2017/01/12

How "global warming" is misunderstood

One of the most persistently misunderstood concepts in public discourse is "global warming". That misunderstanding is part of the reason the fashionable term now is "climate change", which could of course mean almost anything. But I have not seen a good explanation in the popular media of why "global warming" is not a good term.

I will provide part of an answer here.

Most people intuitively think that if the Earth warms, the temperature will rise. That intuition is largely wrong, because Earth is not a perfect sphere of a global ocean, and it is an aqueous world. Water behaves in a peculiar way. Unlike many substances, which go from solid to liquid to vapor as the temperature rises, water has a temperature at which solid, liquid, and vapor can all exist at the same time, called the triple point (about 0.01 C) https://en.wikipedia.org/wiki/Triple_point and introducing heat into the system does not raise temperature on the average, but causes a shift from some of those phases into the others, while the general average temperature doesn't change much. The following diagram is intended to illustrate that behavior.

Image result for triple point of water
The important thing about the Earth is that the average temperature is fairly close to the triple point. Adding heat can cause ice to melt into water, or either of those phases to evaporate into vapor. It is only when almost all the water is vapor that temperature can begin to rise greatly enough to threaten habitability. Of course, water vapor is also a greenhouse gas, so that can cause an even greater rise.

Nothing in the geological record indicates that such a runaway rise has ever occurred. Water has always acted to buffer temperature changes within a fairly narrow range. We can speculate that enough heat, together with the sublimation of deep-sea methyl clathrates, together with releases of methane and CO2  from melting tundra, might combine to produce runaway temperature rise, but that is only speculation, without geological evidence. One would expect that if it had a significant chance of occurring, it would have done so at least once in Earth's past.

That of course does not mean it may not occur in Earth's future. In the far distant future we can expect it to occur as the sun expands and grows hotter.

So what we can expect from global warming is the melting of ice, the rising of sea levels, and more clouds with more rainfall. That is also likely to result in more stormy weather, with more flooding and wind damage.

Now because Earth is not spherically symmetric, and there are irregularities on the surface, we can expect average surface temperatures to rise seasonally over land, causing seasonal changes to shift toward the poles and occur earlier as the process unfolds. The great deserts that encircle Earth are likely to shift toward the poles, causing the desiccation of now green areas and increases in widespread forest and grass fires. Once fertile land may become infertile, and infertile land may become fertile again after a span of thousands of years. North Africa and the Levant were once green, about 6000 years ago, before the desert band moved northward.

Here is a diagram of global air circulation and precipitation:



There are two world-circling desert bands at about latitudes 38o N and 38o S, where the northern and southern Hadley cells meet the Mid-latitude cells.  https://en.wikipedia.org/wiki/Hadley_cell The general airflow there is downward, resulting in drying, Where warm air rises, it cools and produces more rainfall. The bands are somewhat broken by terrain features, especially in North America. In the southern hemisphere the only land masses at 38o S are parts of Africa, Australia, and South America, and the first two have deserts there. The circulation cells can shift toward or away from the poles, causing the desert bands to shift under them.

So is this global warming/climate change caused by human activity? Much of it is, although coal fired power plants and automobiles may not be the main sources of CO2.  The isotopic abundances of the carbon in atmospheric CO2  indicate much of the source is fossil fuels. But much or more of it may come from things like the tilling of topsoil, causing it to oxidize, from runoff of topsoil into the oceans, the burning of grassland and forest, and other such activities over which public policy doesn't have much control. Even if the developed countries were to stop producing industrial CO2  altogether and go entirely to wind, solar, and other "green" sources, it would make little difference. China alone would overwhelm the rest. The notion that we can influence other countries by "setting a good example" is ludicrous. They would just laugh at us. Low cost trumps good reputation.

Are we avoiding a new ice age?

The precise causes of the last several ice ages (about five) are not well understood, but a simple extrapolation from the past few suggests that we may be about to enter a new one. If so than greenhouse gasses may retard it, and we may even want to produce more such gasses. Another ice age would not be an extinction-threatening event, but it would certainly be traumatic and disruptive, perhaps more than presently projected "climate change" is likely to be. We may want to achieve some control over both tendencies.

Lower sea levels

In the past sea levels have also been as much as 300 feet lower. For example, about 5.33 million years ago the Mediterranean Basin consisted of two landlocked seas, in what has been called called the Messinian era. Then the rising Atlantic broke through tat the Strait of Gibraltar and filled the basin in as few as two years, rising as fast as ten meters a day, in what has been called the Zanclean Deluge. See https://en.wikipedia.org/wiki/Zanclean_flood . More recently, it is hypothesized that the Aegean Sea broke through the Bosphorus Strait about 7400 to 5600 BC to fill the Black Sea to its present level. Some speculate that the resulting inundation gave rise to the myth of the Great Flood. https://en.wikipedia.org/wiki/Black_Sea_deluge_hypothesis . Another explanation for that myth is the evidence of an asteroid or comet impact in the Indian Ocean about 5000 years ago that created the Burckle Crater. See https://en.wikipedia.org/wiki/Burckle_Crater . The tsunamis created by such an event might have been funneled by the Persian Gulf to produce especially high flooding in the lower Mesopotamian basin.

So could sea levels rise as much as 200 feet? Yes. In the past they have been that high. That could inundate low lying coastal areas like Bangladesh, Florida, and the Netherlands, and perhaps even the northern part of the Central Valley of California. It may not be a good time to invest much in coastal cities, resort property, or low lying islands. China may have its new Spratly Island base flooded.

Mars

Interestingly, Mars is also close to the triple point of water. There is no liquid water on the surface because the atmospheric pressure is too low. If we could raise the pressure, there appears to be enough water locked up in the soil or at the poles to form some lakes or small seas. For more than that we would need to gather icy comets from the outer Solar System, deflect them toward Mars, and vaporize them, perhaps with a thermonuclear device, as they approach that planet, and merge with the Martian atmosphere. It requires surprisingly few such objects to give Mars an Earthlike atmosphere (except without as much O2).

So what is to be done?

Trying to cap greenhouse gas production in the few nations with legal systems that might enforce restraints is almost certainly a wasted effort, no matter how much it may make some feel good to try it.

No, the only thing we can do is to develop alternative energy sources cheaper than fossil fuels. There are two likely sources: thorium nuclear plants, and solar power collected in space, probably on the Moon, and beamed to earth. See http://energyfromthorium.com/ and http://lunarsolarpower.org . We need to develop test systems for both, to weigh further investment.



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2017/01/04

Are state 'police powers' constitutional?

