2018/11/04

Written Constitutions Better

Written constitutions better

For forms of government let fools contest. That which is best administered is best.
Alexander Pope

That seems to be the guiding constitutional doctrine in the few countries without written constitutions, most prominently the United Kingdom. Those who have viewed the British comedy series, Yes Minister, and Yes Prime Minister, should have gotten some insight into some of the problems with a government of a few elected officials, dominated by a professional civil service that never seems to change.

The term “shadow government” was coined in the UK to refer to the “shadow” components of the civil service appointed by previous “governments” or ministers thereof, who continue to follow the policies of those tat appointed them, and often seem more accountable to thr now “shadow” ministers of the party that appointed them, if different from the party now nominally in power, who are expected to become their new bosses if that party comes to power. In the US, which uses the term “administration” for what are called “governments” in UK parlance, the term “deep state has come to be used for what is called “shadow government” in the UK. In the US “shadow government” refers to what is sometimes called the “military-industrial complex” and its “top secret special access projects” (TSSAP), funded  without accountability to Congress or the President.

Veteran journalist Sarah McClendon once asked then president Bill Clinton about UFOs and aliens (what I call exos). He declined to answer, and replied, “Sarah, there is a government within the government, and I don’t control it.” That meant that the president himself did not have access to what government was doing about that subject.

Then senator Barry Goldwater once asked then Gen. Curtis Lemay about the same thing, and was warned “Don’t ever ask me about that again.” That doesn’t mean Lemay was not “in the loop”. Perhaps only that he was afraid of those who were.

During the Stalin era and through the time of Gorbachev the Soviet Union had a fairly good Constitution, by the standards of sound constitutional design, but the reality was something else. The Communist Party ruled. It controlled the first, NKVD, which became the KGB, which became the FSB.  It assigned a party agent to each government official, as the shadow official for that puppet official, who made all the important decisions. The Red Army was separate, but had its own shadow officials, and controlled the GRU, or military intelligence organization. Vladimir Putin is a former FSB official. The Soviet Union fell apart because the Party fell apart, and the Army fell apart, and refused to fire on civilian protesters (the only time in history when “flower power” actually worked). After that, the former FSB and GRU officials saw an opportunity to divide the spoils of the USSR and become rich oligarchs.

If two such powerful nations are not constrained by their constitutions, then what use are constitutions? Actually, during much of this era the two nations were nearly in technical compliance with their own constitutions. The problem is that the framers of those constitutions did not anticipate how the spirit of their constitutions might be violated while complying with the letter of them.

1.      The US Constitution does not provide that debt be budgeted, only spending. Agencies are limited in how much they can spend but not in how much debt they can generate. Any agency can create debt which the US government is obligated to pay, without limit. Now it would be possible in principle for a TSSAP to operate without generating debt, but it would still have to report zero, and thus to that extent reveal its existence.
2.      The US Constitution needs to forbid Congress to make anything legal tender on state territory, or issuing debt instruments in payment of debts, anywhere. That means not to make debt instruments, like Federal Reserve notes. It already does, by not authorizing it. Only making legal tender by states is mentioned. Nor should agencies, like TSSAPs, get the Treasury to print more Federal Reserve notes for its use to exceed debt budget restrictions. The Constitution needs to forbid anything other than gold oir silver coins, or energy certificates, redeemable for some number of joules of energy, to be legal tender.
3.      However, TSSAPs could also be funded by either trade, such as importing and selling addictive substances, as documented in the reports Dark Alliance, by Gary Webb, Day 1, Day 2, Day3, or by accepting donations from private parties or other nations. Some of what the US government does is to extort such donations.
4.      Constitutionally excluding shadow officials from replacing “”constitutional” officials is a more difficult problem. Most constitutional officials are going to want advisers, and it is only a small step from being an adviser to being a decider. Frequent testimony by an official to a legislature can help, but it is not obvious how to constitutionalize that.
5.       It needs to be made easier for outsiders, like grand juries, to investigate and expose official wrongdoing. Killing an outside investigator or a whistleblower needs to be treated as treason, with the death penalty.

There are more reforms, but these will do for now.

The UK is often said to have an “unwritten” constitution. That is not quite true. It is comprised of hundreds of documents, or fragments of documents, going back almost 1000 years, some written in an English that is incomprehensible to modern readers.

We have books online that contain most of the important such documents:
Select Documents of English Constitutional History, George Burton Adams and H. Morse Stephens (1904) — Collection of excerpts from the main documents that comprise the English "constitution".
Sources of English Constitutional History: 600-1937, Carl Stephenson & Frederick George Marcham (1937) — Collection of the documents that define the English "constitution".
The publisher of this second one asked us to take it down for copyright violation, which we did. A few years later, with no prompting from us, they asked us to put it back online. We we did, within a few minutes.
For many years the only place where such documents could be found was on our website, hosted in the US. Nowhere in the UK. The last time we checked this was still true. To us this seems embarrassing, and may explain a great deal why Brits think that have no written constitution. They have what passes for one, but most of them don’t know where to find it.

There have been attempts to draft a written constitution for the UK by several political science academics. No lawyers or lawmakers. They are pathetic, and haven’t gained much support. The problem with them is that they only attempt to codify most of existing practice. But the UK is a federal state, combining several countries under a single House of Commons that tries to function as a constitutional convention for a unitary republic, and it is not a unitary republic. Any well-written constitution of government needs to recognize that fact.

They also try to constitutionalize the monarchy, as some other “constitutional monarchies” have tried to do. That doesn’t work. Monarchy and constitutional republican government don’t mix. It is the essence of monarchy to be unbound to any law or constitution.

Now that does not mean the legislature can’t create a statutory office of monarch, appoint a member of the “royal” family, pay him or her a salary and expenses, require him or her to perform ceremonial functions, and tax him or her like any other citizen (not “subject”, loyalty is to the Constitution, not to the person of a “monarch”). People might think they have a monarchy, but it would only be for show. In any case, this can be done by statute and does not belong in a “constitution”. People might want to keep their monarch, but that is only to satisfy tradition.

Another instructive effort was the attempt by some political leaders, most prominently Valery Giscard d’Estaing. It was put to a referendum in the counties of the European Union, and rejected by the voters of two of them, most notably, France. That killed the project. It is not a constitution. It is too long, and written like the party platform of a socialist party, full of handouts to various special interest groups and promises that could not possibly br kept, but largely devoid of the content that a true constitution needs to have, which is a tightly written list of powers, duties, and non-powers. The proposed EU constitution spoke of vague “competencies”, by which it presumably meant subject-matter jurisdictions, without defining the powers for such jurisdictions.

