H. R. 2028 unwise, unconstitutional

H. R. 2028 is an attempt by Congress to prevent certain decisions by the Federal Courts by restricting their jurisdiction, using the precedent of Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). The Bill has been cosponsored by over 200 members of Congress

Kent Snyder The Liberty Committee

Like most simple solutions, this one, H. R. 2028, is misguided, and deceptively so. It is also unconstitutional itself.

The problem is not jurisdiction. To meet the requirement that people have the right to petition for redress of grievances, there must always be courts available that can hear and decide any judicial question on its merits. The problem is not that federal courts hear and decide the cases, but the ways they decide them, both procedurally and substantively.

The main problem with the federal courts is not that they overturn congressional legislation, but that they sustain too much of it. Almost all of the decisions that find congressional legislation unconstitutional are correct. Many if not most of the decisions that find congressional legislation constitutional are not correct. If the federal courts were faithful to the Constitution, they would strike down most of the federal legislation enacted in the 20th and 21st centuries. As for reviewing state court decisions, that is mainly done in a way that is an outgrowth of judicial precedents that may need to be revisited. Trying to restrict jurisdiction to hear such cases doesn't address the problems created by the precedents, or by the ways congressional legislation enacted under the authority of the 14th Amendment has been worded.

There are several reforms that need to be made, none of which are addressed in this proposed legislation, and therein lies the deception.

The first reform is to deprecate the influence of the doctrine of stare decisis. This might be done by requiring that judges, in making a decision, exhaustively examine text, legislative history, and prevailing usage and practices at the time of enactment, before considering judicial precedents, and then only by citation of the reasoning used, not by treating the precedent as though it were itself an enactment. Stability in jurisprudence is not more important than fidelity to the written Constitution as originally understood.

The second reform is to reverse the presumption of constitutionality of legislation, and deference to the legislative judgment of Congress, and to require strict proof of the constitutionality and statutory authority for any official act, presuming the lack of such authority. Any official undertaking to exercise any power must be required, if that authority is challenged, to provide an unbroken logical chain of authority leading back to the U.S. Constitution, or for state official acts, to the state constitution as well. It needs to be logic that can be verified by a computer program, not the "informal reasoning" favored by lawyers that can accept logical contradictions.

The third reform would be to have all federal cases decided by tribunals of at least three judges, with the right to a jury at the first trial level, and a right to a review of appellate decisions by an independent grand jury. The panels should be selected by sortition, that is, at random. And the voting rule should be that the panel must be unanimous to sustain a claim of a power by a government official over the claim by an individual of a right not to have that power exercised. In other words, the presumption should always be on the side of the individual against the government.

The fourth reform would be to require all points of law be argued in the presence of a jury, in a jury trial, with the jury provided copies of all pleadings of points of law, and access to an adequate law library with instructions how to use it. This is especially important when the government is a party as plaintiff or prosecutor, and there may be a bias on the part of the presiding magistrate in favor of the government.

The fifth reform would be to remove all impediments to private criminal prosecutions in federal courts, especially in public corruption cases. This means the public and private prosecutors must have direct access to grand juries who are not so overburdened with cases that they do not have time to adequately investigate questions the public may raise.

The sixth reform would be to increase the size of the U.S. Supreme Court to, say, 27, and provide for most cases to be heard and decided by randomly drawn panels of three members, with appeal to panels of nine, from which there could be one final appeal to an en banc panel of all 27. The U.S. Supreme Court can today do justice to only about 80 cases a year, out of about 8000 that are filed with it, and too many of the 99% of those cases that are not heard have merit and deserve to be decided on their merits. Having the cases decided by panels of three would increase the throughput, while diminishing the weight of the precedent that such decision might tend to establish. Right now the U.S. Supreme Court is a bottleneck at the top.

The seventh reform would be to provide a screening process for nominees to the federal bench that would emphasize expertise in constitutional history and analysis, not just the study of precedents, the way the subject is now taught in the law schools. Judges need to know what Madison understood the provisions of the U.S. Constitution to mean when he helped draft them.

I urge the defeat of H.R. 2028 as presently drafted, or substitution into it of language that would accomplish all of the reforms listed above.


How I celebrated Constitution Day (and almost got arrested)
By Jon Roland

On September 17, 2004, I celebrated Constitution Day in Austin, Texas, the way I often have in years past. I stood on the side of a roadway and held up a sign to traffic:


In past years I have picked such locations as near the Federal Courthouse or State Capitol. This year I decided to pick another location, on the overpass of Far West Avenue over the Mo-Pac expressway (Loop 1) facing southbound traffic on the expressway. As in previous years, I got a lot of honks and cheerful waves from motorists and their passengers.

I had been doing this for about an hour when first one, then a second, police vehicle showed up and parked beside where I was celebrating. They expressed the position that what I was doing was illegal, so I asked them to provide the statute that made it so.

While I conducted a mini-seminar on the Constitution with one officer (during which I pointed out that to be constitutional, an arrest warrant had to be physically presented to the subject, not just its existence verified over the radio, a point he seemed unfamiliar with), the second tried to find the provision in the printed Vehicle Code he carried with him. (I had asked for the statute, not the code, and said that since he was in communication with his headquarters, he should be able to get that, but it let it go for the moment.)

In the meantime I continued to hold up the sign, and kept getting honks.

After about half an hour, he came up with a section of Vehicle Code provisions that declared it illegal to "maintain" a sign on "state property". To that I raised the points that: (1) The word "maintain" in that context was intended by the legislature to mean "affix to the land or structures", not hold in the hands of an individual (or wear on a sweat shirt, or affix to a vehicle). (2) There was a question whether this was being done on "state property" for the purposes of enforcement: the state might "maintain" the highway and overpass, but that did not necessarily mean they "owned" it. The highway might be an easement, without air rights to the overpass, or the city or county might own the land, or the street and sidewalk, even if they might not "own" the bridge that supported it. They were unsure, so I asked them to call a supervisor. While we waited for the supervisor, I engaged both of them in discussion about the various organized activities I supported, such as Libertarian Party meetings, and invited them to attend.

Finally, the supervisor showed up, and said "there are precedents" that support their interpretation of the word "maintain" in the statute, although when asked, he couldn't cite any. His argument was that the word "maintain" when applied to someone holding stolen property seemed to cover holding up a sign in one's hands. I pointed out that that was a different context, and the meaning in that context didn't necessarily carry over to this one. Then I also raised the question of whether this was really state, city, or perhaps county, property, for the purposes of the statute.

Finally, the supervisor asked me how much longer I intended to do this, and I answered that I had intended to quit at 6:00 PM (it was then about 6:15) since rush hour was over, and go on to other things, and was only waiting for them to finish before leaving. So they gave me back my driver's license, and I left. As I looked back, they continued to talk among themselves for several minutes, and I can suspect they may have been talking about the issues I raised with them.

So I didn't get arrested (darn! :) I had the impression they had a vision of the incident making national news and leading to a lawsuit. But it does raise some interesting questions. These were good cops, trying to do a good job. This was Austin. In some cities of this country they might not have been so gentle or polite. But while the legal guidance they had might have made sense to the lawyers who wrote it, it was not clear to the cops on the beat, and they had a tendency to give the words they found on a page the widest possible construction, rather than the narrowest or most reasonable.