To any of the Framers the answer would have been thought to be obviously yes. The U.S. Constitution delegated to Congress a list of "enumerated" powers that were to be considered nearly exhaustive, except for a few "implied" powers that were intended only to be incidental to the express powers of the enumeration. All other proper powers of government were to be left to the states or to local governments, or left to the People. The Tenth Amendment makes that explicit:
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.

But then we also have the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And the Fourteenth:
... 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.

Police power is the authority of the states to regulate behavior and enforce order within their territory for the betterment of the health, safety, morals, and general welfare of their inhabitants.

The police power is based on the English common law, which is largely expressed in maxims of law, usually in Latin.1 In the 18th and much of the 19th century, that maxim was sic utere tuo ut alienum non laedas, (you should use what is yours so as not to harm what is others'). Under this maxim, legitimate legislation was only to remedy or prevent immediate concrete harm to specified interests of persons. Sometime around 1900, the maxim changed to the principle of salus populi est suprema lex , (the good of the public is the supreme law). Under this maxim states had broad discretion to legislate as they chose so long as they could justify it as tending to promote general public safety, health, welfare, or morality in the long term.2


The Texas Constitution http://www.constitution.legis.state.tx.us/ , like most other state constitutions, does not contain a single sweeping delegation of the police power, but defines various departments and delegates powers for each. Most of the police power statutes appear in the Penal Code and in sections on things like traffic and land use planning (zoning).


The delegation of police power is not explicit for most states, but is found in doctrine, the "custom, policy, and practice" (CPP) of legislation. It is usually discussed in terms of police powers in appeals court opinions, and those opinions form a body of entrenched precedent, or stare decisis, that it would be difficult to overcome unless they were struck down by state or federal appeals courts or constitutional amendments.3

The Fourteenth Amendment was to overturn two main U.S. Supreme Court precedents, Barron v. Baltimore, and Dred Scott v. Sanford. Barron sued Baltimore for a Fifth Amendment taking of his property, and lost on the holding that the Fifth Amendment did not apply to the states. Dred Scott sued for his freedom as a citizen, and lost on the holding that the court only had jurisdiction for cases between a state and a citizen of a different state, and further that a Black could never be a citizen.

The amendment was also to extend the jurisdiction of federal courts to cases between a state and a citizen of that state for violation of the "privileges or immunities" in the Bill of Rights, and for violation of his right of due process. The term of art "immunities" was intended to be synonymous with natural or social rights, and "privileges" with positive rights granted by government, such as to vote or hold public office.

The Fourteenth Amendment was also somewhat carelessly written in not declaring the privileges or immunities to be those of resident persons, rather than citizens. The rights of the Bill of Rights attach to persons, including foreign visitors, not just to citizens, although enforcement of such immunities may be difficult for persons who are not present, or resident, under the jurisdiction of U.S. law. Using the term resident persons would cover most cases.

The Fourteenth Amendment then tries to clarify by declaring that all U.S. citizens who reside in a state (for some unspecified period of time) are citizens of that state. That still leaves a gap for U.S. citizens who have not resided in the state long enough, and it still tries to attach rights to citizens rather than to citizens.

The application of the Fourteenth hit a snag in the Slaughterhouse Cases when the Court chose to decide the cases not on the basis of the Privileges or Immunities Clause, but on the basis of the Due Process Clause. They did not "write the Privileges or Immunities Clause out of the Amendment" as some commentators have claimed, but it did establish a precedent that has been followed ever since.

Soon thereafter the Court decided not to incorporate the federal requirement for grand jury indictment in Hurtado v. California, and has failed to incorporate several other federal rights, most involving due process and juries, in subsequent cases.

Some state police power statutes have been held to be unconstitutional, usually those in which the causal connection between a act and the injury it might cause is too remote or uncertain. Such a statute is said to be unreasonably oppressive or meddlesome, or to fail a rational basis test.

One question has been whether the privileges or immunities of the Fourteenth Amendment include the enumerated rights of the Ninth Amendment. Since all the rights in the first eight amendments are included in the Ninth, and the application of the First Amendment, which is only a restriction on Congress, to the states is really an invocation of the right from the Ninth, then the answer should be yes.

In Roe v. Wade the Fifth Circuit held that the statute banning providing abortion services was unconstitutional on grounds that it abridged the Ninth Amendment right to privacy, that is, to be left alone. But the U.S. Supreme Court, when it heard the case on appeal, presented the spectacle of nine justices making contorted arguments in an effort to get the same result without invoking the Ninth. Justice William O. Douglas, in his concurring opinion in the companion case Doe V. Bolton, stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."

Not just obviously, but obviously wrong.

See http://constitutionalism.blogspot.com/2016/05/immunitates.html for a more comprehensive list, where I call them immunitates (Latin, pron. ee-mun-ee-tah-tez) because they are restrictions on delegated powers

It is the thesis of this article that a state basing its coercive legislation on something as broad and nebulous as either of the maxims of law that are the basis of the police power is to fail to meet the requirement for having a republican form of government, which should include having a written constitution of government delegating powers with a certain specificity, not as specific as particular statutes, but more specific than those maxims, similar to the delegations of power in the U.S. Constitution. Groups of statutes could have a delegation of power that would cover then all, but not permit much beyond them. For that there would need to be a constitutional amendment.

Although the Framers did not define what they meant by "republican form of government" the best evidence of it is provided by the early state constitutions, which we can presume were included in that term.4 We cam discern several common attributes:

1. All had written constitutions of government.
2. All recognized rights retained by the inhabitants of the state.
3. All divided powers into three main branches: legislative, executive, and judicial.
4. All had legislative branches consisting of representatives of the people.

But few had enumerated powers of the legislative branch, although they could be extracted, listed, and numbered. Most of those powers were structural or procedural in nature.

The closest we see to the common law maxims are cautions that legislators not act contrary to the good of the people. However, coercive powers, that is, those with criminal penalties, were not enumerated.

The reason for this is that the states originally proceeded on the common law system, prosecuting crimes defined not in statutes, but in court precedents. Even the U.S. Congress seemed to proceed on that basis, until in the case of U.S. v. Hudson, 11 US 327 (1812). the Court found, correctly, that U.S. courts did not have jurisdiction over common law crimes, except contempt of court. The opinion was rather brief, perhaps because of the war, so it did not get into the real reason for its finding, that in the common law a crime was not defined until the jury rendered its verdict, and the judge pronounced the sentence. That was after the crime had occurred, so it was essentially all ex post facto, which was prohibited to both the Union and the states. This meant that crimes had to be codified in statutes that were in effect at the time and place the crime occurred.

It is not evident from the record that most lawyers and judges in the 19th century clearly understood this conflict. However, it seems to have dimly emerged, and we see the actions that might be penalized being codified into statutes. However, that was done gradually, without anyone thinking that those statures should be bundled together into categories and authorized by explicit delegated powers to enact them. If anyone were to question the authority for them, the answer would be common law custom, policy, and practice. This was the sic utere doctrine.

