2017/02/22

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.

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.

2017/02/13

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

2017/01/12

How "global warming" is misunderstood

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

I will provide part of an answer here.

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

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

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

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

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

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

Here is a diagram of global air circulation and precipitation:



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

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

Are we avoiding a new ice age?

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

Lower sea levels

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

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

Mars

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

So what is to be done?

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

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



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2017/01/04

Are state 'police powers' constitutional?

To any of the Framers the answer would have been thought to be obviously yes. The U.S. Constitution delegated to Congress a list of "enumerated" powers that were to be considered nearly exhaustive, except for a few "implied" powers that were intended only to be incidental to the express powers of the enumeration. All other proper powers of government were to be left to the states or to local governments, or left to the People. The Tenth Amendment makes that explicit:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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

And the Fourteenth:
... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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

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


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


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

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

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

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

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

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

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

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

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

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

Not just obviously, but obviously wrong.

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

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

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

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

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

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

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

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

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

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

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

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

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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2016/12/22

Originalism does not support social conservative agenda

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

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

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

Civil Rights Act

113th Congress

1st Session

S. ____

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

IN THE UNITED STATES SENATE

January 25, 2013

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

A BILL

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

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

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS AND AUTHORITY.

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

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

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

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

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

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

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

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

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

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

3. Perjury, fraud, or conduct unbecoming.

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

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

SEC. 3. ENACTMENT AND REPEALS.

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

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

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

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

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

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

a. All rights already established in the above
titles.

b. Due process

1. General

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

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

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

4. Mandated testimony of witnesses.

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

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

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

8. Not to be subject to retaliation.

2. Criminal trials:

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

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

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

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

5. No excessive fines imposed.

6. No cruel and unusual punishments inflicted.

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

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

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

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

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

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

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

14. Unimpeded presentation of alternative
instructions to the jury.

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

3. Civil trials:

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

4. Appeals

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

c. Nonauthority

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

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

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

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

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

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

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

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

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

10. Unimpeded and unpunished petition for redress of
grievances.

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

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

d. Supervision of government actors

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

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

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

f. Other

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2016/12/15

Did the federal jury do right?

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

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

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

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

2016/12/14

Why LGBT mania?

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

2016/12/10

Liquid Fuel Thorium Reactor

Liquid Fuel Thorium Reactor (LFTR)

Uploaded on Oct 4, 2011

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

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

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

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

Key YouTube video components:

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

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

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

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

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

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

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

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

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

Q: What is thorium and what makes it special?

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

Q: What is a liquid-fluoride reactor?

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

Q: Are the salts safe?

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

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

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

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

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


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

2016/11/24

Clinton misbehavior not constitutional crimes

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

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

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

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

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

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

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

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

2016/11/21

Eighty ambiguous phrases

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

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

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

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

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

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

2016/11/15

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

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

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

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

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

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

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

2016/11/13

Trump's first 100 day agenda

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

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

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

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

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

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

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

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

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

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

Again, violates First Amendment.

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

Again, violates First Amendment.

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

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

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


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

It's not really in effect yet.


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


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


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


Aspirational. Need to be more  specific


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

There aren't that many restrictions now


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

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

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

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

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

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

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

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

Presumably already under weigh.

* THIRD, cancel all federal funding to Sanctuary Cities

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


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

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

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

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


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

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

Is this going to be paid for with more borrowing?


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

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

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

Picking winners and losers.

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

How is this paid for?.


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

Okay if done right.


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

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

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

Need to make it a crime to enter illegally

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

Already trying to do that. Not so easy.


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

Okay if done right.

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

Aspirational. Need to be more  specific.


A start, but more attention needed for constitutional compliance.

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