There are two reforms that need to be made:

The first is that the word "maintain" in those provisions of the Vehicle Code needs to be replaced with the words "affixed to the land or structures on it", or words to that effect. It should also explicitly state that it does not include signs held in an individual's hands, worn on a body, or affixed to a vehicle. It might seem a bit much to include in the Code things that are not included, but cops need that kind of clarification, as do civilians.

The second is that the boundaries of jurisdictions need to be clearly marked. There should be signs and boundary markings that make it clear to anyone what is federal, state, county, city, or private property and jurisdiction. It should not be necessary to research the county deed records and plat maps, or call for a surveyor, to decide what statutes apply where. The Code needs to also specify whether by "state property" it means the land, the easement, the improvements, or what, and what the boundaries of each such component of property might be.

I maintain that any law applicable only to certain property or territory should be held unenforceable unless or until the physical boundaries of the property or territory are clearly marked on the site, showing who is the owner, or which authority has the jurisdiction, on each side of the boundary lines. Otherwise, there is not due notice to the public, or to the law enforcement agents.

So, for those of you who might enjoy reading that I spent the night in the slammer, I'm sorry. Didn't get arrested. Maybe next year.


Grant Proposal


7793 Burnet Rd #37
Austin, Texas

In response to requests for a proposal of what we would do with substantial funds, we offer the following partial list of projects, not in order of priority, that we would do if sufficient funds were available. There are no specific amounts attached to these. We could use as much funding as might be provided, although some of them would not be worth commencing without a certain minimum level of funding, which is indicated. More detail is provided in the notes at the end.

Multimedia production and distribution
. This would range from 60-second TV commercials to full-length movies or training courses. At lower levels of funding we might make use of local access TV facilities. At higher levels we might create our own studio with equipment for producing and editing multimedia materials.

Online documentation
Grant Proposal. We are already doing this with such collections as the Liberty Library of Constitutional Classics, but much work remains to be done, and much more needs to be added.

Print documentation
. There is still a need for printed books and papers, and while we might put most of it online, some of it might be printed and distributed, especially to schools and libraries.

Research and writing
Grant Proposal. There is a great deal of original research that remains to be done in support of original understanding of the Constitution. Some of it might be done internally, and some might be done by grants to others. It could take the form of everything from introductions and commentaries published online, to law review and other journal articles, to complete treatises.

Constitution centers and local groups
. Organize local groups with regular meetings, and eventually build advanced activities and permanent facilities.

Law education reform
Grant Proposal. Reform law schools, beginning with reforming bar exams to put more of an emphasis on constitutional history and analysis, staffing law schools with originalist constitutional scholars, and offering fellowships and scholarships to faculty and students for originalist research, writing, and teaching.

. Initiate or support litigation intended to make certain critical reforms in judicial precedents and practices, such as requiring all arguments of law to be made in the presence of juries, opening courts and grand juries to private prosecutions, especially in public corruption cases, and instituting more effective ways to prevent or correct instances of official misconduct or incompetence.

Grant Proposal. Develop and do research in support of legislation intended to bring legal practices into compliance with constitutions, and build support among the public and opinion leaders for its adoption. Topics could range from judicial procedures to redistricting to constitutional amendments.

Notes providing examples and more detail

Multimedia production

Educational programming
. Commercials, infomercials, documentaries, discussions, and other programming for radio, TV, and webcast. Sponsor regular syndicated programs, and perhaps operate non-profit radio and TV stations in major markets.

Documentaries and docudramas on juries
. A start on this has been made by the 2004 summer series, The Jury, on the Fox network, which was canceled after only a few episodes, and more recently in the ABC News series, In the Jury Room, which presented edited taping of actual jury trials and the jury deliberations. We would expand the topic to include grand juries, and federal and state courts. Eventually, we might cover the courts of other countries. The emphasis would be on examination of problems in the legal system that might be addressed by juries and grand juries. We might depict dramatizations of actual historical jury trials, such as the trials of Penn and Mead, Bushell's Case, and other milestone cases.

Online documentation
. Grant Proposal

Scan, OCR, correct, reformat, and insert links to connect documents to one another, and add annotations and commentary.

Scan works that are not available as scannable printed books from microfilm or microfiche, which requires a special scanner.

Greatly expand collections of law review articles, legal briefs, and legal treatises. Cross-link their cites to one another.

Provide online distance education programs on constitutional topics.

Print documentation

Grant Proposal

Either self-publish or work with organizations like the Liberty Fund to produce print editions of our online works.

Develop curriculum materials and textbooks for children and adult continuing education, and for lawyer continuing legal education (CLE).

Produce ads for print publications, brochures, and handouts.

Research and writing.
Grant Proposal

Conduct or sponsor studies of the original meanings of words used in constitutions, such as commerce, regulate, promote, due process, etc., which have undergone some changes in meanings since the Founding Era.

Develop simulation games that can educate people and provide insight into constitutional design.

Develop a simulation game that would simulate a constitutional convention and examine how some constitutional designs work better than others, and are not just the products of a particular political culture.

Develop simulation games that would teach people how to solve problems of public choice to counteract the influence of special interests.

Develop a simulation game that would train chairpersons to conduct deliberative assemblies according to Robert's Rules of Order, Revised.

Constitution centers and local groups
Grant Proposal

Organize groups with regular meetings in every county and urban neighborhood, within other organizations, near the campuses of major universities, as special study or activity groups.

As groups become stronger, establish regular rented meeting facilities, and finally establish permanent buildings, including such facilities as libraries, conference rooms, classrooms, and multimedia equipment..

Join centers with departments of constitutional studies in the universities, offering postgraduate degrees in the subject.

Establish enhanced constitutional education programs in schools and colleges.

Establish a reputation of the constitution centers as the place to which people subjected to abuses of their rights can turn for aid, and find legal help, support, and publicity, and as a source for grand juries to consult to get evidence they need on public corruption.

Build a dominant coalition of voters that will make constitutional compliance the leading issue in every election.

Make celebration of Constitution Day and Bill of Rights Day as large an event as celebration of independence day.

Law education reform
Grant Proposal

Develop and promote an accreditation system for law schools independent of the American Bar Association.

Promote bar examinations at least a third of which are on constitutional material.

Recruit, educate, and place law faculty with originalist expertise on constitutional history.

Scholarships for law students who score well on constitutional examinations we would develop.

Conduct seminars and conferences on constitutional issues.

Make law and legal history education part of the curriculum for every citizen, up to and beyond at least the first-year level of present law schools, but with more of an emphasis on constitutional text and history.

Grant Proposal

Seek precedents requiring all issues of law to be argued in the presence of the jury, including providing them with copies of all pleadings, and access to adequate law libraries.

Revive private criminal prosecutions, especially in public corruption cases.

Reduce the indictment workload on grand juries, and enable and encourage them to investigate public corruption and incompetence.

Seek precedents to better protect the rights of litigants, and to strike down all unconstitutional legislation.

Systematically file amicus curiae briefs in cases with constitutional issues, that inform the court of historical evidence of original understanding, and recruit supporting briefs from other organizations. Write and publish reusable briefs for this purpose, with supporting law review articles and treatises.