As the 19th century unfolded, more and more legislatures were asked to enact legislation with longer term consequences, for things like public education, roadways, bridges, dams, canals, public health, public safety, and public works. This led inevitably to penalties fro things that might be victimless in the short term, but that encouraged sin and corruption that would tend to corrupt the innocent and virtuous, the remote victims of the spread of a kind of cultural disease. It was also the era of the Great Awakening, with its focus on suppressing sin as though it were an enemy infiltration. That called for anti-immorality legislation that would tend to protect the innocent from the corrupt.

The spirit of this age is captured in the musical, The Music Man,5 in which the con artist sells the townsfolk on donating money for band instruments to provide the children a healthy pastime that will keep them away from sin (even while planning to run away with the money).

By comparison to the U.S. Constitution, the delegations of power to Congress also arose out of the common law tradition. Each such delegation was expected to yield a group of statutes that would implement it. The powers delegated were both short-term and long-term, so fall under both of the maxims of law.

But rather than cleaning up their constitutions, state legislatures just eased into the salus populi  doctrine without thought, until the U.S Supreme Court began striking down some of their statutes.

1. Latin Maxims of Law http://constitution.org/bouv/bouvier_m.htm#maxim

2.Glenn H. Reynolds, David B. Kopel, The Evolving Police Power: Some Observations for a New Century, Hastings constitutional law quarterly http://www.davekopel.org/CJ/LawRev/EvolvingPolicePower.htm

3. Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame Law Review, p. 429 (2004).http://scholarship.law.georgetown.edu/facpub/508

4. Early State Constitutions http://constitution.org/cons/early_state_cons.htm

5. Seth Mcfarlane singing "Ya got trouble" from the musical. https://www.youtube.com/watch?v=mfoTmiWsfD0


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2016/12/22

Originalism does not support social conservative agenda

We often get the argument that rights have to be explicitly listed (enumerated) or at least mentioned to be judicially enforceable. Justice William O. Douglas, in Doe V. Bolton,  in his concurring opinion in the companion case stated more emphatically, "The Ninth Amendment obviously does not create federally enforceable rights."

Not just obviously, but obviously wrong. The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Suppose none of the rights in the first eight amendments were enumerated there. Would none of them be "judicially enforceable"? Of course not. Those rights (except for the twenty dollar rule of the Seventh) pre-existed the Constitution, and would be as judicially enforceable as they are when listed. So where would we find them? The same places as the Founders did when they compiled them. In the pages of court cases and legal commentaries. And that is also where one can look to find the additional rights referenced in the Ninth, which include all the rights that are listed. That is where I looked to come up with a more comprehensive list, at http://constitutionalism.blogspot.com/2016/05/immunitates.html , where I call them "immunities", because they are restrictions on delegated powers, as distinct from "privileges", which come from government. A casual reading of them should identify many that are familiar. I also composed a Civil Rights act that would make the explicit.

Civil Rights Act

113th Congress

1st Session

S. ____

To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.

IN THE UNITED STATES SENATE

January 25, 2013

Mr. ROLAND of Texas introduced the following bill; which
was referred to the Judiciary Committee.

A BILL

To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.

Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Civil Rights Act of 2013'.

SEC. 2. FINDINGS AND AUTHORITY.

1. The Congress finds that it has comminatory and punitive
powers over government actors, including:

a. Military personnel under U.S. Const. Article I
Section 8 Clause 14.

b. Militia personnel under U.S. Const. Article I
Section 8 Clause 16.

c. Civil officers, their subordinates and agents, of
all branches and departments of the government of the
United States under U.S. Const. Article II Section 4.

d. Civil officers, their subordinates and agents, of
all branches, departments, and subdivisions of the
governments of the States of United States under the
amendment to the U.S. Const. proposed in 1866 and
presumed ratified in 1868.

2. The Congress finds that it has comminatory and punitive
powers over such government actors, expressed in the U.S.
Constitution as "treason, bribery, and other high crimes and
misdemeanors", includes:

a. Common law crimes established in the territory of
what would become the United States as of 1787.

b. Offenses inconsistent with the duties of
government actors, including offenses of the kind
subject to court-martial under the Uniform Code of
Military Justice as of the date of enactment hereof, such
as:

1. Dereliction of duty, bribery, yielding to
intimidation, or bias.

2. Insubordination, failure to obey a lawful order of
a superior, or to comply with a lawful statute or
regulation.

3. Perjury, fraud, or conduct unbecoming.

4. Abuse of power, tending to the infringement of the
rights of any person.

3. The Congress finds that it has power, under U.S. Const.
Article III Section 2 Clause 2, to establish jurisdictions
for civil causes of action among private parties of diverse
residency or citizenship in the courts of the United States.

SEC. 3. ENACTMENT AND REPEALS.

Statutes codified in 18 USC Chapter 13 and in 42 USC
Chapter 21 are hereby amended as follows:

1. All offenses and remedies under these titles shall be
equally applicable to government actors of both the United
States and the States of the United States, except that
impeachment and removal by Congress shall apply only to
United States actors whose appointments are subject to
congressional consent.

2. Prosecution of a criminal case in the courts of the
United States shall be conducted by a private person
appointed by a duly met grand jury who has not served as a
government actor of the United States in the preceding year,
unless no such person can be found, in which case a
government actor may prosecute.

3. Prosecution of a civil case in the courts of the United
States shall be conducted only by a private person who has
not served as a government actor of the United States in the
preceding six months.

4. Prevailing private prosecutions, criminal or civil,
shall be entitled to reasonable damages, fees, and costs in
an amount not less than the value equivalent to one
terajoule of electric energy, for the trial and each level
of appeal, payable from the assets of the losing level,
branch, and department of government, United States or
State.

5. The rights of persons the infringement of which shall
provide a basis for a criminal or civil prosecution shall
include, but not be limited to, the following:

a. All rights already established in the above
titles.

b. Due process

1. General

1. Due notice of time, place, manner, parties, and
subject of any proceeding with sufficient time to
respond.

2. Fair hearing and decision on the legal merits,
with redress for just grievances, including damages,
property, or injunctive or declaratory relief.

3. Not to have just remedies made inaccessible or
excessively difficult or costly.

4. Mandated testimony of witnesses.

5. Unimpeded access to courts, court filing, and
grand juries, subject only to routine scheduling.

6. Direct presentation of complaints to a grand jury
without the presence of any other government actor
without the consent of the grand jury.

