer/wikipedia.htm

Google also offers a new widget, a little "+1" button that appears in their search results (but not on all browsers), and which you can also find on our web pages. Click on it to indicate you like that page, and repeat doing so even if you did it before on that page. No word yet on whether our search rank will be increased by a lot of people liking the page, but it is worth a try.

Austin Constitution Meetup

Was held September 21, 2011, at the North Village Branch Library in Austin, Texas. Video is http://www.youtube.com/watch?v=1dXIgdzHJtA I presented much of what is contained in this message, but went into more detail.

Constitution Day celebrations

This Austin meetup was of course one of our ways to celebrate Constitution Day, September 17, 2011. But on Thursday, September 22, a wonderful Constitution Debate Celebration was held sponsored by Austin Community College at the Palmer Events Center in Austin. It involved a gathering of about 400 students, with 54 expert "guides", one for each of three tables supervised by one "facilitator", of which I was one. Each group of three tables had one of 18 constitutional issues to debate among themselves. At the end of the debate at the table, the guide and three facilitators selected one student from each of the three tables for that issue to represent the "pro" side, and one the "con" side, and then each pair of advocates presented a one-minute argument for his position at the microphone to the entire body. Although of course the arguments were not as polished as one might expect from law students, many of the students (some of which intend to become lawyers) did surprisingly well, considering most of them were barely out of high school. To the best of my knowledge there is no similar event conducted anywhere in the country, and the organizers at ACC are to be commended for developing a model, now in its fifth year, for the rest of the nation. If anyone would like to encourage a college in your neighborhood to hold a similar event, let me know and I will put you in touch with the organizers.

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"Facial" or "as applied"?

2011-09-22T13:22:00.000-05:00

In the Volokh Conspiracy a post argues that a facial challenge to the constitutionality of an action, seeking to strike down the entire statute, is based on who committed that constitutional violation, specifically Congress, by passing the act.

The issue is being misframed. To understand constitutionality we need to examine all the main interrogatives: who, what, how, when, where, why, whom, and whither (what impact or significance). We need to return to the basics.

We start with a challenge to some action. Initially, we know what the action was but not the authority for it. That remains to be determined.

The party that committed the action claims he was enforcing a “law”. Now we have to determine whether it was in fact a “law” (what) and whether he (who) had the authority to enforce it (how) on that occasion (when) and place (where) and whether actions of the complainant made the “law” applicable (why) and perhaps whether his enforcement served the public good (whither).

The question of whether it was a “law” does rest on the fact issue of whether it was Congress (who) that adopted it. Perhaps it was not Congress. Perhaps it was a false report by the congressional clerk that Congress passed it when in fact they didn’t even vote on it. Or perhaps it was “adopted” by some administrator with no legislative authority for it. We may have largely abandoned the Nondelegation Doctrine but even so there usually has to be some delegation of some authority from Congress.

So in principle an alleged violation of the First Amendment could turn on the “who” question of whether it was Congress that adopted it, but it is more likely to turn on the “what” question of whether either the act itself, or the application of it, was an abridgement of speech, press, assembly, petition, or an establishing of religion.

It is misframing to characterize the violation as facial because it was Congress that did it. It is probably not a matter of “who” but of “what”, and it comes down to whether the mere passage of an act can violate a right, or whether the violation does not occur until the act is applied to some situation.

Now it can certainly be argued, and many if not most of the Founders might have argued, that we all have a right not to have our officials violate the Constitution, regardless of whether such violation is carried into execution against anyone. The mere existence of the unconstitutional legislation is an injury, in this view, and anyone should have standing to bring a judicial claim for at least declaratory and perhaps injunctive relief. But courts have come to disfavor such complaints as a prudential matter.

Therefore, the facial/applied distinction is not really about “who”. It is about “what” and perhaps “how”, “when”, “where”, “why”, "whom", or “whither”.

The question comes down to whether the court has judicial notice of how a statute may be applied constitutionally. If the government can show that, then it comes down to the constitutionality of when, where, why, against whom, and perhaps whither in the particular case. That becomes an “as applied” issue. If, on the other hand, no constitutional application of it is presented to the court, it is not up to the court to give itself notice of such, and the facial challenge is that no such constitutional applications exist, or that they are so unlikely or obscure that the prudent decision is to strike down the entire statute so the court doesn’t have to deal with more cases under it.

Is it a "tax" or not a "tax"?

2011-09-11T20:20:00.001-05:00

Rob Natelson wrote an excellent article titled Is it a “tax” or not a “tax”? The original understanding I recommend it. But I have a few comments:

My findings on the question, from my reading of the foundation literature, are as follows:

A “tax” is assessment and collection of money or items of value for the purpose of raising revenue to meet the expenses of government. Agreement here.
A “regulation” is a restriction on the modalities of something, but not the prohibition of all modalities.
A tax and a regulation can have different objects, but their objects can also overlap.
A power to tax does not imply a power to regulate and vice versa. The powers are disjoint.
A tax can have a regulatory effect, but applying a tax for a regulatory effect does not make it a regulation, and it may only be done if there is a power to regulate the same objects. It is still a tax, though perhaps not a constitutional one. Therefore,
A charge that does not to raise revenue but only to have a regulatory effect, but on objects for which there is no power to regulate, is not a “tax”, but it is not a “regulation” either. It is unconstitutional on both points.
The key qualifier and purpose of exercising powers “necessary and proper” is only for “carrying into execution”, for making a certain kind of effort, not to accomplish some outcome sought by the sponsors of the act. It is not “carrying into effect”. Therefore,
Powers to carry into execution a regulation are only to do things like draft and publish regulatory rules, lease office space, hire workers, inspect, and impose civil penalties on violators. It extends only to tangible commodities and the transfer of title and possession of them for a valuable consideration. It does not extend to the activities of those engaged in trade, only to attributes of the commodities themselves. It also does not extend to criminal penalties.

Roland intervenes in Texas redistricting case

2011-09-06T18:58:00.001-05:00

Jon Roland has filed a petition in intervention in Perez v. Perry, the current Texas redistricting case, similar to his intervention in the redistricting case LULAC v. Perry in 2006. The full text can be found at http://constitution.org/reform/us/tx/redistrict/cnpr.htm along with related material.

With this filing Roland appears as the only litigant who does not represent a special interest group using the case in a struggle for power. Rather than argue the merits of particular maps, he argues for a totally new process in which humans are taken out of the map-drawing process and the job is left to a computer set to draw maps at random.

Please spread this message widely.

The core of the proposal follows:

Proposed solution

Intervenor moves the Court adopt the following solution:

(1) Constraints on the maps. The smallest unit of area shall be the voting precinct, as presently established by law, which shall be of equal population within a county and not differ in population from county to county by more than necessary to accommodate counties of low population.

(a) Equipopulous. The population of each district shall not differ from that of any of the other districts by more than a factor of 0.0001 or the margin of error of the census count, whichever is less.

(b) Aligned. Only counties with a population of more than a factor of between 0.1 and 1/3, initially 1/3 unless or until amended by the State Legislature, of the average population of a congressional district, may be split between districts, unless a larger number of counties must be split to meet the specification (a) above, and a smaller number of counties shall be split if specification (a) can be met.

(c) Contiguous. Districts must be contiguous, so that there is always at least one continuous line of points connecting any two points within the district, and no connection between parts consists only of a line or point.

(d) Simply connected. Districts must be simply connected, so that any continuous loop of points within the district may be shrunk to a point within the district without crossing boundary lines. This means no holes in districts, and no surrounding of one district by another.

(e) Compact. Districts shall be maximally compact, resulting from a running time of at least 6 and not to exceed 24 hours, adjusted for improvements in processor speed, with compactness defined by minimizing the value of p²/4πA, where p = perimeter and A = area of the district, with all other values remaining constant or improving. For an area bounded by a circle the value of this expression is 1.

(2) Procedures. District maps shall be generated and finally adopted mechanically with minimal human intervention using a computer program.

(a) The software to be used initially shall be the TARGET software already developed, but may be modified or replaced at the discretion of the State Legislature thereafter. But source code for the production version of any computer redistricting software and the database shall be made accessible for downloading from the web site of the State for public examination and comment, and to be shared with other states and communities, at no cost other than storage media.

(b) The State shall establish and maintain adequate safeguards to insure that no unauthorized alterations are made in the software or interventions made in the running of it that might bias the output. As soon as feasible, a version of the present database containing only information needed to satisfy the public constraints established herein or by act of the State Legislature shall be prepared, and made the only database accessible to the redistricting program during the generation of maps for official selection.

(c) A commission or grand jury, hereinafter called the “Redistricting Commission”, consisting of 23 individuals, either drawn at random from all qualified voters in the State, or from members of the Texas House of Representatives, at the discretion of the Texas Secretary of State, unless or until the State Legislature shall provide otherwise, shall supervise the redistricting process.

(d) Initially, and thereafter after the most recent decennial census results are available, and prior to filing deadlines, the Redistricting Commission shall cause to be randomly generated at least three times as many maps as there are members of the Redistricting Commission.

(e) Each Commission member shall have the right to reject or strike one map from among the maps randomly generated during the current redistricting session.

(f) One map shall be selected at random from among the randomly generated maps that remain after strikes, and that map shall become the district map for the next election without amendment or debate.

Individual mandate goes down in the 11th

2011-08-13T08:51:00.008-05:00

The 11th Circuit Court of Appeals issued a 2–1 ruling August 12 striking down the individual mandate, in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit decision that went the other way. The opinion is available here. It’s the most important victory for the anti-mandate advocates so far.

The opponents of the individual mandate are still neglecting to make an argument that is critical to their eventual success: that “carrying into execution” only meant to make an effort defined in the delegation of the base power, and not to do whatever it might seem convenient to get an outcome for which the power might be exercised. It is “carrying into execution”, not “carrying into effect”. This point has never been lifted out of the N&P clause for a focused finding, and it is past time to do so. That doing so might unravel a long string of precedents going all the way back to McCulloch notwithstanding.

We have records of the debates in many of the conventions that provide evidence of original understanding. More than that, we have evidence of what legal authorities the framers and ratifiers looked to, and can there find the meanings of the terms of legal English of the time. So if a point of law was not explicitly debated in the ratifying convention, one can look to authorities like Blackstone, Coke, Vattel, and others the framers and ratifiers read and accepted.

From Vattel we get the meaning of “commerce”, which was a term of art, not a common term on the streets of colonial America. It meant only transfer of title and possession (trade) of tangible commodities. Marshall in McCulloch even acknowledged that meaning. He and subsequent judges have based every exercise of power less on the Commerce Clause than on the N&P Clause. Medical care is not “commerce”. Neither is insurance. The only nexus is that they “affect” commerce (tangible commodities), but that is only a correct interpretation if one first accepts the premise that one cannot carry a power into execution unless one can also exercise such power over things that are not “commerce” but “affect” commerce. It interprets “carrying into execution” as meaning “carrying into effect”. That was not its original meaning. “Execution” is a effort, not obtaining a result.

If you read SC opinions carefully, you will find that after all is said and done, the decisions for the last 74 years have not been interpretations of what is “commerce”, but on what “affects” commerce. Yes, there were several pre-1937 decisions that expanded the definition of what is “commerce”, but on closer reading they were reaching for what affects commerce, not commerce itself.

So for example, mining is not commerce. The ore may be commerce when it is sold, but not the extraction, transport, or storage of it. That activity affects commerce without being commerce.

Similarly, agriculture is not commerce. The food and fiber is commerce when traded, but tilling, planting, fertilizing, irrigation, harvesting, storage, and transport are not commerce. They are activities that affect commerce.

Medical care is not commerce. It is is a service, and services are not commerce. It may involve the sale of pharmaceuticals, or use of medical instruments or supplies. Those are commerce, but the surgery is not. It comes in because it affects commerce.

Insurance is not commerce. It is a service. And it doesn’t involve the sale of any tangible commodities, so it does not affect commerce, and is not subject to regulation, by original understanding.

Likewise, debt instruments like federal reserve notes are not commerce. Neither are stocks or bonds.

To understand court decisions people need to understand that economic activity generally is NOT commerce. It is only brought under regulation because it affects commerce.

Now Art. I Sec. 8 Cl. 3 does not delegate power to regulate things that affect commerce, only commerce itself. Therefore, the only place one can find the alleged authority to regulate things that affect commerce is in the N&P Clause.

So how does one get that interpretation? Only by interpreting the power to regulate as the power to do whatever it takes to get a regulated outcome, not just to do things like adopt statutes with civil penalties, hire inspectors, rent office space, publish documents, etc., which are necessary and proper to make the effort authorized by the Constitution.

So everything comes down to the meaning of what is “carrying into execution”.

The way to understand what the Founders meant by a delegation of a power and a supplemental necessary and proper power to carry it into execution is to examine what it meant to sentence someone to hang and issue a death warrant to carry out the execution. There were cases in which the guy hung did not die. Either the rope broke or he had a tough neck. It such situations the courts often held he could not be re-hung to make sure he was dead, because he had already been hung once.

The power was only to make the effort, not to get the result.

This understanding seems strange to modern users of the English language, but it was the understanding in 1787, and that is the meaning to which we are bound, to the extent we can discover it, and we can. The historical evidence is there. It make take a lot of research and reading, but enough such effort will find what was meant.

We are now confronting our slide down a slippery slope that began with McCulloch and has proceeded through Wickard, Raich, and Comstock, until we can see the bottom and realize our mistake in not arresting the slide earlier.

We need to unwind that entire line of precedents. It is not enough to try to distinguish. The action/inaction distinction is likely not to fly, and hanging everything on the meaning of “proper” is a weak argument. The Supreme Court might not be willing to overturn the entire line of precedents in a single decision, but we can offer them a starting point for doing so, and the way to do that is to focus on the meaning of the phrase “carrying into execution”, which was only to make a certain kind of effort, and not to do whatever it might seem convenient to get a desired outcome. It is not “carrying into effect”.

Now if this argument were made the justices would no doubt realize that it would eventually lead to rolling back all the way to McCulloch, but they don’t have to explicitly recognize that. By overturning the individual mandate on the finding that it does not affect the power of Congress to make a regulatory effort, even if it might affect an outcome of such effort, they could leave it to lower courts to begin the unraveling.

However, someone needs to make that argument. The Court can’t be expected to make it themselves.

For more on this see the ACA Litigation Blog and especially the Brief for the NFIB, Ahlburg, and Brown. My criticism is that the brief does not adequately develop and clarify the original meaning of "carrying into execution" as "making an effort", rather than "getting a regulated outcome". Section III of the brief makes a start at that, but needs more clarity and focus. If Congress has a necessary and proper power to regulate things that interfere in the exercise of an effort, that does not extend to things that interfere in commerce itself, and the argument in the brief seems to accept that, severely weakening their position.

So for example, if a state required shippers of commodity X to pass through inspection points A, B, and C, and Congress required them to pass through points B, C, and D, that would not be something that could be properly enjoined. It would just mean that those shippers would have to pass through B or C. If the state required points A, E, or F, then the combined effect would be to forbid shipment of X totally. But that would still not be interference with the regulatory effort of Congress, only with commerce itself, and enjoining it would not be necessary and proper to carry into execution of the regulatory power. To be interference in the regulatory effort, it would have to do something like obstructing federal inspectors from arriving at their inspection stations to do their jobs.

The unavoidable problem is that the correct understanding of "carrying into execution" is in logical conflict with the precedents in McCulloch, Wickard, Raich, and Comstock. One can pretend to accept them and try to distinguish them, but there is no getting around that a correct decision in this case on that understanding will begin the unraveling of those precedents, even if it takes several cases and years for the unraveling to run to completion.

My preference would be to preface every reference to those precedents with "if arguendo, ... was decided correctly", to make it clear what the issue is. To gloss over this isn't likely to fool anyone, least of all the members of the Supreme Court. This is the case that will either finally entrench the overthrow of the Constitution, or overthrow 192 years of wrong precedents. We have to choose. We can't keep balancing on the edge of the knife. We can't keep both. This is the fork in the road.

A way around the debt ceiling

2011-07-31T12:46:00.004-05:00

The 14th Amendment misinterpretation, that exercise by Congress of the authority to incur debt implies a power to raise taxes or borrow enough to pay that debt, deserves deeper examination, as so many people are indulging in that misinterpretation. Since only Congress has the power to tax or borrow, then a contradiction between that and the power to incur debt, when the numbers don't match, is simply without remedy. Delegation of discretion in the exercise of powers entails the power to make mistakes, even mistakes that can bring down the entire world economy, which it now seems likely will not be avoided. The remedy, such as it is, is the punishment that will be inflicted by the law of economics on those who try to ignore them.

There are six main ways government may acquire funds:

Taxation
Fees for services
Sales of assets
Borrowing
Grants from donors
Coining or printing "money"

The reality is that the deficit and debt will not be covered by taxation or borrowing. There are simply not enough dollars (federal reserve notes) in circulation that are accessible to either method of acquisition. The only way forward is to create more currency out of thin air, which has now been done twice, through "quantitative easing". The Fed can do more of that without the authority or direction of either Congress or the President, and both can get around the debt ceiling by not selling bonds to the Fed, but by just having the Fed donate the new currency to pay government bills. Unsound as a business practice, but when things that people accept as money can be created out of thin air, it makes little difference whether such currency is lent or donated.

There appears to be no bar to the Fed simply donating the currency it creates, to the government, without accepting bonds in exchange.

It is, of course, unconstitutional, on state territory, but the reason why it is unconstitutional is instructive. The Constitution delegates no power to Congress to make anything legal tender for the payment of debts, except perhaps on the territory of federal enclaves created under Art. I Sec. 8 cl. 17. Only states may make anything legal tender on their respective territories, and only gold or silver. The Union government may accept other things in payment of debts and taxes to it, and require acceptance of other things in payment of its debts, on its exclusive territory, but despite the wrong Legal Tender Cases, it may not do so on state territory. The acceptance of federal reserve notes as legal tender is only a custom, and one that undermines our constitutional order. That custom needs to end, and it appears it will end soon.

Those two rounds, QE1 and QE2, were done because the sovereign lenders wouldn't loan us the money. Indeed, they have already lent us most of the dollars they hold, and are only acquiring new ones at the rate of about $800 billion a year, which is not enough to cover the $1.7 trillion deficit. Nor are domestic lenders going to be willing to buy bonds. First, all they are holding is about $1.5 trillion, which they need to stay in business, and second, it would take interest rates of more than 20% to get them to loan it, especially if they lose confidence that they would get paid back in currency that is still worth anything.

My model indicates the Fed will soon begin inflating the currency at a rate of 20%, rising to 40% by mid-2012, at which point it will go runaway, quickly ascending to rates that rival what happened in Weimar Germany or Zimbabwe. Social Security and Medicare checks might still go out, but the recipients won't be able to buy anything with them. Eventually, the checks will cease because there won't be any more government workers working to issue them.

I try to explain all this in a few animated videos:
So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)
Playlist:
http://www.youtube.com/watch?v=7Fa1cBOhW60&list=PLD58397F3009D2FB7

Has John Marshall been understood?

2011-07-21T00:42:00.002-05:00

Rob Natelson, a former law professor and now a constitutional scholar at the Independent Institute, wrote an article titled "The Greatly Misunderstood Chief Justice John Marshall". He argues that although later jurists have misconstrued three of his key opinions, Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden, they were correctly decided by original understanding. I have to disagree in part, and it goes to the larger question of whether the failures to comply with the Constitution are the fault of the Framers, or of ourselves.

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org. Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.

About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.

The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.org . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sandford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.

I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

Rob Natelson tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy not to cross the line into eisegesis.

See also Unnecessary and Improper .

Does the Constitution Still Matter?

