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.


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.


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.


  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


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.


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


History of legal corruption in the United States

Having been asked for a quote of a prominent legal figure on prosecutorial corruption, especially the kind that results in wrongful convictions, it is difficult to find something pithy.

There is nothing new about prosecutorial corruption. It is as old as prosecutors. We can see it in the prosecution of John Lilburne, in the prosecution of Penn and Mead, and the subsequent prosecution of the jury foreman, Edward Bushell, for acquitting them. Those are the classic cases. Everyone knew the prosecutions were corrupt, but you won't find compact quotes to that, partly because the prosecutions failed.

Corrupt prosecutions were a major issue in the British colonies, which led to many of the complaints in the Declaration of Independence.

It was also an issue in prosecutions under the 1798 Alien and Sedition Acts, such as that of John Fries. But although unconstitutional, they were not called "corrupt" at the time.

Prosecutorial corruption is part of the larger problems of judicial and legal corruption. From devotion to the ideals of justice in the Early Republic, there has been a steady and sometimes rapid decline in legal ethics in the United States, until now the entire profession has become corrupt in different ways and to varying degrees. It is difficult today for an honest lawyer to practice conscientiously and not be disbarred. Requiring lawyers to be members of the Bar is another way they are controlled for corrupt purposes.

It is important to understand that the modern institution of the "public prosecutor" is relatively recent. Before about the 1890s most cases were prosecuted by private attorneys either hired to do it or appointed by the judge from among the lawyers locally available. This became too much a burden on them, so they sought to have a office of public prosecutor created that would be fully funded. The public wanted the elect the person who held that position, because they didn't trust anyone who might appoint them. Seemingly a good idea, but the public mostly didn't know enough about candidates for the office to select only those of good character. They wound up voting for those with the most convictions, regardless of how those convictions were obtained. We would have been better off if public prosecutors were selected at random.

Originally grand juries were supposed to screen proposed prosecutions to weed out any corrupt ones, but grand juries became captured by public prosecutors, or in some states, beginning with California, reduced to a role as auditors of public administration.

It didn't help that many judges rose from the position of public prosecutor, and carried a prosecutorial bias with them.

So now we get prosecutorial corruption that is massive. A new prosecutor in Dallas found that his predecessor has conspired with police to use bags of plaster of Paris as evidence of cocaine. He then tried to get most of the resulting convictions overturned. But he was exceptional.

One prominent legal figure who has condemned legal corruption, and not just prosecutorial corruption, is Alan Dershowitz, in private conversation. Whether one could get him to make a statement on the record is another matter.



Arrest Assange? For what?

CIA Director Mike Pompeo has announced that they have "found" a legal basis for arresting Julian Assange for his handling of classified information, and he seems to be supported in this position by Attorney General Jeff Sessions. Both men are constitutionally illiterate, and should never have been appointed to those positions.

Some constitutional background on the Assange situation.

First, there are only two bases for charging someone under the Espionage Act.

1. Prosecution under the "contract" that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.

There is also no authority to make conspiracy or complicity a crime. This was discussed in the Eleventh Congress and it was agreed that no authority existed.

Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information.

So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.

2. Persons can be prosecuted under the treason Clauses for giving "aid and comfort to an enemy", by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.

It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.


Chemerinsky on judicial abuses

Many if not most of Chemerinsky’s complaints are valid, just misattributed. Judicial abuses are not a matter of conservative vs. progressive judges, as you point out, or of Art. III, which were corrected by thew 14th Amendment.
The Eleventh Amendment, properly interpreted did not confer sovereign immunity on the states, and if it did the 14th overrode that. The Eleventh was about getting money judgments against states that could be collected by executing on assets of the judgment debtor’s choice, like a capital building. There can not be a constitutional bar against a state being sued. States must appropriate a claims fund for the payment of judgments upon application thereto, without relitigating the case in opposing payment. The same principle applies to official immunity, which should never be taken as a bar against suit. Nor should an official be immune for acts committed outside his authority, even if he is “on the job” at the time. The act can be lawful or unlawful from one penstroke to the next.
- See more at: http://www.libertylawsite.org/2017/04/21/whining-about-article-iii/#comment-1537324


Gun-free or free-fire

No man's life, liberty, or property are safe while the legislature is in session.