7. Standing to privately prosecute a public right
without having been or expecting personal injury.

8. Not to be subject to retaliation.

2. Criminal trials:

1. Indictment by twelve members of a randomly
selected grand jury of 23 who elect their foreperson,
upon a finding that the court has jurisdiction and
that there is sufficient evidence for a trial, except
for persons subject to military or militia discipline.

2. Service as prosecutor upon receipt of an
indictment by a grand jury, subject only to
consolidation by the grand jury if more than one person
seeks to prosecute the same offense.

3. Trial by a randomly selected jury of twelve in
criminal cases for which the penalty is more than 90
days.

4. No excessive bail when there is little flight
risk.

5. No excessive fines imposed.

6. No cruel and unusual punishments inflicted.

7. Speedy and public trial before an impartial jury
of the state and district previously defined by law,
wherein the offense shall have been committed, and to
have the location of commitment be deemed where there
was concurrence of mens rea and actus reus.

8. Not to be twice prosecuted for the same offense or
same facts under different jurisdictions.

9. To be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defence, but not to have counsel or an
attorney imposed on him without his consent.

10. Not to be compelled to be a witness against
himself.

11. Not be disabled in the exercise, or deprived, of
life, liberty, or property, without due process of
law, by unanimous verdict of a jury of twelve.

12. Unimpeded presentation of all evidence by the
defendant, without being subject to a motion in
limine.

13. Unimpeded presentation of all legal argument to
the jury, up to the final instructions to the jury,
except for argument on a motion in limine that cannot
be made without disclosing evidence properly
excluded.

14. Unimpeded presentation of alternative
instructions to the jury.

15. Not to have a sentence that does not separately
disable the exercise of the immunity, and order
deprivation of it, within the scope of that
disablement

3. Civil trials:

Trial by a randomly selected jury of twelve in which
the amount at issue, including costs, exceeds the
equivalent of at least 15.46875 troy ounces of pure
silver.

4. Appeals

Appeal from a jury verdict only on a writ of error or
habeas corpus, according to the rules of the common
law in the United States as of 1787, unless the
Constitution is amended to provide otherwise.

c. Nonauthority

1. Presumption of nonauthority for any claim to
authority, to be strictly proved by an unbroken
logical chain of derivation from a constitution.

2. Not to have any government actor exercise a power
not delegated, regardless of whether one may be
personally injured by such exercise.

3. Not to have government actors exercise powers on
the pretext of being "necessary and proper" when they
are not just to perform his official duties but to
get a desired result beyond such duties.

4. To have delegated powers construed as narrowly,
and rights, privileges, or immunities construed as
broadly, as the language of the Constitution as meant
and understood when ratified permits.

5. Priority docketing of all prerogative writs filed
by a any person as demandant in the name of the
people with a court of competent jurisdiction and
served on the respondant, within three sederunt days,
unless the respondant requires more, but not more than 20
calendar days, including but not limited to, demurral, quo
warranto, habeas corpus, procedendo, mandamus, prohibito,
certiorari, and scire facias, and to have default judgment
even if no proof is presented or a hearing is not held.

6. Unimpeded and unpunished communications, including
speech, press, and education, except such as
instigate or direct a felony, misdemeanor, or tort.

7. Unimpeded assembly and exercise of rights in
concert with others.

8. Unimpeded assembly as militia for organizing,
training, and response to threats to public safety,
subject only to direction by state militia officers
during a call-up.

9. Unrestricted keeping and bearing of weapons,
equipment, and supplies commonly used by military
forces, or suitable for militia, subject only to
court order of disablement for being a threat to oneself or
others, or to the lawful orders of militia officers during a
call-up.

10. Unimpeded and unpunished petition for redress of
grievances.

11. Unimpeded devotion or practice of religion, not
preferentially supported by public funds, that does
not instigate or direct a felony, misdemeanor, or
tort.

12. Exclusion of government actors from intrusion
into one's real property, body, or use of one's
personal property, for search, seizure, or for any
other reason, without consent, a declared state of war or
emergency threat to public, safety, a warrant supported by
an affidavit of probable cause, and just compensation for
any losses incurred, for each incident.

d. Supervision of government actors

1. Access to observation and recordation of any
government proceeding except trial and grand jury
deliberations or their equivalent, or deliberations
on matters of security requiring secrecy.

2. Receipt of records of all proceedings, and
accounting for all receipts, loans, debts, and
expenditures, and reporting thereof, for eventual
examination prior to an election in which the issues may be
reviewed.

3. Access to all information about oneself, and
either copies at cost of all documentation or to make
one's own copies using one's own equipment.

f. Other

1. Association and contract to do things not
unlawful, including practice of a profession or
occupation, marriage, procreation, and acceptance or
denial of medical prevention or treatment, except prevention
of contagious diseases.

2. Formation, conduct, and revision or dissolution of
corporations, partnerships, and other trusts, in
which settlor, trustee, and beneficiary are distinct
persons who may not be impeded or penalized from
directly appearing in any court in such capacities.

3. Not to have some accorded special privileges or
protections that favor them over the rest of the
people, in ways not essential to the performance of
public duties.

4. Travel within, to, and from the United States and
any State, territory or locality.

5. Not to be removed from the location of one's birth
or lawful residence, or impeded from returning
thereto.

6. Not to be enslaved or submitted to peonage except
as punishment for a crime, but subject to militia,
jury, witness, and other public duty.

7. Not to be impeded or punished for voting if one is
a citizen and resident on grounds of race, color,
creed, previous servitude, gender, age 18 or above,
or failure to pay a tax.

8. Custody and care of close relatives who are non
sui juris.

9. Not to be neglected or abused while in custody.

10. Not to be denied any right, privilege, or
immunity for failure to have or present a name or
other form of identification.

11. Not to be deported without proof that one has not
been born or naturalized as a citizen, unless one is
born to a person not subject to the allegiance of the
United States, such as a foreign diplomat or an
invader.

g. The foregoing list is not exhaustive, and further
rights, privileges, and immunities are to be found in
the historical record. The rule of expressio unius
est exclusio alterius shall not be applied.
SEC. 4. REMEDIATION.
Persons whose rights have been violated within the
preceding 20 years from enactment hereof shall have standing
to seek relief under its provisions.

