The Top Ten Ways You Can Tell When a Federal Judge is Lying

'Tis the season for Top Ten lists, so here is one, in no particular order:

  1. When the judge tells the jury "You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them."

  2. When the judge instructs the jury to follow what he tells them the law is when all he is doing is telling them what is his opinion on what the law is.

  3. When the judge disallows a party to present a certified copy of a constitution, statute, code, regulation, or court decision to the jury as a "misstatement of the law".

  4. When the judge instructs the jury that "if the defendant did X then you must find him guilty of X".

  5. When the judge quotes anything as "the law" except a constitution or statute, such as the U.S. Code, a regulation, or an administrative instruction.

  6. When the judge says he is bound by oath to follow precedent.

  7. When the judge holds any constitutional argument, or an argument he disagrees with, or finds inconvenient, to be "frivolous".

  8. When he calls what he has empaneled a "grand jury" whose members are not selected at random.

  9. When he says he is trying to be fair but only socializes with prosecutors, and probably was one.

  10. When he gives speeches or writes opinions obviously designed to appeal to those who might appoint him to a higher judicial office.

Could come up with a few hundred more, but that will do for now.


Justice in the Courts?

Courts are not to deliver justice. They are to resolve disputes that might disturb the operation of the economy. All that matters is money and power. Courts make political decisions and disguise them as legal decisions to deceive people and keep the public from civil disorder that would be bad for business. Keep that in mind and everything will make a lot more sense.

If you want justice prove that if you don't get it the result will be bad for business.

The purpose of the courts, as they see it, is not to render justice but to remove obstacles to the smooth flow of business. The only way to get justice is to get judges to fear that if they don't provide it there will be civil disturbance that would be bad for business. They will provide just enough justice to deceive people into thinking they have a chance to get it in court, and exhaust themselves in the judicial process, thus defusing anger that might otherwise erupt into violence.

Keep in mind that the foundations for even the little justice the system provides was laid less by wise and beneficent jurists than by mobs of citizens who burnt down courthouses and hanged any judges they could catch. It took that to happen from time to time to get the judges' attention.

Some ask why the major media don't cover the topic of judicial corruption and abuse. I have discussed this with people in the media, who admit that they now avoid touching official corruption in general, and judicial corruption in particular, because they are afraid of the officials, and especially the judges. They feel vulnerable and think they need to keep on the good side of judges. They often cited the fact that at any time they can be sued for something and if the judges are unfriendly they can be put out of business. I have also spoken to leading advertisers and they echo those sentiments. Gone are the days when the media felt they could engage in muckraking exposes. That ended with Jack Anderson.

The only way we can get the major media to cover our concerns is to create breaking news they can't ignore, or get the foreign press to pick up on it and have their coverage bleed over to our media.

If you haven't seen it, try to catch the movie Law Abiding Citizen for a sense of what a lot of people are feeling.

"Nothing important ever happens unless someone is willing to kill somebody if it does not happen." - George Bernard Shaw.

A Lawyer’s View of the Justice System, Joseph H. Delaney, July/August, 1999, issue of Analog Science Fiction and Fact, Vol. CXVIX No. 7 & 8 — ”... the proportion of judges who are dishonest, who are on the take, who harbor prejudices against parties or counsel, is far greater than the lay public realizes. ... Corruption is rampant in courts at every level throughout the country. It is equally rampant among prosecutors and law enforcement people. ... The primary corrupting influence is the drug business. ... the dope interests own contemporary justice. ... There is no greater shock than to find that even with both law and the facts in your favor your constitutional rights are worthless because you can’t get the crooked regime to enforce them.”


If you don't want corrupt officials, stop voting for them. It's easy to spot them. They're the ones who get large amounts of money donated to their campaigns. Only candidates without much money should ever be voted for.

Unfortunately, most people vote for the candidate they expect to win so they can say "My candidate won!", rather than say "I voted for the best candidate but he didn't win." Too many people would rather be on the winning side than on the right side.


Cost of Reform

Let’s try to put some numbers on what it will take to achieve any of our reform goals.

The typical congressional district contains about 210,000 persons who are registered to vote and who can be associated with current addresses and phone numbers. Robo-calls delivering push polls of about 5-7 questions will run about $0.20/call, or about $40,000.

Multiply by 435 congressmen and one gets 91,350,000 voters, or a cost of $17,400,000.