Its an odd year so the Texas legislature is in session. The big issue this year is "constitutional carry", the proponents of which want Texas gun laws changed to allow almost anyone to carry handguns openly anywhere and at all times, the way they can now carry long guns. Texas now licenses concealed carry, but forbids open carry, something that irks Second Amendment devotees. Several states have adopted constitutional carry, without becoming war zones, and it seems likely that Texas will soon join them. But Texas does have its complement of gun controllers who are seeking to restrict where and when people can carry openly, with the support of some police professionals. They have introduced several bills, HB 234, 255, 899, and 3989, that would try to expand "gun free" zones, which deserve to be cast into legislative oblivion.

Constitutional carry is appealingly simple, but it does not address all the legitimate concerns reasonable people may have. On poor legal advice to many proprietors adopt the simplistic policy of banning firearms from their premises, thinking that will protect them from being sued if a firearm is misused there. It will not. Eager lawyers will sue anyone from whom they think they can get a settlement. But since many of them rely on liability insurance, and the liability carrier is often eager to settle to reduce costs, that carrier is likely to require the banning of weapons as a condition of coverage.

So we need a different kind of legislation:

Proprietor liability protection

A bill needs to provide that:

1. Proprietors of premises are not liable for the misuse of weapons on their premises unless they personally instigate such misuse, even if they do not forbid weapons on those premises.
2. Suit for such liability must bear all costs of litigation unless they can prove personal complicity.
3. Liability carriers may not make their coverage conditional on banning weapons on the premises.
4. A proprietor who wishes to ban weapons must take custody of such weapons upon entry onto the premises, keep the weapons safely locked in an armory, return them to the bearer upon departure, and return such weapons to the bearer in the event of an incident requiring the weapons.
5. A proprietor is liable for any death or injury that could have been avoided had the weapons been left in the possession of the visitor.

Rival proponents of legislation are trying to write laws applicable to all kinds of people. Proponents of constitutional carry contemplate a population overwhelmingly composed of mature, responsible, competent, "law abiding" people, who are not disposed to misuse weapons, or are even disposed to help enforce the law. Proponents of gun control legislation see a population largely composed of ill-behaved delinquents, drunks, hotheads, untrained, and even members of criminal gangs.

Proponents of constitutional carry see gun control laws as only restrictive on responsible persons, the kind we want to have bear weapons. They see "gun free" zones as "free fire" zones for delinquents seeking easy targets, who will not only ignore laws and signage, but see them as opportunities.

That perception is distorted by the desire of police to be able to justifiably shoot to kill anyone they find bearing a weapon. If the possession of a weapon is not proof of delinquency, their decisions are much more difficult.

One way to limit possession of handguns to the more responsible has been to require a license to carry, available to those who pass a course in the safe and effective use of handguns. The idea of training is a good one, but it should be a requirement for everyone, not just as a condition for obtaining a license.

So what Texas needs is a

Militia Act

1. Each county shall have a Militia Board which shall maintain a roster of residents of the county fit for militia duty.
2. Each resident of a county fit for militia duty must register with the Militia Board of that county.
3. The sheriff and constables of each county and ward or precinct shall serve as commanders of militia in their jurisdictions.
4. In the event a sheriff or constable should be derelict in his duty to serve as commander, the residents of that jurisdiction may convene as militia to elect a commander.
5. All persons fit for militia must be called up at least once a year, organized into militia units, and trained in defense, law enforcement, disaster response, and jury duty.
6. Militia training shall begin at age six, and be conducted in public schools.
7. Militia personnel shall provide their own tools and equipment.
8. Personnel unfit for militia shall be identified, segregated from the remainder of militia, and shall receive remedial treatment.

Such a militia system would be a return to the system contemplated by the Founders, and would go a long way toward reducing misbehavior of all kinds.


Through the hellhole

Through the hellhole

As a leading futurist organization, we are frequently asked how can the world, or the U.S., avoid economic collapse. People who ask that are usually disappointed when we answer, we can't. The only opportunity we had to do that passed after WWII. It didn't just pass. It was overrun by a stampede of crazed investors screaming GROWTH!! By that of course, they meant growth in the value of their own investments, never mind that it might be along a path that leads to global catastrophe. There is no resisting that kind of stampede.

There is nothing new about speculative frenzy. There are many instances of it in history, which have generally ended badly. They are not always discussed in those terms, but that was often what was really going on.

