Arguments needed in D.C. v. Heller

The granting of certiorari by the U.S. Supreme court in D.C. v. Heller provides the first great opportunity we have had to get a decision on interpretation of the Second Amendment. Already a host of parties are preparing to file amicus briefs in the case, threatening to drown out two important arguments that need to be made and that it does not yet appear will be made by any of the amici:

1. The primary original meaning of "militia", from the Latin, is military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia.

The lost meaning of "militia"

The right to keep and bear arms (RKBA) is asserted in the Second Amendment with the preamble of militia being a primary purpose of that right:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Previous attempts to get around the right to keep and bear arms has been to subject firearms to taxes. This was the issue in United States v. Miller, 307 U.S. 174 (1939) [HTML] which took the approach that if the firearm in question had had a militia use, it would not have been taxable, and therefore it would not have been illegal to possess it without having paid the tax. While one could question the constitutionality of making it a crime to possess something on which a tax has not been paid, we can understand the concern of the Court that if one cannot make a distinction between militia-related items that are tax exempt and non-militia-related items that are not, then, since almost anything could conceivably be used for militia under some circumstances, nothing would be taxable.

Therefore, it is not enough to establish the individual RKBA if we do not address the way Congress has been trying to do an end-run around it using its taxing power and the precedent of Wickard v. Filburn supporting criminal penalties for activities that have a 'substantial effect" on interestate commerce, under an expansive interpretation of the Necessary and Proper Clause to assert the power to not only "carry into execution" the expressed powers, but to do whatever might be convenient to try to attain the purposes for which a regulation of commerce might be enacted.

To make the proper determination of what is and what is not "militia-related" we therefore have to understand the original meaning of "militia", and do so better than most scholars have done heretofore.

Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it.

The term "militia" is derived from Latin roots:

  • miles /miːles/ : soldier[2]
  • -itia /iːtia/ : a state, activity, quality or condition of being[3][4]
  • militia /mil:iːtia/: Military service[5]

In English, the usage of "militia" to refer to those engaged in the activity dates back to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline[6]

The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.[7]

Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin or used a Latin word in English discourse.[8][9]

The reason this distinction is important is because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.

This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.

The key thing to understand is that "militia" is not a plural "group", with the implication of "two more more". We can see in the writings and speeches of the Founders that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is militiae, and if the Latin-literate Founders had meant it that way, they would have said militiae. They were, in that usage, meaning the activity, and sometimes, blending both meanings at the same time.

The meaning of the word is discussed in more detail in Militia v. Inimicitia.

What kind of "regulation" of militia is "reasonable"?

It won't be a victory for the original meaning of the Second Amendment if the holding of the Court is that the right to keep and bear arms is individual if it also holds that it is subject to "reasonable regulation" and that exception allows all the restrictions that are presently enacted.

Clearly, the concept of militia does contemplate regulation beyond the "self-regulation" that would satisfy the stipulation that militia be "well regulated". We have in U.S. Const. Art. I Sec. 15 and 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

While militiamen are in called-up status, they are subject to miltia discipline, under which they can be directed what weapons to use and for what purposes. When not in called-up status, they can be required to keep certain kinds of weapons, ready for call-up. See the Militia Act of 1792. Although it may not be obvious to some, it would be unconstitutional to get around the RKBA by keeping the entire population in a permanent called-up status. Call-ups are supposed to endure only as long as an imminent threat exists for which only militia can meet it.

To understand what kind of regulation is reasonable for persons not in called-up status we can use the analogy to the preemptive authority to regulate the time, place and manner of congressional elections, it is unconstitutional to do so in a way that would make elections less fair, convenient, or accurate. Similarly, it is unconstitutional to regulate militia in ways that make them less effective in performing their functions "to execute the Laws of the Union, suppress Insurrections and repel Invasions", or at the state or local level, to respond to disasters. People may be required to be armed, but not forbidden to be armed, without a specific due process proceeding to disable the exercise of the right on proof the individual is a treat to himself or others, with a right to a jury.

Suppose, for example, Congress passed legislation to restrict all voting to a 1-second timeframe for all contests, or required that all polling places be on the moon, or that choices be limited to one or a few candidates approved by a government agency that screens out dissidents. Contrary to Justice Marshall in Gibbons v. Ogden, delegations of power to Congress are not "plenary" as to the "specified objects" of the delegation, but are constitutionally constrained to be reasonable and for constitutionally legitimate purposes. Restrictions like those listed above would be an abuse of discretion on the part of Congress. The only constitutionally legitimate ways that militia may be regulated is in ways that enable those engaged in militia to protect public safety, not in ways intended to protect public safety by disabling militia from doing so.

What is not reasonble or constitutional is prosecuting people on an administrative determination that they are "dangerous", even if there was a conviction of a "felony". without disablement of the RKBA being an explicit part of the sentence. See Public Safety or Bills of Attainder? — Written Jun. 14, 2000. Published in University of West Los Angeles Law Review, Vol. 34, 2002.

A case could be made for the constitutionality of regulating the quality of firearms, in much the way the U.S. DoD regulates the quality of the firearms it purchases for its own use, but not for prohibiting weapons that "do not have a sporting purpose". Militia is not about hunting. even thoug hunting may be a way to maintain militia skills.

The idiom of using the same word for an antivity and those engaged in it

There are many other examples of this idiom. From the Century Dictionary, the precursor of the Oxford English Dictionary, we have the following:

assembly (a-sem'bli), n.; pl. assemblies. [ME and OF assemblee] 1. The act of assembling, or the state of being assembled or gathered together. 2. A company of persons gathered together in the same place, and usually for the same purpose, whether religious, political, educational, or social; an assemblage.

congregation (king-gre-ga'shon), n. [F. congregation] 1. the act of congregating; aggregation. 2. Any collection or assemblage of persons or things.

delegation (del-e-ga'shon), n. [F. delegation] 1. A sending or deputing; the act of putting in commission, or investing with authority to act for another; the appointment of a delegate. 2. A person or body of persons deputed to act for another or for others....

ministry (min'is-tri), n.; pl. ministries. [F. ministere] 1. The act of ministering; the rendering of service; ministration. 2. The state of ministering or serving; agency; instrumentality. 3. The office or function of a minister, civil or ecclesiastical; the state of being a minister, in any sense; the discharge of a mionisterial office.... 4. The general or a particular body of ministers of religion; the ministerial or clerical class; the clergy or priesthood. 5. The body of ministers of state in a country; the heads of departments collectively; the executive administration.... 6. A ministerial department of government; the organization of functionaries administering a branch of public afffairs; a minister and his subordinates collectively....

hunt (hunt), n. 1. The act of seeking for or chasing game or other wild animals for the purpose of catching or killing them; a pursuit; a chase. 2. A pack of hounds engaged in the chase. 3. An association of huntsmen...

police (po-les'), n. [F. police] 1. Public order; the regulation of a country or district with reference to the maintenance of order.... 2. An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by whom the municipal laws and regulations of a city, incorporated town or borough, or rural district are enforced. 3. In the United States Army, the act or process of policing.