I am familiar with petition drives. Here in Texas the Libertarian Party needed to gather about 50,000 signatures to get on the ballot. We found that volunteers weren’t gathering them fast enough to meet the deadline, and that it was a more productive use of their time to raise money to pay professional petition gatherers, at about $1 per signature. (We collected 80,000 signatures to make sure we would have enough after many were disallowed, and got on the ballot.)

I would expect a similar situation for gathering signatures for the Continental Congress 2009 Articles of Freedom (AoF), except that what the petitioners for LP ballot access were asked to sign was only one sentence. If you had to pay people to gather signatures for something even as long as the Declaration and Resolve (preamble), you would probably be looking at $5-10/signature. To get people to read and sign the entire AoF would likely run more than $100/signature. So an estimate of labor cost, even volunteer labor, to gather 15 million signatures, is likely to be in the range of $15 million to $2 billion.

Would having that many signatures make enough of an impact to justify that expenditure? As petition signatures, probably not. Yes, it is about 34,000 per member of the U.S. House, but that is not enough if they are mostly people who aren’t likely to vote for the congressman anyway. If they were mostly swing voters, perhaps. As supporters we can get to take action, such as write letters, make phone calls, demonstrate at rallies, or engage in civil disobedience, it could make a significant difference. In other words, it is not signatures on a petition we need to gather, but recruits for other activities.

In a presidential election the two main parties will spend about $1 billion to appeal to about 100 million voters. Since they will divide the vote about evenly, each will spend about $10 for each vote their candidate gets, or about $500 million. Down-ballot contenders will similarly spend about $10 for each vote the winning candidate receives. That does not count the millions of man-hours of unpaid efforts by volunteers, which if paid for would likely be an additional $10-20/vote received.

Let’s consider a more modest goal of reducing the odds to less than 50% that federal (and state) prosecutors can win criminal convictions under unconstitutional statutes. As I discuss in my blog article “Jury Size Matters” , it is only necessary to convert about 6% of the population from which jurors are drawn into competent and diligent jurors to get that result. But what would it take to do that?

Over the years I have tested various ways to recruit ordinary citizens into a state of enlightenment sufficient to make them good jurors. It is a lengthy process of one-on-one education. Although I have not tried to convert such efforts into automated telephone push-polls, I can imagine that 5 such calls to every person, each containing about 5-7 questions, and spaced over about two years, might reach that 6% conversion.

The calls would have to be made to all of about 100 million voters—every person likely to be in the jury pool—or judges could just screen out the ones receiving such calls by asking if they had received them. So that would be 5 calls at about $0.20 each for 100 million voters, or about $100 million.

Of course, the same result could be obtained with unpaid volunteers, but we would be asking them to devote time that would be worth about ten times that amount, or about $1 billion worth of their time. That is a lot to ask of people in hard times who are having to devote most of their time to finding work, if they aren’t doing extra work for no extra pay to keep the jobs they have.

I don’t want people reading this to lose hope. The situation is not impossible. But it is difficult, and these numbers should offer some insight into why constitutional compliance has been so elusive. Such expenditures in time and money are being made by our adversaries, often paid for with our taxes. The challenge is to be able to match such efforts.


Major parties have no firewall

Taking over the offices in one or both of the two main parties has often been suggested as the way to get the right kinds of candidates, but it doesn't work. It could if the parties used the caucus system in each state and had a rule that there always has to be a "none of the above" (NOTA) option (as the Libertarians have). The trouble is that in most states there are primaries, provided for by statute, and a filing requirement that allows anyone to file, and if he spends enough money, win the nomination, even though he does not represent the positions of the party officials. It is possible for party leaders to influence the voting of caucusgoers, but not the general public who votes in primaries. That would require them to spend as much money as the candidate does, and he is probably backed by some special interests.

In other words, the two major parties have no firewall. There is nothing to prevent corrupt outsiders from seizing nominations. You can hold every office in the party and not be able to prevent that.

The primary system was sold as a way to avoid the undue influence of the "smoke-filled room" of party bosses. It did that, but it also opened the parties to the control of moneyed interests in a different way.


A prophetic 1944 interview

Norman Mattoon Thomas (November 20, 1884 - December 19, 1968) was a leading American socialist, pacifist, and six-time presidential candidate for the Socialist Party of America. He said this in a 1944 interview:
The American people will never knowingly adopt socialism. But, under the name of "liberalism," they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened.... I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.
This statement reveals several key ideas:

The first is that a third party can win support for its policy positions without winning any elections if one of the two main parties adopts its positions.