Grant Proposal

Select judges by sortition, like juries, rather than by appointment or election.

Introduce a random, or sortition, component into the election of legislators, to reduce their susceptibility to undue influence by campaign contributors or special interests.

Introduce a random, or sortition, component into the awarding of government contracts, and the hiring, promotion, and assignments of personnel, to dispel undue influence.

Establish non-partisan redistricting using impersonal computer programs to draw districts.

Revive private prosecutions of public rights, enabling any person to bring an action for declaratory or injunctive relief without having to have been personally injured.

Revive quo warranto proceedings, and reverse the presumption of authority for official acts, requiring strict proof of authority when an act is challenged.

Repeal all unconstitutional statutes, such as criminal penalties based on the Commerce Clause, or defining interstate “commerce” as anything but transfers of ownership and possession of tangible commodities, and repeal all statutes, such as those for asset forfeiture, that are susceptible to abuse.

Require the video taping of all court proceedings, including those in chambers, make those recordings part of the public record, and require the taping and eventual public disclosure of most contacts among officials and between officials and members of the public.

End impediments to the publication of case records, and put all of them online as searchable files.

Require juries in cases of family law, competence, and custody.

End legislative disablements of rights and allow only disablements by explicit court order, such as imposing penalties for having been the subject of a judicial or administrative proceeding on some question without the specific activity having been judicially disabled with the right of a jury verdict.

End occupational licensing, including of lawyers, to make personal labor a right, rather than a privilege, subject to judicial disablement by jury verdict but not prior approval, and end the licensing of any activity that does not involve the use of public assets.

Reform legislative rules to open all legislation for public debate and to remove undue influence by partisan majorities.

Introduce rules that require sunset provisions in all legislation.


Postings to forum on ABC-News "In the Jury Room"

The forum is at http://forums.go.com/abcnews/thread?threadID=29323

ABC is to be commended for its series /In the Jury Room/. Besides being entertaining, it serves a need to educate the public how to serve on juries.

We have web pages on the subject:

I will be posting several messages on this topic which discuss some of the fundamentals of jury service that everyone needs to know, but which are seldom taught in the public schools. I invite others to contribute.


There are several elements that must be proved beyond a reasonable doubt to establish guilt on a criminal charge:

(1) That the charge is authorized by a statute;

(2) That the statute is authorized by a constitution (state or federal);

(3) That the charge and statute are applicable to the facts alleged;

(4) That the court has both subject jurisdiction, and either territorial or personal jurisdiction. This point is discussed at http://www.constitution.org/cmt/stimson/con_crim_jr.htm ;

(5) That the rights of the accused have not been abused by officials, including the police, prosecutors, and judge;

(6) That the facts establish the following five elements of a criminal act:

1. Mens rea. Criminal intent. The accused must have intended to commit the crime.

2. Actus reus. The actual act that fits the definitions established by law.

3. Concurrence. Mens rea and actus reus must coincide in location and time.

4. Harm. Some injury must actually have been done.

5. Causation. The actus reus must have actually caused the harm.

Now these last items must be reconciled with statutes that are intended to prevent harm, and punish behavior that increases the risk of harm rather than cause actual harm. Many of these statutes are constitutionally problematic, and raise the question, to be decided by the jury, whether the risk was real or only a theory of the legislature that may have been misguided.


A jury verdict, in a criminal case, as a matter of constitutional law, is not a judgment of whether the accused is a "good" guy or a "bad" guy, or whether what he is alleged to have done is "right" or "wrong". It is a judgment that the prosecution has proved beyond a reasonable doubt that the defendant violated a constitutional statute. Moral judgment should have no bearing on the matter, and jurors who allow themselves to engage in moral judgment instead of legal judgment are violating their oaths as jurors and the obligation all of us have to preserve, protect, and defend the Constitution.

It is a common practice to charge defendants with alleged offenses that are not authorized by law. This is an abuse of the rights of the accused and a violation of the oaths of the officials involved, or at least an exercise of gross incompetence. The jury system was established precisely to protect the accused against this kind of abuse, and to do that, there must be a basic foundation of knowledge and skill in analyzing law on the part of the citizenry from whom the jury is drawn. Because the jury cannot be reasonably expected to thoroughly know the law before the trial, a foundation of knowledge even the judge and lawyers often don't have before the actual trial, it is essential that all issues of law be argued in the presence of the jury, that they have copies of all pleadings, and access to an adequate law library and guidance how to use it. In other words, they need everything the judge has to help them make their decision. "That doesn't mean they are asked to decide motions or write legal opinions, but they are obligated to review the ways such decisions are made, and opinions written, in reaching a general verdict or "guilty" or "not guilty". If they were only being asked to bring a special verdict of whether the defendant committed the acts alleged, that would be a different matter, but a general verdict cannot be brought intelligently without a consideration of all issues of law and fact. In a constitutional republic, what is and what is not the law is a fact issue, because judges and other officials do not have the authority to make law, and legislatures are not authorized to make unconstitutional law. If there is no law, or it does not apply, the jury is obliged to acquit.

It should be clarified, however, that argument on evidence, and what may or may not be admitted, is sometimes an issue of law, and sometimes not, and might be excluded from the jury.


Part of what a jury must decide is whether there is authority for statutes, charges, the actions of officials, and of the court to meet and decide.

All government authority begins with a constitution, either state or federal, which is composed of statements of the following kind:

1. Delegated powers.
--Permissive: An official may do something.
--Obligatory: An official must do something.

2. Rights, restrictions on delegated powers.
--A person has a right to not have officials do something.
--An official may not do something.

It is important to understand that every delegated power is a restriction on rights, and every right a restriction on delegated powers. A right may consist of a power that has not been delegated.

The exercise of a power by government officials is to be understood as involving an expenditure of resources,that is, affirmative action, and not the mere neglect to expend resources, or "inaction".

In general, any official act that is authorized is one that is an instance or subset of a delegated power at a higher level of law. Thus, a power to *regulate* commerce authorizes the congressional adoption of a particular regulation on some subset of all articles of commerce. On the other hand, the original understanding of the Founders was that only civil penalties could be imposed for violations of regulations, promotional activities, or expenditures, not criminal penalties, such as deprivation of life, limb, or liberty."Commerce" included only the transfer of ownership and possession of tangible commodities, not services, banking, information, or the transport of noncommercial items. It did not include the activities of those engaged in commerce, including activities that might have a "substantial effect" on commerce, but only the sale and delivery of commercial commodities and their attributes.

Therefore, federal statutes that prescribe criminal penalties for possession, use, or sale of mind-altering substances, outside the "federal enclaves" created under Art. I Sec. 8 Cl. 17, are unconstitutional. See http://www.constitution.org/juris/fjur/fed_jur.htm . However, state statutes against such substances are, in general, constitutional, for offenses committed within the territorial boundaries of the state. A jury must ask for proof of the authority of the charge and the jurisdiction of the court, based on the exact location at which the offense was committed, and if not, must acquit.