Consider the French revolution. It is usually taught as an eruption of violence that occurred in the late 18th century, but it was actually centuries in the making. Only a generation before, French King Louis XV famously said "Apr├ęs moi, le deluge." "After me, the flood." Meaning that he foresaw the coming debacle, nut was unconcerned as long as it did not occur until after he was dead. It came in his son's lifetime, and Louis XVI lost his head on the Guillotine., along with thousands of other "aristocrats".

Could Louis XV have avoided the French Revolution? In principle, yes. But his base of political support was the aristocracy. He would have had to do something like tax them, so that to avoid losing their estates to taxes, they would have had to turn to the lowly pursuits of crafts and trade to make additional money, and in doing so, created opportunities for the peasants, craftsmen, and merchants that might have led to the industrial revolution first appearing in France rather than in England. But a tax in his time would probably have acted too slowly. Perhaps in the time of his father Louis XIV.

The main thing Louis XV illustrates is the concept of the generational  discount rate.  Everyone discounts value at some rate over time. That's why a sum of money today is worth more than the same sum ten years from now. It is the basis for loans and annuities. What Louis XV was doing was discounting the interests of future generations at a rate of 100%. If he had cared about his children and grandchildren, but not beyond, it would have been at 18% per generation.  Anything less than 18% values more highly the interests of future generations beyond this and the next two by more than that of this and the next two.

We can conjecture that when the Framers of the U.S. Constitution wrote of posterity they were attempting to draft a constitution that would provide for generations beyond three, although they would not have understood the notion of generational discount rate.

Resources for Earth humans

There are mo truly renewable resources. Only resources that keep coming, until they stop. For a human in the Earth system, a resource is a subsystem that holds a certain amount of "free" or available energy. That means energy available to do work. It is only a resource if one has the means to extract the available energy from it, either for sustenance, or to acquire more available energy.

In the Earth system there are only two sources of available energy. the sun, and the supernovae that created most of the heavier elements that comprise most of the mass of the planet. The major component of these are the radioactive elements that are gathered in the Earth's core, whose decay make the core hot, and are responsible for volcanoes and volcanic vents. We can also count the minerals that can dissolve and provide nutrients for life. We can describe the users of such energy as sun-eaters, core-eaters, and rock eaters.

Available energy moves down a gradient from its source to the larger universe. As it moves down, a value called its entropy, the measure of disorder of the system,  increases. It also increases when we extract the available energy, using it to either keep the entropy of our system low (while increasing it faster everywhere else), or to acquire more available energy from somewhere.

Grow or die

Each day one has a choice whether to consume one's available energy, or to save part of it either to consume tomorrow, or to invest it in acquiring more available energy. One can use available energy to acquire more than that amount of available energy, in which case one is operation at a profit. Otherwise one is operating at a loss.  Operate at a loss too long and the enterprise, which could be one's own life, fails, which is economic collapse for it.

While it is possible in principle to operate in a steady state of no growth or decline, in practice it is almost never sustainable for long. One either grows or dies. Since no one wants to be part of an enterprise that fails, that means one wants to always grow, and the faster the better. In any system of enterprises in which the average growth rate is zero, some are always failing, while others grow at the expense of the others. That is why enterprise is necessarily competitive.

And there is a tendency for the rich to get richer, since the richest tend to have a competitive advantage over the less rich.

Grow and die anyway

The supply of available energy is not the main limiting resource in most sectors. The problem can be understood by examining the growth of actual animals and plants. They do not in general grow to use all available energy. They stop growing well short of that point. The limit is internal manageability. A lifeform can overgrow its capacity for internal management. The result is usually death. But animals and plants generally have internal controls on their growth that prevent that. Human financial institutions do not.

 have yet to see a Nobel awarded fro a breakthrough in manageability theory.  Or for that matter, good papers on internal manageability as constraints on the growth of metabiota.

How might collapse come?

It is sometimes said that the problem is not too much debt, but too much easy money. It is both, since it is easy money that makes too much debt possible. The 1931 collapse came from the failure of a single bank, the Creditanstalt of Vienna, Austria. The 2008 crisis came from too many bad mortgages, and the problem was not solved. It was only made to appear it had been solved. The deck chairs were moved around on the Titanic. It could come from collapse of Italy, Spain, or Greece. More unsolved problems.