The people of France deserve credit for making the wise decision to reject that atrocity.

We have written what is initially billed as a “model constitution” for the US, as how it should have been written. We put the Bill of Rights, which we call Immunitates, in a separate document, which is made difficult to amend. It is binding on all levels and every branch of government, in every country.

The final provisions of the Constitution are actually tailored for the UK, and it is ready of adoption by that country. With minor modifications, it could adapted to the European Union, and to any federal republic, like Germany, Switzerland, India, Mexico, Australia, Canada, or Brazil. With further modification it could be used by Israel. Note that selection of officials is not done by direct election, but by multistage process called fetura (Latin for breeding), which alternates random selection with merit selection. There is little scope for political parties in such a system, and people do not vote for parties, but for individuals, at the first level.

The head of state is called a leiter, the head of government the executor, and the head of defense the protector. The three roles may be combined in the same individual. Each is required to consent to legislation from a bicameral diet.

Judges, or richters, are appointed for life to a pool of richters, from which richters for particular courts and cases may be drawn at random. Richters are also selected by fetura.

Could the people of the UK be led to support such a constitution? No way to know, but someone needs to lead such an effort.

So is it better to have a written constitution? The lesson of history seems to be that it is. But constitutions or laws are not magic self-enforcing machines. Any of them can be subverted if enough people are determined to do so. The question is whether other people will have a standard by which they may oppose such subversion. How can anyone decide whether government is best administered? Ultimately it is a political decision, but good people need a standard in writing. Unwritten constitutions, like unwritten laws or contracts, aren’t worth the paper they are printed on.








2018/09/12

Disparate impact not a measure of disparate treatment

Are disparate outcomes always the result of discrimination against protected groups? Many on the left claim claim that, but are they factually correct? They seem to want to deny all evidence that discrimination is not a significant cause, and to attack anyone trying to present such evidence of differences in merit as "racist", "sexist", "homophobic", or "xenophobic" to shame them into withdrawing their evidence. But do such attacks have any merit themselves? Are differences in hiring, lending, or congressional district drawing the result of "institutional racism" or whatever is the latest popular target for scorn?

It is the thesis of this article that while there are cases of what might be called "institutional racism" at play, for the most part it is now almost insignificant, and attacks on it more often an attempt to deny selection for merit in ways the accuser doesn't like or doesn't want to accept.

The touchy issue centers on IQ, used as an estimate of general intelligence g. Despite ages of attempts to measure it in an unbiased manner, too many measures appear which attempt to measure it that tend to agree, which tend to estimate the average IQ of white Americans as 100, of Black Americans as 85, of Hispanic Americans and Native Americans as 90-95, of Chinese, Japanese, and Korean Americans, and Scots, as 105. and Ashkenazi Jews as 115. Those numbers tend to predict the success of those groups in school and in the workplace.

Those who attack those who make these points generally commit an error in logic and statistics, They try to cast them as asserting that everyone in one of these groups Has the average IQ of that group. They way to use the statistics is to compare the performance of persons of about the same IQ from any group. If those performances are about the same, and they are, then that can be taken as compelling evidence of the absence of discrimination of one group by another, contrary to the doctrine of some that there is pervasive systematic discrimination operating. The evidence is clear. There might be a little discrimination at work, and that is troublesome, but the amount is so little that it doesn't make any difference to average performance. It may then be seen as not just the best predictor of performance, but the only one that matters. That is not the result that satisfies the narrative of "social justice warriors".

A perverse effect of such disparate outcome jurisprudence is that it tends to validate the proclivity of "social justice warriors" to find bigotry everywhere, even where none exists. That enables them to shame virtuous people into irrational, and ultimately harmful, behaviors.

Notes:

1. Disparate impact was established United States Supreme Court as Ricci v. DeStefano. At the heart of the Ricci case was the doctrine of disparate-impact discrimination, which the Supreme Court first articulated in its 1971 decision in Griggs v. Duke Power Company. At issue in Griggs was the requirement that employees hired into service jobs at the power company's facilities had to possess a high-school diploma and achieve a minimum score on an IQ test. The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

The Supreme Court agreed, ruling that job criteria with an adverse or exclusionary effect on minorities — even if those criteria were "neutral on their face, and even neutral in terms of intent" — could violate the Title VII ban on race discrimination in hiring. The Court further stipulated that employers could escape liability for "disparate impact" only if they demonstrated that their adverse selection practices had "a manifest relationship to the employment in question" or that they were justified by "business necessity."

In the Ricci case, a 5-4 majority of the Court read the facts narrowly to conclude that New Haven's civil-service exam was sufficiently related to the jobs in question to survive scrutiny and ultimately sided with the firefighters who had sued to have their scores reinstated.


2. The Dead End of “Disparate Impact”, Amy L. Wax, National Affairs, Summer 2012

"In the sphere of employment, the key questions are: "Why do some people compete more effectively than others for jobs and social rewards?" and "What can be done about it?" These questions are complicated and pressing, and the law of disparate impact does nothing to address them. It in fact only distracts us from finding urgently needed answers."

3.  Why Cognitive Inequality Matters, Stefan Molyneux.

4. Heterodox Academy. Challenge political correctness.

2018/07/10

U.S. Supreme Court: Issues with current contenders

The four current contenders for the U.S. Supreme Court, including the nominee, Brett Cavanaugh, do present some constitution issues.

Unenumerated rights

The first issue is presented by the statement by nominee Brett  Cavanaugh in his acceptance speech, that he would not find rights not explicitly recognized in the main Constitution.. This has been an issue since the nomination of Robert Bork, who considered the Ninth Amendment, which calls for the nondisparagement of rights that are not "enumerated" (made explicit) somewhere in the Constitution, as amended, to be an "ink blot".There is strong opposition to Supreme Court judges doing that, especially from so-called "conservatives", who don't understand that constitutional rights are all "immunities", restrictions on the powers of government. They are not "privileges" to receive a sufficient amount of public resources, such as for education, healthcare, elder support, or any other objects of public subsidies.