Time Reporter Held in Contempt in CIA Leak Case

It's an interesting constitutional case, and the First Amendment will undoubtedly be raised, because there are so many precedents involving it, but not on its merits. The First Amendment only protects the right to express and to communicate, not to withhold information. There is a right to privacy in the Ninth Amendment, but it is qualified by the public's right to know, on a question by question basis. It is like discovery in a civil case. The witness, whether before a grand jury or in a deposition, has the right to object to particular questions, and the matter may then be referred to the judge for a decision on whether the public's right to know prevails over the witnesses' right to privacy. That decision may, of course, be appealed to a higher court.

The only right to withhold information is in the Fifth Amendment, but, contrary to established precedents, that originally protected against not only being required to answer a question in a criminal case, or in the situation in which the witness might be incriminated thereby, but also questions that if answered truthfully, might tend to impair the witnesses' reputation or property interests. And, contrary to established precedents, the right originally applied on a question-by-question basis, not to testimony generally. In other words, a witness does not waive his right to withhold answers to some questions just because he agrees to testify on others.

See Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir. 1986), which held that a party should not be allowed to depose opposing counsel without demonstrating that (1) no other means exists to obtain the information; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the party’s case.

In Hart v. Frost, 73 Okl. 148, 175 P. 257 (1918) the judge held:

The court finds that in the case at bar the court prevented defense counsel from objecting to each question as it was asked . . . by overruling the defense's request to do so, even though the transcript does not specifically show what objections were overruled, interposed by the defendant. The court specifically recalls the nature of the statements made in chambers off the record . . . and it is the court's finding that all parties understood that the defendant's objection that was overruled was his request to interpose objections question by question . . . .

Also see United States v. Allee, 888 F.2d 208, 212 (1st Cir. 1989).

It is important to understand that the privilege of confidentiality is just that, a privilege. It has no basis in the Constitution. It is a matter of customary prudential deference, and offers the argument made above that it should be respected if there are other ways to obtain the same information, and only breached after it has been demonstrated that no other alternative is available.

This applies to any confidentiality custom, whether it be for a journalist, a religious counselor, a physician, or whatever. It is a matter of judicial discretion, and is based only on custom, the resistance that some kinds of witnesses can be expected to offer, and the support of it by powerful political groups.

Of more interest to me, as a constitutional historian, is the way the grand jury often is abused by being used as an inquisitorial tool by prosecutors. If a witness finds that the prosecutor is present in sessions of the grand jury, he should demand his right to be questioned by an independent grand jury which is not unduly influenced by a prosecutor or the judge, and to demand they not be present. Only the members of the grand jury and the witness should be in the room during questioning.

A weaker but potentially useful line of attack, as a political weapon if nothing else, is to challenge the statute which the grand jury is apparently attempting to enforce, namely, the statutory basis for charging someone with a crime for disclosing the identity of a federal agent. There is no constitutional authority for such a statute to be enforced against civilians, only against government personnel who have agreed to be subject to it, such as military personnel and militia in actual federal service.

The Treason Clause might be invoked for authority, but the answer to that is that there is no enemy declared by resolution of Congress, as required by the Constitution. No declared enemy, no applicability of providing "aid and comfort" to an enemy.

One may object that this doctrine of interpretation would leave us defenseless to real enemies. The answer is that the Constitution arguably needs to be amended to provide that power, but unless or until it is amended, no such authority exists.

Usual disclaimer: This is not legal advice. Using these arguments is unlikely to result in favorable outcomes. However, as a matter of original understanding and true law, they are correct. Just don't expect appeals to the Constitution as originally understood to be respected by today's courts.


Stovepiping: The failure of bureaucratic responses to public threats

The term "stovepiping" is used to refer to the way that information from the lower levels of an organization is filtered, distorted, and compressed beyond usefulness for decisionmaking, in passing up the chain of command. the term has been coming into prominence since the public exposure of the way intelligence is reduced to about a two-page report for the president, the PDB, or "President's Daily Briefing" report. People have asked how all the
actionable intelligence gathered could enable the president to make informed decisions when it is thus filtered and compressed. The simple answer is, it can't.

However, the problem is not confined to the U.S. government. It is pervasive in all large hierarchical organizations, leading to calls to break them up and have the components proceed as a cooperating network, similar to the operation of small business entities in a healthy, competitive marketplace.

Some large organizations make periodic attempts to overcome this stovepiping effect by resorting to such devices as setting up "red teams", tasked to take contrarian positions in internal debates, much the way the judicial system conducts trials with an adversary system of opposing litigants and their counsels. Red teams are intended to dispel "groupthink", or the tendency to prematurely adopt a consensus position on some question and discourage dissent from it. The classic example of groupthink in action was the Bay of Pigs invasion, the result of no one challenging the plans as they were made. Others argue that the Vietnam war was another classic example of groupthink, even though there was dissent, especially among the public, the organizations making the decisions effectively excluded and ignored the dissent and failed to consider the sound arguments for it. (See "competitive diffusion processes" and why nationalism has a higher coefficient of diffusion than Jeffersonian republicanism and constitutionalism.)

Following are some links to further discussion of this topic:


Red teaming:


Innovation Diffusion Processes:


Critique of the 9/11 Commission Report

The Final Report of the 9/11 Commission criticizes intelligence and law enforcement agencies under both the Clinton and Bush administrations for a lack of imagination, but it also exhibits a lack of imagination, and neglects to candidly examine what security might be attainable with the best efforts we could make.

There is a management problem with the conveyance of information from the lowest levels to the top. An intelligence organization can have good data and excellent analysis, but lose the benefit of that in the ways information is reported up the chain of command.

I like to explain the problem by citing an anecdote from my experience as a computer programmer. I once worked for a client in Sacramento, California, called The Money Store, which dealt in mortgage loans. It had only four echelons from the workers to the CEO, but rather than upper management taking the time to visit the workers, they tasked them with filing written reports each week, on the work they had done that week. A few weeks after asking for those reports, the word came down that instead of reporting on what we had done the previous week, we were to report on what we were going to do the next week, as though we had already done it. It was explained that the reason for this was that as the reports were passed up the chain of command, it took a week for each level to summarize what had been done by the level below it, so that each level was actually reporting on what had been done two weeks previously at the next lower level. The result was that the information the top echelon below the CEO had about the activities of the organization was six weeks old, too old to make intelligent decisions. By assuming most workers could predict what they would get done the following week, it was hoped that upper management would then be able to make decisions on the basis of information that was only three weeks out of date.

Needless to say, reports of future work were garbage. In most organizations, work consists largely in dealing with unanticipated and unpredictable developments. Presuming that the predictions could take the place of reports on what had actually gotten done was worse than the delay in getting more accurate information.

The interesting thing is that this policy continued for many weeks, and was still the policy when my contract ended. I don't know why it took so long to figure out the policy was disastrous, something I reported myself in a memo, but suffice it to say that the company went out of business within a year thereafter.

Bureaucracies in general, and intelligence agencies in particular, have a fundamental problem with passing actionable information up the chain of command. It tends to get summarized, filtered and distorted in ways that defeat the mission of the organization.

Consider the path of information leading up to the PDB, the "President's Daily Brief", which are generally only about two pages. How is a president supposed to be able to make intelligent decisions on "intelligence" reduced in that way? Perhaps if he only had to make one decision a day, but if the daily situations require hundreds or thousands of decisions at his level, we have a throughput problem.