2011-07-20T16:17:00.009-05:00

The cover of the July 4, 2011 issue of Time magazine depicts a shredded Constitution superimposed with the question: “Does it still matter?”, by Time Managing Editor Richard Stengel. His answer to that question is that it does not, that it is little more than a relic of a different time, of interest perhaps to historians but no longer to be taken seriously as defining our civic duty. He recognizes that it increasingly being ignored and that there does not seem to be the political will to return the nation to compliance with it. His implicit question is, if people are not going to follow it or insist on it, then why bother to pay homage to it? Let's be honest with ourselves, he suggests, and scrap it.

There was a burst of objections to the article in many forums, 538 at the Time website. As I usually do, I added comments. Here they are:

The main cause of deviation from the Constitution is money: there is a lot more money for violating it than for defending it. See http://constitution.org for how you can help.
______
Our challenge is to educate people in a competent understanding of the Constitution as originally meant. There are a lot of myths out there, competing for their acceptance: some from the self-interested elites and some from earnest but misguided laypersons (many of whom may be spreading myths as agents of the elites). The problem is complicated by the fact that the Constitution was not written in the English of today, but in the legal English of 1787, and people in that time disdained things like dictionaries, expecting legal scholars to immerse themselves in the subject for many years to acquire competent use of the language. The effort is worth it, but it is not just a matter of reading the Constitution with a modern (mis)education. See http://constitution.org
______
For more on the subject see
Constitutional Construction http://constitution.org/cons/prin_cons.htm
Kentucky Resolutions & Virginia Report http://constitution.org/rf/vr.htm
Constitutional Convention http://constitution.org/dfc/dfc_0000.htm

While the many objections to this article might seem encouraging, we need to recognize that there were very few, and most not of high quality.

One of the better ones was by Rob Natelson, who wrote a response addressing some of the many illogical or inaccurate claims therein. It led to a discussion by David Kopel on the Volokh Conspiracy, in which I commented:

Sasha is correct about the flexibility of Latin word order. But it is worth while to segue into the general subject of the ways Latin (and Greek) influenced the language of the Constitution, and therefore the meanings that language had for the Founders.

An important example is the term “militia”. In Latin, it does not mean “armed group”. That would be volgus militum. The best translation would be “defense activity”, because soldiers were used not just for war but also for law enforcement and disaster response. The word, like many in English, is a kind of polyseme called an actronym, a word having the primary meaning of an activity that comes to also be used to refer to those engaged in the activity, or the occasion or place of the activity.

So to understand the meaning of “militia” in the Constitution, substitute the phrase “defense activity” wherever it appears.

______
However, that discussion became somewhat pedantic. What was missing from these discussions were plans of action to correct the problem. There is much "viewing with alarm", but almost no one seems to be doing much about it, other than a handful of people like me, and I am not getting much support in my efforts. I do get a lot of favorable comment that I seem to have the only good ideas for action, but when I ask people to commit to taking action, they make excuses or just glaze over.

The old saying is "Power goes to those who show up." Yet a survey of constitutionalist groups across the country finds few and their meetings are not well attended. I have asked some potential participants why, and their vague answers indicate they don't want to get into a situation in which they will be asked to do anything, especially donate money. It is like people who don't go to church because they dread being presented with the collection plate, or being asked to volunteer for some charitable service.

I hope Stengel is wrong, but so far the evidence supports his position. What are you going to do to prove him wrong? If you don't set the example of action, don't expect others to do so.

So you want to raise the debt ceiling?

2011-07-19T07:12:00.000-05:00

So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)
Playlist:

Sixth Circuit upholds individual mandate

2011-06-29T16:14:00.006-05:00

Thomas More Law Center, et al. v. Obama, et al., No. 10-2388

http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

This case is instructive for how to pursue further argument in the issue. The case is the first appellate decision, and is expected to be appealed to the U.S. Supreme Court. This Circuit was considered the most likely to overturn the individual mandate, and thus provide a circuit conflict that the Supreme Court would want to resolve.

It appears the opinion of Judge Sutton is directed toward U.S. Supreme Court Justice Kennedy, expected to be the swing vote on the case. The dissent by Judge Graham provides support for the opposite position.

Judge Sutton provides the key language: “The Court has upheld other federal laws that involve equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals. If, as Wickard shows, Congress could regulate the most self-sufficient of individuals – the American farmer – when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it. And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Further: "What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Further: “The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.”

See also pp. 47-48, discussing the EMTALA requirement that hospitals provide emergency care even to those who can’t pay. Judge Graham points out that "...Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects." Or because the states do the same, by requiring "emergency" treatment of everyone, and then broadly interpreting "emergency" to include everything needed to extend life indefinitely. The individual mandate to buy insurance rests on the mandate to treat everyone. The way to solve the collective action problem is to repeal the mandates to treat. If any legislative body mandates treatment then it incurs the duty to pay for it, respondeat superior. A mandate to treat cannot create a constitutional authority to do anything. Constitutional authority is not contingent on legislative acts that create some condition.

Note that Judge Sutton does not rule out future as-applied challenges to the mandate but only the current facial challenge. See pp. 37-38, 49-50, and 52-53.

A sentence in the dissent weakened Judge Graham's argument. It said that the decision to self-insure is noncommercial, to justify its holding. But this contradicted by Wickard. If the case for constitutionality turns on this, then there is little chance of prevailing unless it is distinguished from the line of cases from McCulloch through Wickard and Raich.

Once again we see the cited cases as those that have the most pernicious impact on jurisprudence, and that the key is to attack the line of precedents that began with McCulloch v. Maryland, as I argue in Unnecessary and Improper. Focusing only on the "action-inaction" distinction is a weak reed on which to hang the issue. The original meaning of "carrying into execution" has never been addressed by the Supreme Court, and we need persuasive argument that the phrase limits powers "necessary and proper" to only making an effort, and does not allow doing anything that might serve an outcome for which the authorized effort might be made.

If we lose this one, it is unlikely that even winning the presidency and both houses of Congress (the Senate by 60 votes) would be able to overcome the momentum of the Health Care Act, the repeal of which ar this point would wreck the health care system as thoroughly, and more abruptly, as enactment of it will. The only way forward is nullification and constitutional amendments.

Cigarette labeling and the Commerce Clause

2011-06-22T12:14:00.003-05:00

The recent rule laid out by the FDA for the labeling of cigarette packs with scary images of injury caused by smoking on the upper half of each pack has been opposed by the cigarette industry as an infringement on "commercial speech". Once again, even the wealthy industry doesn't seem to be able to find lawyers who know how to make competent constitutional arguments.

Under the Commerce Clause as originally understood, Congress does indeed have authority to regulate the time, manner, and place of items shipped in interstate commerce, and thus the labeling of packages. However, no power is plenary. Any power must be exercised only for a reasonable public purpose. Thus, it would be improper to require items to be shipped in packages with no labels at all, so that an inspector would have to open each package to find out what is inside. At a minimum, it should have a label identifying the sender and receiver and some code that the receiver and inspector knows how to interpret to tell him what is inside. Congress may reasonable also require the label to identify the contents to an inspector, and also show things like the quantity of the contents.

But what about a requirement to put gruesome images on the upper halves of both sides of packs? In my interpretation of the Commerce Clause, that would be authorized only if cigarettes are shipped across state lines as separate packs. That would also mean each pack would have to be labeled with its own sender and receiver. If packs were shipped in opaque cartons or cases, Congress would have authority to require such gruesome images on the cartons or cases, but not on the packs they contain, if those do not become visible until the carton or case is delivered to its recipient within a state and opened there. Once the recipient accepts delivery the item is no longer "commerce" among the states. At that point only the state has jurisdiction.

Could Congress get around this interpretation by requiring cigarettes not be shipped in opaque containers, but only in containers that are transparent and revelatory of the labels on the packs? Yes, but the cigarette companies could get around that by shipping cigarettes in cases without packs, and putting them into packs after they arrive in a state. Congress would have no authority over the labeling of such local packs.

The FDA would argue, of course, that Congress has power under the "substantial effect" doctrine of the Necessary and Proper Clause to regulate items of commerce beyond the delivery to a shipment recipient within a state, but the counterargument is that it is only power of "carrying into execution" an express power, that is, to make a certain kind of effort, not a power of "carrying into effect", that is, to get a desired outcome. The Supreme Court has never ruled on that line of argument. That is the argument the cigarette companies need to make, not an appeal to the First Amendment.

I am not a smoker, don't like smoking near me, and don't like having to help pay the medical bills through my taxes of persons with smoking-caused morbidities, but this is a case of good intent not being enough to overcome the lack of congressional constitutional authority. The remedy needs to be left with the states.

Case interpreting the Petition Clause

2011-06-20T10:12:00.001-05:00

The Supreme Court rendered a decision June 20, 2011, in Borough of Duryea v. Guarnieri

This is probably the most significant case interpreting the Petition Clause of the First Amendment, which states:

Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances.

The particular holding in the case is not very important. It is that in cases involving a government employee suing the government employer for retaliation for filing a grievance, the employee’s claim that such retaliation violates the Petition Clause of the First Amendment is governed by the same Connick v. Myers/Pickering test which applies when the employee claims that such retaliation violates the Speech Clause of the First Amendment.

But the case is significant in several ways:

(1) It recognizes that lawsuits are “Petitions” under the First Amendment. This is a much-debated academic issue, and one on which Justice Scalia dissented in the opinion;

(2) It explains that the Petition Clause and Speech Clause are not always coextensive, and leaves open the possibility that here may be additional claims under the Petition Clause which plaintiffs may invoke consistent with the purpose of that Clause.

Here is the relevant language from the majority opinion on this point:

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are“not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan Inc., supra, at 896–897.

This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

The question of the Petition Clause’s scope is relevant to constitutional limitations on lobbying laws. Borough of Duryea suggests that lobbying laws may be subject to both Speech and Petition objections. It will be interesting to see how the jurisprudence in this area develops given this opening from the Court to develop a broader basis for the Petition Clause claims.

Individual Standing to Enforce the Tenth Amendment

2011-06-18T21:31:00.003-05:00

The unanimous opinion in Bond v. United States handed down by the United States Supreme Court June 16, 2011, may open federal courts to individuals to challenge federal statutes, such those against drugs, as unconstitutional infringements on individuals' rights and usurpations of Federal Power in realms reserved to the States under the Tenth Amendment to the Constitution. This case is a turning point on Tenth Amendment and standing jurisprudence, and offers one of the first glimmers of hope since the Lopez case.

Note however, that it is only a reversal on the single issue of standing to challenge the statute, and thus a partial reversal of the precedent on standing in Frothingham v. Mellon, not on the merits of whether that statute is indeed unconstitutional. That finding remains to be made. Spread the word on this precedent. It needs to be cited often in other cases and in law review articles.

When I cite Frothingham I am referring not so much to that case alone as to the line of precedents built on it, including many misapplications and conflations, such as that between "failure to state a claim" ("frivolous"), and standing/justiciability. Justice Kennedy in this opinion tries to draw a line between those, although he also points out they are entangled.

But I don't think the reasoning in this case turns on whether the appellant was the defendant or the plaintiff, or whether it is a criminal or a civil case. Judicial doctrine recognizes that justiciability does not rest only on past injury, but also to the expectation of imminent injury. If not, then what is injunctive relief for?

So this case does seem to confer standing on individuals with either past or expected injury from the exercise of an undelegated power. The question then turns to whether the power has been delegated, and that takes us in most cases to the Commerce and Necessary and Proper clauses.

Reid v. Covert stands on the proposition that the government cannot acquire new powers, at least on U.S. soil, from a treaty. Agent B cannot acquire new powers from principal A by an agreement he might make with treaty partner C. He can only get powers from C, if C has the powers itself, and they must not conflict with his duties to A. That case did not overturn Missouri v. Holland, it appears, because the Court presumed the powers being exercised under that treaty were powers ("Commerce", N&P) that it had to exercise, which was not an issue before the Court. On remand in the Bond case it will be an issue, whether the lawyers know it or not.

I would argue that the power claimed in 18 USC 229 is not a power which Congress has authority to exercise on state soil, and therefore is not a power it may exercise under any treaty. As I have argued previously, the power "necessary and proper" cannot be determined without examining the qualifying phrase, "for carrying into execution", something that has apparently never been carefully done in any Supreme Court case, going back to McCulloch v. Maryland, which just took it as whatever was convenient to get a desired outcome. But from the common law rules of construction of delegated powers, the original understanding was not that a delegated power was to do whatever it might take to get a desired outcome. It was always only to make a certain kind of effort, which, if it did not avail, did not imply or authorize any larger power, or any new kind of power, especially a penal power.

And, to bring things down to common sense, the kind of stuff one could paint on a doorknob to harass someone is hardly a "chemical weapon" contemplated by the Treaty. Think overcompliance and void for vagueness.

So, for example, suppose Congress passed a statute regulating the shipment of flour. Under the Commerce Clause as originally understood, it could require that to be done in containers that would keep the contents dry, not be easily broken, labeled with the amount of flour it contains, and handled in a way that would avoid dispersing the contents (which can explode).

Under the Necessary and Proper clause Congress could authorize the leasing or erection of offices and inspection stations, the hiring of inspection agents and accountants, the publication of notices, forms, and reports, and various other incidentals of carrying the regulation into execution, that is, or making the effort.

Now suppose the inspectors needed some tool to conduct their inspections, perhaps some kind of scanner. Would that give Congress the authority to fund the development of such a tool for the private benefit of someone? The correct answer is no. It could develop the tool using its own personnel, or government contractors, but its only power to promote an art among private parties is to grant a monopoly for a limited time (originally only long enough to recover a reasonable profit), or to purchase it. If the government pays for its development, then it is not patentable. Similarly, if the private sector had already invented such a device, the government could promote it only by a patent or by purchasing it, not by doing something like spending money on marketing it to other buyers.

Now could the power to regulate imply the power to prohibit all modalities of some commodity? No. "The power to regulate is not the power to prohibit." It is only the power to "make regular". Restriction on modality is a kind of prohibition on some modalities, but there must always be some modalities permitted.

So does Congress have the power to prohibit all modalities of some substance that might be used to cause harm? No. It could restrict some modalities of things that are especially dangerous, which could be very restrictive indeed, but subject to safe transport, not restrict the possession or even use of such commodities when not actually being transported or traded from outside a state to a buyer inside it.

Now suppose someone tried to interfere with the inspectors in the conduct of their duties. Could Congress make that a crime? Not by original understanding, on state soil, using any but penal powers delegated by other clauses. It could on the soil of federal enclaves, nonstate territory, where Congress has broader powers, and on foreign soil over which we acquired power through treaty (such as the grounds of U.S. embassies abroad). But on state soil the interference could only be prosecuted criminally as either a state crime or as some form of treason, counterfeiting, piracy or felony on the high seas, or offenses against the law of nations.

The meaning of the "law of nations" clause was frozen in its state as of 1788. To allow future treaties or conventions to expand on that would be to allow them to amend the Constitution. In 1788 the law of nations did not include domestic penal powers, except for things like attacks on diplomats, on shipwrecked passengers and crew, or for piracy conducted from U.S. soil.

So if people tried to interfere with federal inspectors on state soil, those inspectors could shove them aside, or physically defend themselves from assault, or get a court, which on state soil would be a state court, to enjoin the interference, but not to criminally prosecute them (and the Framers neglected to delegate a power to make contumacy a crime). If the interference rose to the level of "making war" then they could be prosecuted for treason, but most of the other penal powers would be unlikely to provide authority for most such situations.

And don't argue that the First Congress made it a crime to rob the mail. The first few congresses were dominated by a lot of people who didn't fully understand or think through the limitations of the new Constitution they had adopted. Many thought Congress had power to authorize prosecution of common law crimes. It didn't.

Needless to say, legal practice has deviated a long way from this understanding, without amendment to the Constitution. Some may be willing to abide that. I am not one of them. Amend it or stop violating it.

With the few exceptions of things like state consent needed to divide states, state governments do not really have "rights". That is an abbreviated way to refer to rights of the people of states. (Which is what the Framers seemed to have meant by the term, using "state legislature" when they wanted to refer to the government of a state.) It is useful to recognize that prior to the 1923 Frothingham case, with its newly restrictive doctrine of "cases and controversies" that denied "standing" to parties without particularized injury (past or expected), the doctrine was that people had standing to privately prosecute a public right, on the doctrine that we all have the justiciable right not to have government anywhere exercise undelegated powers, and that any such exercise is a justiciable injury even if not particularized. The opinion in the Bond case recognizes this doctrine as prudential, not interpretative of the Constitution. It is for the convenience of the Court, to filter and hold down the number of cases it is asked to decide, not something the Constitution requires. (The same could be said of binding stare decisis generally.) It is worth re-reading The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

Approaches to reading the Constitution

2011-06-09T09:02:00.004-05:00

This is a response to Saul Cornell, "Why the Right-Wing's Approach to Reading the Constitution Is Destroying This Country" -- That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country's founding.

The article uses a broad brush to make its point, but it is an exercise in tergiversation (look it up). Many people claim to be originalists, but only a few leading scholars can be properly so labeled, including Randy Barnett, Roger Pilon, Gary Lawson, Kurt Lash, Lawrence Solum, and a few others, including some but not most legal historians. Social conservatives are indeed prone to cherrypick the Constitution to support their policy agendas, but they do not deserve to be called "originalists".

At least some are supporting originalism rhetorically, even if they don't initially get it right. That's a start.

The Constitution does not support the policy preferences of most people, anywhere on the political spectrum. Most people who set out to discover what the Constitution originally meant have to abandon their own policy preferences, or else propose amendments. I have certainly had to abandon many of mine. But what I soon discovered was that those policy preferences were misguided or ill-conceived, and that the Constitution as originally meant actually represents better solutions, to the extent there are any solutions. What one often discovers that that those proposals discovered to be unconstitutional either would not work or would make the situation worse. There are many problems beyond the competence of government, no matter what its constitution might authorize.

See http://constitution.org http://constitution.org to find out what real originalism is all about.

Social Security is not an insurance program

2011-05-31T11:01:00.002-05:00

For those who have deluded themselves into thinking their payments into Social Security have earned them benefits, there is the Supreme Court case Flemming v. Nestor, 363 U.S. 603 (1960), in which we find these excerpts:

... eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes ...
...
To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.
...
Congress included in the original Act, and has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act.
...
We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment.

So contributors to Social Security may have a political claim, but not a legal claim, to benefits. Paying in to Social Security earns no one anything.

See "Private Alternatives to Social Security: The Experience of Other Countries", John C. Goodman, Cato Journal, vol. 3, no. 2 (Fall, 1983), especially the section on the system adopted in Chile.

You would be better off donating to an effort that is doing something about problems like this. Pass it on.

Is TSA "Groping" Bill Junk Legislation?

2011-05-26T09:52:00.002-05:00

I testified against HB 1937 before the Committee for reasons discussed here. It is a poorly conceived effort to solve this and other problems of unconstitutional federal action, given the existing state of judicial support for such unconstitutional action. The present legal reality is that "federal agent" is now a title of nobility, and federal agents may murder, rape, steal, or do anything they want, protected by the judicial doctrine of official immunity. If federal courts were still devoted to the Constitution, a bill like HB 1837 would be okay, but they are not. What is needed is a more subtle, comprehensive approach, and I have proposed one that might work: the establishment by amendment to the Texas Constitution of a Federal Action Review Commission, a grand jury empowered to hear citizen complaints of federal usurpations, and if it found them unconstitutional, that finding would trigger a requirement for all state officials, agents, and contractors to refuse to cooperate in any way with such usurpations, and encourage private citizens to do the same. Since the state is not allowed to represent citizens in court who might do so, it would provide a fund to pay the legal and other expenses of those who thus resisted. This would engage the entire state in concerted non-violent civil disobedience, which is about the only way left to us to get the central government to abandon its unconstitutional practices.

However, now that the U.S. Attorney has foolishly threatened the State if it merely passes the bill, we have no choice but to go ahead and pass it, and I urge the Legislature to do so. My proposal would be a far better solution, but we must not yield to such pressure.