The second is that it is a winning political strategy to advantage a small segment of the voters at the expense of a smaller segment. Do that for enough small segments and eventually you will have socialism.

The third is that it is a winning strategy to avoid allowing your ultimate objective, or the constitutional implications, to be framed as the question to be decided by the voters. People wouldn't vote for socialism, or for violating the Constitution, if the question were framed in those terms, but will vote for incremental steps toward it, and fail to understand the opponents when they try to explain to voters what those steps lead to, or that they are unconstitutional.

The problem for libertarians is that liberty doesn't sell as well as government benefits. People don't really appreciate liberty until they have lost it, and too often they will not even realize they have lost it, or they will attribute the loss to something other than their own past election choices. It is easier for most people to imagine a prospective financial gain or loss than a loss of liberty. Money can be counted in a way that liberty can't.

The same may be said of constitutional compliance. Few politicians make it a leading issue in campaigns. Most people don't understand it and have come to think that calling the opponent's position "unconstitutional" is just rhetoric. The few who do understand usually don't have enough influence over the others. The number of people who can understand what is and what is not constitutional is fairly small, and always has been. The only time in history it was large was during the first three American revolutions: the War for Independence, the ratification of the Constitution, and the Election of 1800, the last of which entrenched the Jeffersonian position on constitutional interpretation for the period from 1800 through 1824, and then to a declining degree for most of the rest of the 19th century. But even during the ratification debates it is unlikely that the majority of the people really understood the proposed Constitution in its entirety. Some focused on particular provisions that seemed dangerous, and opposed it until their fears were alleviated. Most probably supported it because George Washington did, demonstrating that the way to get complicated reforms is not to educate all the people but to get the support of charismatic personalities the voters like and trust.

Most of Ron Paul's constituents don't vote for him because they agree with his positions. They vote for him because they like and trust him. It is more important for most voters to be comfortable with the personality than with his positions.

"Bait and switch" works in political selling as well. Voters are offered some charismatic personality or government benefit and never told that either represents a violation of the Constitution. Some will argue that the people have voted for the departures from constitutional compliance and thus ratified them in some sense, but that is deceptive, because the people were deceived by not having the constitutional implications of their choices explained to them. They did not vote for violation. The issues weren't framed to them that way.

That doesn't mean it is not a productive activity to educate people on constitutional compliance. We need to create a learning environment in which some of those charismatic personalities can "get it" and then bring their insights with them when they take office. We have to spread the education around because it is not always easy to discern who will be the charismatic personalities of the future, and because such people are herd animals like any other who are going to want the reassurance of like-minded people before they will venture forth with constitutionalist positions. The trick is to both educate those individuals and enough of the individuals around them.

What we learn from the study of the diffusion of innovations is that most people don't adopt new things because they learn about them from some kind of broadcast message. They are influenced more by the examples of those they look to as role models, and that chain of influence tends to sort itself into levels, with "early adopters" at the top, "secondary adopters" below them, "tertiary adopters" below both, and "quadranary adopters" below the first three. We also learn that most people don't adopt new things in long leaps or from single exposures to messages or examples. Except for the early adopters people generally adopt in small steps spaced over a period of time in response to repeated messages. That means you need to target people who are ready to take the next step, figure out where they are and how far you can get them to go on that occasion, then move on to others, but return to the first before they go cold and move them on to the next step, repeating the process until you get many people recruited. Then you need to keep them recruited with positive reinforcements, because most adopters won't stick to a new things unless it rewards them in some way, and because there are usually competing innovations that may win them over if you neglect to hold them.


What doesn't work

What doesn't work is for citizens to demand change from others without writing the language in which that change will be implemented. If you file a court action, complaining of some injustice, and demanding relief, you might "win" the judgment but lose the case if you don't draft the order for the judge to sign. Leave it to the judge to draft it and he is likely to accept a draft prepared by your opponent, which doesn't give you the relief you thought you won. Similarly with other reforms. We can't leave the drafting of the language of proposals to others. If we want it done right we have to write it. That applies not just to court orders, or to legislation, but to how we want the Constitution to be interpreted. That is why I have proposed Clarifying Amendments in my Draft Amendments to the U.S. Constitution. They need never be ratified if enough of us use them as a standard for our demands for how we want the Constitution interpreted.