Interestingly, in the case of Roe v. Wade, the Fifth Circuit decided that a "right to an abortion" was a Ninth Amendment right of a woman  "to choose whether to have children", which by the 14th Amendment, was "incorporated" for the states. This presented the Supreme Court with an apparent problem,  because there was opposition to funding unenumerated rights in the Senate. The Fifth Circuit found a Ninth Amendment "right  to choose whether to have children". So the SC tried to sustain the Fifth Circuit without embracing the Ninth Amendment. The result was an incoherent opinion. There was no way to avoid the Ninth Amendment.

It would perhaps too much to expect a nominee to venture into an extended discussion of what a "right" is, and what it is not. It is awkward to say "I will not find a 'right' to a sufficient amount of a public resource." That is too complicated for most senators. So the candidate denies he will try to find any "unenumerated" rights. That is somewhat disingenuous, but the issue needs to be discussed.

When "life" begins

One of the potential nominees, Amy Barrett, has been reported to have stated that human "life" begins at conception. That is a misstatement of the issue in Roe v. Wade. which in its essence was not about "life" nut about "personhood" because "Rights (immunities)" attach to "persons", (roles in court), not to "life", despite what the Declaration of Independence says. (That is why some activists have sought to move the commencement of "personhood" back to conception. That would be a mistake. We cannot allow each state to redefine "personhood", because if we did, a state could define some people to be nonpersons, without rights. So there has to be a uniform definition across all states if the protections of the Constitution are not to be meaningless. That is the basis for finding the right to be incorporated under the Ninth Amendment, as the Fifth Circuit did.

So when does "life" begin?

Not at conception. Each individual is the latest in an unbroken chain of life that goes back to at least the point when the first single-celled organism became a multi-celled animal, which occurred about 650 million years ago, during the pre-Cambrian era, when the surface of the Earth was covered with ice ("snowball Earth") and there was only one continent, Rodinia. We are all descended from that multi-celled organism. That is when "life" began.

So when does "personhood" begin?

This was declared by the jurist Edward Coke in the 15th century, and later restated by legal scholar William Blackstone, in the early 18th century, who provided most of the definitions for terms used in the U.S. Constitution. They held that "personhood" begins at natural birth, or induced natural birth (they had Cesarean sections in those days). Some of the states later found that personhood began with baptism, entry of a name in church records, or even later. Not at "conception", the date of which could not have been defined with any precision in those days, or even now.

Consider what would happen if we defined "personhood" to begin at conception? It would make every fetus the ward of a court, with the court having power to supervise the pregnancy. It could order the woman to continue a pregnancy, and not terminate it, under penalty of law. That would be forced pregnancy. Do we want that? Every pregnant woman chained to a bed. Anyone see the play "A Handmaid's Tale". Good way to stop everyone from having sex.

Need for uniformity

Incorporation of a Ninth Amendment right is required by the need to have a uniform definition of "personhood" (legal role) across all jurisdiction, since constitutional rights attach to "persons" and not just to "citizens" or "life".  If states could define personhood, they could deprive anyone of rights by defining him to be a "nonperson". Thus a state could find that Blacks are not persons as a way to deprive them of their liberty.Thus a state could find that Blacks are not persons as a way to deprive them of their liberty

Notes:

1. Roe v. Wade, 1221 (N.D. Tex. 1970) (“On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.”).

2. Roe v. Wade, 410 U.S. 113 (1973)

3, A Handmaid's Tale, Margaret Atwood.

4. Robert Bork and the Inkblot, Kurt Lash.

5. Constitutional views on abortion

2018/04/29

Collusion?



The word “collusion” is much in use today, not because it is a crime (it is not), but because it sounds sinister. It has generally been used in attempts to investigate whether Trump colluded with Russia in a way that would be grounds for inpeachment and removal of Trump from office. That would not put Hillary Clinton in that office. It would put Mike Pence there, and Trump would undoubtedly continue to rule by telling Pence what to do, in much the way the Communist Party ruled the Soviet Union before it fell, by having a party official for every government official, telling him what to do. Or like Putin continued to rule Russia while Medvedev served in that office. Impeach Pence. Being guided by a shadow government is also not an impeachable offense, or every president since 1913 would be in violation. Remove Pence and the presidency just passes to the Speaker of the House. Sorry Hillary, but none of these things leads to a do-over of the 2016 election. Not before 2020.

So what is the reasoning of Hillary supporters? It seems to go like this:

1. An excellent candidate like Hillary Clinton could not possibly have lost an honest election.
2. Therefore, the vote count had to have been hacked. But who has the means to do that? Only Russia. Perhaps.
3. Would Russia have wanted to elect Trump? Not without a strong inducement. Perhaps the return of Alaska, or help in regaining control of Eastern Europe. Would anyone, even Trump, have had the means to offer such an inducement? Not really. No US. president has such power. Not even paying off enough Russian oligarchs would likely be enough. (Give them all our Uranium? That’s already been done. By Trump’s opponent.)

Early in this controversy some of the intelligence agencies, led by the CIA, reported that the 2016 presidential election had been :hacked”, but not in ways that changed any election outcomes. This was an irresponsible report to make, because most computer=naive people will seize on that word to conclude that election outcomes were flipped. The use of that word has fueled the entire “Russia hacked our elections” narrative. It should be noted that those people have not sought to make vote-counting systems more difficult to hack, but to attack the suspected beneficiary of such a hack and to try to overturn the results of the 2016 election. It seems they don’t care about flipping elections in favor of Democrats. Only in favor of Republicans.

2016 election outcomes were not flipped.

There are too many different kinds of voting machines in too many voting precincts in more than 3000 counties. There are no centralized vote counting machines, although there are machines that add the number of votes from each precinct. But a simple recount can reveal if there are any discrepancies. Much has been made about voting machines being hackable, but there are too many voting machines of different makes and models. Hacking an election remains a potential threat, but the solution remains voter verifiable paper ballots, such as those used in Brazil. Absentee ballots are a greater path to corruption. The greatest threat is still trucking in millions of illegal entrants and inducing local voting officials to accept them. That can only be done in a few areas, however. Requiring state-issued voter photo ID is the best way to prevent that, although it has to be made easy to get them.

This point is well -made in an article in Fortune, 5 Reasons Why Hackers Can’t Rig the U.S. Election, by Jeff John Roberts, August 9, 2016.

What should have been done

1. The special prosecutor, Robert Mueller, should never have been charged to find “collusion” between the Trump campaign and Russia without specifying a reasonable deadline for reporting his findings.

2. He should have been charged to find only successful “collusion” to change the results of the 9016 election, not “collusion” of any kind.

