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:

HONK!
IF YOU LOVE THE
CONSTITUTION
COMPLETED SEP. 17, 1787
http://www.constitution.org

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

Constitution
Society
7793 Burnet Rd #37
Austin, Texas
78757
512/374-9585
http://www.constitution.org

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. 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. 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. 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.

Litigation. 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.

Legislation. 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.

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.

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.

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.

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.

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.

Litigation.

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.

Legislation.

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.