I spent a couple of years in Washington, lobbying for various causes without pay. I learned how other lobbyists developed the kind of influence they have. It's not just that they bring money or votes. I didn't bring either of those. But I found I could earn access to members of Congress by helping them review their legislation to make sure it was what they wanted. Most members don't know how to draft legislation to the point where it is ready to be submitted, dropped in the "hopper". They provide a rough draft to the Congressional Research Service (CRS), who then puts it in final form, doing the numbering and finding the cites to existing legislation that would be affected by it and that it would amend. But they usually don't fully understand what the member wants to achieve, or get it quite right. A member will have a few legislative staffers to help with review, but they tend to be busy with other tasks, and they don't always understand exactly what the member wants, either. Of course, sometimes the legislation is really the staffer's idea and the member needs to make sure it is also what he wants. So I learned how to do that research and draft legislation ready for the hopper. I would try to anticipate objections from other stakeholders, and avoid ambiguities, so they would have less reason to tear it apart. I found that that was what the most influential lobbyists did. They didn't ask members to have legislation drafted for them. They did it themselves, giving sympathetic members a finished product. Interest groups who didn't do that seldom got anything like what they wanted, if they got anything at all.

The same principle works for publicity. The way to get articles written in the major media the way you want them written is to submit press releases that are ready to print without editing. Journalists are lazy. They would rather submit a press release and put their names on it than to write an article from scratch. You might have to submit hundreds of such press releases to get one published, but often all it takes is one to justify the effort to have written all the others.

Or consider court rules. They can be as important, if not more so, than legislation, although they are adopted by the judges, sometimes in defiance of legislation. Such rules tend to be written for the convenience of judges, but the language they contain usually started as the language in a lawyer's brief in some case. If enough lawyers submit enough briefs suggesting the same language for judicial rules, that language is likely to be adopted.

Another important area is administrative regulations. Agencies submit proposed regulations for public comment, and if enough members of the public object, they may withdraw proposed regulations, or greatly modify them to respond to objections. But what works best is for people not just to object to the language of regulations, but to propose alternative language, especially if enough people propose the same language.

In the field of rule drafting don't expect most lawyers to be experts. Most lawyers aren't even that good at drafting contracts, and drafting legislation, regulations, or judicial rules requires more advanced skills that it takes most people years to acquire. Even staffers in the Congressional Research Service aren't that good at it.

Don't write blank checks or neglect the fine print

Speaking of contracts, consider how often you are presented with contracts written by others and asked to sign, on a take it or leave it basis. Read all such contracts carefully. Don't assume they have been subjected to thorough scrutiny to protect the interests of people like you. If you find language that seems against your best interests, it probably is. Strike that language out before signing it, or propose alternative language.

What is most difficult is to draft things in a way that wisely intervene in what are highly complex systems, with many feedback loops that make them incomprehensible even to the best experts. Intervene the wrong way and you get hundreds or even thousands of unintended bad consequences. You can take it as a general rule that if it is simple, obvious, and direct it is probably a bad idea. All the simple solutions are already in use. The measures that might actually improve things are almost certainly going to be subtle, complex, indirect, and not at all obvious. That also means they will be difficult if not impossible for most people to understand, and may be impossible to sell. The way most successful reforms get done is that the one person who understands them sells people on trusting him. Most people relate to personalities more than to ideas.

Most people who supported ratifying the U.S. Constitution didn't support it because they understood it. They supported it mainly because George Washington did, and they trusted him. They also expected him to be the first president, and figured that with him in that position, if any problems arose he would take the lead in fixing them.

So read the Draft Amendments. Study them. Learn why they are written that way, and not another way. You may thus acquire the skills you will need to get anything useful done.


Reports to Congress on militia, 1789-1819

We have just uploaded a searchable PDF file of Military Affairs, Vol. 1, a collection of reports to the U.S. Congress from March 3, 1789, through March 3, 1819, on military and militia matters. It is interesting for the insight it provides on early thinking on militia and the right to keep and bear arms. Of special interest are the following reports:
  1. Organization of the Militia, 1789 — Page 7ff
  2. Militia Return, 1803 — Page 163ff
  3. Militia Report, 1815 — Page 604ff

There are also militia returns for the years 1794, 1805, 1809, 1810, 1812, 1813, 1814, 1816, 1818, and 1819, which can be found using the Table of Contents or the Index.

It is planned to expand this discussion to comment on particular points in these reports and what they reveal.