SEC. 5. TRANSITIONAL.
Older victims of past abuse shall have their cases docketed
ahead of younger persons to allow for them to receive
redress while they remain alive.
That would make them enforceable under the 14th Amendment without a new constitutional amendment.
This recognizes that people have a right to do, or not do, anything for which there is not a constitutional delegated power to restrict.
Now these would be rights with respect to the U.S. Congress. What about rights with respect to state legislatures? State constitutions delegate powers that often go beyond federal powers, especially general "police powers" to legislate for the health, safety, and morals of the people. I would not allow powers legislated by the states that exceed those delegated explicitly, on the grounds that such delegation of police powers is "void for vagueness". In general, I would recognize the above immunities as applying equally to the states. 
So are these "fundamental" inquiring strict scrutiny? Yes.
The Fifth Circuit, in Roe v. Wade, correctly found the Texas statute unconstitutional, on grounds of a Ninth Amendment right to "privacy", which is a one-word way of saying, the right to be left alone, which is a summary of the principle that constitutional rights are immunities from the application of undelegated powers. The Fifth Circuit got that right as well. But when it was taken up by the U.S. Supreme Court, that was determined to extend the right nationally, instead of simply copying the opinion of the Fifth Circuit as its own, the nine U.S. justices mangled all logic trying to find a way to avoid finding the right in the Ninth, with Justice William O. Douglas opining as above. That opinion was a monument to judicial incompetence. For an analysis see https://en.wikipedia.org/wiki/Roe_v._Wade .

The 14th Amendment made all of the Bill of Rights "judicially enforceable" in federal courts. That includes the 9th and 10th amendments. So how does that bear on a case like Roe v. Wade? The problem for application of the principles of the 9th and 10th amendments to the states is the "police powers" doctrine, under which states assert a general power to enact all legislation the serves the "health, safety, morals, and good order" of the state. That is a very broad delegation of power, enough to override every other provision of the state constitution. So if we apply the principles of the 9th and 10th amendments to the states, police powers have to go. They are far too broad to be compatible with those principles. What that is saying is that if a state wants to punish a provider of abortion, then it needs a provision in its constitution that explicitly delegates the power to pass and enforce such legislation. No more broad powers that the legislature has discretion to use without limit. That means, applying the 10th Amendment, powers not expressly delegated to the state are reserved to the people, and that state powers have to be "enumerated". So it is not enough to pass a statute. A state has to also amend its constitution. Now that doesn't necessarily fix everything. The statute could still be found to be unconstitutional on other federal grounds, as the opinions of the U.S. Supreme Court tried to do. But it would reframe the terms of debate.

Should state legislatures be able to pass anything "the people want" without a constitutional amendment? How does anyone know the statutes being passed by state legislatures are what the people want? General police powers would permit, for example, the legislature to pass a statute that would declare all democrats to be outlaws, enabling anyone to kill one with impunity. That might pass the legislature, but do the people really want that? Introduce an amendment, which has to be ratified by the people, and see if they will do it. I hopefully expect they would not. Legislatures do not do what the people want. They do what their immediate circle of acquaintances want. It might pass 14th Amendment scrutiny, since it is not applying the statute unequally, or using the coercive powers of the state in violation of "equal protection". But I would expect the Supreme Court to find it to be an equal protection violation.
When it comes to same-sex marriage, it is a profound misreading of the decision in Obergefell v. Hodges to say it "redefined marriage". It did no such thing. It found that if the state licenses one kind of marriage, it has to license all kinds. A state license does not define anything. All one has to do to avoid the appearance of that is for the state not to license any marriages. There is no need for it to do so, or to license any other kind of partnership. This is a fundamental failure to distinguish between a license and a practice. People are going to do it whether they are licensed or not. A license won't make any difference. As for prohibiting the activity, people are going to do it whether it is legal or not. Law is not a competent way to try to regulate private behavior. 
Make it illegal to "desecrate" the flag? Get a clue. Burning a flag is not "desecrating" it. It is the prescribed method of disposal of a flag that has become "soiled". Burning one is a way of protesting that is has become soiled by some government action. It is an act of respect for the country, not of rejection of it. It is complaint of some government abuse. 
One could go on listing social conservative demands, but every one of them is a misunderstanding of constitutional principles. Social conservatives mangle the Constitution almost as badly as progressives do.

2016/12/15

Did the federal jury do right?

A federal jury convicted Dylan Roof of s federal "crime' under 18 USC 922, for use of a firearm in the murders of people in a church in South Carolina. The CRKBA is celebrating it as a victory for "law" over the efforts of the anti-gunners to pass still more unconstitutional statutes. It argues for "enforcing the laws on the books", when some of those laws are anathema to its charter. That is wrong, because the jury was enforcing an unconstitutional statute, and if it can convict of one unconstitutional statute , it can convict of any others that the anti-gunners may get passed.

No, the federal jury did not do right. They convicted Dylan Roof of a federal "crime", when what he did was only a state crime. There is no constitutional authority for Congress to have passed the statute under which he was charged and convicted (Arms Control Act of 1968). Only the state had jurisdiction, under a state statute. The duty of the jury was to acquit, and send a message to the court that it was acting outside of its constitutional jurisdiction.

Now in principle, had he been charged with treason, that charge would have been constitutional, but the charge was not treason. It was violation of a statute that takes its authority from the court decision in Wickard v. Filburn. Not from the Treason Clauses.

The CRKBA does not do its job when it celebrates the enforcement of an unconstitutional statute. Its job is to hold government to its constitutional bounds. If it and we celebrate enforcement of unconstitutional statutes, there is no limit to what other statutes the government may enforce in the future. That plays into the anti-gunners hands, not thwarts them.

2016/12/14

Why LGBT mania?

Transgender persons comprise less than 1/10 of 1 percent of the population. That number can't explain the intensity of the drive for "LGBT rights" that seems to have swept public debate, an intensity that would seem to require the support of a numerical majority, or at least a majority of the more influential members of society. This phenomenon requires investigation.

2016/12/10

Liquid Fuel Thorium Reactor

Liquid Fuel Thorium Reactor (LFTR)

Uploaded on Oct 4, 2011

http://patreon.com/thorium Thorium is plentiful & can be used to generate energy without creating transuranic wastes. Thorium's capacity as nuclear fuel was discovered during WW II, but ignored because it was unsuitable for making bombs. A liquid-fluoride thorium reactor (LFTR) is the optimal approach for harvesting energy from Thorium, and has the potential to solve today's energy/climate crisis. LFTR is a type of Thorium Molten Salt Reactor (Th-MSR). This video summarizes over 6 hours worth of thorium talks given by Kirk Sorensen and other thorium technologists.

THORIUM REMIX 2011 starts with a 5 minute TL;WL summary, to hold you over until you find your Ritalin. YouTube Closed Captioning is available in English, and many other languages.

To learn more about the Liquid Fluoride Thorium Reactor visit: http://energyfromthorium.com/

See http://THORIUMREMIX.com/ for full list of multimedia source material.

Key YouTube video components:

Kirk Sorensen @ TEDxYYC http://www.youtube.com/watch?v=N2vzot...

Kirk Sorensen @ Protospace - http://www.youtube.com/watch?v=YVSmf_...