University of Texas law professor Robert Chesney makes the common mistake of treating all enactments, statutes, regulations, or administrative policies as "law". Other than constitutions, only statutes are law and only if they are constitutional. Most federal statutes are unconstitutional. Not just some provisions of a few of them. Most of them. It is long past time to proclaim the emperor has no clothes. We need to stop pretending the central government is clothed by the Constitution when it is not.

The U.S. Congress passes about 20,000 unconstitutional provisions a year that could be challenged in court as separate issues. That is far too many to be addressed one at a time by state legislation like HB 1937. We need a more comprehensive approach that can tackle them all.

As for the Ninth Amendment, there are plenty of people who are defending it, especially law professor Randy Barnett. More can be found here. We are still a minority, but you can help spread our message.

The gravy train is at the end of the line.

2011-05-24T09:28:00.003-05:00

Social Security is not and never was any kind of insurance program. Your payments into it are not and never were premium payments for a retirement pension. There is no "social security" account with your name on it. The government has never claimed otherwise, and indeed, has explicitly denied it. The notion to the contrary that too many people seem to have is a delusion they invented and prefer to believe, but which has no basis in either law or reality. Social security, and the other entitlements, are no more than transfers of wealth from one group of people to another, and there is no legal obligation to make such transfers in the future to those who have had their wealth taken from them for that purpose, in the past.

Better make friends with your children and grandchildren, because it won't be long before you will have to depend on them to support you in poor health or old age. If the government sends you money, it will be money that will be nearly worthless. You will need to wheel a shopping cart full of $1 billion-dollar bills to the store (if any remain open) to buy a slice of bread.

The gravy train is at the end of the line. Get off and work, or die. Those are your only choices.

No government-issued ID to vote

2011-05-22T23:35:00.000-05:00

Kansas SOS Kris Kobach has written this oped for the WSJ. But his reasoning is flawed. Here are my comments:

There is a critical difference between presenting identification to cash a check, and doing so to vote. The first is a transaction between private parties. The second is the exercise of a public duty by a public official, the elector, for whom the only qualification is being a citizen and resident of the voting jurisdiction. There is no constitutional requirement to have or present any kind of government-issued identification document. There is no constitutional authority to require anyone to present what one is not required to have, and no constitutional authority to require anyone to have such identification, or even to have a name.

No one owns his name. A name is what others call us, and is under their control. No one can be required to accept or disclose what others call us.

It is not improper to require confirmation that one is qualified to vote, but the traditional way to do that is by a jurat of a notary public who knows the individual. That jurat does not need to cite a name or other identification. In this digital age, we have the alternative of digital notaries who certify the connection between an individual and his public encryption key. Such circles of trust are the constitutional solution to identification. Government identification puts too much power in the hands of government, a power they can be relied upon to abuse.

None of the government-issued identification documents now available actually prove one is a citizen. They may be evidence of many things, but the closest thing to proof of citizenship is a birth certificate, and that can easily be faked, as we have recently seen with the bogus "certificate of live birth" the White House foolishly put on their website without first removing the image layers that disclose the sequence of alterations to the image, which show clearly it is fraudulent. A passport is also not proof of citizenship. They are issued to non-citizens, and are only as reliable as the information provided to the Passport Office. Garbage in garbage out.

The closest thing we have to reliable identification is a jurat from a notary public who knows the individual personally. Government-issued ID is just a way for government to control people.

Mistakes made regarding "sovereign citizens"

2011-05-16T12:00:00.004-05:00

CBS News had a segment, Who are "sovereign citizens"? My comment follows:

Each side in this dispute is making its own mistakes about the law.

The "sovereign citizens" are correct in their position that being subject to the law rests on their consent. Where they get it wrong is in failing to recognize they give that consent by remaining on the territory of the polity, be it nation, state, county, or whatever. Jurisdiction is primarily territorial (in Latin, ad locum). To expatriate, people have to leave the country. If they don't, they are subject to the law of the country.*

However, they, and their opponents, also err in accepting the rules that are being enforced as "the law". To be law, official acts must be constitutional. If unconstitutional, it is not law, even if people think it is law. Much of what is being enforced is not law, and no one is bound to obey or help enforce it. Further, no one may rely on judges, supervisors, or legal advisers. Every person has the absolute duty to make an independent determination of what is and is not law.

Instead of arguing they are not subject to the law, the protesters need to be arguing that what some are attempting to enforce is not law, but a usurpation. That is the proper frame for discourse.

The people are collectively sovereign when they elect delegates to constitutional ratifying conventions or legislatures sitting as constitutional ratifying conventions, but not as individuals. To be individually sovereign one would have to be the monarch of his own independent country somewhere, and there is nowhere left on Earth where anyone can do that.

There is a sense in which we are each "sovereign" in the interpretation and application of the law to cases before us, but that power comes with a duty to get it right, by basing decision on the best evidence of what the lawgivers meant in the laws they gave us. However, none of us is individually sovereign in the making of law, or free to exempt ourselves from subjection to it. That is a subtle but critical distinction too many dissidents, and their critics, fail to make.

The proper frame for debate is not over whether we are subject to law, but over whether what is being enforced really is the law.

* There are three kinds of jurisdiction: territorial (locum), personal (personam), and subject (subjectam). A court must have all three to hear a case. "Venue" is not the same as locum jurisdiction. The term means the location of a forum, normally within a jurisdiction territory. For more on this see A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824).

"Venue" is the location of a forum, of a particular court. "Locum" is a territory, such as a nation, state, county, town, or whatever, which is defined by geographic boundaries and may contain multiple courts or venues. However, a particular court may convene at different locations. Wherever it convenes is its "venue".

The term "political" jurisdiction is a misuse of terminology. A foreign diplomat is immune due to his status as a foreign diplomat, which is a kind of office with respect to U.S. law. However, he is subject to the laws of a different nation. The court lacks personam jurisdiction over such a person.

We have been speaking here only of judicial jurisdictions. There are also legislative and executive jurisdictions, each divided into locum, personam, and subjectam. For a court it defines the bounds on what cases it may lawfully hear. For a legislative body, the kind of statutes it may lawfully adopt. For an executive the kind of enforcement actions he may take.

It is all very orderly and systematic, but it is surprising how much of this never gets across to students in law schools.

Letters of marque and reprisal

2011-05-04T20:09:00.001-05:00

Andrew Napolitano wrong about letters of marque and reprisal (LMR)

On Fox Business News this evening former judge Andrew Napolitano stated that letters of marque and reprisal are to be issued by the president to private actors. that is incorrect.

See http://constitution.org/mil/lmr/lmr.htm for more on the subject. They do not have to be issued to private actors, and Congress may not delegate the issuance to the President. It must issue LMR directly, and could appropriately do so to the President and forces under his command.

The several authorizations to use military force (AUMF) are similar to LMR, but are missing key elements, such as greater specificity concerning who may be targeted.

However, there are also two other constitutional powers that apply to such cases: the power to punish piracy and offenses against the law of nations, under which "pirates" are treated as a special case, as "enemies of all humanity" who may be killed wherever they are found. What we call violent "terrorists" are essentially what the Constitution calls "pirates" -- nonstate actors who commit unauthorized warlike acts against targets foreign to themselves. (If against their own it is "treason".) The historical legal precedents are for pirates to be tried in the field by military tribunals, which could be captains of sea vessels and the senior officers, and summarily executed if found to be pirates or closely associated with them.

That legal legacy obviously has problems for due process and is open for abuse, however, that is the legal tradition incorporated into the Constitution.

I have proposed an amendment to clarify the point:

Clarification of "piracy": "Piracy" shall consist only of warlike acts committed by a foreign nonstate actor, or by a domestic nonstate actor against foreign persons or property. Letters of marque and reprisal make the person to whom they are issued a state actor, and under a declaration of war all citizens are to be regarded as state actors with respect to the foreign state defined in the declaration.

Prosecutorial misconduct

2011-04-27T15:53:00.000-05:00

This is to comment on the article, "Head in the sand over prosecutorial misconduct", by Erwin Chemerinsky, in The National Law Journal, April 25, 2011.

The reform needed is suggested by reviewing the history of how we got to this point.

The abusable power of public prosecutors became entrenched when they were made elected officials in the late 19th century, before which criminal prosecutions were largely done by private parties. At that time it was thought the voters would be as concerned for protecting the rights of the accused as they were to "hang 'em all and let God sort 'em out." Alas, the voters came to see the threat as something that only menaced "those" people, not people like them. It has only been recently when "people like us" are threatened by the same abuse that the issue is coming into public discussion.

The obvious solution to to stop electing prosecutors. Have them selected at random, by sortition, from a large pool of qualified candidates, case by case. There would be a budget, and there could be professional staffs, but the first chair would be filled by someone without a career path in the seat.

A companion reform would be open (an increased number of) grand juries to direct citizen complaints, with no undue presence or influence by professionals, and with the grand jury appointing the prosecutor by handing him an indictment.

We also need to educate the public from whom juries are drawn to be skeptical about everything they hear in the courtroom, whether from the attorneys, the witnesses, or the judge, and to summarily acquit if they sense any of the legal arguments in the case have been withheld from them, except perhaps arguments on motions in limine that cannot be made without disclosing evidence properly excluded. However, there should never be any motion in limine granted to a prosecutor in a criminal case. Only to a defendant.

Finally, any individual needs to be able to bring a complaint about a public official to a grand jury, to decide whether the official was acting within his or her jurisdiction, and if not, and if the evidence is sufficient, to conduct a civil or criminal prosecution against the official, thus stripping him of his official immunity.

See Trial Jury Reform.

"Natural born" eligibility

2011-04-25T12:51:00.002-05:00

"Natural born" means born on the soil of the nation, regardless of the citizenship of the parents, unless one of them is a foreign diplomat recognized by treaty as not being subject to the jurisdiction of the United States. That's what jus solis means. Location is the only thing that matters. That has been the case in Anglo-American law since before the U.S. was founded. It was not the 14th Amendment that made it so. That amendment only made all such persons state citizens if they are also residents (for an unspecified period of time). They were already U.S. citizens.

The mistake comes from reading Emmerich de Vattel, who was often cited by the Founders, but Vattel was Swiss. He was describing the legal doctrine of the European Continent, where the rule for citizenship was jus sanguinis, or that citizenship was based on the citizenship of one's parents. That was not the doctrine of Anglo-American law, for which the rule was jus solis, or that citizenship was based on the soil of the nation, the location of one's birth, and not on the citizenship of parents. It is discussed in Blackstone, and particularly in the footnotes of Tucker's edition of Blackstone (1803).

Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States.

"Natural" in that context means "according to natural law", in other words, by the rules of the common law then established, which pretended to divine natural law in the ways court decisions were made.

It is a common mistake to think that "natural-born" is synonymous with "citizen at birth". One can also be naturalized at birth by statute. That was done for John McCain, retroactively by a statute passed after he was born on the soil of the Panama Canal Zone, which was a leasehold, and not U.S. soil. McCain was definitely not "natural-born", no matter what a Senate resolution might say.

So Obama is eligible only if we was born on U.S. soil, which could have been in the airspace above U.S. soil, or in U.S. coastal waters, or on the grounds of a U.S. embassy abroad (U.S. soil by treaty), or perhaps on a U.S. flag vessel at sea in international waters. Not if born in the air over international waters if it was not a U.S. flag aircraft, and not if in the airspace over a foreign country.

All this is actually spelled out with some clarity in U.S. code, which at least on this subject happens to get it mostly right, although it is ambiguous because it doesn't address "natural born" at all. Some people manage to mis-read 8 USC 1401, but that section is not defining "natural born". It is defining "citizen at birth", and it is part of Chapter 12, Subchapter III, Part I, titled Nationality at Birth and Collective Naturalization. Only the first two clauses are about natural birth. The rest are about collective naturalization.

A birth certificate is evidence of location and date of birth, and is usually dispositive. However, a "certificate of live birth", which does not show location and date, is not. That is all we seem to have for Obama, and what has been offered is clearly a forgery. More dispositive would be witnesses to the birth. Unless the mother was alone when it happened, there should be some witness, even if no longer alive, who made a record of the event.

The burden of proof of citizenship for purposes of removing an individual from U.S. soil is on the government. However, the burden of proof for purposes of voting or holding office is on the would-be voter or officeholder. Even if the candidate was actually born on U.S. soil, if he can't prove that he should not be deemed eligible. It doesn't have to be proof beyond a reasonable doubt. Likely few of us could offer that. But there does need to be a preponderance of evidence.

There have been some efforts to exclude Obama from the ballot until he proves his eligibility, but it is useless to try to exclude Obama from the ballot, because it is not Obama that voters vote for. They vote for electors pledged to vote for him. The ballot might show the person to whom they are pledged, but that pledge has no legal status. The same people could be said to be pledged to vote for Mickey Mouse, when everyone knows that Mickey Mouse is a pseudonym for Obama. Or to some real person. Nothing prevents them from voting for anyone else when the time comes.

The only points at which an ineligible candidate might be blocked is (1) the counting of the elector's votes; (2) the certification of the elector's votes by Congress; and (3) inauguration. None of those points are subject to the orders of a court. For each of them, enforcement depends on the people involved voluntarily following the Constitution. Nothing can make them if they choose not to do so.

Battle of San Jacinto

2011-04-21T19:34:00.001-05:00

The Battle of San Jacinto, fought on April 21, 1836, in present-day Harris County, Texas, was the decisive battle of the Texas Revolution. Led by General Sam Houston, the Texas militia engaged and defeated General Antonio López de Santa Anna's Mexican forces in a fight that lasted just eighteen minutes. The Texan militia moved quickly and silently across the high-grass plain, and then, when they were only a few dozen yards away, charged Santa Anna's camp shouting "Remember the Alamo!" and "Remember Goliad!," only stopping a few yards from the Mexicans to open fire. The Texans achieved complete surprise, and achieved one of the historically most decisive and unequal victories of any battle between regular soldiers and volunteer militiamen. About 630 of the Mexican soldiers were killed and 730 captured, while only nine died of the roughly 900 Texans who fought.

Santa Anna, the President of Mexico, was captured the following day and held as a prisoner of war. Three weeks later, he signed the peace treaty that dictated that the Mexican army leave the region, paving the way for the Republic of Texas to become an independent country.

One of the key lessons of this critical battle is the way Houston held back his troops until just the right moment. After the massacres at the Alamo and Goliad his men were clamoring to engage the Mexican troops immediately and without tactical planning. Houston knew that if he had yielded to their demands, they would have been wiped out just like the defenders at the Alamo and Goliad had been. So he led them in a tactical retreat, while keeping track of the movements of the Mexicans. When Santa Ana camped without posting sentries or otherwise preparing for an attack, Houston seized the opportunity for a decisive victory.

Although the Texas troops are often referred to as an "army", they were not enlisted for fixed terms for pay, and thus were militia, rather than army, forces. Only a few of the men were appointed to have military rank, or had formal backgrounds as soldiers in any regular army.

For more on the Battle of San Jacinto:

Wikipedia
Battle of San Jacinto, Wallace L. McKeehan
Texas State Library and Archives
San Jacinto Museum of History
Texas State Historical Association
The Battle of San Jacinto, YouTube, from the movie The Alamo)

Waco: The Massacre at Mount Carmel

2011-04-19T19:07:00.000-05:00

Waco: The Massacre at Mount Carmel

These are the complete movies that shocked a nation and spawned the modern constitutional militia movement.
Waco: The Rules of Engagement
WACO- A New Revelation

Easy YouTube Video Downloader for Firefox.

Our situation does require courage, but it also requires wisdom, preparation, planning, and widespread organized public support. We must reject foolish rhetoric that does not contribute to the solution. Wise persons do not posture or threaten. They quietly organize and prepare.

The Davidians provide an instructive model for us. They did not sally forth from their compound seeking government agents to fight. They exercised their rights nonviolently, resorting to violence only when it was initiated against them. They lost, but they lost in a way that inspired others to tell their story, and still others to organize the modern militia movement that has done more than almost any other effort to prevent similar abuses, just by existing, without a shot being fired.

Those who feel the urge to indulge in violent rhetoric would better serve their cause by organizing and training. The time may come for initiation of force, but that point is far down the path. There are many things that need to be done before that.

We can also learn from the model of the way Sam Houston led the Texas Militia against the Mexican Army. Many of his troops were spoiling for a fight before they were ready, which would only have gotten them killed and defeated their cause. Houston wisely held them back, waiting for the right moment. Finally it came, at San Jacinto, April 21, 1836, in one of the most amazingly unequal battles in military history. Never before had so few militia defeated so many regular soldiers, and inflicted so many casualties while suffering so few. After the battle, many of the Texians wanted to kill the captured Santa Anna, but once again, Houston wisely held them back, and instead exacted a treaty from Santa Anna that effectively granted Texas independence. Houston is reported to have said to his men, "You want blood. I want Texas."

Debt-based currency

2011-04-18T14:53:00.000-05:00

Anything, including debt certificates, may be used as currency if it is accepted as such by most players in the market. The key to that acceptance is that the supply of it track the growth in economic production. Not the GDP, which calls it growth if two people who produced for themselves start trading the same products with one another without increasing the net amount produced. Arguably, it should also not include services, such as entertainment, that do not contribute to production. In other words, production of capital rather than consumption.

The problem with debt certificates is that there is no natural mechanism to hold down their supply, other than periodic market collapses. On the contrary, there are strong incentives on the part of both the public and private sector to magnify the supply of debt certificates. See what happened with securitization, which is still going on.

Note that congress has no constitutional authority to make anything legal tender on state territory. Only the states have that authority, and only to make gold or silver coin legal tender there. Congress may make federal reserve notes legal tender on federal territory, like the District of Columbia or various military bases and port facilities, under Art. I Sec. 8 Cl. 17, but nowhere else. It can also accept FRNs for payment of debt to the federal government. What it may not do, contrary to the Legal Tender Cases, is compel anyone outside exclusive federal enclaves to accept FRNs or anything else in payment for debts. Every state that accepts FRNs as legal tender is violating the Constitution.

When the Federal Reserve creates "money" out of thin air and uses it to buy Treasury bonds to finance government expenditures, as it did in QE1 and QE2, it is doing several things. One is to use focused inflation to prop up prices of various investment vehicles, such as housing, bonds, stock, and securitized debt, which would otherwise fall. Contrary to popular belief, rising prices of oil and food are not the result of it, not yet. That will come, but those price rises are due to reduction in supply of oil and food, not an increase in the supply of currency.

There is a close relation between this kind of government financing with debt certificates and unemployment. Opponents of deficit reduction by reduced government spending fear the unemployment of government workers, and that would indeed happen. However, a debt-finance deficit also involves the creation of the money that goes to foreign governments ("sovereign wealth funds") that loan the money back to us, but also accumulate FRNs that drives currency exchange rates that favor the sale of their products to us, and the offshoring of U.S. jobs to them. For every government job maintained by continuing the deficit, there is a destruction or non-creation of at least five jobs in the private sector, about two off-shored and the rest layoffs or never created.

The entire federal deficit comes from only a few key programs: Social Security, Medicare, Medicaid, unfunded government pensions, farm subsidies, and military spending. In trying to sustain the elderly, the ill, farmers, and our policing of the world, we are now at the brink of bringing down Western Civilization. This is not just a U.S. problem. The entire world has been following our lead and will fall with us. Within a year of the collapse, we may see unemployment of 90% everywhere, riots, looting, destruction of productive facilities, and hundreds of wars everywhere, some of them nuclear.

That outcome is not worth sustaining the elderly or the ill. If we have to choose, it is better to let them all die. Better them than most of the rest of the people on Earth. Those are our choices. Too many people are in denial that those are our choices. We will soon see, because at this point it is probably too late to prevent it.