What does clearly emerge is the total absence of any consideration of restricting firearms possession or use, other than for training purposes. The focus was on arming, organizing, and training citizens. If some could not afford to purchase weapons, there was discussion of paying for weapons from tax funds to be given to them. It is also clear that the weapons were to be the state of the art in military equipment.

We can also get a picture from these reports of what the Founders envisioned for how militia was supposed to be used for many of the functions of governance that has been taken over by paid professionals in the late 19th and early 20th centuries.


Selling constitutional compliance

At our next meetup Thursday Mar. 19 we will be discussing how to promote constitutional compliance. This is a selling job, and it has been studied under the heading of "diffusion of innovations". In the early 1950s a team at the University of Chicago investigated how effective various kinds of marketing could be and how to allocate scarce marketing resources. They found that the main way that an "innovation", whether it be a new product or a new idea, spreads through a population is by first being adopted by what they called "early adopters". It then spreads to the next level of "secondary adopters" who emulate the first adopters, then to the "tertiary adopters", quadranary adopters", and so forth. Tools like broadcast advertising could reinforce the process, but not by very much. Most influence was from person to person, down the chain of influence.

That chain is not necessarily down from the top classes of society or politics. Most decisionmakers are not early adopters, but late adopters. New ideas mostly come from outside the halls of power, and the early adopters seldom have direct contact or influence with key decisionmakers. Their ideas have to work their way up the chains of influence and reach all or most of the key decisionmakers at all levels, departments, and organizations, until a critical mass is achieved. That can be done in many ways, from writing, teaching, political pressure, litigation, or public demonstration. It can take a lot of time and money to make a difference, because you aren't operating in a vacuum. You have to compete with other demands and influences. A good idea won't get very far unless it is backed by a lot of people, and more people than back the competition.

The researchers also found that most people didn't adopt after only one exposure to an innovation. They had to be moved to adopt through a series of repeated exposures at a certain rate, each of which took them one step closer to "closing the sale". In other words, it was not a wise allocation of resources to expend too much on one prospect or try to move him too far too fast, and the best strategy was to figure out where each person was and how to move him as far as he was prepared to go on each occasion, then go away and come back later to take him another step further. There is an optimum pacing for each person. Going too fast or too slow wastes resources.

All of this was presented in a book, Diffusion of Innovations, which is summarized here.

Selling constitutional compliance, that for most people is a complex, abstract idea, is difficult, and it has to compete with other ideas that are simpler and seemingly more attractive. Most people tend to be inspired by charismatic personalities rather than ideas, especially complex ones. We can call that the "leader syndrome", because it tends to cause people to be misled into supporting the wrong people, and failing to do the hard work needed even to enable the right person to be effective.

There is also a real problem with accurately understanding the Constitution the way the Founders did. Legal scholars debate all the time how to do that. There is a popular myth that the Constitution was written to be understandable by ordinary people, but it would be better to approach the study of the Constitution like learning a foreign language. The ordinary people of the new American states in 1787 were in some ways more legally educated and sophisticated than are people today. There are also some words and phrases in it that have specialized meanings that it can take a lot of reading to deeply understand. Terms like "due process", "jury", "right", "commerce", "necessary and proper", "reasonable", and "regulate". Even the Framers of the Constitution during the Philadelphia Convention had to look up the term "ex post facto" in a legal treatise to understand what it meant.

One doesn't have to be a lawyer to understand the Constitution. Indeed, law students don't learn that in law schools. Most lawyers never get it. It is better to look to a good legal historian and linguist.

I have tried to provide the necessary study materials at the Constitution Society website. There is a lot to read there, and there are no shortcuts. You just have to read a lot, and the sooner you get started the better. Try to study a certain amount every day. Don't be misled by a lot of false prophets out there with their own half-baked legal ideas.


Oppression flows from insecurity

The essence of the issue was well stated by Ali A. Mohamed, Al Qaeda spy now in U.S. custody (from an interview on National Geographic Channel documentary):Link
"Islam without political dominance cannot survive."
It is that belief, and not Islam, that is his true faith, the one he acts on.

One should use the correct names for things. This from Arabic words for Soldiers, Sailors, Airmen and Marines to know and use:
Irhab (eer-HAB) -- Arabic for terrorism, thus enabling us to call the al Qaeda-style killers irhabis, irhabists and irhabiyoun rather than the so-called "jihadis" and "jihadists" and "mujahideen" and "shahideen" they so badly want to be called.

Hirabah (hee-RAH-bah) -- Unholy War and forbidden "war against society" or what we would today call crimes against humanity.