One of the kinds of computer program I used to write were what are sometimes called "executive information systems" (EIS). The program gathers and summarily reports data from the operations of the company, and presents it to upper management in easily understood ways, accommodating to their intellectual limitations, as any management tool must. But it was not just a summary, because it permitted the executive to click on details, down to the level of raw data. The EIS is not a substitute for detail, but a gateway to it, and a good executive will drill down to information at lower levels of operation to find out what decisions need to be made at upper levels.

If there is any executive that is in desperate need of a good EIS, it is the President of the United States. He also needs to be a speedreader and to devote a lot more time each day to acquiring information than he can get by reading a PDB.

Of course, there is also a problem with reporting only consensus instead of "red teaming" -- reporting dissident or opposing positions and arguments. All bureaucracies are susceptible to groupthink, and it takes a special effort, and an initiative from the top, to overcome it.

There is also a tendency to reject information that is not internally generated. I remember an occasion when I had an analysis I thought the CIA should have, so I offered to send it to them. The person I spoke to demanded that I not send it to them, no matter what the merits of it might be. Unless it was obtained at their initiative, they weren't interested. It didn't matter that several academic colleagues thought it was brilliant and important, and were prepared to recommend it. However, someone who was interested, and spent some time trying to understand it, was someone I suspected of being a Soviet agent. I concluded that the best way to get an original analysis through to the CIA was by passing it through the KGB or GRU. (I am told by a former Soviet intelligence agent that they had a similar problem, and that the best way to get original analysis to Soviet agencies was through the U.S. intelligence agencies.)

Now I have known some analysts in intelligence agencies, and they are a mixed bag. Some are fairly imaginative, but most are not, and the imaginative ones tend to be ignored more often than the unimaginative ones are. The fundamental problem is that for imaginative ideas to be assimilated by higher echelons, those higher echelons need some imagination themselves, and one doesn't rise in such organizations by being imaginative.

It has been suggested that the agencies make more use of outside consultants, such as assembling teams of science fiction writers, to come up with "high concept" threats that might require a defensive response, but there is little sign that any ideas such teams might come up with would survive the bureaucratic ladder.

There is also the issue of time. There is a credible threat that al Qaeda already has nukes in place in American cities, but the Commission Report did not address reforms that could be implemented in much less than a decade. By the time Congress could act on their recommendations, the Capitol is likely to have become a mushroom cloud.

Also missing from the Report is a candid assessment of how much security might be attainable with the maximum effort that might be made. therefore, I will attempt to do that in this article.

Let us consider only threats of actions that might kill 1000 or more persons on the territory of the United States, conducted by enemies of at least the level of preparation of al Qaeda. What are the odds of success of defensive measures in place before 9/11, today, and attainable in the future, given our actual and potential for infiltrating the actual enemy operations?

This is just a guess, but I would estimate that before 9/11 we had at most a 5% chance of stopping such attacks through action of government agents, that today we have at most a 10% chance, and in the future we might have, at most, a 20% chance. There is no way we will ever be able to achieve a 90% chance of stopping them, or anything close to it. That means that if al Qaeda has six or seven nukes in place in American cities already, as has been reported, then even with maximum potential future levels of protection, we might only be able to stop one or two of them from being detonated, and at present levels, we probably won't be able to stop any of them from going off.

Is there any alternative to defensive actions by government agents? Yes. On 9/11 there was something that worked -- the passengers aboard Flight 93 -- who constituted themselves a militia for the occasion and responded to end the threat, albeit it at the cost of their lives. It wasn't government agents that succeeded in protecting the U.S. Capitol, the apparent target, but citizens functioning as militia. The success score: Militia 25%, government zero.

The Commission failed utterly to recommend the one thing that might prevent the loss of seven cities and as many as 15 million people and the survival of our economy and that of the world. That one thing is to mobilize the traditional, constitutional, militia. The President needs to issue a nationwide call-up to the entire citizenry of the United States to muster, organize, train, and equip themselves to meet the threat, and to engage in a search of every inch of the surface of the United States, and every cave, basement, hole, or other hiding place. They need to know how to identify a threat, and how to disarm it themselves, because there may not be time to call in a team from the DOE or DOD.

The FBI has lately been making some half-hearted efforts to recruit citizens for defensive roles, but the only thing their limited imaginations seem to contemplate is an extension of their informant network. This situation does not need a flood of tips inundating federal agencies where they will just be ignored anyway. All that would do is threaten civil liberties, and it would be doing to ourselves what we would go to war about if it were done to us by a foreign actor. We need competent militia in the field capable of dealing with most situations locally, that bring in more capable personnel only if they encounter a situation they absolutely can't handle.

This solution runs up against the aversion of the Establishment to revival of the militia, because ordinary citizens, unlike government agents, when asked to take an oath to "preserve, protect, and defend the Constitution against all enemies, foreign or domestic", are afraid the citizens might actually read and understand the Constitution, and begin to perceive that those "domestic enemies" look a lot like them. There is a reason why the Establishment has been working so hard to suppress the revival of militia, since the Dick Act of 1903 that was intended to end the tradition. The Establishment has good reason to fear the militia, but today it has more to fear from threats like al Qaeda armed with weapons of mass destruction, and it had better make a choice quickly, because those nukes may go off this year.

But we also have to be realistic about what even a revived militia can do, especially in less than a year. If there are seven nukes in place, it might find six, and prevent five from going off. Since five are thought to be 100 kiloton devices, each capable of killing several million people, that could make an enormous difference, especially for those people and their families, and would be well worth the time, trouble, and expense of reviving the militia as an institution. It would be a little late to call up the militia after the mushroom clouds go up, although that would have to be done, and the result would be chaos.

But it is not just the lives of those people in the affected cities that are at risk. Few people have thought through what would happen after such an attack, one perpetrated by a stateless organization, but operating from countries that have arguably harbored them, and perhaps only through negligence, allowed them to come into possession of the weapons. If several cities are lost to nuclear attacks, the President will have little choice but to annihilate every country, and every people, that might possibly have contributed to the attack, even unknowingly. It would not be retaliation in the classic result of a failure to deter, but an attempt to eliminate the threat in the only way we have the means to do, and that is to wipe out the entire populations of whole countries, not only those listed as being among the "Axis of Evil". It is not apparent that those and other countries got the message that all of them will be attacked if the U.S. is hit, and that any weapons they think they have will be no deterrent against such retaliation. The attack may very well include Russia, China, Pakistan, India, and other countries that, while they don't want the U.S. attacked, are complicit merely by having nuclear technology that is susceptible to being diverted into weapons that have been used against us. Even Britain and France might be ordered to end all nuclear activities and turn over all nuclear materials to the United States, or face annihilation. Once nukes are used against the United States, the world as we know it will end, not just for the United States, but for people everywhere. The result could be the death of billions.

Al Qaeda envisions an ideal world in which the only inhabitants are poor farmers and herdsmen, devout because there is no possibility of the kind of wealth that has corrupted humanity during the last 200 years, and no relief from their suffering but hope for an afterlife. That vision may indeed be fulfilled.

Books on this topic:
(Click on the green A to order.)

A Nuclear Terrorism : The Ultimate Preventable Catastrophe, by Graham Allison, Times Books, 2004.