Kirk Sorensen @ MRU - http://www.youtube.com/watch?v=D3rL08...

Kirk Sorensen @ TEAC3 - http://www.youtube.com/watch?v=6-uxvS...

Kirk Sorensen @ Dr. Kiki Science Hour #84 - http://www.youtube.com/watch?v=vEpnpy...

After Fukushima: The Fear Factor - http://www.youtube.com/watch?v=OVQ0Nv...

Robert Hargraves @ TEAC3 - http://www.youtube.com/watch?v=BOoBTu...

Alexander Cannara @ TEAC3 - http://www.youtube.com/watch?v=aUVq81...

James Kennedy @ TEAC3 - http://www.youtube.com/watch?v=mrDeB8...

Q: What is thorium and what makes it special?

A: Thorium is a naturally-occuring mineral that holds large amounts of releasable nuclear energy, similar to uranium. This nuclear energy can be released in a special nuclear reactor designed to use thorium. Thorium is special because it is easier to extract this energy completely than uranium due to some of the chemical and nuclear properties of thorium.

Q: What is a liquid-fluoride reactor?

A: A liquid-fluoride nuclear reactor is different than conventional nuclear reactors that use solid fuel elements. A liquid-fluoride reactor uses a solution of several fluoride salts, typically lithium fluoride, beryllium fluoride, and uranium tetrafluoride, as its basic nuclear fuel. The fluoride salts have a number of advantages over solid fuels. They are impervious to radiation damage, they can be chemically processed in the form that they are in, and they have a high capacity to hold thermal energy (heat). Additional nuclear fuel can be added or withdrawn from the salt solution during normal operation.

Q: Are the salts safe?

A: Very safe. Unlike other coolants considered for high-performance reactors (like liquid sodium) the salts will not react dangerously with air or water. This is because they are already in their most stable chemical form. Their properties do not change even under intense radiation, unlike all solid forms of nuclear fuel.

Q: What is nuclear waste and how does a liquid-fluoride reactor address this issue?

A: So-called "nuclear waste" or spent-nuclear fuel is produced in conventional (solid-core) nuclear reactors because they are unable to extract all of the nuclear energy from their fuel before they have to shutdown. LFTR addresses this issue by using a form of nuclear fuel (liquid-fluoride salts of thorium) that allow complete extraction of nuclear energy from the fuel.

"Fluid Fuel Reactors", James A. Lane, U.S. Atomic Energy Commission, 1958.
http://moltensalt.org/references/stat...

Thorium distribution on moon near side. Redder color is more abundant. Satellite surveys.


Thorium distribution on Mars. Redder color is more abundant. Mars Odyssey 2001 satellite survey.

2016/11/24

Clinton misbehavior not constitutional crimes

Many people are shocked to find out, but under the Constitution, as strictly interpreted,

1. There is no authority to make bribery a crime, just a impeachable/removable offense (high crime or misdemeanor). So while what seems to have been done with the Clinton Foundation might have violated some state laws, the federal statutes that would seem to cover it are unconstitutional.

2. Disclosure of classified information is a kind of treason, but the Constitution does not grant Congress power to punish that either.

3. Pedophilia and other sex crimes are state crimes, not federal.

The FBI can investigate anything, but not charge federal crimes if there are none. Have to turn over their findings to the states.

The only crimes punishable under grants of power to Congress are counterfeiting, felony on the high seas, or offenses against the law of nations (which includes piracy), deprivation of the privilege of voting on several grounds, enslavement (13th Amendment), or deprivation  of rights by state actors (but not federal).

The commerce and necessary and proper clauses do not provide authority to make anything a crime, despite all the federal criminal statutes based on them (which are in turn based on one Court decision, Wickard v. Filburn).

Is any of this new to the people on this forum?

2016/11/21

Eighty ambiguous phrases

My analysis of the U.S. Constitution counts about 80 words or phrases that are somewhat ambiguous, and give rise to most of the interpretation/construction controversies. I have highlighted those at http://constitution.org/cons/constitu+.htm , Most of the rest of the Constitution is fairly unambiguous. One might quibble about this analysis and my count, but let's accept it for the moment. Textualism works well enough for that part of it, whether one considers the document written in lay English of 1787, or in legal English.

Most of those eighty are written in legal English, which requires reference to 1000 years of English legal history, and may extend back 2000 years to Roman or Greek law or another 1000 years to Hebrew law.

It is not necessary, initially, to develop a single comprehensive theory of legal construction (originalism) for all eighty. Take one at a time, and develop a theory for that one. Then move on to the next one. If two or more theories have commonalities, unite them into one for those phrases.

Perhaps we eventually arrive at one theory for 70 of the phrases, another for two or three more, then a few more for the rest. That narrows the scope of the theoretical search, making it more comprehensible and more manageable. Who knows, we might actually wind with one that unites them all.

This is the approach I have tried to take. The combined theory is not simple, but it works. It can be applied quickly and definitely.

To solve a theoretical problem, first divide it into manageable parts.

2016/11/15

Can seditious libel be made a crime under the U.S. Constitution?

Professor James G. Wilson asks whether it is constitutional to make seditious libel a crime. As a consistent originalist I can answer that. The answer is no.

Sedition and seditious libel are common law crimes, and it was correctly ruled in U.S. v. Hudson that there are no common law crimes under the U.S. Constitution, even in federal enclaves or incorporated U.S. soil outside a state. Common law crimes are intrinsically ex post facto, since the crime is not defined until the judgment is announced, and that is after the fact.

There is no power delegated to Congress to make it a crime. The only delegated criminal powers are: counterfeiting, offenses against the laws of nations, and felony on the high seas. Piracy is an offense against the law of nations. Treason is defined in the Constitution, but there is no authority delegated to actually punish it.

Arguably subsequent amendments expanded the list of offenses that could be punished as crimes: enslavement, violation of rights by a state actor (but not a federal actor), or deprivation of the privilege of voting on several grounds.

So what about all the federal criminal statutes outside the above list? All unconstitutional. Perjury? No. Fraud? No. Contumacy? No. Interfering with the enforcement of laws? No. Conspiracy? No. High crimes and misdemeanors? Only removal from office.

So, a consistent application of originalism makes some determinations easy, if distasteful.

2016/11/13

Trump's first 100 day agenda

President-elect Trump has proposed a list of initiatives he intends to make during his first 100 days in office. The list can be found here. My commentary under each.

* FIRST, propose a Constitutional Amendment to impose term limits on all members of Congress;

Limits on the number of terms in Congress is a bad idea. It takes most members at least 12 years to learn enough to be marginally effective. A limit on number of consecutive terms might make some sense. But a limit on consecutive years for professional staff is more important. They hold the real power, and have the knowledge and connections to get anything done. Most members are only experts on getting elected. They don't acquire policy expertise by serving, not even enough to identify who the experts are.