No one knows how it might start. but it could spread rapidly, to the entire planet. No one has a solution, other than to print fiat currency, and pay off debt with worthless banknotes. That is when we might begin to see governments fall, and be replaced by dictatorships. After that, things could really get out of hand.

Buy physical gold?

People had physical gold in 1933. The government ordered all of it to be turned in. Gave them $35 an ounce for it. But try to take your $35 to a bank and get an ounce of gold for it. Forget it. A lot of people buried their gold then. Much of it is still buried. That's what treasure hunters look for.

Try to spend any of your gold or silver? Forget it. Federal offense.

Bitcoins. For a while, perhaps. Until the government decides to confiscate them as well.

Find a piece of fertile land with clean water on it far from a city? Most of those are already owned and not being sold.

Keep firearms and ammunition? The government will just order those turned in. Try to resist? Do you really want to die defending your rights against hoards of swat officers? They are not going to arrest you. Just kill you.

The economy runs on debt

Almost every major transaction in the modern economy is financed. Most enterprises have become so dependent on easy money for financing that they couldn't self-finance if they wanted to. That means food from farm to market. Fuel from mine or well to power plant or filling station. If the financing fails, so do shipments. Suddenly, supermarket shelves go barren and electric companies turn off the electricity. Without electricity, the water systems fail. Governments could step in to order services to continue, but that wouldn't last long.

If fiat currency becomes worthless, you won't be able to buy anything with it. Riots would probably break out, and the government would declare martial law. Soldiers and police might get stuff, but the rest of us would be out of luck.

An early indicator would be if the government to order banks to confiscate all savings accounts, and pay for them with bank stock or Treasury bonds.  It might also order confiscation of most of checking accounts as well, as happened in Cyprus.

What might happen to us

There was a document posted to the FBI website, Project Megiddo, which we copied before it was taken down, that presents a chilling plan for rounding up undesirables, including blacks and Hispanics,  in the event of civil disorder. The document was vague about the fate of those people, but we can assume the worst. There are also persistent rumors of lists of dissidents, including the red list of those to be killed immediately.

During the dictatorship in Argentina, critics of the government were detained and never seen again. They were called the desaparecidos (disappeared ones), and none of them have been seen again, nor have mass graves been found that could account for them. The rumor is that they were taken in cargo planes out over the South Atlantic, stripped, weighted, and thrown out the planes. A weighted body would descend and be consumed by abyssal scavengers so that no trace is found. It is said they learned their methods from U.S. intelligence agencies, and called it "feeding the fish", alimentando el pescado. See "Painful search for Argentina's disappeared".

hat is not to say the U.S. government will do such things to American citizens, but the signs are ominous.

How these events might play out has been the subject of many movies, science fiction novels, and prepper speculation. We don't meed to repeat it here.

Enter the joulenote?

Much depends on how those in power react. The prospects are not encouraging. I don't find much thinking among them about what could happen or what we should do about it.

If financing ends and fiat currency is no longer accepted, then we have limited options, although the powers that be might not know what they are.

The critical move would be to nationalize energy holdings, oil, coal, gas. etc., and issue certificates convertible to units of available energy, probably measured in megajoules or gigajoules. They could be distributed through a kind of modified EBT card that would enable people to purchase minimum amounts of food, energy, etc., to get the economy moving again and meet the basic needs of people. Once this new currency took hold, it would not take people long to figure out how to use it. The unit of money might become known as a joulenote.

But all this would need to be done quickly, before mass starvation sets in.

Energy is already traded internationally in terms of its equivalent in gigajoules. See this. Introducing energy currency down to the consumer level would not be such a stretch.

The threat from political Islam

It is estimated that perhaps 7% of Muslims see world domination as both a good thing and attainable in the near future. If the West collapses economically, that number could greatly increase. They are already seeking to dominate through infiltration and subversion. A weakened West would present an irresistible target.

In a training video taped while he was a U.S. Army sergeant at Fort Bragg, NC in 1987 Al Qaeda spy Ali Mohamed openly states what has now become the goal of ISIS: the creation of an Islamic state.

This is a direct quote from Mohamed in that video first reported in Peter Lances's HarperCollins investigative book TRIPLE CROSS in 2006.