It all rests on consent

2011-04-10T12:51:00.003-05:00

Two questions were asked in a forum on the history of law by Daniel R. Mandell:

First, would the Supreme Court need the approval of the President (or the Executive Branch) to enforce its decision [in the Cherokee cases, when the U.S. Supreme Court decided in favor of the Cherokee, and President Jackson defied the court order and drove the Cherokee out of Georgia]? Second, has the Supreme Court ever actually tried to enforce a decision opposed or resisted by the President?

The short answers to each question are yes, consent of executive officials is needed, and no, not in any important way. But the questions are important, and deserve more discussion.

First, this is not just an issue for the U.S. Supreme Court. In the United States, courts in general do not have direct line authority over armed enforcement agents. Federal courts once did, for U.S. marshals, under the Judiciary Act of 1789, but that authority was steadily eroded, and formally ended in 1969. Judges or court administrators might hire, fire, promote, or reassign clerks and bailiffs, but no longer most of the armed agents they might need to enforce their orders. However, that does not mean that as a matter of custom, policy, and practice individual agents seek the consent of their superiors before carrying out any court order, or that they might not defy their superiors to carry out such orders if there were a conflict.

Ultimately, all decisions by government officials depend for their enforcement on the voluntary assent of enforcement agents, from clerks to military personnel, or of the people generally. When conflicts develop between the will of line or judicial superiors, and the law, as perceived by each agent or individual, then each agent or individual has to decide for himself which to support.

In theory, every government agent takes an oath to follow the law, not the will of officials in conflict with the law. That requires that every agent, or for that matter, every individual, make an independent determination of what is the law, resolve any conflict of laws, and help enforce the law, regardless of what a judge, a superior, or a legal adviser might say. The argument in Marbury v. Madison applies not just to judges, but to everyone, in any legal issue in which one might become involved. Ultimately, having a written constitution of government means we are all on our own, required to each become an expert on constitutional and legal construction.

In practice very few individuals have the will or the skill to fulfill that awesome responsibility, and therein may lie the flaw in the very concept of constitutional government, that it requires more of most human beings than they can bear. But for those of us who have taken the oath to "preserve, protect, and defend the Constitution", and who take that duty and our honor seriously, the duty is ours, whether we can bear it or not, and we must do the best we can.

So, what would have happened if the Supreme Court had ordered U.S. marshals to enforce its orders in the Cherokee cases, in conflict with President Jackson and local officials in Georgia? They would have been outnumbered and outgunned, which is probably why that option was not pursued. The array of forces on the ground did not make it feasible.

However, historically and originally it was less paid law enforcement agents to which courts looked to carry out their orders, than to militia. Courts could and did call up militia for that purpose, and the people, as militia, if they respected the authority of the courts, as they usually did, would enforce the court orders. In the early republic, government was mostly local, and mostly carried out by juries and militia. See "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, at http://constitution.org/jury/pj/nelson.htm . But that was for local courts and local judges. Had the U.S. Supreme Court tried to command local militia in Georgia to carry out its orders, it would likely have been ignored.

And that brings us to the key point: If people ignore the decisions of courts or other officials, those decisions become empty gestures. It all rests on voluntary consent, from one decision to another. We can speak of the consent that is expressed in constitutional conventions or elections, but the real consent that matters most is the habit and custom of obedience, and if that fails, governance itself fails.

If current government policies bring the collapse of the world economy, we may see this point manifested in ways most people can barely imagine.

Notice of silver claim

2011-03-30T17:44:00.000-05:00

The following was sent to the U.S. agent for holding the silver seized from the Liberty Dollar organization:

I hereby certify that I am the bearer of Liberty Dollar warehouse receipts and an interested party in any forfeiture action regarding my property. I demand the return of my property in a timely manner and to be informed with sufficient time to reply to any and all actions until my property is returned.

It has been suggested that that I offer to accept "fair market" value of the silver in lieu of the silver itself. That is not acceptable, for the following reasons:

1. The silver was purchased and the warehouse receipts received on the territory of the State of Texas, and not within a federal enclave established under U.S. Const. Art. I Sec. 8 Cl. 17. Therefore, they are subject only to the legal tender laws of the State of Texas.

2. The State of Texas has not established gold or silver as legal tender within the State, which are the only things it may make legal tender under the U.S. Const. Art. I Sec. 10 Cl. 1. Texas statutes only reference legal tender of the United States, but the United States Congress has no constitutional authority to make anything legal tender within state territory. Therefore, there is no legal tender defined in the State of Texas.

3. With no legal tender defined, there can be no substitution of anything of equivalent "fair market value" for the items purchased, not even of equivalent amounts of silver from a different repository. It has to be from that repository unlawfully seized by the U.S. government.

4. Furthermore, the silver must be delivered to me at no charge for delivery. That was the terms of the original purchase and by seizing the silver the U.S. government has assumed liability under those same terms.

Under no circumstances will I accept federal reserve notes in payment for any debt by the U.S. government. The "full faith and credit of the United States" no longer has any value, if it ever did. The U.S. government may accept them for payment of debts to it, but it has no constitutional authority to prescribe what others are to accept in payment from it to them, except on non-state U.S. territories, which are the only places on which the U.S. Supreme Court decisions in the Legal Tender Cases constitutionally apply.

Militia deterrence

2011-03-29T14:59:00.000-05:00

The main role of militia, as of firearms, is deterrence. It works best when it never has to be used. But its effectiveness as a deterrent depends on widespread use and support by the public. If they fail to recognize they are all militia, or are supposed to be, freedom dies.

It is highly likely that the United States would have long since fallen into fascism but for so many citizens being so well armed. Sometimes it is what doesn't happen that matters most.

For more on this topic see

Constitutional Defense
19 April 1775 vs. the DC Gun Case, by Edwin Vieira
Armed citizens: the deterrent factor, by Massad Ayoob
Credible Deterrence & the Logistics of Liberty, by Mike Vanderboegh
An Armed Community: The Origins andMeaning of the Right to Bear Arms, by Lawrence Delbert Cress
A Dissenter's Fate in Fascist America, by Kevin Ellul Bonici

Immunity creep

2011-03-29T13:24:00.004-05:00

It is a long-established doctrine of law that officials should not be subject to civil or criminal prosecution for acting within their jurisdiction, and constitutions and laws sometimes make that official immunity explicit. However, over time judges have been extending that immunity from momentary actions to everything done "on duty" or perhaps even "while in office". The practical effect of this is to convert official titles into "titles of nobility", putting officials beyond the law or accountability for their misconduct. Removal from office can be a remedy, but too much misconduct needs other remedies, and we are headed for a clash in which the public will demand them.

For more on this see

Immunity - Official Immunity
Qualified immunity — Wikipedia
Defenses: Official Immunity
Supreme Court Case Establishes Official Immunity for Police Officers and Police Departments in New Hampshire, by Charles P. Bauer
Defenses: Qualified official immunity
Private-Law Models for Official Immunity, by Richard Epstein
Tort - Defamation - Elected Official Immunity, by Edward Wesoloski
The Case Against Official Immunity, by Jesse Walker
Absolute Immunity on Trial, by Radley Balko
Supreme Court rules witnesses cannot be sued under 1983 for the content of their testimony - Briscoe v. LaHue, 460 U.S. 325 (1983)

The original standard was that while officials might have immunity from judgment, they did not have immunity from prosecution, and that it was for a trial to determine what immunity, if any, the defendant should have.

Is punishing interference necessary?

2011-03-27T15:46:00.001-05:00

The question has been raised whether 18 USC 111 is authorized by the Necessary and Proper Clause. In the words of one correspondent,

Protecting officers and employees doing their actual authorized constitutional tasks seems like a paradigm case for the application of a "necessary and proper" clause, whether in a constitution, statute, corporate board resolution, or similar grant of authority. If punishing violators/interferors is reasonably necessary to keep the tasks being performed, which it seems likely, then why not?

That argument is sometimes made, but all the delegated powers to which the Necessary and Proper Clause might be applied are only to make an effort, not to get a result. That principle was subverted by Justice Marshal in McCulloch v. Maryland, who made a similar argument, but he was wrong. The power to punish or prevent interference with the exercise of authority is not logically necessary, because it is still possible to make the effort even if it doesn't succeed in its object. Punishing or preventing that interference was left to state law, and federal officials were just expected to have and use whatever force they needed to overcome interference. If interference is effective it is not because it is not subject to punishment, but because the effort is not supported by enough force or resources. Because the exercise may always be made effective with enough support, punishment of those who interfere is not strictly necessary.

Ergo, to punish or prevent interference is a distinct power that, to be exercised, must be separately delegated, which would require an amendment. The Framers didn't think of everything. They omitted much that we might now want to add, but the way to do that is by amendment, not usurpation.

To understand the distinction one has to get into the heads of the Founders, and understand their legal English, which is not the legal English of today. In that context, to delegate a power was only to authorize a certain effort for a reasonable purpose of the polity. That authority was accompanied by an appropriation of resources to be used in making the effort. If that appropriation was not sufficient, it would not be within the jurisdiction of the delegated power to use more resources than were appropriated. Similarly, while the effort might involve shoving aside anyone who attempted to interfere, punishing the interference after the fact, perhaps to discourage future interference, is not an effort that the original delegation implied, but a new kind of effort that requires a separate delegation of authority.

To make this more clear, suppose the official is delegated power by a corporation, church, university, or other private institution to do something, such as conduct some event at a location and time specified. Perhaps that power even comes from a delegation from the local government. That is a certain effort. Now suppose someone interferes with that effort, such as by shouting or other disturbance. Does the official have the implied authority to punish the offender? He may, if the offender is a member bound by contract with the private organization and its by-laws so provide, but they probably only provide for expulsion from the organization, perhaps if a fine is imposed and not paid, but not for imprisonment or death. That would require a separate delegation of authority, and to the surrounding government, not to the private organization. The private official could file a criminal charge of disturbing the peace or trespass, and have a public official prosecute, but he would be at most a complaining witness, not the prosecutor under the authority of the private organization. He could be delegated authority to prosecute as a public official by a grand jury, but that is a separate delegation.

Now one may argue that this separation for an official of a private organization within a polity does not apply to a situation in which it is a public official, but it does. I just used that to show the powers are distinct. A public official may have both kinds of power delegated to him, but the first power does not imply the second.

So, yes, the Necessary and Proper Clause does authorize things like buying the bricks to build a post office, if funds for that are appropriated. But if all the funded bricks have been bought and delivered to the site, all the official may do is lay them, unless he also has funds to hire workers to do that. Now suppose that the source of the funding is the U.S. Treasury, and that someone interferes by throwing rocks at the workers laying the bricks. Does that alone provide constitutional authority for Congress to pass a law to make rock-throwing at federally-funded workers a crime? No. The federal official would be expected to file a state criminal charge under state law. He could prosecute the charge. Under original standards, anyone, including a federal official, may prosecute in a state court under state law (and a state official prosecute in a federal court under federal law). But on state territory the activities of federal officials have very much like the same position as those of a private organization, except when they have specific delegated powers to go beyond that.

Federal officials have authority on state territory to prosecute for treason, counterfeiting, piracy and felony on the high seas, or offenses against the law of nations, but not for murder, assault, vandalism, theft, fraud, perjury, or anything else not specifically delegated. Penal jurisdiction is defined by what is done (subjectam), where it was done (locum), or who did it (personam), but not on to whom or to what it was done. On state territory federal officials outside their jurisdictions are not privileged to receive more favorable treatment or protection than any other person would be. That includes conferring more privilege or protection to themselves than to others, beyond what is explicitly delegated.

"Federal agent" is not a title of nobility. Or at least it is not supposed to be.

Please support our efforts

2011-03-27T14:42:00.002-05:00

"You can't save the world if you can't pay the rent." — David Bossie

Democracy and Liberty

2011-03-27T13:37:00.000-05:00

We should try to make some of these broad concepts more precise.

There are two main rights associated with liberty:
1. The right to a presumption of non-authority. Our public agents may only do what we formally authorize them to do.
2. The right to effective means to supervise public agents. We have to be able to find out what they are doing and hold them accountable for their action or inaction. That includes the powers to remove and to penalize.

Self-determination does not just mean voting in referenda and elections of officials, nor does it mean majority rule. Support of a majority is necessary but not sufficient, and for some more important issues other decision rules, such as supermajorities or structuring decisions into deliberative assemblies, or random selection of deciders (sortition) rather than election or appointment of them, may be required to protect the rights of individuals and minorities, especially from undue influence by rent-seekers.

Citizenship is inseparable from civic virtue. That means not just the opportunity to vote or hold public office, but diligence in doing so knowledgeably and wisely, and willingness to help defend the community (militia) and enforce constitutional laws. It also means resisting the tendency to hire public servants to do things the public should be doing, or to trust public servants to do the right thing without actively supervising the details of their work. It means restricting the numbers and activities of public servants to a level that makes effective supervision manageable without it becoming a full-time job for everyone.

The U.S. Constitution and imitations thereof remains the exemplar for how to balance conflicting values for real people in a real world. Nations have now experimented with enough variants to find that there are certain principles of sound constitutional design that are not mere expressions of cultural relativity. Some designs work better than others, and it is important that we discover which work and support them.

As for what the peoples of other countries want, I find most aspire to the same ideals we do (or used to do). The problem is that most, even in our own country, don't always understand what that requires of us, or accept doing what it requires of us. It is indeed hard, for everyone. Part of what makes it hard is that the institutions of liberty are vulnerable to brutal determined men, whether from outside or from within. Every child begins life as a barbarian and if not inducted into civilization becomes a threat to it. We are "never more than one generation from barbarism" (Arnold Toynbee, A Study of History). A few brutes can dominate the meek majority if the meek do not organize and hold firm against them.

Contingent state of war?

2011-03-25T11:02:00.004-05:00

The law of nations actually defines what is "war" with enough precision to cover the present events in Libya. An act of war makes it war. Bombing a country is an act of war, unless it is some kind of training exercise, at the invitation of the government of the country. It is apparent that is not the present case. On the other hand, there is some confusion as to what is the government of Libya, or whether it even has one. Qaddafi asserts no title of office, so by the standards of the law of nations, he is a kind of pirate, not a head of state. No declaration of war is needed to attack pirates, just as we did not need one to attack the Barbary Pirates. However, the attack needs to be, to the extent possible, focused on the pirate personally, not on military assets of the country, no matter whom they are taking orders from. Therefore, it is constitutional to take out the command center from which Qaddafi is operating, even if it kills him, without a congressional declaration of war or letters of marque and reprisal, provided the collateral damage to anyone not associated with Qaddafi is minimal and compensated. There may be a reluctance to make a martyr of Qaddafi, but taking just him out is the appropriate course of action in this situation, if it can be done. However, the attacks already made exceed the bounds of just taking out a pirate and his henchmen, so a state of war exists unless an internationally recognized government of the country consents to the attacks. That is likely if the opponents of Qaddafi prevail, but is not if they don't.

The Constitution did not really contemplate contingent states of war, in which one side consents and the outcome can decide whether there had ever been a state of war.

All the President needs to do to legitimize his action is to recognize the Benghazi regime as the legitimate government of Libya, as France has done, and get them to issue an invitation to conduct exercises on its territory. It's not "war" if it's by invitation of the host government.

Message from Bernard

2011-03-24T23:24:00.004-05:00

The following is a message from Bernard von NotHaus, recently convicted of the private minting of bullion coins made of pure silver, which do not "resemble" any U.S. coin, and which are worth more than any silver coin that was minted by the U.S. in the past. The message is posted here for your information.

... I just met with my chief defense attorney, Aaron Michel, who is very concerned with the government’s effort to mislead the people, just as they misled the jury. He pointed out that the gov is now trying to brand all local non-government currencies as illegal and anybody who expresses opposition to the current US monetary policy as a “unique terrorist” who represents “a clear and present danger to the economic stability of this country.” The alarming statement in the Department of Justice press release by U.S. Attorney Anna Tompkins should concern every American. Tompkins said: “Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism. While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country. We are determined to meet these threats through infiltration, disruption, and dismantling of organizations which seek to challenge the legitimacy of our democratic form of government.” Seth Lipsky’s article in The New York Sun regarding a “Unique form of Terrorism” confirms that the gov can tailor terrorism to any definition they want or need for any circumstance. Lipsky’s article should only be the beginning of a much larger public outcry. It is clear that the government it trying to grossly expand its power to control the people’s basic rights of freedom of speech, expression and action regarding monetary policy. For example the Department of Justice press release added this statement, “… and to insure a singular monetary system for all purchases and debts in the United States, public and private” to their quote of Article 1, section 8 clause 5 of the US Constitution, when no such law or even idea, exists outside of the hyperbole of the DOJ. We live in a very dangerous time of mounting price inflation, social unrest and expanding wars all based on an undisciplined monetary system run by madmen. Please take action. Write an article, your Congressman, Senator, Attorney General, Letter to the Editor of your local newspaper and encourage your email list to do the same. There is an urgent need for a massive outcry and I urge you to speak out and encourage others, who support the principles of a free market, to also speak out. Silence in the face of tyranny is consent. Thank you for your support to return American to value. Sincerely, Bernard von NotHaus Monetary Architect Eight Current articles: Did Bernard von NotHaus Counterfeit Coins? http://www.lewrockwell.com/blog/lewrw/archives/82406.html Ron Paul Legislation for Repeal of legal tender laws Page 1: http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=7&e=7&r=150 Page 2: http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=42&e=42&r=150 Von NotHaus guilty on all counts http://www.coinworld.com/News/20110328/Bulletin820110328.aspx The New Face Of Terror by Chris Duane http://www.silverbearcafe.com/private/03.11/liberty.html A ‘Unique’ Form of ‘Terrorism’ by Sun editor Seth Lipsky http://www.nysun.com/editorials/a-unique-form-of-terrorism/87269/ Press Release by the FBI of Charlotte... http://charlotte.fbi.gov/dojpressrel/pressrel11/ce031811.htm Liberty Dollar creator convicted in federal court http://www.citizen-times.com/article/20110319/NEWS01/110319006/1001/news/Liberty-Dollar-fake-currency-creator-convicted-federal-court?odyssey=nav|head Liberty Dollar founder convicted on federal charges by David Forbes http://www.mountainx.com/blogwire/2011/liberty_dollar_founder_convicted_on_federal_charges

**********************************************************************************************

Some background links on the case.