* SECOND, a hiring freeze on all federal employees to reduce federal workforce through attrition (exempting military, public safety, and public health);

Attrition rates are not very high. Better would be focused cuts.

* THIRD, a requirement that for every new federal regulation, two existing regulations must be eliminated;

The proper measure of regulations is not their number, but their length in words.

* FOURTH, a 5 year-ban on White House and Congressional officials becoming lobbyists after they leave government service;

Restricting lobbying would violate the First Amendment. Better would be to ban members from fundraising while Congress is in session.

* FIFTH, a lifetime ban on White House officials lobbying on behalf of a foreign government;

Again, violates First Amendment.

* SIXTH, a complete ban on foreign lobbyists raising money for American elections.

Again, violates First Amendment.

On the same day, I will begin taking the following 7 actions to protect American workers:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

This misunderstands the problems with NAFTA, which reduced the tariffs of Mexico on our goods, which made it cheaper to ship parts to Mexico to build things.


* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

It's not really in effect yet.


* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator


Useless. We all know they are. Labeling them won't change anything.


* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately


Aspirational. Need to be more  specific


* FIFTH, I will lift the restrictions on the production of $50 trillion dollars' worth of job-producing American energy reserves, including shale, oil, natural gas and clean coal.

There aren't that many restrictions now


* SIXTH, lift the Obama-Clinton roadblocks and allow vital energy infrastructure projects, like the Keystone Pipeline, to move forward

This one would be useful, but not mainly for U.S. benefit, but for Canada.

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America's water and environmental infrastructure

This one would be useful, but most of that money not spent yet.

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

Need to cancel all executive orders, which are properly only directives from an executive to those under his supervision, which are supposed to expire when he leaves office.

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

Presumably already under weigh.

* THIRD, cancel all federal funding to Sanctuary Cities

"All" is a tad broad, as some represent long-term commitments.


* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won't take them back

What would do the most good would be to make it a crime, not just a "deportable offense", to enter the country illegally. It is not now. Cancelling visas won't work.

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

Some groups can be considered safe without much more vetting, such as victims of terror, those who helped us in war.


Next, I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:

Middle Class Tax Relief And Simplification Act. An economic plan designed to grow the economy 4% per year and create at least 25 million new jobs through massive tax reduction and simplification, in combination with trade reform, regulatory relief, and lifting the restrictions on American energy. The largest tax reductions are for the middle class. A middle-class family with 2 children will get a 35% tax cut. The current number of brackets will be reduced from 7 to 3, and tax forms will likewise be greatly simplified. The business rate will be lowered from 35 to 15 percent, and the trillions of dollars of American corporate money overseas can now be brought back at a 10 percent rate.

Is this going to be paid for with more borrowing?


End The Offshoring Act. Establishes tariffs to discourage companies from laying off their workers in order to relocate in other countries and ship their products back to the U.S. tax-free.

Won't work. Bilateral tariffs don't work in a multinational trading system.Tax and trade policy is not going to bring good jobs back. The good news is that work is coming back. The bad news is that when it does it will be done by machines.

American Energy & Infrastructure Act. Leverages public-private partnerships, and private investments through tax incentives, to spur $1 trillion in infrastructure investment over 10 years. It is revenue neutral.

Picking winners and losers.

School Choice And Education Opportunity Act. Redirects education dollars to give parents the right to send their kid to the public, private, charter, magnet, religious or home school of their choice. Ends common core, brings education supervision to local communities. It expands vocational and technical education, and make 2 and 4-year college more affordable.

How is this paid for?.


Repeal and Replace Obamacare Act. Fully repeals Obamacare and replaces it with Health Savings Accounts, the ability to purchase health insurance across state lines, and lets states manage Medicaid funds. Reforms will also include cutting the red tape at the FDA: there are over 4,000 drugs awaiting approval, and we especially want to speed the approval of life-saving medications.

Okay if done right.


Affordable Childcare and Eldercare Act. Allows Americans to deduct childcare and elder care from their taxes, incentivizes employers to provide on-side childcare services, and creates tax-free Dependent Care Savings Accounts for both young and elderly dependents, with matching contributions for low-income families.

Doesn't work to create savings accounts for people not getting enough money to save.

End Illegal Immigration Act Fully-funds the construction of a wall on our southern border with the full understanding that the country Mexico will be reimbursing the United States for the full cost of such wall; establishes a 2-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a 5-year mandatory minimum for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.

Need to make it a crime to enter illegally

Restoring Community Safety Act. Reduces surging crime, drugs and violence by creating a Task Force On Violent Crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.

Already trying to do that. Not so easy.


Restoring National Security Act. Rebuilds our military by eliminating the defense sequester and expanding military investment; provides Veterans with the ability to receive public VA treatment or attend the private doctor of their choice; protects our vital infrastructure from cyber-attack; establishes new screening procedures for immigration to ensure those who are admitted to our country support our people and our values

Okay if done right.

Clean up Corruption in Washington Act. Enacts new ethics reforms to Drain the Swamp and reduce the corrupting influence of special interests on our politics.

Aspirational. Need to be more  specific.


A start, but more attention needed for constitutional compliance.

2016/11/11

Pardon before conviction?

Can the President pardon people who haven’t been convicted?



Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”
Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.
Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.
There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.

2016/11/10

Voting for the least embarrassing

I have found this presidential election enlightening for the motives I found among the partisans for each of the main candidates. They had very little to do with policy or promises. They had everything to do with how the candidate projected strength or resolve.
Trump made the point that he could shoot someone on Fifth Avenue and his followers would still support him.That is likely to be almost literally true.
Supporters of a candidate tend not to care about the faults of a candidate as long as he or she doesn't make them look bad, or weak. In general, they want their leaders to project the qualities they admire, whether or he or she has those qualities. It is appearances that matter. The worst thing a candidate can do is be a laughingstock. We don't want other people to think our leader is a joke.
So most people don't care what a candidate has done or is likely to do, because most of that is not likely to affect him personally. Of course, delivering on benefits matters, because that is likely affect him personally. "Sp steal or kill all you want, candidate, as long as you don't steal from or kill me, or look foolish doing it. I don't want to have to apologize for you.

Now clearly people are going to differ in what they think will reflect badly on themselves.

Type 1. Some want the candidate to be cultured and refined, never vulgar or uncouth. They also want him to be tall, attractive, witty, and well-spoken. In their social class that is what matters to having prestige. Such persons like soaring rhetoric that makes them feel exalted, as long as it doesn't ask  them to sacrifice anything important to them, such as the lives of people they don't know.