3. He should have charged only with the above, not with finding violations of other statutes, especially 18 USC 1001 (which is arguably unconstitutional as usually applied). Only seek indictment of perjury under oath.















2017/07/21

May the President pardon himself?


Article II §2 of the Constitution states that the President  "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It also states in §3 "he shall take Care that the Laws be faithfully executed." This defines his power with respect to law. He may not make, suspend, or repeal laws, but only execute them. He is not a monarch, and it is a source of confusion to take a term out of British monarchical practice and carry it over to American constitutional practice. That change in context changes the meaning. 

The Constitution also states in Article II §2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That is essentially synonymous to a right to "equal protection" of the law, which was included in the 14th Amendment.

What is a pardon, for a president? Not for a monarch, but for a president. It is simply his determination not to enforce a criminal conviction and sentencing order of a federal court. It has no meaning until after there is a conviction, because the crime is  not defined until then. Nor may he issue a pardon before conviction as a way to prevent a trial. He has no power to prevent a trial, including a trial of himself, although the court may not have personal jurisdiction over him. Nor may he use it to remove personal jurisdiction from any other individual. A court has personal jurisdiction if the defendant appears in it, unless it is a special appearance. 

A pardon is not a reversal of a conviction. Even after a pardon the conviction stands, and may be enforced at any time, until it is reversed. A president cannot bind his successors, any more than a monarch may. His decisions and determinations expire when he leaves office. (That includes executive orders.) So, yes, he may pardon himself.

But the pardon doesn't last forever. The conviction may be enforced when he leaves office.




2017/06/10

Russian "interference" in U.S. elections?

Much is being made about Russian "interference" in the 2016 presidential election, and about possible collusion between Russia and the Trump campaign to interfere to win the election for Trump. However, the suspicions are lacking in evidence.

However, we do have a classified report from the Director of National Intelligence, the declassified version of which is linked below. It Seems to have at least tacit support from other agencies, and it can be expected to be the basis for other investigations on the subject.

Despite the use of the word "Hacking" in the URL of the report, the only hacking discussed in the report is of the private Clinton server containing and sharing classified documents. It repeatedly says, "DHS assesses that the types of systems Russian actors targeted or compromised were not involved in vote tallying." In other words, there was no known hacking of vote counts.

However, the report is also loose about what constitutes a "Russian actor". The hackers using the handle "Guccifer.2.0" are presumed in the report to be working for the Russian government, which Putin denies. However, that they might be independent is entirely plausible. Russia harbors a swarm of hackers, mostly bent on selling drugs or stealing page rank. It seems doubtful that all of them would work for the Russian government. Of course, the government would soon have what they found.

So what kind of "collusion" with Trump supporters could there have been? Giving the Trump people advance notice of what they found ans asking them what to do with it? So the Trump people said "Upload it to Wikileaks." So what. That is not "collusion".

In the report it says that "Guccifer.2.0 is identified as Romanian. That was the original Guccifer (without a version number). The report may be confused about all the Guccifers.

The hacking of the Clinton servers was easy for almost anyone to do. It appears that many people did. That it revealed evidence of criminal wrongdoing is hardly "interference" in our election. We need more of that kind of interference in every election. It is also doubtful that the revelations did much to change the way people voted. Clinton supporters just dismissed the revelations as political lies, and her opponents weren't going to vote for her anyway.

Most of what the rest of the report discuses is just propaganda, mainly delivered through the RT (formerly Russia Today) network. I have frequently watched RT. Yes it is slanted pro-Russian, but one can compensate for that. Just as most of the media in the U.S. is slanted progressive or Democrat. (Now increasingly communistic and pro Islamic conquest.) Only Fox news and a few other independents seem not to be part of that spin machine. They are slanted, but it is easy to compensate for their slant. That same U.S. based media interferes in the elections of almost every nation on earth. in much the way RT does. Propagandists have a right of free speech. Spreading their slants on the news is hardly "interference". That is also what political campaigns do. All part of the game.

Now the spreading of "fake news" can be a problem, especially if done too close to an election, before the corrections can propagate.

The DNI report is long on assertions, but short on evidence. Perhaps they are in the classified version, but the declassified version does not hint about what such evidence, if any, could be.

It seems likely that the excitement about "Russian hacking" is intended to deflect attention from the Trump complaints of Democrats bringing illegal aliens to the polls to vote. That is plausible. Although I have not seen it done, I have heard Democrat campaign workers discussing how they did it. It was just a matter of rounding up illegals, driving them to the polls, and then having poll workers look the other way as the votes were cast. Most staff positions at the local government level are filled by Democrats, which puts them in position to do things like steal elections.

Links:

  1. U.S. Director of National Intelligence, Background and Report, “Assessing Russian Activities and Intentions in Recent U.S. Elections: The Analytic Process and Cyber Incident Attribution,” Jan. 6, 2017, available at https://www.documentcloud.org/documents/3254239-Russia-Hacking-report.html

2017/05/31

What is "societal discrimination"?


I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Concurring, Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964).

American jurisprudence has strayed in response to demands from some social justice advocates who perceive an undesirable situation and attribute it to discrimination, racism, or other deplorable practice. However, what has too often occurred is the logical fallacy, post hoc ergo propter hoc. (The result was caused by a preceding event.)

The usual reasoning is that the result could not have occurred unless there was improper discrimination, and that therefore public policy must intervene against such discrimination. However, there can be many causes of undesirable outcomes, some of which may involve some kinds of discrimination, but not always improper discrimination.

We can propose an alternative definition: (Improper) discrimination is treating an individual as though his attributes were those common to his group. It is a failure to treat individuals as individuals, but rather to aggregate individuals into their group.

That brings us to having to confront something that most people don't want to accept or think about. More than a century of intelligence testing on people of many races, ethnicities, and nationalities yields some dismal results for those who want to believe than there are no differences in innate abilities. Tests have been criticized as biased or unsound, but tests have been modified to answer those criticisms. The results persist. American Whites get an average score of 103, Jews get 113, American Blacks get 85, and Hispanics get 89. This has been investigated by Black economist Thomas Sowell, who argues that while it is wrong to treat all members of those groups as though they had those average values. it does cast doubt on whether the low average performance of members of those in fields like education and employment is the result of societal discrimination. If they are in fact innately inferior, and genetic studies indicate that 50-80% of such differences are genetic, than that changes what we should be doing about such disparities.

I invite readers to put aside their reflex rejection of such results and seriously consider what we do if they turn out to be valid. Note that the above paragraph is presented as conjectural, not as an assertion, and it should not be taken as my position on the issues.