“Islam cannot survive in an area without political domination. Islam itself, as a religion, cannot survive. If I live in one area, we have to establish an Islamic state, because Islam without political domination cannot survive.
“We have what we call a dar ul harp, which is the world of war, and dar ul Islam, which is the world of Islam. Dar ul harp, the world of war, comprises all the territory that doesn’t have Islamic law.
“So if I live in an area of Egypt, for example, or in the Middle East, I will consider it dar ul harp. I will consider it the world of war, because actually it doesn’t apply the Islamic law one hundred percent. As a Muslim I have an obligation to change dar ul harp to dar ul Islam and establish Islamic law. It’s an obligation. It’s not a choice.”

To that danger must be combined the likelihood that many of those will acquire nuclear weapons. Suitcase nukes are already in danger of getting into their hands. If they do, we can expect them to use them to compel our submission. That might even work for some countries.  It won't work for the United States. If we start losing cities to the cries of Allahu Ackbar, there will be an irresistible demand to annihilate the entire Muslim world, perhaps using autonomous robots. That would be a tragedy unprecedented in history. But it is one we need to prepare for.

On the other side

Can we emerge into a better world on the other side of the hellhole? Yes, if we make the right decisions about our systems of governance. I have tried to set forth such systems in the Model Constitution and Bill of Immunities.


The president can restrict immigration

In a February 2, 2017, column, Andrew Napolitano posted an article, The President and Immigration, https://www.creators.com/read/judge-napolitano/02/17/the-president-and-immigration, in which made the following incorrect statements:
The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.
In 1882, Congress gave itself the power to regulate immigration,
Then he goes on to say, correctly:
In 1952, Congress passed the Immigration and Nationality Act (INA), which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons. 
 But then he states:
Yet the courts have limited the president's exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant's political views, religion or colleagues.
However, such court decisions are in conflict with the discretion of the 1952 INA.
It is not correct that the Constitution delegates to Congress no power to control immigration. It does so in the Law of Nations Clause: "Congress shall have power ... to punish ... Offenses against the Law of Nations." Entry without official consent is an offense against the law of nations. Indeed, perhaps the most serious such offense.
Like many people, I was curious about this clause and what it meant, so I did some research. Most of the leading treatises were in our online Liberty Library of Constitutional Classics at http://constitution.org/liberlib.htm. It was not easy, because the discussions were not very systematic. I finally summarized them in an article, "Original meaning of offenses against the law of nations" at http://www.constitution.org/cmt/law_of_nations.htm. I composed a partial list:
Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone's Commentaries, and prosecution of those who might violate them:
(1) No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.
(2) Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.
(3) Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.
(4) Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.
(5) Care and decent treatment of prisoners of war.
(6) Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.
(7) Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas.
And, although it was not yet firmly established with all nations in 1788,
(8) Prohibition of enslavement of foreign nationals and international trading in slaves.
Item (2) covers control of entry into a country without official permission.
So, although some prohibited discrimination on First Amendment grounds, the 1952 Act left discretion to the president on grounds of national security.
Religions, invasions, and tribal dominance
But does every movement that calls itself a "religion" qualify as one?
No. If its major tenets are to conquer the world by infiltration and subversion, then it is political, not religious, and may be properly excluded.

History is a sad tale of struggles for dominance among competing tribal and other groups, some just for land, plunder, and slaves, others over religion. War was so entrenched that religious movements just took it for granted they would be at war with other movements, and those expectations became self fulfilling


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.


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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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.

This article is to propose that a more specific rule be applied to states and other political subdivisions. stated in out Model Constitution http://constitution.org/reform/us/constitution-us-model.html as:

11.4 Restrictions on the powers of states, dominions, and protectorates. No state, dominion, or protectorate, or any subdivision thereof, shall:
      11.4.10 Make or enforce any law that is not authorized by a specific delegation by its constitution.

Then a claim of authority as the exercise of a general police power would fail the requirement for specificity of the delegation of authority.

This result could also be obtained with existing state constitutions by making the above requirement or failure to abide by it as a civil rights violation.

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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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.


January 25, 2013

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


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,


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


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

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

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.


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

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

b. Due process

1. General

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

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

4. No excessive bail when there is little flight

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

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

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

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

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

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

10. Unimpeded and unpunished petition for redress of

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

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

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

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

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.
Persons whose rights have been violated within the
preceding 20 years from enactment hereof shall have standing
to seek relief under its provisions.

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.


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