Other such words include service, movement, wedding, viking, aggregation, march, and court.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.


How to achieve energy independence

Whenever the subject of excessive dependence on oil imports comes up, someone always calls for achieving energy independence, but then the discussion gets diverted into such remedies as energy conservation, wind farms, geothermal and ocean thermal sources, ground-based photovoltaic arrays, biofuels, coal, ocean deposits of methyl hydrate, and, of course, the big ones -- nuclear or fusion reactors.

However, there are problems will all of those. No reasonable amount of conservation is going to keep our economy going if energy supplies are cut off. Wind farms, and geothermal and ocean thermal sources, can help in some places, but one can't depend on them as a replacement for fossil fuels. Ground-based photovoltaic systems are still somewhat expensive, although the cost is coming down. Biofuels turn out to cost more energy and other resources than they save, at least if corn is used instead of sugar cane or switchgrass. Coal and methyl hydrate will just accelerate the global warming problem. Nuclear presents the problems of waste disposal and proliferation, and fusion reactors don't work yet.

The one alternative that is seldom mentioned is space solar power: putting photovoltaic arrays in orbit and beaming the power to receiving antennas on the Earth. It is not a new idea. It is estimated that about 40 satellites in geosynchronous orbit could meet the needs for energy of the entire world, and it it was the United States who puts them up and operates them, we would be the energy exporters to the world instead of importers. Once in operation, it is estimated the cost of energy from them would be less than half the cost from other sources, and that it could pay off the investment to put up the system in less than a decade. It requires little new technology, other than ways to bring down the costs for vary large systems. It has much support from leading engineers and scientists, including a team within NASA. And nations like Japan are moving ahead to do it without waiting for us.

So why aren't we doing it? The answer, as usual, is politics. The alternative is opposed by the proponents of nuclear power, who keep making the argument that Earth-to-orbit lift costs are too high, when the proposal has long been to use materials mined from the Moon or an asteroid rather than lifted from Earth. The real problem for them is that such a proposal doesn't make them a lot of money. It would be creating an industrial system in space that they would not control and from which they could not profit.

And of course, they don't hesitate to raise other objections:
1. It is too "Buck Rogers". Silly argument, considering what we have done in the last 50 years, but they make it.
2. It would be vulnerable to attack by space weapons. And oil tankers, refineries, pipelines, and nuclear power plants aren't?
3. It would be vulnerable to space radiation and coronal mass ejections. They can be hardened against that, as we already do with communications satellites.
4. They could become platforms for death rays. Yes, but all the more reason that we put them up instead of someone else.
5. The power beams would disrupt migrating wildlife. The heating effect would be less than sunbeams through clouds, negligible.
6. The satellites would brighten the night sky, impairing ground-based astronomy. But we could move the telescopes out into space, even putting them on the solar power satellites.
7. The space aliens might object. Okay, this is for humor. But since the satellites would support the effort to defend the Earth from impacts with asteroids and comets, one suspects the aliens wouldn't object to us doing that.

Check out some of these links:
Space Studies Institute http://ssi.org/
Sunsat Energy Council http://www.sunsat.org/
Solar Power Satellites http://www.freemars.org/history/sps.html
Wikipedia articles
Space Daily http://www.spacedaily.com/news/ssp-01a.html
Reinventing the Solar Power Satellite http://gltrs.grc.nasa.gov/cgi-bin/GLTRS/browse.pl?2004/TM-2004-212743.html
Solar Power Satellite Place http://tech.groups.yahoo.com/group/solarpowersatelliteplace/
Space Solar Power Library http://www.nss.org/settlement/ssp/library/index.htm
Space Based Weather Control http://www.borderlands.com/spacewea.htm
Resources for the Future http://www.rff.org/rff/News/Releases/2000/Satellite-Solar-Power-Faces-Considerable-Economic-Challenges.cfm
Access to Energy http://www.accesstoenergy.com/view/atearchive/s76a4466.htm
Lift Elevators to Space http://www.liftport.com/forums/index.php?topic=619.0
MSNBC http://cosmiclog.msnbc.msn.com/archive/2007/09/07/350320.aspx

What you can do is spread this message with the suggestion that everyone write to their favorite media urging them to provide more coverage of this alternative. The time for replacement of fossil fuels is already very late.


Thoughts on Iraq

The last two elections were not referenda on Iraq, because they were not framed as a change in direction toward any particular policy alternative, not even immediate withdrawal. There was and is dissatisfaction, but no clear alternatives offered other than "to do something" differently. That can cause people to vote against incumbents, but it doesn't count as a referendum in any meaningful sense.
Yes, with the advantage of hindsight, we should have done certain things differently, including perhaps not going in at all, but it is important to understand what we missed, and when I say "we", I mean almost all of us, because most of us who had much of an opinion did think it seemed like a good idea at the time to get rid of Saddam. (A few of us opposed going in without a constitutional declaration of war, but the odds are that Congress would have voted for one.)
One of the things we didn't miss was the now common view that the people of Iraq are not ready for republican self government. The fact is that 94% of the Iraqi people of all sects are no less ready to govern themselves in peace than most of the people in every other country. They might not have enough sense to vote for "seculars" instead of for "sectarians", but that was something they could eventually have learned. No, what we missed, and it is important, was that remaining 6%.
Or to put it another way, Saddam did indeed have weapons of mass destruction, just not the kind we were looking for. They were that 6%, who Saddam had reduced to a state of barbarism that he very likely calculated would destroy the country when he was no longer around to keep them under restraint. What is happening in Iraq now followed our deposing of him, but would have happened anyway when he eventually died. We were destined to go in to clean up the situation, sooner or later. We just moved up the date by invading.
What perhaps we most missed is the fact that it only takes a small minority of determined barbarians to destroy a civilized society, and it doesn't matter how civilized the rest of the society might be. It is easier to destroy than to create, and no society is really ready to withstand that kind of destructive force. It is worse than most natural disasters. Historically, most societies that have faced similar internal barbarism have either descended into brutal despotism, the barbarians usually becoming the despots, or the barbarians were wiped out, usually along with a lot more innocents. Some of these "burnouts" have reduced the populations of countries by as much as 90%, and destroyed the entire civilized infrastructure.
The trouble is that most Westerners don't really understand bad guys like Saddam. He was expertly playing a "Samson" or "apres moi" gambit. He made Iraq a monument to himself that would self-destruct when he was gone, and trigger a chain of events he expected, with some good reason, would sweep the Middle East, deny oil from that region to the world, trigger a world war for oil and other resources, and bring down the industrialized nations and Western Civilization. We can argue that it would not get that far, but that it was what he tried to set up to happen is all too plausible.