Type 2. Others want the candidate to project strength or "toughness". Never mind if the exercise of it may be misdirected. If one wants the candidate to be tough in some ways, it may not matter if that toughness strikes at the wrong things (as long as it is not oneself). Such tastes tend to be for force and the willingness to use it, and often reflect a sense of personal or physical inadequacy.

When party leaders try to recruit candidates they usually seek someone of Type 1. But these days candidates of Type 1 are often taken to be or represent "The Establishment". Candidates of Type 2 may seem to represent "The People", even if they are less well educated than candidates of Type 1, who don't need to know anything as long as they are tough enough to find the people that do. Of course, candidates of Type 2 can seem alarming to voters who want Type 1 candidates, and vice versa. One never knows what they might do, and it is easy to imagine the worst. It may come as a surprise to them if the Type 2 candidate, if he wins, governs more like a Type 1.
On the other hand, if Type 2s establish a pattern of winning, it also becomes more likely that they will eventually set up for a Type 2 who does fulfill the worst fears of the Type 1s.
One of the characteristics of Type 2 is a rejection of complexity, or at least of the need to address it in making decisions. This is the basis of the old maxim of politics, "If you have to explain it, you're losing." Type 2 people just want things fixed. They don't want to know how. But Type 1 people often know how complex the world is, and that there often are no simple solutions. Perhaps not any solutions at all that Type 2 people would accept. Or any experts that can tell us what to do. People in government often pretend to be more expert than they are, than anyone is. And they often don't know enough to know who the experts are, or whether there any any experts.

That leads to my proposed Epitaph for Humanity:
They were smart enough to create problems for themselves they weren't smart enough to solve.

2016/10/27

Wayward World


New Amazon Kindle book by Jon Roland
Wayward World: A new kind of hero must set history on a different course to save Earth from destruction a thousand years in the future.
https://www.amazon.com/dp/B01MPW3Y10

You don't need a Kindle device to read it. Almost any browser will do, with a plugin, or get the app.
This is a fundraising project for the Constitution Society. All the revenues go to it.

Still making some minor edits to it that should be live in a day or so.
Internet slow for you? If you can get to the book, reading it can give you something to do while you wait.

An interstellar planet is on a collision course with Earth in 1000 years. To get humanity ready to divert it, human technical progress needs to be advanced more rapidly, and history will take a wrong turn in 1265. Our heroes have to take Earth on a different course, without being around for the entire thousand years, so they have to set up institutions that can continue to move things forward and avoid several disasters that will set humanity back even further. They face strong resistance and many hazards, but are led by one who has the skill and charisma needed, if she can survive long enough.

One of the advantages of the Kindle edition is that it has live links to many web pages that provide background on much of the content discussed in the chapters.

2016/10/09

Why Brexit? Meddlesome regulations.

I expected something like Brexit would happen eventually. Perhaps not first with Britain. Once the Brussels Bureaucracy began to flood the EU countries with meddlesome and often silly regulations that ordinary citizens and businesses were expected to follow, it became inevitable. It escapes me how anyone can  think that meddlesome regulations from a nascent administrative state without real lawmaking authority and electoral accountability would unite the confederated but still sovereign nations of the EU, rather than divide them. Perhaps some ideological bureaucrat might delude himself into believing that, but it doesn't work that way.

Just Google "silly EU regulations" to find many of them. Such things are intensely irritating to people. It is an accumulation of thousands of small irritations that combine to drive people to rebel. The entire Brussels Bureaucracy needs to be sent home to find real jobs.

I have discussed this with several British friends, who all seem to agree it is the regulations that drove Brexit. Nobody minded the lower barriers to trade, investment, and travel (except of Muslim immigrants that are trying to conquer Britain by infiltration).

Muslim immigrants shouting to native Britons, ""his is our country now. Get out!" https://www.youtube.com/watch?v=tlBsG1UJoLc

The EU Parliament is not a true lawmaking body that can make laws for citizens of EU countries that are lawfully enforceable. Neither is the Brussels Bureaucracy authorized to make laws or "regulations" for ordinary citizens. Unless national authorities yield to them in a surrender of sovereignty. People want to elect their lawmakers so they can turn them out at the next election.

The EU has been experimenting with various ways to bring their members together. The one kind of experiment that could work would be a European Constitution. But the one attempt at that was so incredibly incompetent that it is no wonder the voters of France and the Netherlands rejected it. Nothing but vague, aspirational political slogans. To get a model for a constitution that might work see http://constitution.org/reform/us/constitution-us-model.html Compare it to the proposed 2004 EU Constitution http://www.unizar.es/euroconstitucion/Treaties/Treaty_Const.htm and note the differences.

What really works to unite nations is an external enemy. It appears that Russia is trying to become that enemy. We will see if that survives Putin. Fortunately he can't live forever.

So where does Britain go from here? Union with the United States  would make some sense. The UK would have to lose the monarchy, and if it loses Scotland that might follow. If it does lose Scotland then another kind of union might be in order, something more like my model. It would also need a written constitution. The present legacy of "constitutional" documents doesn't really do the job. Neither do the Canadian and Australian constitutions. The Australian is still an act of the British Parliament. There is still a movement in the UK to seek a written federal constitution, but it seems to be dominated by socialists.

See http://constitution.org/ech/eng_const_hist.htm and http://constitution.org/sech/sech_.htm

2016/08/02

Three schools of interpretation

The English common law tradition has essentially three schools of interpretation: royalist. tory, and whig.

One point on which the schools did differ was whether a delegation of power included incidental powers of carrying such a delegation into execution. Originally, going back to before the 17th century, it did not. By 1776 the tories were tending to hold that it did, and the whigs were the ones taking a  more conservative position. It was that split that led in the Constitutional Convention to the inclusion of the Necessary and Proper Clause to expressly delegate incidental powers, to carry into execution the other express powers. However, from the legacy of this split we can find that such incidental powers were only to make a limited official effort, not to do whatever might be thought expedient to get a desired outcome.

Some Latin legal maxims shed some light on this question:
  1. Potestas stricte interpretatur. A power is strictly interpreted.
  2. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
  3. Delegata potestas non potest delegari. A delegated power cannot be delegated.
  4. Ubi jus ibi remedium. There is no right without a remedy.
Another point of division was on the role of the jury. The whig position, notably asserted by John Lilburne in his trial, was that the jury had the right and duty to judge the law, and could override the judge on a point of law in favor of the defendant. The tory position was that the jury lacked the duty to do so, although they begrudgingly conceded the jury had the power to do so, especially as all arguments on issues of law were then made to them as well as to the judges. The tory judges later asserted their position on this by having the lawyers make legal arguments to them in writing out of the hearing of the jury, which is still the practice today.

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