FBI Raid

http://www.newswithviews.com/Ryter/jon201.htm

http://www.courierpress.com/news/2007/nov/15/liberty-dollar-office-raided/

http://www.constitutionpreservation.org/newsletter-items/bernard-von-nothaus-political-prisoner

http://www.dig4coins.com/news/latest-news/fbi-seized-gold-and-silver-qcoinsq-from-the-office-of-liberty-dollar

http://www.freerepublic.com/focus/f-news/1926165/posts

http://www.rumormillnews.com/cgi-bin/archive.cgi?read=114103 (Von Nothaus article)

http://letlibertyring.blogspot.com/2007_11_17_archive.html

Liberty Dollar's request for injunction against feds

http://www.prnewswire.com/news-releases/liberty-dollar-group-seeks-permanent-injunction-against-us-government-51667697.html

http://news.silverseek.com/SilverSeek/1174419765.php

http://www.illuminati-news.com/art-and-mc/Articles/19.html (class action suit mentioned)

http://www.thepowerhour.com/news2/liberty_dollar.htm

Indictment

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://www.campaignforliberty.com/blog.php?view=19475

http://smithmillcreek.blogspot.com/2009/06/why-crack-down-on-liberty-dollar-now.html

http://adap2k.blogspot.com/2009/06/fbi-arrests-bernard-von-nothaus-and.html

Pre-trial and Trial

http://www.mountainx.com/news/2010/020310give_me_liberty_or_give_me_jail/

http://www.silvermonthly.com/1459/the-strange-case-of-the-liberty-dollar/ (3 July 2010)

http://www.masslpa.org/content/message-bernard-von-nothaus-liberty-dollar

http://statesmansentinel.com/creator-liberty-dollar-jail

http://coinworld.com/News/20110328/Bulletin320110328.aspx (Von NotHaus takes stand in trial)

http://www.dgcmagazine.com/blog/index.php/2011/03/08/liberty-dollar-trial-begins-bernard-von-nothaus-gets-day-in-court/

http://www.freedomsphoenix.com/Article/085423-2011-03-10-united-states-v-bernard-von-nothaus-bvnh-case-5-09.htm

http://www.coinworld.com/News/20110328/Bulletin620110328.aspx

Conviction

http://www.gata.org/node/9715

http://gata.org/node/9718

http://news.goldseek.com/GATA/1300687500.php

http://www.blacklistednews.com/index.php?news_id=13115

http://www.wtffinance.com/2011/03/founder-von-nothaus-of-liberty-dollar-convicted-for-competing-gold-and-silver-currency/

http://truthiscontagious.com/2011/03/19/bernard-von-nothaus-liberty-dollar-founder-convicted-on-federal-charges

http://www.rense.com/general93/lib.htm

http://avstop.com/march_2011/bernard_von_nothaus_convicted_of_minting_his_own_currency.htm

http://reason.com/blog/2011/03/18/liberty-dollar-founder-reporte

http://deadlinelive.info/2011/03/20/confiscating-liberty-who-are-the-real-criminals/

http://www.citizen-times.com/article/20110320/NEWS/303200037/0/ENT/Liberty-Dollar-creator-guilty?odyssey=mod|lateststories

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://crasch.livejournal.com/1060492.html

http://www.postchronicle.com/news/breakingnews/article_212355162.shtml?ref=rss

http://caps.fool.com/Blogs/fbi-busts-mastermind-criminal/560372

http://www.dgcmagazine.com/blog/index.php/2011/03/20/bernard-von-nothaus-has-been-convicted-liberty-dollars-big-trail-over/ (doj press release)

http://www.godlikeproductions.com/forum1/message1404973/pg1

http://implode-explode.com/viewnews/2011-03-19_LibertyDollarfounderconvictedofcounterfeitingUSattorneycallshima.html

http://timesnews.net/article.php?id=9030654

http://greenlaserreviews.com/2011/03/21/still-worried-about-alternative-currencies-in-the-mid-west/

http://jenkinsear.com/2011/03/19/counterfeiting-is-not-terrorism-resume-buildin/

http://www.reuters.com/article/2011/03/20/us-crime-currency-idUSTRE72J46L20110320?feedType=RSS

http://www.thelibertypapers.org/2011/03/18/liberty-dollar-founder-reportedly-convicted/

http://www.gsnmagazine.com/article/22734/%E2%80%98unique%E2%80%99_domestic_terrorism_undermined_us_currency

http://www.ticklethewire.com/2011/03/21/man-convicted-of-producing-7-million-in-counterfeit-liberty-head-dollars/

http://www.roguegovernment.com/Liberty_Dollar_creator_Bernard_Von_NotHaus_convicted_of_domestic_terrorism/25123/0/8/8/Y/M.html

"Liberty dollar" coinage defended

2011-03-21T15:28:00.006-05:00

The arguments made against Bernard von NotHaus and the "liberty dollar" coinage are incorrect, for several reasons.

The U.S. constitution, Art. I Sec. 8, provides in part:

The Congress shall have Power ...

[5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

[6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

And in Art. 1 Sec. 10, it provides in part:

No State shall ... coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

Which leaves it open for private parties to coin money, and does not provide authority for Congress to make anything legal tender, except perhaps on territory over which it has exclusive legislative jurisdiction, which excludes state territory.

However, in the Seventh Amendment, it also states in part:

In Suits at common law, where the value in controversy shall exceed twenty dollars ...

Thereby fixing the meaning of "dollar" to be what it was as of 1791, which was 371.25 grains of silver, alloyed into a coin of 416 grains.

The question for the court was whether the "liberty dollar" in any of its forms was in conflict with any of the above, or subject to criminal prosecution. I find none of the coins produced by Norfed, many of which I have in my possession, were in conflict.

First, the only penal power of Congress was to punish "counterfeiting" of "Securities and current Coin of the United States". None of the liberty dollar coins in any way resemble "current Coin of the United States" closely enough. The closest coins minted by the U.S. were silver dollars from the early 20th century, which contained less silver than the liberty dollars did. It can't be "counterfeit" if the quantity or value of the precious metal content is greater than that of the coin "counterfeited".

However, the prosecution was not really for "counterfeiting", but for making coins "resembling and similar to United States coins". Putting things like "dollar, USA, Liberty, Trust in God (instead of In God We Trust); and other features associated with legitimate U.S. coinage", as the DoJ press release proclaimed, does not constitute resemblance close enough to any actual U.S. coins to be "counterfeiting".

One might argue that the charge was really for fraud. Allegedly because the coins were marked with estimates of the bullion price of the coins denominated in federal reserve notes. I cautioned Bernard von NotHaus that that was a bad idea, because bullion price was changing too much, and it served to validate federal reserve notes, which Congress has no authority to make legal tender on state territory. I recommended he just mint "constitutional dollars" containing 371.25 grains of silver, and alloy it to 416 grains to make the coins more durable, as was the original practice. Persons using them in trade would then have to explain about bullion prices and the markup on them to make them available in the form of coins, but most people would get that. Of course it is always possible for ignorant people to deceive themselves, but I find nothing fraudulent about any of the representations or practices of Norfed or its principals.

Moreover, Congress has no authority to prosecute anyone for fraud on state territory, and Norfed was not operating on non-state U.S. territory. Some of his dealers might have been, but not Norfed or its principals directly, and they are not responsible for what their independent dealers might do. Congress also does not have authority to prosecute anyone for conspiracy or complicity, in connection with any crime. That was debated in the Tenth Congress and decided there. The Necessary and Proper Clause, as originally understood, does not support that.

Contrary to the DoJ press release, Congress has no "concurrent power to restrain the circulation of money which is not issued under its own authority...." Proclaiming that is a flat-out lie. It is also a lie that "It is a violation of federal law for individuals, such as von NotHaus, or organizations, such as NORFED, to create private coin or currency systems to compete with the official coinage and currency of the United States." The statute charged, 18 USC 486, states:

§ 486. Uttering coins of gold, silver or other metal

Whoever, except as authorized by law, makes or utters or passes, or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title or imprisoned not more than five years, or both.

But that is unconstitutional as to "original design". The resemblance needs to be so close that only close examination can tell the difference, and the value needs to be less than the coin "resembled", not greater. To allow for broader construction makes the statute void for vagueness.

Summarizing:

(1) The power of Congress to coin money is not exclusive. The power is denied to the states, but not to private parties, and in fact from the beginning most coins were minted either by foreign or domestic private mints, although the foreign ones did so under charter of their governments.
(2) The power to regulate the value of coin is also not exclusive to Congress, but that power is only to prescribe that coins contain at least the weight of precious metal they indicate on their face. States may exercise that power so long as it does not conflict with the power of Congress. It is not the power to regulate the exchange rate with other things, such as FRNs.
(3) Congress has no power to make anything legal tender for the payment of debts on state territory, only on territory under its exclusive legislative jurisdiction, such as federal enclaves (Art. I Sec. 8 Cl. 17) or incorporated territories (Art. IV Sec. 3 Cl. 2). The Legal Tender Act making FRNs legal tender is unconstitutional if applied to state territory.
(4) Most states (e.g., Texas) have not defined anything to be legal tender, implicitly yielding to the federal definition, but that means, constitutionally, that there is no legal tender on their territories.
(5) The power to make something legal tender, even if it exists, is not the power to forbid anything else from being used as money. Money is whatever anyone will accept in exchange for goods and services, and there is no power to regulate what that might be.
(6) Prosecution of the Norfed defendants was not based on resemblance of their coins to Silver Eagles, but to quarters, which they do not resemble in size or engraving. An essential element of resemblance under the authority to punish counterfeiting is that they indicate a weight of precious metal greater than they contain. It is not counterfeiting if they contain as much or more, no matter what else is imprinted on them. § 486 was written at a time when coins did not indicate the quantity of precious metal explicitly, but only by denomination, and it is unconstitutional if applied to coins containing more. It is also unconstitutional on the point of "intended for use as current money", because Congress has no power to punish for intentions, especially when the intentions are on the part of persons other than those who did the minting.

Clearly, this was a political show trial, not a valid enforcement of constitutional statutes. It needs to be reversed on appeal.

There is a good discussion of the case here.

Flawed Texas HB 1937

2011-03-19T09:41:00.003-05:00

The bill by Texas Reps. Simpson, Eddie Rodriguez, Menendez, Kolkhorst, and Chisum, HB 1937, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB1937 , to make it a state crime for federal Transportation Security Agents to use certain methods of scanning or inspecting passengers boarding aircraft, might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine its own proper purpose.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out.

What happens if an attempt were made to enforce the criminal penalties? There is a reason why state and local governments do not attempt to prosecute federal agents for state crimes committed while the federal agents are on duty. Any such attempts will be immediately removed to federal court, where they will be summarily dismissed, on the grounds that a federal agent has official immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

However, any state agent attempting to enforce such a state criminal statute would likely face criminal prosecution himself, under 18 USC 111, which provides:

§ 111. Assaulting, resisting, or impeding certain officers or employees

(a) In General.— Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced Penalty.— Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

Now there is no constitutional authority for 18 USC 111 on state territory. Perhaps there should be, but it would require a amendment to the U.S. Constitution to provide it. However, that won't stop federal agents or courts from enforcing it. The odds are not good for a judicial challenge to it, and since the decision in Massachusetts v. Mellon, the federal courts refuse standing for a state to appear in federal court to protect the rights of its citizens. A state may pay the legal costs of a citizen, but not represent him.

We also need to be clear on the constitutional issues involved in the practices of the TSA agents. The U.S. government does have constitutional authority to operate inspection stations and require travelers to pass through them, as a way to enforce its lawful taxes and regulations. Travelers do not have a reasonable expectation of privacy for their baggage or cargo in such a situation. They do have for intrusive physical inspection of their bodies, and for such physical bodily inspection a warrant is needed, supported by an affidavit of probable cause. However, there is a gray area for scanners, depending on what technology is used. Backscatter x-rays inflict a hazard on bodies that passive terahertz scanners do not, since they detect only natural emissions from the body. Inspection by pattern-recognizing machines may be acceptable, whereas visual inspection by human agents would not be. The boundaries can be subtle.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

This approach is fundamentally flawed. The only approach that can work within our existing legal framework is statewide passive non-cooperation and civil disobedience. It may not work to directly act against federal agents, but withholding cooperation in other areas can raise the costs of the U.S. government so much that it may decide to back off rather than incur them.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

To regain control of our agents

2011-03-17T15:00:00.000-05:00

There is a widespread and growing perception that our agents, mainly organized into large public and private institutions, have gotten out of control. There is less understanding of what we need to do about it.

Some turn to litigation, usually without much effect. Others try legislation, only to find it tends to produce armies of bureaucrat administrators that try to apply simplistic rules developed in response to previous crises, and who get co-opted by the objects of their regulation. It hires a lot of government workers who then tend to vote for more power and larger budgets, and for the party that got them their jobs. Others try to terminate or reduce the funding of programs, only to encounter organized pushback from reliance interests.

Most such regulatory legislation is also unconstitutional.

Some call for more regulation, and some for deregulation. They are both wrong.

The traditional, constitutional, and still best, remedial response is grand juries. We need swarms of them, investigating every official and every institution, governmental, business, eleemosynary, financial. Impanel randomly selected teams of 23 citizens and direct them to probe into every institution and official department that might pose a risk to the public, with no established rules to be applied, with the power to subpoena testimony, issue indictments that appoint prosecutors, and report on their findings to anyone who needs to know about risky or illegal practices they may find. Give them a budget and allow them to hire staff, but with a mandate not to let staff run them.

To do the job right would be a monumental undertaking. Given the number, size, and power of public and private institutions, even if every one of the 250 million adult Americans were to serve on a panel for four hours a week, it might still not be enough to investigate and find all of the pathological practices that deserve attention and correction. Needless to say, most of those people would not want to serve, or would not have the needed skills, but the situation we face is not going to fit itself to our preferences or limitations.

This is the way forward, like it or not. We cannot depend on our agents to police themselves or each other. We have to do it.

So what have you learned as a legal intern?

2011-03-05T11:42:00.000-06:00

"Public concern" in Snyder v. Phelps

2011-03-03T07:24:00.005-06:00

The Court may have gotten the decision correct in this case, but not the opinion, and that was because it was not argued as well as it should have been on behalf of Snyder, et al.

First, it is not correct to base the decision on the First Amendment. That only restricts government actors involving legislation, not private actors. It is properly a case of equity over the private rights of the opposing actors in conflict.

The argument could have acknowledged that the position of Phelps, et al., was the expression of a matter of public concern, while demanding that such expression conflicted with the privacy rights of Snyder, et al., and that to resolve the conflict, it was reasonable to put time, place, and manner restrictions on Phelps, et al. In other words, to separate them by a reasonable distance.

There have to be bounds on inflicting emotional distress on a private party as a way to get public attention. If Phelps, et. al., had shouted their message with a megaphone into the ears of Snyder, et. al., that would be a clear violation, as would pointing an unloaded gun at them. So there are ways to inflict emotional distress for an expression of public concern that cross the line. The question is where to draw that line. In my view, the Court, instead of trying to draw that line carefully as a matter of equity, chose instead to make it a binary decision, on an incorrect constitutional ground. The Court is a court of equity as well as a court of law, and not all cases it hears are properly decided on constitutional grounds. If the aim was a prudential one of avoiding future litigation exploring the boundaries of how much emotional distress is too much, then it may have done that, but such issues are not properly avoided by courts. Ultimately, it is juries who should decide where to draw the lines. The court erred in not leaving it to them.

Now it has been argued by Malla Pollack that:

As for the elements of the torts alleged -- The protesters were not even easily within sight of the funeral procession. They did not intrude on anyone's "seclusion"- even if, arguendo, a funeral of this sort is a "secluded" location. As for government actors, the court imposing civil liability on the protesters counts -- as does the public imposition of legal rules in defining the torts alleged -- NY Times v Sullivan, remember.

To which I reply:

Yes, and on those facts the Court could properly draw the line and hold that the separation was sufficient to avoid actionable injury. All rights are subject to constraint or disablement by judicial due process, particularly where there is a conflict of rights. It is legislative restriction that may make the Ninth (not the First, which only restricts Congress) applicable, and that was not involved in this case. If the state had legislated reasonable time, place, and manner restrictions intended to reduce conflicts of rights, as long as the expression was not unduly burdened, that should not be considered a Speech Right violation. A statute creating a judicial jurisdiction for tort claims, and defining standards for such torts, is not per se a restriction of any of the rights involved, as long as it is narrowly and appropriately tailored to the facts of rights conflicts.

Sullivan based the right on the wrong amendment. It should have cited the Ninth, not the First. The Ninth includes all the other rights, and in particular, federally justiciable rights against the action of state actors.

So what about a balanced budget amendment?

2011-03-02T09:32:00.000-06:00

YouTube - So why do we face economic collapse?

2011-03-02T09:15:00.000-06:00

YouTube - So why do we face economic collapse?

Flaws in Balanced Budget Amendment

2011-03-01T11:32:00.014-06:00

Sen. Jim Demint and others have introduced S. Joint Res. 38, The Balanced Budget Amendment. Although this would seem to be a good idea on its face, it has several flaws:

1. There is no effective enforcement mechanism. Congress could, and likely would, simply ignore it, and the courts would have neither the will nor a mechanism to enforce it. If someone sued to halt some expenditure, the courts could not decide that expenditure was in violation, and no one would have standing to sue over an entire budget.

2. There is nothing to prevent the government from simply creating more fiat currency out of thin air and calling it "receipts". Nothing is accomplished without eliminating fiat currency. If that is done, the rest takes care of itself. If it is not, then "balancing the budget" is a delusion.

3. It should be a concurrent resolution, not a joint resolution. Constitutional amendments need only be proposed by a 2/3 vote of both houses of Congress. They do not need the signature of the president, as a joint resolution does. A measure adopted by both houses that does not need the signature of the president is a concurrent resolution. This may seem to be a quibble, but members of Congress should know better.

The proper solution is an amendment to do away with fiat currency, such as this one:

Legal tender

Congres shall have the power to define legal tender only on territory for which it has exclusive jurisdiction, and state legislatures only on exclusively state territory. Neither Congress nor the states may make anything legal tender that does not consist of, or is backed by, gold, silver, or energy, nor use anything but legal tender to pay its debts, or accept anything but legal tender for the payment of taxes.

Sen. Demint and others are approaching the subject from the wrong direction.

Note the addition of energy to the list of backings for currency. See this for more on that.

Some alternative proposed "balanced budget amendments" introduce other flaws. For example, S.J. 35 has a provision that uses the term "gross domestic product" (GDP), a poorly defined number that has no place in the Constitution.

Report of partial audit of the Fed showing $14 trillion issued to banks.

Flaws in Tennessee nullification bills

2011-02-24T13:51:00.007-06:00

Two bills, HB 1705 by Rep. Matthew Hill, and SB 1474 by Senator Stacy Campfield, were recently introduced. Although they have much merit, they also have some serious flaws, and need to be amended before they are adopted.

It needs to be a constitutional amendment. This kind of reform won't endure unless it is entrenched in the Constitution of the State of Tennessee. The political forces that will array against it will become too great unless any repeal or further amendment has to be submitted to the voters for ratification.
Original meaning of "Commerce Clause" of U.S. Constitution (Sec. 2.3). The original meaning was trade in tangible commodities, not "products", from a seller outside a state to a buyer inside the state. It did not include finance or financial instruments, and included navigation only to the extent of requiring passage through designated ports of entry and their inspection points. Sec. 2.4 needs a major rewrite. The Commerce Clause was not to "regulate" state laws and courts. "Religious sectarian and foreign law" is irrelevant. Revised language is linked at the end.
It needs to define "regulate". Reference to original meaning is made but not clearly enough.
Not all congressional powers in Article I, Section 8. Contrary to Sec. 2.7.
Sec. 2.8 is irrelevant. There has been no attempt to "bind the states under foreign statutes or case law". That is a myth.
Sec. 2.9 is simply not correct. There are many provisions of the U.S. Constitution that delegate power to Congress to pre-empt state law.
Should not use "state" to mean "government". Original meaning is the people in exclusive possession of a territory.
Commission should not just "recommend" to the State General Assembly. Congress passes about 8,000 pages of new legislation each year, containing at least 20,000 separately justiciable unconstitutional provisions. The General Assembly is unlikely to be able to take up more than four or five a session. There is no way they can keep up with the flood of usurpations. The authority to declare federal usurpations needs to be delegated to the commission, and that finding should be sufficient to trigger statewide non-cooperation.
Ten members not enough. The commission needs to be able to divide the work of investigating usurpations if it is to be able to consider even a small part of them. The best number is the number of a traditional grand jury: 23.
Method of appointment subject to undue influence. The speakers of the Senate and House are too likely to be influenced by the desire for federal funds for their pet projects. Most federal usurpations involve such funds, and a commission needs to be independent of such influence. That is why its members need to be selected like members of a grand jury, at random, from a large pool of candidates, weighed toward rural counties. That is why having the candidates chosen by county grand juries makes more sense.
Commission lacks powers of a grand jury. It needs to be able to subpoena witnesses and require them to testify under oath.
No procedure for submitting complaints. It needs to be specified that any citizen may bring a complaint, and not just about congressional legislation. Most usurpations are not legislative.
The Legislature doesn't "nullify". It can direct non-cooperation, but nullification is the abandonment of the usurpation effort, not the resistance that brings that abandonment. (Sec. 3.d)
A bill can't bind a future legislature. 3-1-124 doesn't work.
Doesn't provide for resistance by state citizens. Most of the non-cooperation that is likely to be effective will be by private citizens, but the state needs to defend them in doing so.
It doesn't provide a budget. Anything like this is going to require some funding.