So when it comes to considering our options, let us remember the answer Chinese Premier Chou En-Lai gave to the question, sometimes reported as being asked by Henry Kissinger, "What were the consequences of the French Revolution?" He is reported to have replied, "It's too soon to tell." We won't know whether there is anything else we could do or how it might turn out. History is not a game like chess where we can evaluate the state of the game at any given point. We are flying blind, and while we can try to do the right things, we can never be sure we may not be doing the wrong things, whatever we do.


Constitutional views on abortion

The abortion issue was misframed in the badly-argued Roe v. Wade case, which could not have been decided otherwise given the way it was argued.

The Supreme Court was hearing on appeal a case decided for the plaintiff (Roe), on the grounds that she had a Ninth Amendment right, incorporated on the states, to decide whether and how many children to have. That decision was correct, and the reasoning was correct. The Supreme Court should have just affirmed the decision, and the opinion, of the Fifth Circuit. Instead they took the case, and then struggled to find another way than the Ninth Amendment, to reach the same conclusion. The result was an exercise in sophistry. There is no good way to avoid the Ninth Amendment, to which there is intense opposition in the legal mainstream.

Part of the problem for opponents of abortion with the Fifth Circuit holding was that it "incorporated" the Ninth Amendment over the states, making it a federally justiciable everywhere.

Note however that the Fifth Circuit holding was only that a woman could terminate,the pregnancy, not that she could kill the fetus, unless she had no alternative. In principle, if the fetus could be removed from her body without killing it. that would be compliant with the holding. That is similar to the right to evict a trespasser, while taking care not to kill him. However, there is not presently a way to do that for a fetus. Should medicine eventually find a way to save the fetus, a state could require that be done. But there is also a Ninth Amendment right not to pay for rearing a child, so the state would have to bear all costs.

A person has rights, and a non-person doesn't, so if the issue is framed only as a contest between the rights of a person and a non-person, the person wins. However, (state) law may protect things that are not persons, essentially as a kind of public property. It may also restrain the ways a person with superior rights may exercise those rights against another entity, person or non-person. Thus, the owner of a piece of property who has consented to another person visiting him there, then orders him to leave, does not thereby immediately acquire the right to shoot him. He does not have the duty to allow the visitor to stay if the visitor will die of exposure if evicted, but he should still be alive when he is evicted. Thus, without violating the rights of the pregnant person, a state could require that the abortion be conducted, if possible, in a way that would leave the fetus alive at the point it is ejected, presumably into the care of others. However, this requirement could not constitutionally "burden" the right of the person to eject. It would have to be at least as easy as killing the fetus, and any additional expense would have to be borne by the party seeking live termination. Now, admittedly, there is presently no way to do that in most cases, but as a theoretical proposition, it is constitutionally permissible.

One problem with the debate on abortion is that it tends to gloss over the real issue: do we really want to criminally prosecute someone, the pregnant female, her abortionist, or perhaps even the guy who got her pregnant, with deprivation of liberty, or even life (as first-degree murder), for terminating a pregnancy (even if the fetus is left alive)? If a pregnant female hints to someone she is considering having an abortion, do we really want to lock her up or appoint a guardian to supervise her to prevent her from aborting? Can we really get a jury, if it is not stacked with anti-abortionists, to convict? Who is going to pay for the prosecutions, the incarcerations, the executions, and perhaps for the unwanted children who will be born if the measures to prevent abortion happen to be successful? How is any law enforcement agency even going to be able to investigate or prove cases if having an abortion becomes as easy as taking a pill that will be available either over the counter or on the black market?

Those who oppose abortion seem to try to avoid answering those questions. I have tried to find out why, and my conclusion is that for most of the stronger proponents of criminalizing abortion, the real motive is to punish women for having extramarital sex, by forcing them to either rear an unwanted child, watch it suffer and even die because she is inadequate for the task, or suffer the pain of first bonding to it and then having the state take the child away from her (and perhaps deliver it into to the clutches of pedophile "foster parents". (Does any of this resemble Prohibition or the War on Drugs?)

The proper libertarian position on this issue is that government is incompetent to intervene without making a bad situation worse, and that the way to prevent abortions is to encourage birth control, or abstention, at least for minors and mental incompetents. It is not a problem within the competence of government. It is a problem for social pressure and moral suasion.

There are no reliable statistics on the question of how the legality or illegality of abortion impacts abortion practices, so it is largely a matter of conjecture. However, anecdotal evidence from those involved in the field indicates that the impact of Roe v. Wade, making abortions "legal", and therefore presumably easier, was to shift the date of abortions back to an earlier stage of pregnancy, especially to the first trimester. It has also shifted the practice away from lay abortionists to physicians and clinics, reducing the mortality of the women. There is also evidence that the increased rate of abortion has had a significant impact on the crime rate and psychotropic dependency, as the reduction of juvenile crime and drug addiction has tracked the reduction in unwanted births, to the extent we can get reliable data. Although abortion may not be beneficial for the fetus, it appears to be beneficial, on balance, for almost everyone else and on society as a whole.

I have made a good-faith effort to find any ways that government intervention has or could make the situation better. I have found some theoretical ways, but none that work in practice, other than providing contraceptives and training in their use, or putting young people under 24-hour supervision, such as keeping them in gender-segregated boarding schools. Even government suasion, such as waiting periods, counseling, etc., appears to be counterproductive. Reduced funding tends to shift terminations toward later stages of pregnancy, and increases the rate of mortality and morbidity among the women. Any responsible policy analysis of this or any other issue must consider all the costs and benefits, not just those that support a particular position. It is easy in this field for emotion to distort judgment, and we must always be on guard against this.