The key point here is to propose a better definition of "societal discrimination" than that which has become established in American jurisprudence today, where judges sometimes find that disparate outcomes are the result of societal discrimination, without evidence. That is not a proper basis for judicial intervention. The proposed definition is intended to work regardless of what might be the causes of any traits that might become stably manifest in a group, whether genetic, "environmental" which may include "discrimination", or whatever. It also doesn't matter what the "group" might be, or how it is determined. It works for any group, however defined.

Those who argue against genetic influence on intelligence as its manifestation stabilizes make a key mistake: they presume that there are only two general causative factors, genetic and environmental. In fact there is a third: emergence, referring to the fact that complex living systems are self-organizing, or chaotic, systems, in which small perturbations can have large consequences, and continue to have large consequences as the system develops.

But part of the mistake is to lump emergent development into environment, or "nurture", as though it were something that could be managed purposely. It is inherently unmanageable.

A second mistake is to treat genomes (genotypes) as more deterministic than they are. Genes influence the probabilities of phenotypes, but do not determine them. A typical human genome is thought to contain about 30,000 genes. The information contained in those genes is about eleven orders of magnitude less than enough to determine all the phenotypes in detail. But all the information that can be passed through the senses to influence development is also many orders of magnitude less than what it would take to determine human behavior in detail. Since information cannot be created, that means something else is shaping the details. That something is self-organization, but unmanageable self-organization. It is not susceptible to deliberate intervention.

A third mistake is to imagine that societal interventions, individual or collective, are or can be more effective than they usually are, especially after some period of development when the things we want to change have become stably manifest. At some point the undesirable traits become difficult or impossible to reverse. Once they stabilize they become a reality that has to be confronted, regardless of the causes of the differences. This especially valid for cognitive development, for malleable youthful brains do not remain as malleable beyond a certain age.

Especially illuminating to the question of the extent to which genes are determinative of cognitive capacity are the way genes largely determine species, each of which has a characteristic range of cognitive capacities. Some species even have their own versions of "societal discrimination", but in most it is difficult to identify any systematic effect of the distribution of cognitive capacities. For that purpose it is useful too compare humans with their two closest relatives, chimpanzees and bonobos.

Bonobos differ greatly from chimpanzees in their behavior. Unlike Chimps, they do not become aggressive and ill-behaved after the age of puberty. Therefore they have become a favorite subject for learning studies. They are able to learn to understand spoken English, and to communicate using symbolic keyboards that produce spoken words when pressed, but so far only up about the level of a 2.5-year-old human. They share about 3% of the human genome, or 0.5 megabases, which is more than they share with chimps. Humans have about 14.6 megabases they share with neither of their cousin species. Within that subgenome we can expect to find the genes that most influence human cognitive development. It is a large number, but finite. We can speculate that the number is a few thousand. The genes don't have to determine the wiring of the brain. All they have to do is set up the emergent process which then determines its own structure and behavior. But that process is, in general, unmanageable, and once it stabilizes, either to work well or not, it is likely to be irreversible.

Consider fingerprints. Identical twins both have them, but they are not identical. The details of the fingerprint are the result of emergence. Similarly hearts. Identical twins both have them, but the details of vascularization are not the same. Tissue that is to become a heart becomes one by responding to pressures from adjacent tissue that shape its development. The result is a chaotic system, that beats but not governed by a pacing signal. Similarly brains. Both twins get one, but the details of neuronal net structuring differs, although there can be similarities in the ways each twin leads its life.

Much is made of the capacity of humans, unlike most other species, to choose to overcome their seemingly innate limitations through determination and effort, perhaps with a little encouragement. That works with some, although not with all. There may be genes for that as well. Of course, no one really overcomes innate limitations, only realizes the potential that was there, but the ability of the brain to learn can continue into later years, especially with enough fortitude. It can sometimes even compensate for damage, as from injury or stroke. But only sometimes. Such things cannot be counted on to solve widespread or entrenched disparities of outcomes.

And no amount of determination is going to enable someone of average ability to become a cosmologist. Perhaps a successful lawyer in a small market.

Something also needs to be said about "white privilege". Nothing is said about how it is supposed to work. When I was young almost anyone could get a job within a day or two if he pitched himself properly. There was plenty of work to be done, and if someone had work to be done it didn't matter much who did it. But things have changed.

I am a highly skilled, highly experienced computer professional, yet I have difficulty getting work. The hiring process has become so difficult that about the only way I have gotten work has been by random contact with a hiring manager outside the workplace. That leads to the old saying, "It's not what you know but who you know that counts." Jobs today are surrounded by hordes of gatekeepers, each determined not to hire anyone they find unsuited, or even if they do find someone suited. But of course, if most of the gatekeepers are white, or whatever is the dominant shade in the community in which the job is, then you have to get to know at least one of the gatekeepers, and if that person happens to be white, then one can come away with the impression that "white privilege" has been the deciding factor. Getting past the gatekeepers can be largely a matter of luck. Many a successful businessman, if pressed for the secret of his success, will confess it was mainly a matter of luck. Of course, persistence can overcome bad luck, but it can only overcome so much bad luck.

Most disadvantaged people just don't know how to enter the circles where hiring managers dwell. Part of that is in their appearance and manner of speaking. They don't have a Henry Higgins to coach them. To get a professional position one has to fit the image of a top professional.

Another problem is technological unemployment. Machines are taking or eliminating jobs. Rapidly. That means many middle class persons are going to descend in their economic status. It's going to get rough for everyone, even for the top 1%. Eventually even they will be replaced.

Is "societal discrimination" as important as some think?

There is a widespread belief that disparities of socio-economic condition are entirely the result of discrimination, in the absence of which everyone would be educated, middle class persons. But is that more myth than real? Or could disparities in the treatment of people be more the result of differences in their attitudes or merits?

Obviously there is some discrimination, enough to seize on as a explanation for much of what we observe, but that doesn't make it the explanation for everything. Some disadvantages are a matter of choice, and will not be overcome by "ending discrimination".

It means he's up against middle-class morality for all the time. ...
I ain't pretending to be deserving... no... I'm undeserving, and I mean to go on being undeserving. I like it, and that's the truth. -- Alfred P. Doolittle, My Fair Lady.