See Revised Tennessee Nullification Bills and State Nullification of Federal Action.

Common law myth, reality, and hope

2011-02-09T15:28:00.000-06:00

In the most general sense, "common law" is just the body of court precedents, which changes with each new precedent. The term originated with the judicial system set up by the Norman kings after the conquest in 1066, in which judges appointed by the kings would travel from county to county to hold court, and built a body of precedents that were common to all of England, rather than based on local customs or practices.

An important development for the development of the jury in court process occurred in 1215. Not the Magna Carta, contrary to popular myth, but the withdrawal by the Roman Catholic Church of approval of ordeal as a way to decide cases. Prior to that, something akin to juries were convened to conduct on-site investigations and report their findings to the court, but this resembled more what we would today call police work, than the work now done by grand juries, or the deliberation on evidence done by trial juries. It took another 300 years before grand and trial juries as we have come to know them became established in England. Also contrary to popular myth, the precedents came not so much from the jury verdicts in cases as from the opinions of the judges in those cases, providing the rationale for the decision, which were often no more than guesses about how the jury arrived at its verdict.

Kings had issued occasional edicts, it was not until the emergence of Parliament, especially the House of Commons, as a lawmaking body, that statutes began to codify and displace court precedents as the standard of legal practice, although there was continuing tension between the two kinds of law that endures to this day. The process was driven in part by the sheer volume of court precedents that had amassed over the centuries, more than anyone could hope to master in a career as a lawyer, and which contained so many contradictory precedents that one could find support for almost any position in them.

That development was carried to a critical stage by the adoption of written constitutions of government, first in the American states, then for the United States of America, which incorporated non-conflicting parts of Anglo-American common law, especially the definition of terms and practices like rules of construction. However, courts have continued to build a body of precedents on the basis of those written constitutions, often using the doctrine of stare decisis to deviate from them in important ways. Part of this deviation has included relegating the jury to hearing only evidence and not the legal arguments they originally reviewed in reaching verdicts, and placing many remedies for violations of rights out of reach of most ordinary people.

Growing popular dissatisfaction with the courts has led some to fantasize about a return to an ideal justice system in which the jury dominates and judges are reduced to only presiding over court sessions. The hope is that the people can be trusted to do what the judges won't. Some mistakenly refer to their dream as a return to "common law" where ordinary citizens can convene courts and juries without the machinery of established government. Unfortunately, that ideal was never fully realized in the past, even if parts of it were at various times.

The closest we can get to that ideal was the vision of the Framers of the U.S. Constitution. Not the actual practice in 1787, but the principles to which they aspired, expressed in the language of the Constitution they wrote, which conflicted with much of the legal practice of the day. We still have the task of reconciling their words with prevailing practices, and it may take some clarifying amendments to help do that. In the meantime the only way we may be able to build public support for amendments will be through a process of state-led nullification.

Opinion flawed in Comstock

2011-02-04T00:09:00.002-06:00

There is a fundamental flaw in the U.S. v. Comstock opinion. While Congress arguably has authority to conduct competency hearings and detain those found dangerous, on territory over which it has exclusive legislative jurisdiction, there is a jurisdictional problem with acquiring jurisdiction over the prisoner by conducting such a hearing while the subject is still in prison custody for a federal crime, the constitutionality of which is itself in doubt. If the prisoner was taken from state territory into federal custody, he should be returned to state custody before any competency hearing is held, and the determination made by a state court. Only if the prisoner was originally taken from exclusive federal territory would the federal courts have jurisdiction.

But it appears these arguments were not made in this case. GIGO.

This controversy stems from one bad precedent: McCulloch, and what was essentially dictum on the Necessary and Proper Clause. See Unnecessary and Improper.

What is missing from this discussion is close examination of the key phrase in the N&P Clause, “carrying into Execution” the delegated powers. Too many people today take that to mean to get the result that the execution seeks, but a closer reading shows that is not the correct interpretation of the original meaning. The “end” of a delegated power, as discussed by Madison above, is not the intended outcome of Congress in invoking the power. “Carrying into execution” is only making an effort, not getting a result.

Delegated powers are to make certain kinds of efforts. If those efforts are not efficacious to getting a desired result, then the meaning of the N&P Clause is not that additional efforts may be made until the result is achieved. It means only doing things that enable the making of the basic effort authorized by the express delegation. No more.

Moreover, “necessary” and “proper” are two constraints. It is not enough that an enabling effort be necessary. It must also be consistent with the legitimate public purposes of such powers. Delegations are not plenary. All delegations are implicitly constrained to be proper, to be rational and just ways of seeking the purposes expressed in the Preamble.

Amend Federal Rules of Evidence

2011-02-03T15:13:00.000-06:00

The House of Representatives, Committee on the Judiciary has posted a version with the December 2010 amendments: http://judiciary.house.gov/hearings/printers/111th/evid2010.pdf

The Rules need to be amended as follows:

Rule 401. Definition of ‘‘Relevant Evidence’’, to read as follows:

‘‘Relevant evidence’’ means (1) evidence having any tendency to
make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it
would be without the evidence; or (2) evidence of what is or is not
the law applicable to the case, including the text of constitutional
provisions, statutes, or court precedents; or (3) evidence of official
misconduct that might adversely affect the rights of any parties to
the case.

Rule 1003. Admissibility of Duplicates, to read as follows:

A duplicate is admissible to the same extent as an original un-
less (1) a genuine question is raised as to the authenticity of the
original; or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original; or (3) it is a debt instrument
for which each originally signed document is a separate obligation.

Write your members of Congress asking them to amend the Rules as shown above.

Original meaning not in much original practice

2011-02-02T15:49:00.000-06:00

Persons who seek original meaning of laws such as the Constitution often confuse themselves by conflating original meaning of the language they chose with contemporary practices of the era. They are not the same. The meanings of the words could be, and often were, in substantial contradiction with prevailing practices of the time. The practices sometimes provide insight into the meaning only by providing contrast. It is a mistake to claim the Founders disagreed more about meaning or understanding than they did, based on inconsistencies between their words and their practices.

I consider such cases as Barron v. Baltimore and Dred Scott v. Sanford to have been wrongly decided, based on the original meaning of the words actually chosen in writing the Constitution. Not on the practices that prevailed at ratification, and which were temporized by avoiding confrontation with the words of the Constitution. Founding era practices are not dispositive of meaning or understanding. Sometimes they are indicative, sometimes not. They do indicate that the Framers sometimes adopted language that aspired to a better future when reality could be brought into compliance with their words. Barron and Dred Scott happened because the contradiction could no longer be sustained or avoided, so the Court copped out and went with original practice instead of actual language. It took a civil war and three amendments to fix those wrong decisions.

Consider a statute, such as the Health Care Act. When it is passed, does it merely describe what people are already doing? Of course not. There would be little need for a statute that changed nothing. Laws, including constitutions, are enacted to change what people do.

So what happens when it is enacted? Does everybody, citizens and officials alike, instantly snap to perfect compliance? Of course not. Probably very few of them do for a while. Maybe more and more as time unfolds. Maybe not, if there is resistance, or misunderstanding, or a lack of a budget for enforcement.

So what can we conclude if we look at what people are actually doing a few years, or perhaps a few decades, after the enactment, and compliance is far from perfect? In particular, what can we conclude about the meaning of the law? Not that it meant only what people were doing at enactment. Not that it meant what people were doing years later. So what if anything can be extracted from practice to reveal what the enactment meant?

The answer is that the enactors probably had in mind some ideal of practice that was rarely if every perfectly realized, although it might be closely approached in a few cases. They might hold up those cases as exemplars, and as such, indications of what was meant. But general practice was probably not what was meant.

In this sense, constitutions are just another kind of enactment. Aspirational, in large measure. For original meaning, one has to look to ideal descriptions, or exemplary cases, not to prevailing practice.

Now it may be argued that while that is certainly true in terms of popular acceptance, it is not true in terms of legal acceptance.

The answer is that of course it is. Officials are people, too, and even today they don't snap to compliance with new statutes or court rulings, either because they don't know, don't care, don't understand, don't expect to be caught, or are reliance interests that will cling to the previous regime until they are dragged into compliance. Compliance was even slower in earlier times, and often never occurred at all. In some alternate timeline law may be some kind of magic. It's not in this timeline.

So what is pynthantics?

2011-01-24T17:06:00.000-06:00

Armed and Dangerous

2011-01-05T09:56:00.002-06:00

The Fourth Circuit opinion in United States v. Chester, decided Dec. 30, 2010, contains the following conclusion from the two-judge majority:

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.

One judge concurred in the judgment, concluding that “[i]t is ... quite clear that § 922(g)(9) is substantially related to the government’s important interests, as the statute directly prohibits the possession of firearms by those with a demonstrated history of actual or attempted violence,” but agreeing with the remand because he was “content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.”

The case involves the Lautenberg Amendment, which makes it a federal crime to possess a firearm if the defendant meets any of several disqualifying conditions, which are alleged to be indicators that the subject is too "dangerous" to be entrusted with a firearm.

These issues are discussed in the law review article Public Safety or Bills of Attainder?, which raises several questions that need to be addressed:

Is it constitutional to prosecute as a crime the possession of anything?
Is it constitutional to base a criminal prosecution on being a person for which there was only
1. A judicial proceeding in the courts of a different sovereign that did not argue or decide to disable the right to keep and bear arms?
2. An administrative determination on an issue not related to firearms?
Is it due process to disable the right to keep and bear arms when an order doing that is not contained in the final sentencing order, and the disablement was never argued in trial or sentencing?

Being “dangerous” is not a crime. The only lawful basis for disabling rights is conviction of a crime, or of mental incapacity, in a trial in which that disablement is argued and the need for it proved. Tacking it on as some afterthought is a violation of the Fifth Amendment Due Process Clause.

If someone violates a state order disabling the RKBA, then it is up to the court issuing the order to prosecute for contumacy, not the Union government.

To understand the background for all this, it is important to realize that things like protective orders, parental rights terminations, and juvenile detentions, are all driven by large federal subsidies, divided among prosecutors, medical and social workers, foster caregivers — and judges. Typically as much as $50,000 per case. Judges are not going to turn off their gravy train. The people involved in these legal abuses are raking it in at taxpayers’ expense. That is why there are laws making protective orders so easy or even unavoidable for trivial acts. Until those subsidies are repealed, there will be no hope for justice in such cases.

To verify this for your own state and county (both of which get the money), you need to obtain (which may take an open records act request) the reports of subsidies received (often off-budget) and reports to the federal agencies of expenditures justifying the funds. You can then search through court records, counting the number of instances of things like protective orders, parental rights terminations, and juvenile detentions, and divide the amounts of money by the number of instances (not cases, because there can be multiple instances per case).

Here are a few links, not comprehensive, but just the first few that I spotted in a quick web search:
http://www.justnet.org/TechBeat%20Files/FundingResources.pdf
http://www.ovw.usdoj.gov/ovwgrantprograms.htm
http://www.cops.usdoj.gov/
http://www.ncsconline.org/WC/Publications/KIS_VAWAcourtfundingPub.pdf
http://www.ojp.usdoj.gov/saa/index.htm
http://law.findlaw.com/state-laws/protective-orders/

These programs are also tied to (generally state-level) collection of child support from noncustodial parents, which is also federally subsidized. In Texas, the AG tries to collect, but also obtains additional revenue by getting a lot of parental rights termination orders. Many of these cases are filed in the nearby Williamson County, where rubberstamping is assured.

There are often incomplete records on who gets how much money, but I have unconfirmed reports of judges personally getting as much as $5000 per order, often not directly, but as a kickback from the various local agencies or subsidy recipients. Needless to say, where those judges are elected, they don’t lack for campaign contributions, and woe be it to anyone who dares to run against them, because he will never win another case in that jurisdiction.

Much of the appropriations for such grants are contained in congressional earmarks, so they are not uniform across the country. They represent one of the ways members of Congress buy local supporters.

Have you ever wondered how many judges become millionaires from a judge’s salary? Or why the same few people get all of this kind of work, and retire wealthy?

What led me to investigate all this were reports of child abuse by foster parents in Northern California when I lived there. It seems the International Pedophile Mafia (they actually call themselves that) have infiltrated the judicial system and put themselves first in line to be foster parents of especially attractive children, for whom they place orders, and the “system” then takes them from their parents and delivers them into the clutches of the creeps (sometimes to disappear forever). Even the judges are terrified of those creeps.

No matter how incredible you might find such reports to be, investigate for yourself. But be careful. These people are dangerous.

There is no substitute for doing your own investigation in your local area. I have pointed you in the direction to take. The rest is up to you. I have done some of this kind of research in a few jurisdictions. When I tried to do it in Sacramento in 1999, I found the records were not available in the Clerk’s office, but a staffer let slip they were being held in the office of the presiding judge, along with records on bonds of office, and other such things. If you tried to do an open records request, they would deny all knowledge. That may not be solid proof of corruption, but when combined with the evidence of the ways judicial decisions are made, and that the judges are living in multimillion-dollar homes, the circumstantial case is overwhelming. Then, of course, there are the statements, off the record, of many people who have inside knowledge, but are afraid to step forward. When so much points in the same direction, a reasonable person would have to find what I have. People are convicted of murder on weaker evidence.

We should be able to agree on a few key principles:

1. Due process requires that for the exercise of a right to be disabled and a defendant deprived of it (two steps, often lumped together), there must be a petition in a court of competent jurisdiction to explicitly do that, and that since the right is about life and liberty, the rule of evidence is proof beyond a reasonable doubt and the defendant has a right to a verdict by a unanimous jury of twelve.

2. Legislative disablement of a right, particularly to keep and bear arms, for persons deemed “dangerous”, based on other than a judicial finding at trial for that right for that person according to (1), is a constitutionally prohibited bill of attainder.

3. There is no authority under the original meaning of the Commerce or Necessary and Proper clauses to authorize Congress to make it a crime to possess anything.

The problem in these cases is that disablement of the right to keep and bear arms has not been explicitly petitioned and that relief granted, by unanimous verdict of a jury of twelve. If someone is convicted of violence or negligence, okay, but let the petition also explicitly demand disablement of that right, and the need to disable that right be separately proved beyond a reasonable doubt. That is the standard of due process demanded in the Constitution and Bill of Rights. Nothing less. If the convict later violates the sentencing order containing the disablement, then let the court that issued that sentence prosecute him for contumacy. Federal courts have no constitutional jurisdiction for that.

As is argued in that law review article linked above, it is a bill of attainder (which can include ex post facto, but is broader).

Consider what is going on in somewhat different terms. In essence the Lautenberg Amendment 18 USC 922 is saying the equivalent of “It is a federal crime to possess a firearm if one once parted his hair on the left.” Now someone who is now parting his hair on the right is prosecuted under this section. What is the basis for the charge? That he once copped a plea to parting his hair on the left, in a different jurisdiction, a state, for a penalty of 30 days, or maybe just a temporary restraining order? But the present federal prosecutor argues, we have jurisdiction because he could have gotten 1 year, or the restraining order was issued, albeit ex parte and without an opportunity to challenge it. The problem is, he didn’t get one year, and almost no one in that state jurisdiction ever does, or the restraining order has been lifted. Nor did that state jurisdiction order suspension of his right to keep and bear arms, even during the restraining order. It could have done so, but it didn’t. Nor was there a state statute doing so, except for when he was actually incarcerated.

In effect, the federal statute is legislatively disabling a fundamental right for a class of persons, and leaving it to an administrative determination that a person is in that class. There is a partial due process involved in prosecution for possession, but without any way to challenge that administrative determination or the original case that established the predicate, which is now beyond appeal.

That is simply not due process. It is a prohibited bill of attainder.

A federal court does not have jurisdiction to enforce an order of a state court, which is what has jurisdiction to issue orders disabling the right to keep and bear arms in the kinds of cases being discussed.

As an aside, I would argue that there is no constitutional power for federal courts to punish for contempt (contumacy). The Supreme Court “granted” them such power as “inherent” in the judicial power (it is not), in United States v. Hudson, 7 Cranch 32 (1812), but I do not find such power to be authorized as “Necessary and Proper”.

The "regulation", with criminal penalties, applies to persons who it is claimed, satisfy certain criteria, most but not all of which are predicated on some kind of (state) court order: a protective order, sentencing for a crime that could have been punished by a year or more in prison, commitment for mental evaluation or drug or alcohol treatment, etc. None of those explicitly disables the right to keep and bear arms.

The key point is that for someone to be prosecuted for a crime, the right to commit the act must first be disabled. A person may be charged with murder (in state court) because that right is first disabled, for everyone. So how did the RKBA get disabled for the persons to be prosecuted under 18 USC 922? It wasn’t disabled for everyone. If it is to be considered disabled, it is disabled only for a subset of persons that satisfy certain criteria, none of which is a federal court order following a due process proceeding. That makes it a bill of attainder. It may also be ex post facto, but it is still constitutionally prohibited even if it is not retroactive.

To constitutionally prosecute someone for a crime of possessing something, the same court system, federal or state, must have first criminally tried him, with him having a right to a unanimous jury verdict of twelve, and ordered the disablement of the right to possess that thing in the final sentencing order. Anything less is a violation of due process, as required by the Fifth Amendment.

The only constitutional federal crimes on state territory are:

Treason.
Counterfeiting.
Piracy and felony on the high seas.
Offenses against the law of nations.
Enslavement.
Deprivation of rights by a state agent.
Denial of voting on certain grounds, such as race, gender, age 18 or above, failure to pay a tax, etc.

Arguably, Congress has the powers of a state on the territory of federal enclaves created under Art. I Sec. 8 Cl. 17, and indirectly for other territories under Art. IV Sec. 3 Cl. 2.

Despite the (wrongly decided) Wickard v. Filburn, the Commerce and Necessary and Proper clauses do not confer penal powers.

A state court of competent jurisdiction may disable the exercise of any right, including life, liberty, and property, through a proper trial, either for a crime, or on a petition to declare the defendant incompetent. I argue that for either, the process and protections need to be that of a criminal trial for disablement of life or liberty, and of a civil trial for property.

It has been argued by some that the Lautenberg Amendment is a ex post facto law. That is not correct. It would be ex post facto if the state did it, but when the feds do it, that is something completely different. Two different legal systems. Despite the intermingling, state and federal (Union) are different legislative jurisdictions, each deriving its authority from a different constitution.

The federal courts have no basis for applying its own statutes to people differently, depending on what a state court may have done, except that property rights are defined under state law, not federal, so a federal claim against someone’s property may get involved in state court decisions on that basis.

The two jurisdictions are completely separate for life and liberty issues, which means criminal cases. Each may prosecute the same person for the same act under its own statutes, without there being double jeopardy (although the Framers did not anticipate there could ever be overlapping jurisdictions).

The problem is that what the feds are doing is not conducting a due process proceeding to determine whether the RKBA for a person should be disabled. They wouldn’t have the subject matter jurisdiction to do that anyway. They are just saying, “We think some of these guys are too dangerous to possess firearms”, based on nothing that has ever taken place in our courts, but only as an administrative finding. That is equivalent to saying, “It is a felony to possess a firearm if one of our administrators thinks one is dangerous”. And if you ask what is the basis for considering anyone “dangerous”, you get “We use these clues, and we’ll even tell you what they are. That is public notice, so those of you who are disqualified had better not keep your guns.”

Obviously, that is making uit a crime to be “dangerous” and have a firearm, but leaving it to some clerk to identify who is “dangerous”, even retroactively, without anyone having positive notice of his disablement, or the opportunity to challenge it in court. He has to accept the disablement, and if prosecuted, the only issue is whether he possessed a firearm, not whether the federal prosecutor had jurisdiction to prosecute him in the first place.