As for leaving the matter to the states, it does not work to allow each state to have a different definition of personhood, given that all the rights recognized, explicitly or implicitly, in the Constitution, attach to persons, other than the rights of citizenship (voting, holding office). All that any state would have to do to deny someone any right would be to change their definition of personhood to exclude that individual, as was done (inconsistently) to justify slavery. Now, as I have pointed out in previous posts, a state may protect things without declaring them to be persons, but not to the extent that it imposes an undue burden on the exercise of a right by a person. That only leaves the possibility of legislation requiring abortions to leave the fetus alive if not unduly burdensome on the woman, but as yet this is infeasible in practice.

People who come to the abortion issue from a religious standpoint have trouble accepting that "personhood" is a matter of convention. It is not something that is somehow defined by nature or scripture. It is defined by law and legal practice, and has to be, because it is only "persons" (legal roles) that can meaningfully be deemed to have legal rights, powers, and duties. Too many people try to confuse the issue by framing it in terms of "human life" or other such term, but that is not a proper legal term.

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decisionmaking, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

What the issue comes down to is that not every instance of something that can be called "human life" is a person, and a "person" is not necessarily a human. If a human female gave birth to an individual that had the DNA of a human but managed to express that DNA as a cocker spaniel, with all the capabilities and limitations of a cocker, and therefore not the competences of a person, the law would have to treat it as a nonperson. On the other hand, we already find corporate entities to exhibit the competences of personhood and treat it as a person. At some time in the future, we could have a robot, a space alien, or a chimpanzee genetically enhanced to be able to speak and reason like the average human, appear in court with a legal claim and the expectation of receiving redress of its grievances. A judge might dismiss the claim of a robot or a chimp, but if the space alien has a saucer hovering overhead with its beam weapons directed at the courthouse, one suspects he would find its personhood apparent.

So what it really comes down to is whether a being has a gun or the support of something with a gun, to defend its rights. Law and politics, in the end, respects power and the willingness to use it. That comes down to money and votes.

A constitutionally principled and competent position on abortion is that rights belong to legal persons, that in a court contest between a person and a nonperson the decision must favor the person, that at the time the Constitution was ratified personhood was defined by convention to begin at birth and not earlier, and that there is no consensus or sufficient support to amend the Constitution to change the definition, therefore we hold that while a state may encourage pregnant a woman to terminate a pregnancy in a way that allows the fetus to survive, this must not be done in a way that unduly burdens her right to do so.

A few points need to be emphasized:

Congress has no authority under the Constitution to define when or how personhood begins or ends. That was done by the ratifiers of the Constitution when they froze the prevailing definition as of the time of ratification, which was that it begins at birth (or even somewhat after birth, such as baptism, entry into the family Bible, or registration with the county recorder). If Congress had such a power the majority party could define members of the minority party as "unpersons" not entitled to rights or the protection of the law. As much as some people might like to legislate against abortion, violating the Constitution is not the way to act against it.

Denying funding is certainly constitutional, but removing jurisdiction from federal courts is not. This approach is based on the wrongful decision in Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). See the decision at http://www.constitution.org/ussc/074-506.htm and my commentary at http://www.constitution.org/ussc/074-506jr.htm . The Constitution only grants Congress authority to reassign jurisdiction between original and appellate, not to remove jurisdiction from all federal courts for certain issues. For any judicial issue there always has to be a court somewhere that can hear it, even if it is only the Supreme Court, and the Supreme Court always has at least appellate jurisdiction. Congress also has no authority to recognize the authority of the states to do anything, like some kind of license. The states do have the authority to protect the unborn in certain ways, just as they have the authority to protect trespassers from being summarily shot without due notice or an opportunity to leave peacefully. They could similarly require that, if it can be done without unduly burdening the right of the woman to terminate her pregnancy, the termination leave the fetus alive. That may not be medially feasible today in most cases, but with medical progress it may become possible. Some might like to punish women for getting pregnant irresponsibly by forcing them to carry to term, but as a matter of constitutional law we have to make more subtle decisions.

Passing a statute criminalizing abortion would merely drive it underground, as it was before Roe v. Wade, when it was difficult to get juries to convict. Statistical studies show that the rates of abortion are about the same regardless of whether it is legal or illegal. Like the prohibitions on alcohol and psychotropic substances, such laws are unenforceable in practice, and do more harm than good. Law is not some kind of magic. Passing a law against something is as likely to cause more of it than less. Some interventions are simply beyond the competence of government, and we need to recognize those limits and use other measures, like education and social pressure, to do what government can't.

A law is a command from those authorized to issue it to the members of the public body bound to obey it. To be a law it must continue to mean what it meant to the lawgiver when it was issued, to the extent that meaning can be discerned upon investigation. It is not a stretch to interpret "writings" to include all kinds of communication of information, or "arms" to include all the kinds of tools that might be used by military or militia to accomplish their proper missions (from ammunition to computers). "Mile" has essentially the same meaning. All we have done has been to adopt more precise measurement operations.

Now consider some other constitutional terms, such as "jury" or "due process", and posit extreme departures from original usage. Are we really free to redefine those terms? The U.S. Supreme Court sustained the power of a state to try a case with a jury of as few as six in Williams v. Florida, 399 US 78 (1970), but I regard that as a wrong decision, if the term in the Florida Constitution is considered to have the same meaning the term has in the U.S. Constitution, which can be presumed if it is not redefined in the Florida Constitution. But suppose "jury" were interpreted to be a single individual designated by the Party (as in Orwell)? Or suppose "due process" were interpreted to mean, as it did for the Queen of Hearts in Alice's Adventures in Wonderland, "Sentence first--verdict afterwards." http://www.gutenberg.org/files/19033/19033-h/19033-h.htm . The defenders of that interpretation might argue that it is "due" because it is uniformly applied to everyone, but I would argue that it unconstitutional because it does not provide the minimal level of protection of the rights of persons that was the standard when the Constitution was adopted.

Now we get to the term "person". Are we really free to redefine it by contemporary usage? The slave states tried to do that for blacks to maintain slavery, although they tried to do it using the term "citizen" rather than "person" and attaching rights to citizenship instead of personhood, which is contrary to the usage of those terms in the Constitution. Proponents of making abortion illegal might try to redefine the term to include more objects, but if we allow that we must also, logically, allow redefinition to include fewer. To allow states to each adopt their own definitions would be to allow them to define "person" to exclude humans of German descent, or perhaps members of the opposition political party, making it legal for any person to kill anything not a person. Be careful what you ask for.

We can detect the onset of brain activity. For most fetuses it is a sudden event that occurs at about the 145-day point. "Like a lightbulb", said one fetal neurologist. The idea of moving the commencement of personhood back to that point has been proposed, but it would require a constitutional amendment.