______


  1. IQ and Race, Thomas Sowell, 11/26/2012. http://mobile.wnd.com/2012/11/iq-and-race/
  2. Intelligence, New Findings and Theoretical Developments, Nisbett, Blair, Dickens, Flynn, Halpern, Turkheimer, February–March 2012, American Psychologist https://www.apa.org/pubs/journals/releases/amp-67-2-130.pdf
  3. Commentary on the above, by Turkheimer, et. al., Vox Media, May 18, 2017.
  4. The bonobo genome compared with the chimpanzee and human genomes, Kay Prüfer, Kasper Munch, Ines Hellmann, et al., 486/7404, Nature Letters https://www.nature.com/nature/journal/v486/n7404/full/nature11128.html





2017/05/20

A prophetic 1944 interview

Norman Mattoon Thomas (November 20, 1884 - December 19, 1968) was a leading American socialist, pacifist, and six-time presidential candidate for the Socialist Party of America. He said this in a 1944 interview:
The American people will never knowingly adopt socialism. But, under the name of "liberalism," they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened.... I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.
This statement reveals several key ideas:

The first is that a third party can win support for its policy positions without winning any elections if one of the two main parties adopts its positions.

The second is that it is a winning political strategy to advantage a small segment of the voters at the expense of a smaller segment. Do that for enough small segments and eventually you will have socialism.

The third is that it is a winning strategy to avoid allowing your ultimate objective, or the constitutional implications, to be framed as the question to be decided by the voters. People wouldn't vote for socialism, or for violating the Constitution, if the question were framed in those terms, but will vote for incremental steps toward it, and fail to understand the opponents when they try to explain to voters what those steps lead to, or that they are unconstitutional.

The problem for libertarians is that liberty doesn't sell as well as government benefits. People don't really appreciate liberty until they have lost it, and too often they will not even realize they have lost it, or they will attribute the loss to something other than their own past election choices. It is easier for most people to imagine a prospective financial gain or loss than a loss of liberty. Money can be counted in a way that liberty can't.

The same may be said of constitutional compliance. Few politicians make it a leading issue in campaigns. Most people don't understand it and have come to think that calling the opponent's position "unconstitutional" is just rhetoric. The few who do understand usually don't have enough influence over the others. The number of people who can understand what is and what is not constitutional is fairly small, and always has been. The only time in history it was large was during the first three American revolutions: the War for Independence, the ratification of the Constitution, and the Election of 1800, the last of which entrenched the Jeffersonian position on constitutional interpretation for the period from 1800 through 1824, and then to a declining degree for most of the rest of the 19th century. But even during the ratification debates it is unlikely that the majority of the people really understood the proposed Constitution in its entirety. Some focused on particular provisions that seemed dangerous, and opposed it until their fears were alleviated. Most probably supported it because George Washington did, demonstrating that the way to get complicated reforms is not to educate all the people but to get the support of charismatic personalities the voters like and trust.

Most of Ron Paul's constituents don't vote for him because they agree with his positions. They vote for him because they like and trust him. It is more important for most voters to be comfortable with the personality than with his positions.
"Bait and switch" works in political selling as well. Voters are offered some charismatic personality or government benefit and never told that either represents a violation of the Constitution. Some will argue that the people have voted for the departures from constitutional compliance and thus ratified them in some sense, but that is deceptive, because the people were deceived by not having the constitutional implications of their choices explained to them. They did not vote for violation. The issues weren't framed to them that way.That doesn't mean it is not a productive activity to educate people on constitutional compliance. We need to create a learning environment in which some of those charismatic personalities can "get it" and then bring their insights with them when they take office. We have to spread the education around because it is not always easy to discern who will be the charismatic personalities of the future, and because such people are herd animals like any other who are going to want the reassurance of like-minded people before they will venture forth with constitutionalist positions. The trick is to both educate those individuals and enough of the individuals around them.

What we learn from the study of the diffusion of innovations is that most people don't adopt new things because they learn about them from some kind of broadcast message. They are influenced more by the examples of those they look to as role models, and that chain of influence tends to sort itself into levels, with "early adopters" at the top, "secondary adopters" below them, "tertiary adopters" below both, and "quadranary adopters" below the first three. We also learn that most people don't adopt new things in long leaps or from single exposures to messages or examples. Except for the early adopters people generally adopt in small steps spaced over a period of time in response to repeated messages. That means you need to target people who are ready to take the next step, figure out where they are and how far you can get them to go on that occasion, then move on to others, but return to the first before they go cold and move them on to the next step, repeating the process until you get many people recruited. Then you need to keep them recruited with positive reinforcements, because most adopters won't stick to a new things unless it rewards them in some way, and because there are usually competing innovations that may win them over if you neglect to hold them.

2017/05/08

Intent of the 14th Amendment

To my 2000 article on the Intent of the 14th Amendment I make the following clarifying points:

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

2. Adoption of the U.S. Constitution made all persons born on the soil of any of the states U.S. citizens as well as those born on any of the non-state territories, and conferred on Congress the power to make rules for naturalization. That was not the power to make rules for immigration, which stem not from the Naturalization Clause but from the Law of nations Clause, since entry onto the territory of a nation without permission was an offence against the law of nations.

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

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

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

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

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

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

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

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

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

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

1866 Civil Rights Act.

Following the War of secession, Congress adopted the 1866 Civil Rights Act, under its sovereign power as the victor in the war. But there was no constitutional authority for most of its provisions. So the need was recognized to enact an amendment that would authorize that act, albeit retroactively. The problem was how to word it so that it would encompass the entire act. The 14th Amendment, declared adopted in 1868, needs to be understood as their attempt to do that. The result is rather broad, sweeping language.

The bill plainly sought to overrule the Black Codes by affirming the full citizenship of newly emancipated blacks and by defining citizenship in terms applicable to all persons. Under the bill, the designation as an American citizen meant that one possessed certain specific rights, such as the right to make and enforce contracts, the right to file lawsuits and participate in lawsuits as parties or witnesses, and the right to inherit, purchase, lease, sell, hold and convey real property. In defining citizenship in this manner, the act effectively overruled state-sponsored Black Codes.
At the same time, the act specified that these rights were "civil rights," giving the first clear indication that, in the context of race relations, there were different levels, or tiers, of rights at stake. "Civil rights" at this time were understood in terms of property rights, contract rights, and equal protection of the laws. These rights were distinct from "political rights," which involved the right to vote and hold public office, and "social rights," which related to access to public accommodations and the like. Thus the bill reflected the common view that political participation and social integration were more or less "privileges" and not basic elements of citizenship.
Section 1

The 14th Amendment begins:
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is a source of some confusion that the first sentence did not use the legal term of art "natural born citizen" used in the Eligibility Clause of Article II, leading some to argue that the 14th Amendment created some new kind of citizenship. It did not. The words
All persons born ...  in the United States, and subject to the jurisdiction thereof, are citizens of the United States ...
Mean the same thing. The rule, jus soli, which was already established in Anglo-American common law, goes back to Calvin's Case, 7 Coke Report 1a, 77 ER 377 (1608). In 1868 "in the United States" included all the territory of all the states and also the (incorporated) western territories. Citizens of those western territories were also citizens of the United States.