To the argument that in the 21st century it is no longer necessary for officers enforcing a warrant to carry one with an original signature, I answer that we may be in the 21st century, but the Constitution is an 18th century Supreme Law, and the purpose of a warrant is not to prove authority to law enforcement insiders, who may be satisfied with computer entries. It is to prove authority to any person on the scene who challenges the authority, and for that it not only has to be in writing, but have an original signature, and anyone challenging needs to have an opportunity to verify it independently. The official on the scene may be satisfied he has authority, but it cannot be assumed that anyone else knows who he is or that he has authority. He could be an imposter, or a officer working for the mob, on a hit contract. He might just have the wrong address. It has to be verifiable by anyone, because anyone has arrest authority, as part of militia duty, which predates constitutions, and the duty to protect others from those who act without authority.

What is happening is that the predicates for "armed" and "dangerous" are being separated, the first accorded due process, but not the second.

YouTube - So you want to replace fiat currencies

2011-01-02T00:38:00.000-06:00

YouTube - So you want to replace fiat currencies

YouTube - So you want to nullify violations of the Constitution

2010-12-22T18:35:00.000-06:00

YouTube - So you want to nullify violations of the Constitution

YouTube - So you just got back from jury duty 2

2010-12-19T18:38:00.000-06:00

YouTube - So you just got back from jury duty 2

YouTube - Quantitative Easing and Inflation

2010-12-18T20:11:00.000-06:00

YouTube - Quantitative Easing and Inflation

Unnecessary and Improper

2010-12-14T21:55:00.014-06:00

What are the origins of constitutional infidelity? Some go back to the Alien and Sedition Acts of 1798, but that was turned back by the Election of 1800. Although there are still proponents of similar measures today, for the most part the departures that still plague us began with some opinions by Chief Justice John Marshall, in which he included some dicta on the Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:

The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

The first case was McCulloch v. Maryland, 17 U.S. 316 (1819), which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.

CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carrying into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

In a letter to Spencer Roane, Sep. 2, 1819, an opponent of the opinion in McCulloch, James Madison condemned the opinion, saying

... what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.
...
But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.

Thomas Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” That is a restatement of the ancient Latin maxims:

Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.

Note this contains a logical error. From the proposition that all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.

All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.

As a matter of historical fact, the word "commerce" was almost never used in common parlance in the colonies or newly independent states prior to 1787. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:

... commerce consists in mutually buying and selling all sorts of commodities.

Vattel was well-known to, and often cited by, the legally trained Founders, but not by ordinary citizens.

Marshall goes on to say:

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

This departure was only in dicta, which may be why Jeffersonians did not react by proposing amendments to overturn them. For a long time, further decisions were not based on the dicta, but eventually, pressure from statists to expand the power of government tempted them to seize on the dicta as authority. This led to the key decision of Wickard v. Filburn, 317 U.S. 111 (1942), and more recently, U.S. v. Comstock, No. 08-1224 (May 17, 2010).

Many have demanded a rollback of this line of precedents, but most of the proposals are inadequate. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result beyond making an effort, and that the power to regulate is the power to do whatever it takes to get a desired outcome. See Draft Amendments.

It is useful to examine early usages of the terms "necessary" and "proper" using the Google Books Ngram Viewer for these terms.

These opinions did not go unchallenged in their own time. Lawyer and Jeffersonian civic leader Robert James Turnbull, in a series of articles collected into a book titled The Crisis, said:

[The Constitutional Convention] judiciously restricted the National Legislature to the enacting of such laws as were necessary and proper, for the execution of the delegated powers. The words necessary and proper, in the Constitution, have a peculiar force. Ingenious men may amuse us with their nice and their subtle distinctions — Philologists may puzzle us with their varied criticisms — but there is no need of skilful critics or refined reasoning, in a matter of this kind. The words necessary and proper, are in constant use among men. They have a plain and obvious import, and a popular signification. They are no sooner pronounced, than they strike us like a sensation, and that sensation instantly excludes from the mind, the idea of an unlimited choice of means. The means to be adopted by Congress, must not be simply appropriate, or fit, or adapted to the end, but they must be necessary, as well as proper. The words are not necessary or proper, but necessary and proper. Had it been the intention of the Convention to have given Congress unlimited discretion to have selected from the vast mass of incidental powers, any and whatever means it might decide to be proper, such an intention to confer a choice, might have been better expressed, and would have been expressed in other words. — They would have said, and "to use and exercise all other powers incidental to the foregoing powers." But the clause as it stands, is clearly a limitation on the implied powers of Congress. The Chief Justice, however, thinks not. He decides, that the clause is sufficiently explicit, and gives the National Legislature the most ample powers to accomplish the ends of the government, by any means which have a relation to the objects entrusted to its management. In fact, he is of opinion, that this power, "to make all laws, which shall be necessary and proper, to carry into execution" their other powers, was designed to enlarge, and not to abridge, the discretion of the Legislature.

What is often overlooked is that the phrase "necessary and proper" is only for "carrying into execution", not "carrying into effect", the express powers. "Execution" is clearly only to make an effort, not to get an outcome, which would have been indicated by "effect" if that word had been chosen. That distinction can be found in the long pre-1787 tradition of legal word usage. If a delegated power were to do whatever it might take to get an outcome, then there would be no limit on the means, and the enumeration of limited delegated powers would make no sense. Once it is understood only to enable an effort, then it is clear that no enablement can lawfully extend an express power into another kind of express power. The power to regulate does not, therefore, imply the power to prohibit, or impose criminal penalties, or tax, or promote, or to do any of the other kinds of efforts enumerated.

Jurisprudence over the Necessary and Proper Clause has never really examined in depth the meaning of its key phrase, “carrying into execution”, that specifies the purpose for which powers be “necessary and proper”. In McCulloch Marshall just glossed over the phrase and inserted his own specification that it be for whatever purpose Congress might have, that it be for carrying into “effect” that purpose rather than “execution” of the effort authorized. However, examination of the historical background of the term “execution” finds it meant only to make a certain kind of effort, not to get a result for which that effort might be made. That distinction is the key to getting to original understanding of the clause.

There is a long line of cases that reads the clause as though the word “execution” meant “effect”, but I find no case in which that distinction was effectively argued. Therefore, the way remains open to making that argument for the first time and to have current cases decided on the basis of it.

Varieties of jurisdiction

2010-12-11T12:23:00.001-06:00

Jurisdiction is authority to act, generally in some official capacity. It presumes constraints on such authority, so that some acts may be lawful, while others are not.

The traditional breakdown for judicial jurisdictions is into three:

Subject matter. In Latin, subjectam. The kinds of issues one is authorized to decide.
Location, or locum. Confined to a geographic territory.
Personal, or personam. The individuals or legal roles subject to the decisions.

These are discussed in a classic treatise, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824). It represents the understanding of jurisdiction in the Founding Era, although written later.

But a more complete analysis of the concept needs to expand on these.

First, different constitutions have their own jurisdictions. in Social Contract and Constitutional Republics I discuss the constitutions of nature, society, the state, and government. One does not usually think of at least the first two having "jurisdictions" because they don't have decisionmaking officials, but individuals and social groups make decisions, albeit informally, and the general concept needs to cover such situations.

Since each constitution of government has its own jurisdiction, then in a federal republic like the United States, we have political jurisdictions for the Union, for each state, and for each local polity, such as county, legislative district, school district, utility district, town, et.

Since each political jurisdiction generally divides into legislative, executive, and judicial branches, we have legislative, executive, and judicial jurisdictions. These may be tied together by our original breakdown into subject, location, and personal. Thus, a legislative body may have subject jurisdiction to adopt laws that are within the executive subject jurisdiction of some executives and not others, and within the judicial subject jurisdiction of some courts and not others. Similarly for territorial or personal jurisdiction.

But that three-part division doesn't really cover the concept. We need to extend it, and the obvious way to do that is to a seven-part scheme based on the basic interrogatives: who, what, where, when, how, why, and whither:

Who. This further breaks down into two:

Personal, or personam, jurisdiction.Who is subject to the decisions made.
Official. Who may make the decisions.

What. This is subject matter.
Where. This is territorial or locational.
When. This is temporal jurisdiction. Authority may be constrained to certain periods of time, or certain conditions, such as during a declared state of war or emergency, during a certain fiscal period, or during certain hours or days of the week.
How. This is procedural jurisdiction. Sometimes called due process. A power not exercised in the correct manner is not "due", and therefore the act is unlawful.
Why. This is causative jurisdiction. It is a constraint on how action or decisionmaking may be motivated or initiated. It is sometimes combined with due process, but should be broken out for clarity.
Whither. This is consequential jurisdiction. it is authority arising from the results or impacts expected from an exercise of authority. It is not a power to do whatever might produce a desired result, but a further constraint that the power encourage or discourage certain results.

Now we have a more comprehensive scheme, and can better understand the concept, and also the Principles of Constitutional Construction, in which we divide judicial decisionmaking into seven main methods: textual, historical, functional, doctrinal, prudential, equitable, and natural.

The temporal, procedural, causative, and consequential jurisdictions may seem unfamiliar to many readers, but a little reflection should show they are familiar, just not as "jurisdictions". This breakdown can help us understand the bounds on what is and is not constitutional.

For example, the Constitution delegates to Congress a pre-emptive power to regulate the time, manner, and place of congressional elections (except the place of senatorial elections). That is the temporal, procedural, and locational jurisdictions, but also the subject, congressional elections. It is not the power to regulate who may vote or conduct an election. It is unclear, but may include the power to call an election, which is causative. There is an implied consequential jurisdiction to regulate such elections in a way that serves a legitimate and reasonable public purpose, such as to make elections more convenient, fair, and accurate. A statute that required voting to take place within a 1 nanosecond timeframe, while standing on one's head, at a polling place on the moon, would obviously be an abuse of discretion on the part of Congress, but more than that, it would exceed its consequential jurisdiction. No power delegated is "plenary" within its "sphere", despite the opinion of Justice Marshall in Gibbons v. Ogden. Part of original understanding is that all delegations of power are constrained to be to make efforts in a reasonable manner for a legitimate purpose. To do otherwise is not just bad policy. It is unconstitutional.

One kind of jurisdiction often cited is in rem jurisdiction, used in asset forfeiture cases. However, the underlying principle is that only legal persons may be parties to a judicial action, so a case with an inanimate object as a "defendant" should be styled as "John Doe, unknown owner of [object]". In such a case there should always be due diligence to identify the owner, and the party in possession should be presumed to be the owner unless it can be proved otherwise.

One point sometimes overlooked is that not all collections of human beings may be treated as legal persons. In general, a deliberative assembly of an otherwise unincorporated group is not a legal person. That would include a court, a legislative assembly, a constitutional convention, a political campaign, a militia muster, or the whole people of a community. The use of the style "The People" or "The State" is really just a shorthand way of referring to the government officials representing those things. "The People" cannot appear as a legal person, except through their agents.

Wikileaks constitutional issues

2010-12-08T19:58:00.002-06:00

The Wikileaks saga raises a number of constitutional issues, which deserve to be discussed on this forum. Here are a few:

1. By original understanding and the law of nations as of 1787, an offense is "committed" at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson's Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be "high seas" for constitutional purposes.

2. The 20th century saw the advent of "jurisdiction creep" and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.

3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.

4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, "arrest" for "questioning" on a alleged "rape by surprise". It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.

Majority voting not in Constitution

2010-12-07T20:10:00.001-06:00

Does the U.S. Constitution prescribe majority votes in Congress?

This question came up in the Volokh Conspiracy forum.

The answer is no. Here is my comment:

The Constitution nowhere provides that a simple majority, either of the body or those present, is sufficient to pass a bill. What it does provide:

That the House have “Power of Impeachment”, but nothing on a voting rule.
That that state legislatures “chuse” U.S. senators. No mention of by what vote.
That the Vice President shall have a vote if the Senate is “equally divided”, but not when if ever they might be equally divided.
That each house shall “chuse” their officers, but no mention of by what vote.
Senate requires 2/3 of members present to remove on an impeachment.
Majority of members of each House to be a quorum, but nothing about voting rules for business, except as provided for specific kinds of issue.
Submajority may adjourn or compel attendance.
Each House may determine its own rules of procedure, but does not specify by what vote rules are to be adopted, amended, etc.
2/3 of members of a House required to expel a member.
1/5 of members present may require a record vote in either House.
2/3 of members of each House required to pass bill over a veto.
2/3 of Senate members present required to consent to treaties.
2/3 of members of each House required to propose amendments.
2/3 of state legislatures required to propose amendments or call constitutional convention.
3/4 of state legislatures or conventions required to adopt amendments.

Congress and state legislatures used variants on the rules of procedure of the British House of Commons, which contained supermajority rules on some points. The rules were codified in Jefferson’s Manual of Parliamentary Procedure, which evolved into Robert’s Rules of Order, as adapted to Congress.

YouTube - So you just got back from jury duty (1)

2010-12-02T17:31:00.000-06:00

YouTube - So you just got back from jury duty (1)

So you got called for jury duty

2010-12-02T12:46:00.000-06:00

So you got called for jury duty

Not all powers of Congress in Art. I Sec. 8

2010-11-21T14:04:00.000-06:00

Judge Andrew Napolitano (and others) continues to repeat the error of saying all the powers delegated to Congress are contained in Art. I Sec. 8. He needs to correct his misstatements. Here are some additional powers not in that section:

Art. I Sec. 4:
"the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
"appoint a different Day."
Art. I Sec. 9:
Power to suspend habeas corpus "in Cases of Rebellion or Invasion".
Art. I Sec. 10:
Power to consent to exercise certain powers by states.

Art. II Sec 1:
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
Power to compensate President.

Art. III Sec. 2:
"Exceptions, and under such Regulations as the Congress shall make."
Sec. 3:
Power to punish for treason.

Art. IV Sec. 1:
"prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Sec. 3:
Admit states into Union.
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
Sec. 4:
Power to "guarantee to every State in this Union a Republican Form of Government ... and protect them".

Art. V:
Power to propose amendments, call convention, or prescribe "Mode of Ratification".

The Constitution itself, in Art. I Sec. 8 Cl. 18, refers to powers outside Sec. 8:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Flawed Texas HB 297

2010-11-21T12:26:00.001-06:00

The bill by Texas Rep. Leo Berman (R-Tyler), HB 297, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB297 , might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine any competent nullification effort.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out. Bold statements that are toothless only hurt the cause, even if they are enacted.

First, the Patient Protection and Affordable Health Care Act (PPACA) requires almost no cooperation from state agents or contractors that is limited to it. Since IRS agents are not allowed to levy or lien to collect the "mandates" -- insurance premiums -- it has to rely on employer tax withholding, and the mandate will be buried among other taxes, such as FICA, so there is no way state employers can refuse to withhold only the amounts going to the mandates.

As for the criminal penalties against IRS or other federal agents, since they will only be going after other taxes instead of the mandates, which at that point will have already been collected, the penalties would have to be imposed against collection of other taxes. That might seem like a good thing to do, but does this bill really intend to challenge all withholding? If it does perhaps it should spell that out.

Now what happens if an attempt were made to enforce the criminal sanctions? Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, through the banks, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be summarily dismissed, on the grounds that an agent has immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

Sue state agents for withholding? Even if the Texas AG chooses not to defend the state agents, which he is legally required to do, all that state agent has to do is remove the case to federal court where it will be dismissed, likely within hours.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

But this argument misses the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

Flawed Texas Health Freedom Act

2010-11-19T12:23:00.000-06:00

The following was sent to Representative Ken Paxton, a leading contender for election as Speaker of the Texas House.

-------- Original Message --------

I have several questions about your Texas Health Freedom Act, which are interleaved in your message below.

On 11/19/2010 06:07 PM, Representative Ken Paxton wrote:

Protecting Patients in Texas with the
Texas Health Freedom Act
Last March, when Congress passed the Patient Protection and Affordable Care Act, also known as "ObamaCare," I committed to work on passing a bill in Texas to reject this over-reaching federal legislation. And so last week (the first week we were able to file bills for the upcoming legislative session, I filed the Texas Health Freedom Act as my first bill for the 82nd Legislative Session.
The power of the federal government to require an individual to purchase health insurance coverage is not found in the United States Constitution. Additionally, the federal government should refrain from imposing unjustified conditions and federal requirements that should be decided by state legislatures, rather than the United State Congress.
My legislation, (House Bill 97 and House Joint Resolution 24) would accomplish the following:
· Guarantees that individuals in Texas have the right to choose or decline to choose health insurance coverage without penalties or sanctions or threats of penalties or sanctions;

How can any such legislation effectively guarantee such protection? Does the bill commit the State of Texas to paying all such penalties for Texans if it cannot prevent them from being imposed? If not, how, specifically, step by step, would the process of protection actually work in practice, under a full range of possible scenarios?

Remember, the Health Care Act (PPACA) specifically forbids the IRS to collect such penalties or taxes by levy or lien. That means all they can do is collect the money by other means, such as through employer withholding, and then refuse to refund the money, and perhaps go after the "taxpayer" for a deficiency, not for the insurance penalty, which would already have been paid at that point, but for the unpaid taxes. They can levy or lien for the deficiency. That is sufficient for them to collect from most. This can all be done by IRS agents from outside the reach of Texas law, through the banks. Does your plan contemplate defending Texans from having to pay those remaining tax claims, including paying for the lawyers, paying the IRS claims directly, or compensating the citizen for time served in prison?

Some have proposed the absurd remedy of making it a crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty.

· Limits the power of the state agencies, public officials, employees, or political subdivisions from imposing, collecting, or enforcing a penalty or sanction intended to punish or discourage the right of the individual to choose their own private health insurance coverage; and

There is nothing in the PPACA that involves the State in any of this, or offers any point at which it could prevent collection by some kind of non-cooperation, except perhaps by refusing to withhold taxes from the wages of state or local employees, and the PPACA does not provide for separating out health insurance premiums from other amounts to be withheld, such as FICA. The IRS would just publish their tax tables, which would combine everything into a lump amount, and the separation would not be made until the "taxpayer" files his return and claims a refund. There would be no way state or local government employers could separate out the insurance premiums for non-withholding.

Or does your bill contemplate doing things like cutting off the utilities of federal offices until they leave the state, and do everything to Texas citizens from outside with little reduction in their efficiency?

· Givers the Attorney General the authority to seek injunctive relief against the federal government and defend the state of Texas in court to uphold our state sovereignty.

The State, like everyone else, is forbidden from seeking an injunction by the Anti-Injunction Act, 28 USC 2283, a statute that dates back to the Judiciary Act of 1793. The AG needs no special legislative authority to defend the State in court, but the PPACA would not be about suing the State, and the need is to be able to defend the ordinary "taxpayer". Two conjoined 1923 U.S. Supreme Court decisions block that. The first is Frothingham v. Mellon, 262 U.S. 447, which denies standing in court to anyone who does not face actual personal injury, and the second is Massachusetts v. Mellon, (also 262 U.S. 447) which denies standing to a state to represent the rights of one of its citizens in federal court, which had previously been an available remedy under the doctrine of parens patriae.

The U.S. Constitution sets forth the framework of government that limits the power, authority, and ability of the federal government. When the government steps beyond the boundaries of their constitutional limits to require individuals to purchase private products under threat of penalty, then the freedoms of individuals are threatened. The Health Freedom Act, which has been passed by a resounding margin in other states throughout the year, gives Attorney General Abbott the ability to defend our state sovereignty while allowing Texas to determine an appropriate course of action to develop health care delivery methods that maximize the rights of individuals.