Suppose we only redefine the term "person" to begin at some point before birth. That would mean that if there were any reasonable suspicion that the woman might terminate the pregnancy, the court would have the duty to confine the woman under constant supervision of a guardian ad litem to deprive her of the opportunity to abort, and charge the woman or her spouse the costs of the court-appointed supervisor. If anyone has been following what has been happening in family courts recently, this is not an implausible scenario. Be careful what you ask for.

I remember the days when the "conservative" position was to support abortion as a way to reduce crime, thought to be increased by producing more unwanted children, a hypothesis that has recently been supported by research). The reality is that if there is not more of a consensus to make it a crime than we have in this country today, anti-abortion criminal laws would be unenforceable, as they were before Roe v. Wade. What we don't need is yet more unenforceable statutes.

Considering personhood to begin at birth may not be a perfect solution from all viewpoints, but we can reasonably maintain that it is the worst solution -- except for all the others.

It is not a stretch to interpret "person" to include android robots, animals enhanced to have humanlike intelligence and ability to speak, or space aliens, but to do that we would be invoking a bundle of competences that they have and a fetus does not. We are still stuck with the meaning of the term for humans in 1787 that personhood begins at birth (or somewhat after).

Southern slaveholders denied rights to blacks by essentially adopting legal definitions of personhood that were different from the definitions used in other states. They tried to do it using the term "citizen" when they meant "person". If they had known what they were doing they would have used "person" and the issue would be more clear. But now that people are coming to use the words with greater precision, once we open the way for the states to redefine it there is nothing to prevent a local majority to redefine it to exclude anyone they don't like. How would you like it if some day those without social security numbers were defined as "nonpersons" subject to being killed by anyone on sight, and some bureaucrat deleted your SSN from the system?

I wouldn't be surprised if half of all pregnant women have thought about terminating the pregnancy, and hinted that to someone, which would create reasonable suspicion, and trigger confinement and 24/7 supervision. Consider the figures from http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm . You are probably looking at such draconian interventions for 1million women a year at a cost of $50,000 each, or $50 billion/year. Are you willing to pay taxes to do that? I suspect there would also be a cost from pregnant women assassinating the judges, supervisors, and other persons who tried to impose that kind of slavery on them.

Abortionists or even women acting alone have always been able to induce abortions throughout the gestation period without surgery, but at some risk. Surgery is safer but not necessary. Besides, long before Roe v. Wade juries were refusing to convict, especially when there was at least one woman on the jury.

There is no constitutional authority for the federal Congress to prohibit abortion, or any other medical procedure. The only constitutional federal crimes are treason, counterfeiting, piracy, felonies on the high seas, offenses against the laws of nations, enslavement, violations of rights by state agents, or impeding voting on certain grounds, such as race, gender, age 18 or above, nonpayment of a tax, etc. That's all. All those federal statutes prohibiting other things are unconstitutional. See http://www.constitution.org/col/02729_fed-usurp.htm .

Concerning whether the Supreme Court had jurisdiction to decide Roe v. Wade, the 14th Amendment is usually cited as having extended the jurisdiction of the federal courts to cases between a citizen and his state over a claim that the state denied a fundamental right of the citizen. That amendment was indeed intended to clarify the question of whether adoption of the Bill of Rights, except for the First Amendment, made such cases "federal questions" within the jurisdiction of federal courts. The decision in Barron v. Baltimore had been that they did not. I argue in my commentary on that case that it was wrongly decided. The 14th Amendment only clarified original meaning and understanding. It didn't change it.

The Constitution did not establish any mechanism other than that each and every person has to interpret and apply the Constitution himself, in any situation in which he might find himself, and may not relinquish the responsibility for doing that to supervisors, legal counsel, or even judges. If you read the opinion in Marbury v. Madison carefully, you will find that we are all on our own. One can say that this is a design flaw in the Constitution, but it is not. It is the only way a constitution can work, and if that is too much of a demand on citizens of a republic, then there is no constitutional design that can work, and a constitutional republic is impossible.

The founders adopted a system of constitutional republican government to surpass the limitations and defects of the old common law system, which incorporates nonconflicting parts of the common law, but established a completely new foundation on a historical act of ratification, not on custom, tradition, or precedent, except mainly to provide the definitions of key terms.

Opponents of abortion sometimes look for support to a quote from founder James Wilson, in Vol. 2 of his Works:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb.980 By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

980. 1. Bl. Com. 129.

However, that footnote 980 is to a passage in William Blackstone's Commentaries on the Laws of England:

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.6

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law a soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter.o(6) But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemesnor.p

(6) But if the child be born alive, and afterwards die in consequence of the potion, or beating, it will be murder. 3. Inst. 50. But quere, how shall this be proved?

p 3 Inst. 50. q Stat. 12. Car. II. c. 24. r Stat. 10 and 11 W. III. c. 16.

So Blackstone's comment is in turn based on Edward Coke's Institutes (3 Inst. 50).
If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder: but if the childe be born alive, and dieth of the potion, battery or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.
So it is not murder, because not yet a person, if the death occurs before natural birth. It is a common law misdemeanor, a "misprision", in which the woman, not the fetus, is the victim. It should be understood that in that time, it could be held a common law offense to assault oneself as well as another. That is the basis for laws against suicide.

However, common law crimes are forbidden by the constitutional prohibitions on ex post facto laws. See my comment on United States v. Hudson, 7 Cranch 32 (1812). The way is still open for a state to pass a law against abortion as an assault on the woman, but if she doesn't complain, we come back to Blackstone's "quere, how shall this be proved?"


In response to those who call for overturning Roe v. Wade, it is worth asking what the effects of that would be. The issue in the case was not a statute making it a crime for a woman to have an abortion, but for a physician or other person to assist in it, although it was treated as though the pregnant woman were the party targeted with prosecution, which is why it was argued to be moot after the period of the pregnancy concluded. We have to consider the following:

  1. There is little or no drive to make the woman a criminal. It would also be nearly impossible to get juries to convict, nullifying the statutes.
  2. The lack of medical assistance is not going to prevent most abortions, just make them more dangerous. Do we really want to criminalize physicians trying to minimize the danger? Juries are unlikely to convict those as well.
  3. Is it really good public policy to make abortions more difficult or expensive? That has never prevented them.
  4. Is it really true that there are plenty of people willing to adopt unwanted pregnancies? Not kids from disadvantaged backgrounds. Not if the kids are brain damaged or sociopathic. I know of people who have adopted children with the ever more common oppositional defiance disorder (ODD) (presumably caused by the birth mother taking drugs) for whom managing the kids is a nightmare.
  5. Is it really punishing the mother to make her care for the child? I know many who welcome more unwed babies for the welfare benefits. (Most of which eventually become criminals.)
  6. Advocates in this field should not presume that all affected are prosperous middle-class persons. Abortion appears to be a major way to combat multi-generational poverty. Do we really want to be overrun by desperate delinquents?