A Osamas Revenge: THE NEXT 9/11 : What the Media and the Government Haven't Told You, by Paul L. Williams, Prometheus Books, 2004.


Complaint to BBC News on their misuse of the term "militia"

The following is a comment I posted last night to the Feedback page of BBC World News at http://news.bbc.co.uk/2/hi/help/3281777.stm . readers are encouraged to make similar comments to them about hijacking words nd playing into the hands of those who seek to reframe public debate to their own sinister purposes.


You are misusing a legal term in some of your news reports. the term is "militia", and you are misusing it to refer to armed groups that are not militia as that term is established in English and American constitutional law, where its primary meaning is "defense activity" (res publica defendenda), and secondary meaning is those engaged in such activity. Groups like the Janjaweed in the Sudan are clearly not militia in the way they are operating. A better term would be "guerrillas" or "armed partisans".

You may reply that you are free to change the meanings of English words any way you might like, but "militia" is a critical legal term of art, especially important for a country like Britain whose "constitution" consists of a large collection of documents going back to 600 A.D. See http://www.constitution.org/sech/sech_.htm . Consider what happens to the protections of our traditional liberties if journalists change the meanings of terms like "due process", "jury", or "person". For more on how to use the term correctly see the documents beginning at http://www.constitution.org/cs_defen.htm

This misuse of the term "militia" is aligned with a political agenda of weakening constitutional protections and civic responsibility, essentially a fascist or corporatist agenda. You are not well-serving your public by supporting that agenda.


It's political campaign season again

It's political campaign season again and time to focus on making constitutional compliance an issue in the election. We are also focused on organizing Constitution Day events for September 17. While it is easy to get people to express reverence for the Constitution, it is much more difficult to get them to see the ways present practices and political platforms are inconsistent with it, and to get people to treat that inconsistency as important.

That is the problem. Most people are aware that the Constitution is being violated, but their priorities put other issues higher, especially during an election campaign. Only the candidates of the Libertarian and Constitution
Parties are trying to make it an issue, and their support among the electorate is still very low. We hope to get people to understand that the solution to almost every other problem we face depends on constitutional compliance, without which we will never be able to mobilize the consensus, commitment and deliberation that solutions to other problems require.

We are doing our part, within the limits of our resources. Already political organizations and journalists are reading the materials on our site to get constitutional information. Teachers and their students, ranging from the
level of elementary school to graduate and law school, are using our site as a primary resource, since the find their textbooks to be inadequate. Scholars are citing our documents in their journal articles. I am being asked to write articles, such as the one that recently appeared in the 4-volume Encyclopedia of Leadership on the "U.S. Constitution".

And the Constitution has been receiving more attention as people research online for such topics as "declaration of war" and "war powers". Our site is one of the most highly ranked by the major search engines, and is visited
often. We are approaching 50 million visits since we opened the site in 1995.

But all this takes money. Labor is not enough. If your financial circumstances don't permit you to help, we understand. Most of our donors from the past are worse off than they used to be. Some need help themselves. But you may still know of others who can that you can forward this message to with your suggestion that they donate.

I've just set up a Donation Plans page to allow donors to make recurrent donations through PayPal. A donor may select one or more monthly payment plans and cancel whenever he wishes to do so. He or she may pay through their PayPal or eBay accounts, by MasterCard or Visa credit or debit cards, by e-Check, or by any of several other methods. If you have a PayPal account, you can set up a similar system by clicking on "Merchant Tools", then on "Subscriptions and Recurrent Payments", and following directions. I have made a few cosmetic
changes to the forms they generate that you might like to imitate for other sites you support. Just copy the page and replace my email address for the address used for the PayPal account for that site.

You can also donate $10 per month to us using this link that can be put in email (although your email client may break it up):


Our page is at http://www.constitution.org/donate/donate.htm . Take a look and perhaps try it out and see what you think.


Need translations of Robert's Rules into Arabic, other languages

Anyone concerned about the current world security issues involving Middle Eastern and Islamic countries should be aware of the many cultural differences that divide those peoples from the West, but may not be aware of the importance of seemingly minor tools and practices that Westerners take for granted that are unknown to other cultures, and could make a critical difference if they are made available to them.

One of those is parliamentary procedure. To put it simply, most of the peoples of the world don't know and practice adequate rules for the conduct of meetings, such as those of Robert's Rules of Order, Revised (RROR). The result is they tend not to work together well to solve their problems and to avoid conflict, including conflict with us.

One might think that something as important as RROR would have long since been translated into all the world's major languages, and at least be available to peoples everywhere who care to use it. But one would be wrong. Those translations have yet to be done, even after more than a century of use in English-speaking countries, where they have played a critical role. I remember being introduced to parliamentary procedure in the first grade of elementary school. It is such a deep part of our culture that we sometimes overlook its importance.

There is a translation into Arabic of the summary table from RROR, but not of the complete manual. We need translations of the complete manual, into Arabic and other languages.

I have spoken to various government agencies, NGOs, and others about this deficiency and the importance of filling the gap, and soon. But so far my efforts have fallen on deaf ears. For the State Department and the USIA it is a case of "not invented here".

So we need volunteers to do it. We can put the results online on our web site, as we have done with the original English version, at http://www.constitution.org/rror/rror--00.htm , but we need translators to do the work. Target formats are HTML and PDF. Sorry, there is no money in it, only the feeling that it might save lives, perhaps a lot of lives. Translators would, of course, be credited with their work, and that might have some benefits to them academically.

If a nuke goes off in an American city, and you didn't do something like this that might have prevented it, how would you feel about not having done so?


God, Man, and Tyrants

John of Salisbury and the Bestselling Book of the Twelfth Century
By Dave Kopel

[Liberty magazine, May 2004, pp. 37-38, 52.]

Who said “Rebellion to tyrants is obedience to God”? Pat yourself on the back if you answered “Thomas Jefferson and Benjamin Franklin.” They proposed placing the motto on the Great Seal of the United States. Pat yourself even harder if you knew that the phrase was created by John Bradshaw (1602–1659), the lawyer who served as President of the Parliamentary Commission which sentenced British King Charles I to death. But who thought up the idea?

The idea is implicit in much of the Old Testament, which is full of righteous Hebrews overthrowing tyrants. And certainly the history of Republican Rome and classical Greece has many similar stories. But in the first millennium of Western Christianity, Christians fell under the sway of the law of the Roman Empire, which emphasized absolute obedience to government, and claimed that the government was above the law. Cicero, who lived in the last days of the Republic, was the last great writer to articulate the right of revolution.

The man who restored the right to Western political thought was an English bishop named John of Salisbury. In 1159, he wrote Policraticus (“Statesman’s Book”), which became the best-seller of the century. Although Policraticus is mostly forgotten today, it is one of the few books which truly changed the world.

For the rest of this article and the text of Policraticus go to http://www.constitution.org/salisbury/policrat.htm . Some formatting is still needed on the book, and how soon that will get done depends on funding, so if you would like to see the work completed follow the instructions below to send a donation.