The first sentence then introduces something new:
and of the State wherein they reside.
That made U.S. citizens, with all their rights, citizens of a state in which they lived. It did not specify how long they needed to reside there, and that was arguably a serious oversight, but the words have so far not been abused as much as they could have been.

The third sentence begins:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
This is the Privileges or immunities clause, which was ignored by the Supreme Court in reaching its decision in the Slaughterhouse Cases, and which has been ignored ever since. Note that it is the "privileges or immunities" of citizens, not persons, which is used in the remainder of the sentence.

The words "privileges and immunities appear in Article IV:
Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Does it make a difference whether the conjunction is "and" or "or"? Some have argued that in Article IV the "privileges" must be identical to the "immunities", but earlier usages of those terms both ways establishes that the two may be different, although perhaps overlapping.

The "privilege-immunity" distinction therefore goes back to the Framing in 1787, even though the Bill of Rights uses the term "rights". It was recognized by Madison when he introduced the Bill of Rights that there are different kinds of "rights" with different sources:

Madison, from the Debates on the Bill of rights:
In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.
Madison here recognizes that trial by jury is not a pre-existing natural right, but a right arising out of the social compact. There are other such rights, explored at "The Social Contract and Constitutional Republics". The rights that pre-exist the Constitution include natural rights, social rights, arising out of what Madison called the "social compact", and what we may call "dominion" rights, arising out of the dominion, the society with exclusive possession or sovereignty over an established territory. Those would include the rights of denizenship, to remain at or return to one's place of birth or residency.

What are sometimes miscalled the "rights of citizenship", such as to vote, other than to ratify a constitution, which is a social right, or hold office, are not among the pre-existing rights, but are "privileges" created by the Constitution or by government. The pre-existing rights are in general protected by restrictions on the delegated powers of government, and as such are "immunities".

So we have two kinds of things: "rights" that stem from nature, society, or dominion, and are protected by immunities, or restrictions on the powers of government (or the nondelegation of them), and "privileges" that stem from a constitution or a government, that may be established but which may be removed at any time.

Some scholars have attempted to research the historical record to find examples, sometimes called "rights", sometimes "immunities", and sometimes privileges", indicating a lack of consistency in the use of such terms.

An early attempt to define privileges and immunities is found in the opinion of Judge Bushrod Washington the case Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823:

... what are the privileges and immunities of citizens in the [Volume 4, Page 503] several states?" We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, 
But these are  examples pulled from memory as the judge wrote. The are not systematic analyses of the principles by which privileges or immunities can be identified, which is what we provide here.

Due process

The last sentence of Section 1 states:
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This is clearly taken from Article IV Section 1. But after the Slaughterhouse cases, which ignored the Privileges or immunities Clause to reach its verdict, this has been the only clause on which subsequent Supreme Court cases have been based, although they have introduced ideas like "procedural due process" and "substantive due process" to try to recreate them.

Slaughterhouse Cases

The Slaughter-House Cases, 83 U.S. 36 (1873), was the first United States Supreme Court interpretation of the U.S. Constitution's Fourteenth Amendment which had recently been enacted. It was a pivotal case in early civil rights law and held that the Fourteenth Amendment protects the privileges or immunities of citizenship of the United States, not privileges and immunities of citizens of a state from their state governments. But the entire point of the 14th Amendment had been to protect state citizens from being deprived of privileges or immunities common to citizens (and resident persons) of the United States. To this day the interpretive error of these cases has not been corrected, although it has been worked around.

It came closest to being corrected in two cases, Roe v. Wade, and McDonald v. Chicago. In the first, the Supreme Court heard an appeal of the case decided in the district court, which found for the plaintiff on the grounds of the Ninth Amendment right of privacy being one of the privileges or immunities protected by the 14th Amendment. The Supreme Court justices all struggled to avoid reaching that result, through convoluted reasoning, but in the end decided the case on due process grounds.

Read carefully, that case reveals the real reason for the reluctance of the Supreme Court to accept the Privileges or Immunities clause, and incorporate it, because that would require then to incorporate the Ninth Amendment, and when a court did that, it found a "right of privacy" that provided a basis for making abortion a right. The Supreme Court, even though it did allow abortion to be treated as a right, is reluctant to find any more rights than those enumerated in the Bill of Rights and elsewhere in the Constitution.

This controversy over the Ninth Amendment has been central to constitutional scholarship, with former judge Robert Bork likening it to an "ink blot" that should not be used because one could not be sure what it means.

McDonald v. Chicago, 561 U.S. 742 (2010), was expressly argued on the Privileges or Immunities Clause, but the Supreme Court of the United States found that the right of an individual to "keep and bear arms" as protected under the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment against the states, not the Privileges or Immunities Clause.  Justice Thomas dissented on that.

Public debt

The 14th goes on to say:
Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.
Some have tried to misread this to say that no federal debt shall be questioned. Of course, it only applies to federal debt incurred during the War of Secession, but it did have a profound impact on debt and money in the United States.

During the war the Union did not have enough gold or silver to pay its debts, so it issued paper money (greenbacks), fiat currency that the Union required its suppliers to accept as legal tender. But when those suppliers tried to pay their own suppliers with greenbacks, and those suppliers refused to accept the greenbacks, litigation ensued, called the Legal Tender Cases, that established that federal fiat currency was legal tender, not just on federal territory, but within the states as well. That situation continues to this day.

Enforcement

The 14th Amendment ends with
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
So what did that allow, with the Privileges or Immunities clause read out of the amendment? Evidently, a great deal. Congress went on to enact what became 18 USC 241 and 242, making it a criminal offense for a state actor (but not a federal actor), or a private party acting at the instigation of a state actor, to deprive or conspire to deprive a state citizen of his rights, and 42 USC 1983, allowing a civil claim for damages against the state, or at least a state actor. However, such civil claims have been circumscribed by the doctrine of state sovereign immunity.