  1. Legal issues of Roe v. Wade, Daniel J. Castellano, 2009, 2011.
  2. “Sua cuique persona?” A Note on the Fiction of Legal Personhood  ... , Jeanne Gaakeer, https://doi.org/10.1080/1535685X.2016.1232920
  3. “An Artificial Being”: John Marshall And Corporate Personhood, Christopher J.Wolfe, Harvard Journal of Law& Public Policy [Vol.40]
  4. The Handmaid's Tale, Margaret Atwood, 1985. Amazon, Hulu , Wikipedia .
  5. Originalism does not support social conservative agenda https://constitutionalism.blogspot.com/2016/12/originalism-does-not-support-social.html


Congressmen routinely violate duty under Constitution

I spent 1970-72 in Washington, DC, working with members of Congress and their staffers, and have had frequent contacts with them since. The subject of constitutional compliance has often come up. When I challenge the constitutionality of some proposed legislation, I often get that "You are the first person to contact us with that point."

Sen. John Glenn (D-OH) once admitted he disregards and has broken his oath of office to uphold the Constitution.

On July 16, 1996, the Senate Committee on Governmental affairs held hearings considering a bill to require Congress to specify for each new law which section of the Constitution gives it authority to pass the law. Sen. Glenn spoke out strongly against this requirement stating, "Why, if we had to do that we could not pass most of the laws we enact around here." He stated that the Clean Water Act, Endangered Species Act, the Americans with Disabilities Act and others could never have been passed if Congress had to find authority for them in the Constitution. He declared, "Americans just want us to solve America's problems of health and safety--and not be concerned if they can be constitutionally justified."

This is typical of the attitudes of members of congress, who, although few of them have a deep understanding of the Constitution, disregard it because their constituents don't make constitutional compliance a leading issue on which they decide who to vote for.

They also have, on more than one occasion, expressed to me (but not for attribution) that Congress passes many provisions that they know are unconstitutional (some have estimated more than 2000 per year), but they rely on the fact that the federal courts, and especially the Supreme Court, don't have time to hear cases on more than a few of those. In other words, their strategy is to flood the legal system with so much unconstitutional legislation that most of it will never be successfully challenged in the courts. This problem is the reason why many members of the federal bench have been pushing back, trying to avoid encouraging people to take constitutional issues to court, and encouraging them to take them to Congress instead.

I have asked several members about this and one of them once said to me, "If I only voted for things that are constitutional I wouldn't be re-elected." Others have said the same thing in similar words. So most of them know that much of what they are doing is unconstitutional. When I point out that Rep. Ron Paul gets re-elected by about 70% even when he is opposed, they seem baffled at how that can happen. I reply that Paul's constituents are not refugees from a libertarian planet. They are typical of people in other congressional districts, and that while they might wish Rep. Paul would "bring home the bacon" to their district, and say so, they also respect his adherence to the Constitution and vote for him despite their pocketbooks.

What the voters lack are leaders with some stature, such as constitutional scholars, to raise the issue of constitutional compliance for much of the legislation before Congress. If the question is framed as a choice between constitutional compliance and their pocketbooks, they often will vote for the Constitution. But their election choices are seldom framed to them in that way.


Stettinius v. United States shows original meaning of "criminal jury trial"

The case of Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322, needs to be studied to understand the original meaning and role of the jury.

There is one paragraph in this 1839 case which is key in the support of my position that the original standard for what a criminal jury trial was included arguing issues of law in the presence of the jury:

It is admitted by all who have advocated the right of the jury to decide the law in criminal cases, that that right extends only to the finding of a general verdict upon the general issue. When the issue is on some collateral point, it involves no question of law, but is confined exclusively to facts. When the verdict was upon such a collateral issue, there was no attaint. That process lay only in cases where the jury undertook to decide the law by a general verdict on the general issue. Whenever, by the pleadings, the law was separated from the fact, so that each could be seen and considered by itself, no [**15] pretence that the jury had a right to decide the pure unmixed question of law, has ever been set up by the wildest advocate of the rights of juries. In the trial of the impeachment of Judge Chase, Mr. Randolph, one of the managers of the prosecution, in speaking of this right of juries to decide the law, calls it "their undeniable right of deciding upon the law as well as the fact necessarily involved in a general verdict." He said, also, "There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application, by the court, of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him." Speaking of the prior decisions of the same points of law in some former cases by other judges, Mr. Randolph said, "They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law after it had been fully argued by counsel on both sides." Again, he said, [**16] "I do not deny the right of the court to explain their sense of the law to the jury, after counsel have been heard, but I do deny that the jury are bound by such exposition." Mr. Early, another of the managers of that impeachment, said, "It is no part of my intention to deny the right of judges to expound the law in charging juries; but it may be safely affirmed that such right is the most delicate they possess, and the exercise of which is to be guarded by the utmost caution and humanity." Mr. Edward Tilghman, who was examined as a witness in the trial of that impeachment, testified, that in Pennsylvania, the judges, "in their charge to the jury, state the law and the evidence, and apply the law [*1328] to the evidence. The court generally hear the counsel at large on the law; and they are permitted to address the jury on the law and the fact; after which the counsel for the state concludes. The court then states the evidence to the jury, and their opinion of the law, but leaves the decision of both law and fact to the jury." In Croswell's Case, 3 Johns. Cas. 346, the counsel for the defendant admitted it "to be the duty of the court to direct the jury as to the law; and it [**17] is advisable for the jury, in most cases, to receive the law from the court, and in all cases they ought to pay respectful attention to the opinion of the court; but it is also their duty to exercise their judgments upon the law as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions." The same counsel said further, that "in civil cases, the power of the court to decide the law, is absolute and conclusive, and may be rightfully so exerted. That in criminal cases, the law and the fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact." Judge Chase, in his answer to one of the articles of impeachment, says, "He well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law; and that hence results the power of juries to decide on the law as well as on the facts in criminal cases." [**18] "But he also knows, that in the exercise of this power, it is the duty of the jury to govern themselves by the laws of the land, over which they have no dispensing power; and their right to expect and receiver from the court all the assistance which it can give for rightly understanding the law. To withhold this assistance in any manner whatever; to forbear to give it in that way which may be most effectual for preserving the jury from error and mistake; would be an abandonment, or a forgetfulness of duty, which no judge could justify to his conscience, or the laws." And in the opinion which the court had prepared in the Case of John Fries [Case No. 5,126], they said: "It is the duty of the court, in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in this, and in all criminal cases, both the law and the facts, on their consideration of the whole case."