Article by Jon Roland published in Encyclopedia of Leadership

I was commissioned to write the following entry for the Encyclopedia of Leadership, Vol. 4, Ed. George R. Goethals, Georgia J. Sorenson, & James MacGregor Burns, Sage Publications, 2004. It is now shipping, so you might ask your local library about it. This article can also be found at http://www.constitution.org/col/jdr/usconstitution_el.htm

United States Constitution

A written constitution of government such as the U.S. Constitution presents a characteristic set of problems for leadership: meeting the demands of the people for the functions government can provide, while protecting the rights of every person, not only from private, natural or external threats, but from government itself and from tyrannical majorities.

A written constitution, unlike an unwritten parliamentary system of government, is a supreme law that supersedes later laws that conflict with it, unless they are adopted as amendments according to the procedures prescribed in the original constitution. It derives its primary legitimacy not from current assent but from an original historical constituent act of ratification, and no official act, no matter how popular, can be considered legitimate unless it is logically derived from an authorization contained in the written constitution as amended, and as originally understood.

The political theory on which the U.S. Constitution is based is that a society is created by a social contract, or compact. The main proponent of this theory was John Locke, who developed it in his Second Treatise on Government, published in 1690. Although it is possible for a new society to be created by adults coming together and explicitly agreeing to form a new society, people are initially inducted into an existing society by their parents or guardians, beginning with a filial contract between parent and child, which is gradually transformed into a social contract between the child and the other members of the society, through a process of socialization, through which the child makes the transition from being a good child to being a good citizen. The essential terms of the social contract are that its members will mutually defend the exercise of one another's rights, from whatever might impair such exercise.

Every constitutional right is a claim against an affirmative action of government, and complementary to the exercise of a delegation of power to that government. A constitutional provision that protects a right restricts powers, and a delegation of a power restricts rights. A challenge for leadership is to define the line separating the two spheres of action, and to separate and confine the actions of civilians and officials within their proper spheres.

The written constitution ratified in 1789, and the subsequent Bill of Rights, the first ten amendments, declared various rights, with the Ninth Amendment providing for unenumerated rights that complement delegated powers, but the Founders did not have confidence in the effectiveness of such declaratory provisions, which might be easily subverted by interpretation. They rather relied on structural and procedural provisions, which divided the powers of government, allowed the divisions to check the actions of one another, and defined procedures by which departures from constitutional compliance might be corrected. Some procedures were permissive, allowing for the exercise of discretion, and others were mandatory, constrained by defined duties.

In the U.S. model, there are actually two separate constitutions: an unwritten constitution of the society, and a written constitution of the government. The terms of the social constitution are that decisions be made by conventions, or deliberative assemblies, called by proper notice, and conducted by established rules of procedure that comprise due process. A convention may consist of such things as a general election or referendum, in which the voting members of the society function as a convention of the whole, a constitutional convention which may draft or ratify a written constitution of government, a legislature called under the terms of a written constitution, a town hall meeting, a judicial court, a grand jury to conduct an investigation and make a report of its findings, a trial jury to render a verdict, or a militia called to conduct defensive operations.

The U.S. model was a reaction to the British parliamentary model, which had no written constitution of government except statutes adopted by majority vote of the House of Commons, royal decrees, or key court decisions -- precedents that might be sustained by tradition, but which can be overturned at any time by the House of Commons, sitting as a kind of ongoing constitutional convention -- one that can make its own rules for who may be elected to it and how. The result is the consolidation of power within a single legislative body and a bureaucratic civil service that can easily impair public rights and leave abused persons without the means to seek adequate redress.

Distributed Powers

The problem for leadership is further complicated by the fact that the powers of government are not delegated to a single unitary hierarchy, but are distributed, or separated. A key design objective of constitutional government is to avoid excessive or unbalanced concentrations of power, mainly by dividing it among many branches and individuals, so that abuses by any can be blocked or corrected by the combined action of others. The main separation of powers was between the central government and the several states, a system called federalism. Within the central government, powers were divided between the executive, judicial, and legislative branches, and the Congress -- the legislative branch -- was divided into two houses, the Senate and House of Representatives. By legislation, the executive branch was further divided and subdivided into departments, the judicial branch into a system of general and specialized trial and appellate courts with various geographic and subject jurisdictions, and the houses of Congress into committees and subcommittees, each with their own staff agencies. The constitutions of each of the states followed a similar design, with the exception of Nebraska, which has a unicameral, or one-house, legislature. Similar separations of powers were done in the territorial governments set up for incorporated territories destined to become states.

In a constitutional republic such as the United States, the people, acting collectively through election, referendum or convention, rather than a monarch or dictator, is the sovereign, or supreme authority, and as such all officials must be accountable to the people by a chain of command that leads back either to officials elected by the people or to bodies, like juries, selected by lot, a process called sortition, from among the people. The appointment, supervision, promotion, discipline, and removal of every official is supposed to be based on how well he or she performs his or her duties under the authority of the Constitution, more than on how well such performance might please the policy preferences of transient majorities.

Although a constitutional republic is democratic in being accountable to the people, it is not usually a majoritarian democracy, in that decisionmaking is moderated by procedures and structures designed to require deliberation, and sometimes by rules requiring approval not just by simple majorities, but by supermajorities, or by majorities in a majority or supermajority of levels or branches to which power is distributed. Thus, amendments to the Constitution require either proposal by a two-thirds vote in each house of Congress, or application by majorities of two-thirds of the state legislatures for a convention to draft amendments, followed by ratification by the majorities of the legislatures of, or of conventions in, three-fourths of the states.

Such procedures and structures confer on certain officials or groups the power to veto, or block, action of various kinds, so that to get action, it is necessary to convince all of the elements whose approval is required. Thus, the President can veto any act of Congress, although that veto can be overridden by a two-thirds vote of both houses. However, he can also refuse to enforce an act of Congress, or sequester the funds for its implementation, a controversial move that can be overcome only by impeachment and removal of the President from office, or by withholding other legislation he might want passed, or appointments he might want approved.

Any federal court can declare or find a statute or other official act unconstitutional, and refuse to give it effect by not sustaining it. If the decision is made by an appellate court, the practice is to treat that decision as a precedent which effectively nullifies that act not only in that particular case but for similar cases in that court's jurisdiction. If the declaration or finding is sustained on appeal to the highest court, the Supreme Court, the act is effectively nullified for similar cases nationwide. Although such a decision does not remove a statute from the records, by the doctrine of stare decisis judges feel bound to follow the precedent, making further enforcement of that act infeasible.

Veto groups can also operate in the Legislative branch. The Senate can block appointments by the President by such procedures as refusing to hold committee hearings on nominations. Committees can refuse to pass nominees to the full Senate, and in the full Senate, members may block action by use of a filibuster, or extended debate intended to prevent business from proceeding, which requires a 60 percent supermajority to terminate.

A winner-take-all system of electing legislators by majority votes from states or single-member districts, together with a nationwide presidential election in which each presidential candidates seeks to also win the election of members of his party to Congress, tends to result in a two-party system, as each main party adjusts its messages to win enough swing voters to exceed 50 percent. One effect of this, however, is that dedicated single-issue constituency groups can become "veto blocks" that may not be able to gather enough support to get their legislation passed, but can block legislation they don't like and defeat candidates who don't at least keep their causes alive. They can also often negotiate the appointment of their partisans to key positions.