The AG is already one of the co-plaintiffs on litigation that has so far been stripped of all but two of its claims for relief in Florida by Federal Judge Roger Vinson, and most legal scholars expect the remaining two to be dismissed as well. The case is discussed here. There is a line of legal argument that would have merit, that would challenge federal withholding itself, but neither it nor this case, drafted by David Rifkin, has any real chance. Nothing short of a constitutional amendment can overcome the mountain of entrenched precedents, going back more than a century, that no Supreme Court is going to be willing to unravel.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

Lawgiver anticipations

2010-10-31T11:03:00.002-05:00

One of the things I find misleading about discussions of constitutional interpretation in the Founding Era, particularly by "federalists" and "anti-federalists", is the tendency to depict the differences as differences in the ways they understood the terms of the Constitution, and therefore as grounds for arguing that there was no common understanding that can provide a basis for interpretation of original meaning today. However, in reading the ratification debates I find a high level of common understanding, but disagreement about how the terms of the Constitution would be construed by future generations. Most of the fears of misconstruction were not directed at others in their own generation, but at those who would succeed them. Whatever else may be said about the Founders, they did take a long-term view, and they did not use the term "posterity" lightly. They knew that the crucible of revolution that united them in understanding would not continue to unite their children or future immigrants. They were very aware of how clever lawyers can twist language to serve their cases. The example of the ancient sophists loomed large in their expectations.

This can be most clearly seen in the demands for amendments in the ratification conventions, that let to the Bill of Rights. Except for the "Twenty Dollar Rule" they added no positive content that was not implicit in the original Constitution. They were only clarifications. Except for the enforcement clauses, even the Reconstruction Amendments may be considered no more than clarifications of the original Constitution, or at least of the clear implications of its language, but made necessary by misinterpretations of that language by a series of court decisions. They thus recognized that amendments might become the only practical means to return to original understanding after court precedents departed from it.

The principles of constitutional design, like the principles of statutory or contractual design, are largely a matter of trying to anticipate future contingencies and future misunderstandings, within the constraints of trying to maintain clarity and brevity in the writing. To understand lawgivers one must seek their anticipations.

Two things to do

2010-10-28T21:02:00.002-05:00

After years of study of our situation, I have concluded that there are just two things we can do, and that have to be done in tandem. The first is nullification commissions, discussed at http://constitution.org/reform/us/tx/nullification/nullcomm.htm , and the second are amendments, discussed at http://constitution.org/reform/us/con_amend.htm .

Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.

The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.

Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.

Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.

There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.

An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.

Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.

After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.

And it is essentially what they are already doing now. They are just being more subtle about it.

The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.

I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.

This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.

Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.

If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm

The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.

I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.

It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.

We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.

Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.

Lingering Citizens United controversy

2010-10-27T11:12:00.000-05:00

Lingering controversy on the Citizens United decision is getting arguments for what the law, in this case the Constitution, should be, but not enough about what the Constitution actually says. Some are desperately seeking some power of government to restrict the undue influence of money on election campaigns, citing all kinds of dire consequences if this is not done. I keep waiting for someone to make the argument that "the Constitution is not a suicide pact".

I suggest this forum should focus on what the law "is", rather than on what it "should be". However, there are two legitimate concepts of what the law is. The first is what was originally meant, intended, or understood. The second is what is current custom, policy, practice, or doctrine, even if it conflicts with the first. As a legal historian I favor the first, but it is to be expected that legal realists, focused on winning cases, might favor the second. The problem comes when people seek the exercise of governmental powers that don't fall within the first or second, not by formally amending the Constitution, but by pushing changes in current practice as an alternative to formal amendment.

First, let us dispose of one argument: there is no such thing as a "natural right" to not have private parties spend their money to influence voters. The right is not to have government restrict how anyone may spend his money to do so. That is the right of free press (miscast as "speech"). "Congress shall make no law" means Congress shall make no law. What part of "no law" is unclear?

A more useful discussion would be on the question, "How might we amend the Constitution to delegate the power to restrict the undue influence of money in election campaigns?" Assuming we had any agreement on what constitutes "undue", which we don't, we would need to examine what government agents could do that would be effective in that regard. Imagine an ideal world in which there is no undue influence, and then try to find the actions by agents that could make that so.

I have yet to find any proponents of such restriction that can describe how that could be made to work, short of just picking the winners or abandoning elections altogether and going to some kind of sortition process. As long as voters can be influenced by others and those others can be paid to influence them, money will find a way to influence voters. Overcoming that would take godlike powers and government agents don't have godlike powers (although some might think they do). The system simply does not have leverage points at which interventions can be applied that would not make things even worse.

There are limits not only to what government is authorized to do, but to what it can do even if authorized, and people do not act wisely to try to exceed those limits.

Official power does not come from need. It comes from a delegation of authority from someone having the power to do so. The Universe may end without the exercise of a power, but that does not confer the slightest iota of authority, unless there is a prior delegation of authority to act if a need arises. There is a logical fallacy that covers this: Necesse ergo praesto. I have the need to do it, therefore I have the (legal) authority to do it. No you don't. If you act without authority to save the world, history may praise you, but it may still be lawful and dutiful to prosecute and execute you for it. After you are dead you will get a statue in your honor. That is the way law works, and is supposed to work.

Right to Petition for Redress of Grievances

2010-10-25T03:41:00.001-05:00

One of the best period treatises on the subject is The Subject's Right
of Petitioning, Anonymous. (1703)

It is important to explain that the First Amendment was written with a
view to the penalties and impediments that had been imposed in England
in the period preceding it. See particularly the suppression of the
London Corresponding Society and Society of Constitutional Information.

The right to petition is only the right not to be penalized or impeded.
It is not the right to get redress. Originally, courts and government
were not viewed as a "redress delivery service". One got redress through
"self-help" or with the aid of volunteers from the community. Since this
could devolve into civil conflict, courts were established to allow a
pause in the dispute while disputants presented their arguments and
evidence and gave the community an opportunity to line up on one side or
the other. A court decision was supposed to represent the community
consensus, which is part of the reason the jury came to be the principal
decider.

So one should not look to the First Amendment for a right to redress,
only to petition for redress. There is a right to a kind of redress, but
it is to be found in the Ninth Amendment, not the First, and it is
represented in the prerogative writs, which were presumed to be remedies
without having to be explicitly declared as such, as evidenced by the
demand by the New York Ratifying Convention for a right to bring such
writs "in the name of the people", which was a recognition that the
people were now the sovereign and inherited the prerogative writs. See
Presumption of Nonauthority and Unenumerated Rights

Perhaps the most important of the prerogative writs was the writ of quo
warranto, whereby any person, as demandant, could file and serve the
writ on an official, the respondant, whereupon he would have 3-20 days
to prove his authority to the court, failing which he would be expected
to cease such exercise, and perhaps vacate the office if it was holding
the office that was being challenged. Note that this was not a petition,
but a demand. The burden of proof was on the respondant. The writ would
issue as an order even if the court failed to hold a hearing.

We've come a long way since the law worked that way.

Missing from Schrader v. Holder

2010-10-24T11:56:00.003-05:00

The case of Jefferson Wayne Schrader and Second Amendment Foundation v. Eric Holder and Federal Bureau of Investigation is on facts well-selected for rolling back the unconstitutional provisions of 18 USC 922. However, it is missing several claims for relief that need to be included in the petition to establish a predicate for eventual appeal.

The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.

To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.

Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.

I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.

It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?

How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre?

Common law crimes unconstitutional

2010-09-26T15:18:00.004-05:00

Most people today take it for granted that for some act to be a crime there has to be a statute that forbids it and imposes a criminal penalty for violators. Without knowing the Latin, they have a sense of the maxim, nullum crimen sine lege, there is no crime without a law.

However, that maxim only dates to Bavaria in 1813. In the English legal system inherited by the United States, crimes were for the most part not established by statutes, but by customary common law, in which judges sought to discover and impose natural, unwritten laws against crimes, especially after the local courts conducted by nobles were replaced by a national system of courts with judges appointed by the king. A few "high" crimes, against the state, were established by statute, such as treason, sedition, and libel, but crimes like murder, robbery, fraud, perjury, and assault, continued to be charged on the basis of court precedents.

The problem with using court precedents as the law for criminal charges is that they are always for a different case. The law "found" for the immediate case is thus always in some sense undefined until charged, which is after the offense was committed, and thus is a kind of ex post facto law.

When the Thirteen States declared independence July 4, 1776, and established their own constitutions of government, with the people replacing the Crown as sovereign, they continued the English legacy of common law crimes. However, by adopting the Constitution June 21, 1788, with its prohibitions of ex post facto laws for both Congress and the states, they removed the authority for such a criminal justice system at all levels of government.

It is not clear that the delegates to the Constitutional Convention were aware that in prohibiting ex post facto laws they might also be forbidding criminal common law. In some of their statements and language, they seemed to presume the continuation of it, but during the Constitutional Convention they were focused on other issues, only thought of a few crimes that got written into the Constitution, and just assumed all the rest could be handled by the states. In those days it was assumed that if, for example, a federal official committed bribery he could be prosecuted for that under a state statute in a state court. Criminal prosecutions were rare, and generally done by private persons rather than by public prosecutors. Those would not become prevalent until the late 19th century. It was a different time, when most government was local, and consisted mainly of militia and juries.

This is seen when the first congress made it a capital offense to rob the mails. If the offense was not among the expressly delegated penal powers of Congress, or an implied power of them, then the question arises of whether they understood their own new adopted Constitution, or whether it is a mistake for us to conclude that such penal powers were not implied.

The mistake comes in looking for a single, fixed common meaning and understanding of the words of the Constitution at the time it was framed or ratified. However, it is also a mistake to argue that because there is no evidence of such a fixed common meaning or understanding, we are not bound to it today.

The Founders were engaged in a process of discovery, learning, and discussion. Some of the leading Framers began with meanings they wanted words to express, discovered some words in their legal training and reading, and adopted the words they found, without perhaps always knowing the full meanings the words carried from more than a 1000 years of usage. In adopting those words, they were adopting the legacies of usage of those words, as found in the works of legal scholars they respected. Therefore, they were essentially adopting the applicable work of those scholars as part of the background of meaning, even if many or most of them had not yet learned all of that.

The meanings of words can be reasonably fixed at the time they are issued even if the writers haven't yet fully apprehended those meanings. It is a process of learning. Essentially, it is a somewhat foreign language for the framers and ratifiers as well. We saw that in the way Dickenson, in the Constitutional Convention, sought the meaning in Blackstone of the meaning of ex post facto. They started with a meaning they wanted, but weren't sure until they looked it up that those words carried that meaning. Having made the choice, they were also choosing the legacy of meaning of the terms, much of which they remained to discover.

At the framing only a handful had a fairly firm grip on the meanings. Others in the Convention learned as it proceeded to a conclusion. Then the process of discovery spread to others, who initially lacked consensus, but a consensus emerged, converging on a common understanding by the point of ratification and adoption of the Bill of Rights, which is really part of the ratification, the second phase. Note however that common understanding of the words doesn't mean agreement on which words to adopt, especially on how they expected events to unfold from the words chosen.

As members were elected to Congress, some came in who had not joined in the consensus, or who resisted it. This led to the departures leading to the Alien and Sedition Acts, and the reaction, which brought the Election of 1800, which we can take as a consolidation of the consensus on understanding. So we are looking at a learning and consensus-building process that took about 13 years. It was not just the appearance of a single fixed meaning[/understanding] at one moment in time.

Thomas Jefferson responded to the Alien and Sedition Acts, in the Kentucky Resolutions of 1798:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

(Actually, he overlooked military crimes, but those only applied to military and militia when in federal service, and were a kind of private law.)

However, in United States v. Hudson, 7 Cranch 32 (1812), the Supreme Court held that there was no jurisdiction to try common law crimes in the courts of the United States. In the final paragraph, Justice Johnson states:

Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt — imprison for contumacy — inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.

Thus only the common law crime of contumacy survived the decision, which was essentially an interpretation of the Necessary and Proper Clause, not an invocation of the ex post facto prohibitions. It also neglected to mention that since the Constitution vested all lawmaking powers exclusively in Congress (as do state constitutions in their legislatures), judges have no power to make or change law, only to find and apply it.

The issue would come before the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 (2001), in the dissenting opinion of Justice Scalia:

The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process.

... what a court cannot do, consistent with due process, is ... change (to the defendant’s disadvantage) the criminal law governing past acts.

However, common law crimes are still prosecuted in some states. This creates a tension in the law that remains to be resolved.

There is also a growing departure from original understanding, that seeks to justify the exercise of criminal powers. For example, we have this from West's Enclopedia of American Law:

The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.

This apostasy is based on the misinterpretation that a power is delegated not just to make a certain kind of effort, but to get a desired result, and therefore that any power that gets the desired result is "necessary and proper". If that were correct, the Union government has no limits and there would be no point in having a written Constitution.

What motivates patriot mythmakers?

2010-08-29T14:35:00.008-05:00

It is useful to try to understand how some people construct often elaborate but mistaken beliefs about law and government. Almost all of them are desperately seeking to make some sense out of what seems senseless: the obvious departures from compliance with what they think the Constitution requires. They are hoping that if they can find the theory, or rules of the game, of how the usurpers operate, they can somehow beat them, usually in their courts, at their own game. It is like seeking the combination to a safe, or the magic words "Open sesame" that will open the entrance to the cave containing all the treasure. It is a false hope. There is no combination, no magic words.

Part of what is going on is insecure people trying to appear authoritative, by adopting "explanations" that make them seem like they know what they are talking about. Instead of adopting theories that have merit, that they can't understand, they spread theories that lack merit, that they can understand. The result is the spread of patriot myths that just play into the hands of tyranny.

The only theory anyone needs to explain what is happening can be summarized in the following few words:

Agents usurp when we let them.

The only remedy needed or possible can be summarized with fewer words:

Stop enabling usurpation.

That is all anyone needs. The rest is details.

Of course, it is not only laypersons who seize on foolish ideas. The legal profession is full of fools too. They just choose different foolish ideas, like "living Constitution" or "binding precedent".

Their hope is fed by the ways judges rationalize their decisions, including their wrong decisions, basing their rationalizations on the rationalizations of other judges in previous cases, which may also have been wrong. Each departure, or "error", is built on the ones before, in a long chain, until the original meaning of the Constitution is forgotten, and a system erected that bears little resemblance to that the Founders intended.

Along the way a lot of people come to depend on those departures. They invest in them. They build careers on them. They write articles and books on them. They are called the "reliance interests", and over time they can become a strong majority faction within the legal community, and even among the general public and therefore the voters. Ask yourself how many people are planning to rely in part on Social Security or Medicare some day to get a sense of what we are up against if we proposed to go back to strict constitutional compliance.

But no one should support those departures as themselves based on some coherent theory or alternative rules of the game. In almost every case, they represent concessions to power. In other words, they were political decisions, based not on logic or history or the linguistics of original understanding, but on choosing the easiest course, the path that seemed least likely to get the judges in trouble, or make more work for them, or incur more criticism of them, or make it less likely they will get raises or promotions, or that those close to them will get nice jobs.

Once such chains of departures get entrenched, there is generally no alternative but constitutional amendments. Perhaps a lot of them. Not necessarily to change what the Constitution originally meant, but just to get back to that. Clarifying amendments. Remember that the first 14 amendments were largely for clarification rather than to correct original mistakes in the design of the Constitution.

Constitutional amendments are difficult. They were designed to be difficult, so people wouldn't make too many foolish ones. They managed to do that anyway, as Prohibition illustrates. In an age when most people don't understand how the Constitution was supposed to work, or how the departures from it work, it is difficult to get them to understand how to fix it, or to unite enough people behind a sound solution. We don't have James Madison around anymore.

I have made my own effort to compose amendments that might work. You can find them at http://constitution.org/reform/us/con_amend.htm

Example of how a myth gets made: UCC

One of the most persistent family of myths are built on misunderstanding and misuse of the Uniform Commercial Code (UCC). The misuse comes in applying it to areas of business and law to which it does not apply, such as criminal law, finance, real estate, and court transactions.

The UCC is to personal property as mortgages/trust deeds are to real property. It gets entangled with real estate only when fixtures, minerals, timber, crop or consumer goods are involved. The security agreement behind each UCC loan transaction is the practical equivalent of the mortgage behind each real estate loan. Real estate uses a document recording system, whereas UCC uses a notice filing system. The UCC includes provisions for the sale of goods, commercial paper, bank deposits and collections, bulk transfers, investments securities, secured transactions, and several types of warranties.

The UCC is not the same as the Uniform Consumer Credit Code. The UCCC is designed to provide protection to consumers who buy goods and services on credit.

The UCC also does not apply to securities, such as stock, bonds, or mortgage-based securities often used by the former investment banks and financial institutions. These are governed by securities statutes. It does not apply to taxes, including real and personal property taxes, rents, fees, commissions, fines, currency, or a host of other debt-like instruments.

Yet mythmakers try to apply the UCC to everything, sometimes even to law itself, as though it were superior to all law. They apply it to trusts, statutes, wills, estates, and many other things that are covered by entirely different laws. The fallacy involved is called reductionism. But real law doesn't work that way.

Malevolent myths

Not all patriot myths are earnest but misguided. Mythcrap is used by evil persons who try to spread it to fools to serve as their cannon fodder in a violent revolution they don't have the guts to start themselves. They are like the evil men who send suicide bombers to their deaths but refrain from going themselves. Their purpose is to send so many fools to their destruction that the judicial system and prisons will be overwhelmed and enough of the fools will become enraged to resort to violence. I have listened to federal agents gloating about this, how they were encouraging it, and expecting it to bring them easy convictions and easy promotions.

Lawyer Brad Henschel reported this about tax protester Irwin Schiff:

I know Irwin Schiff well and he admitted to me that he lied to many people or fudged the truth and his intent was to incite the rabble so the flood of civil disobedience would overwhelm the Government.

In other words he was giving advice he knew would get people prosecuted, in the hope of either filling the prisons with too many people for the government to handle, or get the victims or their friends motivated to engage in political opposition.

Another side of this is those who reject the Constitution altogether as a "failure", and either call for a return to the Articles of Confederation, or some kind of anarchy. They concoct myths of their own to try to discredit constitutional compliance. They seem to be coordinated with the cultivators of cannon fodder.

Using people in this way is immoral and discrediting to the cause they espouse.

What it takes to understand the Constitution

2010-08-27T19:53:00.008-05:00

Those who claim a few minutes is “all it takes” to understand the Constitution are sadly unaware of the journey they have taken to get to that point. The Constitution is a document written in the legal English of 1787. That is not the same language used in 2010. If you use the legal English of 2010 to read the legal English of 1787 you won’t understand it. You might think you understand it, but that is the position of an undereducated person.

When you try to understand a passage in the Constitution, or any other document, in any language, the process of understanding did not begin when you opened your view of it. It began when you were born and first heard language spoken around you. Your ability to understand it then developed through childhood, then perhaps 12 years of public school, 4 years of college, 3 years of law school, and then 5-6 years of interning with a law firm before the senior partners think you are ready to take a case on your own. So maybe by the age of 30 people might expect you to be able to read a contract, a court opinion, a statute, or a constitution.

So don’t say it only takes someone a few minutes (perhaps with the help of an old dictionary) to understand the Constitution. It took you at least 30 years, even if it seemed like the first few years were slow, at least for legal English.

But that was the legal English of today, not of 1787. That’s a foreign language to us. It might be superficially similar, or even be substantially the same for large parts of it, but there are a lot of words and phrases whose meaning has changed a great deal in 200 years. For a discussion of them see Originalist Issues.

For someone to learn the legal English of 1787, starting at age 30 or more, it should be approached like learning the San language spoken by the tribal !Kung (yes, the exclamation point is not a typo — it stands for a clicking sound made with the tongue) people of Southwest Africa, lovingly depicted in the hilarious movie The Gods Must Be Crazy. It is not just a difference in coding, but a difference in cultures, something one doesn’t get just by reading or writing (the !Kung don’t have a written language). Outsiders who have learned it say it takes at least 15 years to get most of it, and they are still not sure.

I have been studying the Constitution, trying to understand it the way the Founders did, for more than 50 years, and I’m still discovering new meanings in it. Much of that time has been spent trying to explain it to people who don’t even understand their own language, much less the language of the Founders.

Yes, the Constitution has definite meanings that can be discovered, but don’t underestimate the effort that requires. It is an effort well worth making, but it does take a long time.