Now the above is not a holding, in that it was not the basis on which the case was decided (in favor of Stettinius, on the grounds the statute did not apply to the facts in the case). However. it does contain undisputed assertions that can be reasonably treated as declaratory of the law, and such dictum cited as such, just as the dictum in
Marbury v. Madison

An earlier case, United States v. Fenwick, 25 F. Cas. 1062 (1836); 4 Cranch C.C. 675, makes a similar point, that the defense in a criminal trial has the right to argue the law to the jury (along with the bench and rest of the court), up to the point where the bench rules on the motion, and that such ruling is not to be made until all parties have concluded their arguments.

Sparf v. Hansen, 156 U.S. 51, 64 (1895), http://www.constitution.org/ussc/156-051jr.htm , did not overturn Stettinius. It only briefly mentions the case and does not contradict it:

These principles were applied by Judge Shipman in United States v. Riley, 5 Blatchf. 204, 27 F. Cas. 810, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322. They were also applied by Judge Jackson, in the District of West Virginia, in United States v. Keller, 19 F. 633, in which case it was said that although an acquittal in a criminal case was final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in order to discharge its whole duty, must take the law from the court and apply it to the facts of the case.

Shepardizing the case finds no other cases which could be construed as overturning Stettinius, so it may still be cited in court.

The URL for Stettinius is http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm and for Fenwick is http://www.constitution.org/usfc/fc/25/US_v_Fenwick.htm .


Jury size matters

In my article, "Mansfieldism Reconsidered", section "Trial by Jury", http://www.constitution.org/lrev/jdr/mansfield_recon.htm I state:
A unanimous verdict of twelve makes it more probable than not that there will be at least one juror who does not think the law makes the alleged act an offense if there is not at least a 94% level of support in the community for acts of that kind being offenses.
The key idea is that the jury system is not based on the assumption that the public from whom the jury is selected will be uniformly wise and skilled at jury duty. If it were, there would be no need for a jury of more than one.

Historical analysis indicates twelve was not just a "magic number", but a number arrived at through experience trying other sizes. The use of the number 15 for Scottish juries appears to be a legacy of that experimentation. And the ancient Athenians tried juries of 201 and sometimes 401.

Twentieth century "law office history" seems to hold that the size of the jury is to provide a "cross-section" of the public. In Williams v. Florida, 399 U.S. 78 (1970) the U.S. Supreme court sustained a state jury of less than twelve persons, finding that six was sufficient to provide a "cross-section". But from the experience of lawyers in jurisdictions where they have a choice of jury size, defendants usually choose twelve, which suggests a different dynamic, and that a jury of twelve provides a higher level of protection of rights, not just representation of diverse views.

Jury systems were established because the public could not trust the presiding officers of courts, the "bench", any more than they could trust the parties and their lawyers. Juries were thought to be less susceptible to being corrupted because they are assembled at random and serve for too brief a period of time to be easily compromised. On the other hand, juries composed of randomly selected citizens were also not as expert in deciding legal questions, and if they are not called to jury duty often enough to gain experience, the system has to rely on the attributes they bring with them from their ordinary lives. Justice systems tend to hold visions of things like a "reasonable man", an "ideal judge", or an "ideal juror". If any random selection of jurors drew nothing but ideal jurors, willing and able to exercise sound judgment and perceive the attempts to deceive them, so that they never render a verdict that would be a miscarriage of justice, then there would be little controversy about either using juries to bring verdicts, or the size of them. The system does not and can not depend on every citizen in the jury pool being ideal jurors, but it can work if a sufficiently large proportion of that pool are "adequate" in their judicial attributes, sufficiently resistant to miscarriages of justice, and the jury size is large enough to make it sufficiently likely that at least one such adequate juror will be selected, and, in a criminal case, the verdict is required to be unanimous.

Consider the formula
nj = r
where n is the proportion of the population from which the jury is drawn who don't know or care how to be good jurors, j is the number of jurors in a jury, and r is the conviction rate.

Let's look at an array of several values of n, j, and r:

.98 6 0.8858
.98 12 0.7847
.96 6 0.7828
.96 12 0.6127
.94 6 0.6899
.94 12 0.4759
.89 6 0.4970
.92 12 0.2470

If the values of n can be taken as the proportion of the jury pool who does not take its jury duty seriously, then 1 - n are the proportion of those who do. That means for the jury system to render justice, for a jury of 6 we need to educate at least 11% (1 - .89) of the population to be good jurors, whereas for a jury of 12, we only have to educate 6% (1 -.94). In other words, the number of jurors required to make a jury can make all the difference between whether our efforts at public education are feasible. Reaching 11% is not just twice as difficult as 6%. It is likely to be 100 times as difficult. If civic education is not sufficiently productive of adequate jurors, then the remedy might be to increase the size of juries, perhaps to a number well beyond 12.

The historical background for the 12-person jury lies in English common law, where crimes were not in general defined by statutes, but by custom and tradition. Therefore, a jury was not just deciding whether the accused actually did the deed, but whether the deed itself was a crime. Without doing a mathematical analysis, their experience would tend toward a system in which there was at least 94% community support for a deed of a certain kind being a crime, if only to avoid public protests from those who did not support that.

The remaining challenge, then, is to prevent voir dire from being conducted in a way that strikes the few good jurors. To the extent the prosecution can identify them, the number of strikes it gets is sufficient to get juries that would convict a ham sandwich.

Going further back historically, the model for the English grand jury that developed in the 12th and 13th centuries was the Hebrew  סַנְהֶדְרִין sanhedrin, which was itself modeled during the time of Greek domination on the Greek  συνέδριον, synedrion, "sitting together," hence "assembly" or "council". It consisted of twenty-three men appointed from every major city in the land of Israel. The Mishnah arrived at the number twenty-three based on an exegetical derivation: It must be possible for a "community" to vote for both conviction and exoneration (Numbers 35:24-5). The minimum size of a "community" is 10 men (Numbers 14:27). One more is required to achieve a majority (11–10), but a simple majority cannot convict (Exodus 23:2), and so an additional judge is required (12–10). Finally, a court should not have an even number of judges to prevent deadlocks; thus 23, which became the number for a grand jury. The English reduced this to a petit (small) jury of a minimum of 12 that had to swear they believed the defendant's oath, in a system called compurgation, and later to render a verdict (from Latin veredictum, "to say the truth"). That led to the requirement for a 12-person trial jury that had to be unanimous, at least in criminal cases.