The proliferation of single-issue groups means that assembling governing coalitions and placing people in key positions to achieve needed action can be difficult, but this was intended by the Framers of the Constitution. It was expected that most of the situations requiring rapid response could be handled through general legislation and appointees with a certain amount of legislated discretion, and that most new situations that such general legislation did not anticipate would allow enough time to build the kind of consensus needed to adopt new legislation. This has led to some tension between advocates of immediate response to "emergencies" and advocates of deliberation within constitutional structures and procedures, and some of that tension has resulted in departures from constitutional compliance.

Some of those departures have become entrenched, and supported by politically powerful constituencies, who often attempt to conceal the noncompliance with assertions that the established practices amount to "informal amendments" to the "living" Constitution, even though they are not formal amendments to the text. The problem with this elevation of practices to constitutional status, of course, is that once begun there is no end to it, and if allowed to continue would render the written Constitution a dead letter and reduce all law to politics or force.

This displacement of the written Constitution with practice is sometimes discussed as the doctrine of "legal realism", which defines "law" as "what judges do" or can be expected to do, even if what they do is inconsistent with the written Constitution as originally understood. Although it is accepted that everyone has the duty to resolve conflicts of law, including conflicts with the Constitution, in any enforcement of law, and that everyone has the duty to help enforce the law and not just to obey it, the fact that judges get cases last puts them in a position that is sometimes attacked as judicial supremacy by those who think that judicial practice is inconsistent with or unauthorized by the written Constitution. This has been an ongoing tension since the country was founded.


In any political or legal system, leadership ultimately comes to either educating and persuading decisionmakers to adopt one's proposals, or replacing them with other decisionmakers who will. In a constitutional system like the United States, with powers and duties distributed among multiple officials, that means persuading or replacing multiple officials, which may require persuading or replacing the constituencies of those decisionmakers, the networks of lower-level decisionmakers whose own decisions persuade or replace higher-level decisionmakers. Ultimately, that may come down to the level of the individual voter.

Although persuading a few higher-level decisionmakers may be done through personal communications, one may not have access except through chains of lower-level decisionmakers, many of whom may have agendas of their own that conflict with the program of the reformer. Persuading many individual voters, however, may not be feasible through direct communications, and may require marketing methods with high costs and limited effectiveness, competing as they must with demands from work and family, and tastes for entertainment.

When the country was founded, a person could get elected to office without having to raise or spend much money to market his candidacy. There was sufficient demand for political information that it was profitable for newspapers to publish entire speeches of candidates, with the expectation this would sell more copies. However, the political culture has changed so that too many people now resist political information, compelling candidates to resort to expensive marketing campaigns that can break through the barriers and at least achieve name recognition and a positive image.

The Framers designed the Constitution with the expectation that officials would be essentially independent of one another, unduly influenced, if at all, mainly by things like salaries and prospects for reappointment or re-election. They perhaps failed to fully anticipate that, to achieve any result in a divided governmental system, people had to put together prevailing coalitions which would tend to persist from one issue to another and emerge into parties or, as the Founders feared, factions, that would come to exert continuing control over offices and officials in ways that would defeat the separation of powers. The Founders feared too much power being gathered into the same hands, but the same hands can be a faction as well as an individual, and a single faction can dominate all of the levels and branches of government to the exclusion of the others.

The problem the Framers confronted, and perhaps inadequately solved, was what came to be studied by the 20th century as the public choice problem, beginning with the work of James M. Buchanan and Gordon Tullock, set out in The Calculus of Consent: Logical Foundations of Constitutional Democracy. They approached politics through game theory, and showed how people in a society would tend, over time, to involve themselves in the public decisionmaking process in such ways, and to such degrees, as seemed likely to them to pay off, less in the satisfaction that comes from exercising civic duty, than in the material benefits of the public decisions that they could expect to gain for themselves or their friends. Persons would tend not to invest their time and money in the political process unless they expected to profit from that investment. Decisions that had large benefits or costs for some persons would cause those persons to become involved in influencing those decisions, while those for whom the benefits or costs were small would not have a sufficient incentive to invest their influence in ways that would affect such decisions. Therefore, a small faction could gain a large benefit by contriving decisions that did so by imposing only small costs on the general population, at a level below the threshold that would trigger their involvement. This made the political process as a channel for what is called rent-seeking behavior, which is the diversion of wealth from producers to persons who invest not in production but in the processes of politics and government.

In seeking to avoid excessive or unbalanced concentrations of power in the public sector, the Founders neglected to provide for the emergence in the private sector of giant corporate entities that could accrue power that could challenge that of governments, and come to exercise undue influence over government. This has emerged to take many forms: Banks and financial institutions, especially those that loan money to government to support its operations. Contractors, especially in the defense industry. Labor unions. Trade associations. Eleemosynary institutions. Political party organizations. Lobbying groups. Large media organizations. These tend to seek to exercise control by either getting their people appointed or elected to key positions at all levels of key departments, or having handlers for every key position who may assume a position of influence in which their official can't or won't make a decision contrary to the handler's wishes, so that the handler comes to function as the real decisionmaker, in a kind of shadow government that is parallel to the legal government.

This pattern can be more clearly seen in a parliamentary system like that of Britain, where the majority party appoints the official ministers of government, but where the party out of power designates shadow ministers for every department, who may exercise more real influence than the official minister over the lower level civil servants of the ministry, who may have been appointed by that party out of power, and might expect to be promoted if it regains power. Thus a party that has appointed most of the bureaucrats might expect to continue in real power even if it loses an election. The same applies to special interests that function as parties unto themselves.

Since the adoption of a civil service system, the United States has had a similar problem with shadow governance, for while the reform was intended to replace political appointees lacking merit with nonpartisan professionals, what has actually happened is only to make it more difficult for a party that wins elections after a period of dominance by another party to actually govern and implement its policies. The civil service protections have also allowed bureaucracies to become power centers themselves, a constituency often uniquely situated to protect its own interests. The internal politics of organizations is just as contentious as the external politics we see in elections and referenda, and much more difficult to expose and hold accountable.

The problem for leadership in a constitutional republic is to assemble and sustain a winning coalition on an issue, while avoiding opposition from veto blocks.

— Jon Roland

Further reading:

Ernest Barker, ed., Social Contract, London: Oxford U. Press, 1960. Contains essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

Locke retrieved August 18, 2003 from http://www.constitution.org/jl/2ndtreat.htm .

Hume retrieved August 18, 2003 from http://www.constitution.org/dh/origcont.htm .

Rousseau retrieved August 18, 2003 from http://www.constitution.org/jjr/socon.htm .

James Madison, Notes of Debates in the Federal Convention, 1840. New York: W.W. Norton & Co., 1987. Retrieved August 18, 2003 from http://www.constitution.org/dfc/dfc_0000.htm . Vol. 5 of Jonathan Elliot, The Debates in the Several Conventions on the Adoption of the Federal Constitution, retrieved August 18, 2003 from http://www.constitution.org/elliot.htm .

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J. Roland Pennock, ed., Due Process, New York U. Pr., 1977.

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Harvey Yorke, The Candidate's Handbook For Winning State and Local Elections. Revised by Carl Yorke, 2002. Available from http://www.candidateshandbook.com .

Harry Helms, Inside the Shadow Government: National Emergencies and the Cult of Secrecy, Los Angeles: Feral House, 2003.


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