Ratified?

There is a lingering controversy over whether the 14th Amendment was actually ratified. The ratifying states did so under duress, and there is some doubt whether their ratifications were accurately reported.

Courts do not allow arguments that the 14th was not ratified. Any party or lawyer who attempts to make such argument would be thrown out of court, and the lawyer fined or disbarred. The reason is that such arguments conflict with established jurisprudential doctrine ("custom, policy, and practice").

About the only way a conscientious litigator could introduce doubt about ratification into the record would be to preface an argument with "If, arguendo, the 14th Amendment had been ratified ..."

The way forward

The challenge is to steer cases to the Supreme Court that will encourage them to undo the damage done by the opinion in the Slaughterhouse Cases. That was almost done in McDonald v. Chicago, but the Court backed away from reestablishing "privileges or immunities". That case was a Second Amendment case, and now that it is a win for them, the same litigants might not be so anxious to push the envelope further.

The key to advancing jurisprudence and overturning wrong opinions is to set up cases carefully. That is not easy, considering the high costs of litigating before the Supreme Court.

One approach would be to bring a case that requires invoking the Ninth Amendment, since that is the great hurtle to be overcome. Such a case might be over mass surveillance, for which the Fourth Amendment is inadequate. But as long as (mostly conservative) judges think of the Ninth as some kind of "inkblot", opening the way to finding unenumerated rights would present them with a kind of "terra incognita" they may be reluctant to explore. The solution is to encourage scholarly discussion of just what are the "unenumerated rights", which, by the way, are not really "infinite". An attempt to do this is presented in the chapter "Immunitates". Yes, there are many such rights (or more properly, "immunities") but the list is not infinite. It needs to be examined and debated, and any missing rights identified and included.

This is mainly a task for libertarian legal scholars, since conservatives seem more likely to see an inkblot. It would also help to get some libertarians appointed to the Supreme Court.

If this were done, the next step would be to revive the Tenth Amendment, and roll back all the federal criminal statutes based on the Necessary and Proper Clause, as Wickard v. Filburn was.

Links:

  1. The Civil Rights Act of 1866 (14 Stat. 27). http://www.encyclopedia.com/social-sciences-and-law/law/law/civil-rights-act-1866
  2. Intent of the Fourteenth Amendment was to Protect All Rights, Jon Roland, 2000. http://www.constitution.org/col/intent_14th.htm
  3. Presidential Eligibility, Jon Roland. http://constitution.org/abus/pres_elig.htm
  4. Debates on the Bill of Rights, http://constitution.org/ac/001/r01-1/bill_of_rights_hr1789.htm
  5. The Social Contract and Constitutional Republics, http://constitution.org/soclcont.htm
  6. Natelson, Robert. "The Original Meaning of the Privileges and Immunities Clause", Georgia Law Review, Vol. 43 1117-1193, at 1183 (2009).
  7.  Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823, http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html
  8. Slaughter-house Cases, https://en.wikipedia.org/wiki/Slaughter-House_Cases
  9. Roe v. Wade, 410 U.S. 113 (1973). https://en.wikipedia.org/wiki/Roe_v._Wade
  10. Ninth Amendment to the U.S. Constitution, https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
  11. Presumption of Nonauthority and Unenumerated rights,  http://constitution.org/9ll/schol/pnur.htm
  12. McDonald v. Chicago, 561 U.S. 742 (2010). https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago
  13. Legal Tender Cases, https://en.wikipedia.org/wiki/Legal_Tender_Cases
  14. 14th Amendment ratified?  http://constitution.org/14ll/14ll.htm

2017/04/27

Effective judicial oversight

Many complain about judicial corruption and call for judicial accountability, but generally fail to propose effective processes for achieving it.

In an effort to make judges independent of political pressures, they are generally left with great discretion to be used justly or not. In some states they are elected, and come under they sway of the law firms that support them. They are generally under the loose supervision of an "administrative" judge, who has his own docket and can't exercise daily oversight, even if he were inclined to do so. He is usually limited to assigning judges to courts, and can reassign them to no court as a way to get rid of them. Judicial decisions can be appealed, but the appeal process is so difficult and uncertain that the risk of being overturned is small, and can be ignored. Judges are generally not removed for having too many of their decisions overturned, and if they are it is likely to be for making right decisions rather than wrong ones.

There are judicial misconduct boards, but they tend to get so many complaints that they come to dismiss them out or hand, and such boards do not investigate complaints made while trials are still underway.

What is needed are grand juries with agents who can sit in on trials and intervene if misconduct occurs. That would be a major undertaking. It would need to be able to rapidly respond to complaints made during trials in time to be effective, and they could not be visible enough for parties to play to them rather than to their judges. We can imagine having school classes of students assigned to observe trials reporting on any irregularities they might observe, and calling in judicial inspectors as needed.

2017/04/26

Scientists abandoning their training in policymaking

In 1970 I attended the First National Congress on Population and Environment, with mostly scientifically-trained people. I was impressed by how the scientists abandoned their scientific training when they went into policy analysis, and resorted to intuitive leaps that they then tried to justify with seemingly scientific reasoning. I was coming from a background in computer systems, so was skeptical of this kind of unsystematic thinking. So was Jay Forrester, of MIT, who wrote “The Counterintuitive behavior of Social Systwms”. http://constitution.org/ps/cbss.pdf I subsequently tried to leaven the more extreme analyses with doses of systems analysis.

I became involved with the Limits to Growth computer modeling effort that forecast a peak in growth followed by decline and collapse as resource limits were reached. The result was an article,  "The Disturbing Implications of World Dynamics", The Futurist, Mar 1971. Review of the book and discussion of its methodology and the Limits to Growth computer  model. I concluded that the LtG model made some incorrect assumptions about the alternatives we had: that resources were limited to those available to surface extraction. Leaving aside the alternative of mining asteroids, there was also the alternative of extreme conservation in compact "starship cities" on or beneath the surface of the Earth. 
That led to my article "Three Futures for Earth", http://pynthan.com/vri/3f4e_002.htm in which I laid out a more comprehensive analysis of the full range of alternatives available to us. That analysis remains valid, although if I were to rewrite it today, I would forecast that the cities would house few if any human beings, their role being replaced by machines. They would not be places out of Star Trek. The crew would be replaced by Data or its equivalent. That would leave humans to live in the wilderness, as wild animals perhaps with a 19th century technology. 
I have written a novel in which this scenario is presented, Wayward World

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