Right to petition does not entail a right to get an answer

The suit of the We the People Foundation (WTP) v. U.S. makes a flawed argument, that the right to petition entails the right to get an answer. It does not. The right to petition is only the right not to have a petition penalized or obstructed.

1. There is a right to answers to some kinds of questions, but not all kinds. The kinds to which we have a right include questions to officials of the form "What actions have you committed?" and "How and how much public funds did you expend?" An example of a kind to which we do not have a right is "What is the time of day?"
2. There is a right to redress, but the redress is not, with the exception of the kinds of questions to which we have a right to answers as in (1), the answers themselves, but the remedy sought if they do not answer. The proper historical names for the remedies are the prerogative writs, such as quo warranto, habeas corpus, prohibito, mandamus, procedendo, and certiorari. The correct way to have framed the WTP petition was as a petition for a writ of quo warranto, under which if the government does not provide answers, that is, proof of its authority to require persons to file returns and pay income taxes on wages, then the petitioners obtain the redress of a judgment by the court that the government must cease making and enforcing its unauthorized claims.
3. The provision of the U.S. Constitution that provides the basis for this right is not the First Amendment Right of Petition, which is only the right not to be penalized for petitioning, or obstructed in doing so. It is also not the Fifth Amendment Right of Due Process, which is only about restrictions on the ways that the exercise of rights may be disabled. It is not contained in the Seventh Amendment provision "rules of the common law" because that only applies to cases tried by a jury. It is contained in the Ninth Amendment, but the way to support that is to go back to the amendments proposed by the state ratifying conventions, which include:
  • "Provided, That all commissions, writs, and processes, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person holding his place for the time being, or the first judge of the court out of which the same shall issue." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
  • 10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • “That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.” “That the Privilege of the Habeas Corpus shall not by any Law be suspended for a longer term than six Months, or until twenty days after the Meeting of the Congress next following the passing of the Act for such suspension.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
  • "10. That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful; and that such remedy ought not to be denied nor delayed.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
  • "12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • "12. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property,or character; he ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
  • "1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
  • "1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
From there we have to go back to the historical meaning of those writs, adopted by reference, as remedies which may sought by the sovereign, which, following the Declaration of Independence, became the people, any one of which may appear on behalf of all.

Now, I realize this chain of reasoning is somewhat vague and indirect, and that is has been taken advantage of to deny the remedies, but if it is really understood the principles are clear. Our job is to not only understand it but assert it, and perhaps get a constitutional amendment that makes it explicit.


Why campaign finance reform efforts have it backwards

When I ran for Congress in Texas in 1974 I learned something important from my press agent: that one of the most important ways to influence voters were local, mostly weekly, newspapers, but that they would not provide free coverage unless the candidate buys advertising, and the amount of free coverage will be approximately proportional to the amount of advertising purchased. I later learned the same rule applied to radio. (That was before talk radio had become as great a factor.) I also found that, despite their protestations to the contrary, the attitude toward the candidates conveyed in free coverage was strongly influenced by the amount of advertising bought either by the candidate or by his known supporters, especially local businesses. Thus, if you had the support of local car dealers, you were likely to get more favorable coverage because car dealers pay for a lot of ads.

Not all of the media depend for their revenue entirely on advertising. Some get a substantial part of it from subscriptions or street sales. Those respond to what they perceive (correctly or not) as what their readers are willing to pay for. Some of them have come to realize that this will depend on the season (more interest in election information in the weeks preceding an election) or on recent events (e.g., legislation proposed or enacted that adversely affects people in the market for the media outlet).

The main reason why electoral processes worked better to avoid rent-seeking behavior in the early period of the United States was that voters demanded political information and were willing to pay for it. If a newspaper published the entire text of long speeches by candidates, they would sell more copies, and sell more copies than their competitors who didn't do that, enough to offset the additional cost of printing more column inches.

So the key to solving this part of the problem is to find ways to get more voters to seek out and pay for political information, and to do so in the mainstream media rather than in magazines, newsletters, and the Internet.

Part of the problem is that too many voters don't really think there is enough difference among candidates in what they are likely to do to justify them making the investment in time and money in acquiring more information. This is the problem of "rational ignorance".

I once joked to friends that the way to solve the problem would be to require that in every election there be a candidate who, if elected, would enact legislation that would select a date at random from the calendar, then summarily deprive everyone born on that date of all his property and his right to acquire more, then throw him in prison for life, and to hide a clue in his writings and speeches that he is the one who would do that. It would only take a 1 on 365 chance of being reduced to poverty and imprisoned to motivate intense investigation of all the candidates by every voter. But in fact that is exactly what existing candidates promise all the time, albeit not in those terms. It is just that voters don't think it will happen to them. If they realized it could, that would make a difference.


New Year's Greeting

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'
'The question is,' said Alice, 'whether you CAN make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'
Through The Looking-Glass: And What Alice Found There
Lewis Carroll

A word or statement has several meanings:
1. The meaning it had for the writer when he wrote it.
2. The meaning it had for the reader when he read it.
3. The meaning the reader thought it had for the writer when he wrote it.
4. The meaning the writer thought it would have for the reader when he read it.
5. The meaning the reader thought it should have had for the writer if the writer knew what the reader does.
6. The meaning the writer thought it should have for the reader if the reader knew what the writer does.
7. The meaning the reader thought the writer thought it would have for the reader when he read it.
8. The meaning the writer thought the reader thought it would have for the writer when he wrote it.
9. The meaning it has for the reader upon further reflection, perhaps years later.
10. The meaning it has for the writer upon further reflection, perhaps years later.

And then there are the meanings that third parties think the writer and the reader had at various stages in their evolution.

Some people become attached to their favorite meanings, and insist that others use the word to mean the same thing, even when they know they aren't, and won't, or can't.

Makes you wonder why anything thinks communication among human beings is possible, or that they can ever act in concert on anything.

I would wish you a good year, but you might not get my meaning of that, so I will wish you an interesting year. You can take that to mean anything you want.


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