Shaitan and shaitaniyah (shy-TAHN and shy-TAHN-ee-yah) – Islam’s Arabic words for Satan and satanic [example: Osama Abd' al-Shaitan, Osama Slave or Servant of Satan]
You will also sometimes see the word fasad, meaning "mischief", or fasadi, meaning "troublemaker".

One might want to refer to such extremists as "uncivilized barbarians". A word that might be used is metawahesheen - متاواحشين

So depending on our attitude toward what irhabis really believe, one can call it irhabism, harab'ism, shaitanism, or fasadism.

Intolerance is indicative of those who have been taught to identify with a religion, but who don't really believe it, and don't have confidence it can survive or prevail in a competitive marketplace of ideas. It is not the true believers, but the nonbelievers pretending or deceiving themselves that they are believers. That is a problem of social pathology more than of religion proper.

We need to adopt proper labels for the sides in the clash. It is not the various traditional sects, or secularism vs. religious fanaticism. On the one side is constitutionalism, a belief in a rule of law, and particularly in a superior law from which all ordinary laws are derived, which embraces and protects any body of belief that teaches love, tolerance, and civic virtue. Constitutionalism is also a kind of religion, a civic religion as the political philosopher Montesquieu recommended, but a metareligion -- a religion about religions.

It is opposed by what? We have given many names to the opposition to constitutionalism: tyranny, fascism, totalitarianism, hate, intolerance, vice, barbarism, evil. But there is a danger in this, and a weakness that constitutionalists bring into the debate: We must avoid adopting the ways of the opposition, or we become them and they win. We also have the weakness that it is much easier to destroy than to create. Constitutionalism is about creation. But a single madman can destroy it all with the tools of modern technology.

We must gain control over the upbringing of all of our children. If we do not civilize them we will have barbarians in our midst, and civilization will fall.


The National Press Herd

The following are comments on the Feb. 6, 2009, Bill Moyers interview of Jay Rosen and Glenn Greenwald:

Humans are herd animals. They try to figure out where their herd is going and then position themselves somewhere in the middle for safety. Leaders seem charismatic only as long as they don't look too much like us, so, unable to agree on a leader from among the herd, people adopt the herd itself as its leader. However, there is no wisdom in numbers. Whenever too many people agree too easily they are probably wrong. The so-called "wisdom of crowds" only appears for specialized questions in selected situations.

The challenge for everyone is to learn how to perceive what herds we have become a part of and to overcome the bounds of herd mentality. "Thinking outside the box" needs to become not just a slogan but a habit -- and not just another orthodoxy.

Jay Rosen and Glenn Greenwald have become involved in their own orthodoxies in focusing on Washington, DC, and the mainstream media. Herd thinking is not just a problem in those areas, but in every level and branch of government, every profession and organization, every religion or school of thought. We have seen it within financial institutions and how it yielded the meltdown. It is especially dangerous in legal practice and the legal profession, where demands for strict constitutional compliance are dismissed out of hand as unrealistic or unworthy of acknowledgment.

It doesn't work to demand of those who are captured by the herd to break out of it and make needed change. We have to open it to disruptive outsiders. The Internet has enabled outsiders to become publishers, journalists, and lobbyists, but we still need to enable outsider intervention in administrative and judicial processes, public and private. The established institutions for that are the trial jury and the grand jury, but we have allowed judicial practice to disable their effectiveness. We will not reform those processes until we enable trial juries to review the legal decisions of the bench by hearing all arguments of law, and enable grand juries to hear complaints from any citizen, investigate any public or private institution or practice, and report on its findings, perhaps with an indictment authorizing a private citizen to prosecute. Citizens must not be denied standing to privately prosecute public rights, or to issue writs of quo warranto to challenge the authority of officials, public or private, to do what they propose to do. The presumption of nonauthority needs to be established as the bedrock of our institutions.


Dynamics of Deliberation

It is sometimes said that the essence of republican government is representation, but that is not correct. Its essence is deliberation. Representation comes when it becomes unwieldy for groups to deliberate directly, either because there are too many deliberants, or they have too much business to decide.

This matter is discussed in my Introduction to Constitutional Conventions: Their Nature, Powers, and Limitations, by Roger Sherman Hoar (1917).

Any scheme of representation must represent a balancing of several conflicting utilities:
1. Representation of diverse interests and expertise so that the body can avoid errors in their decisions.
2. Representation of interest groups in proportion to their numbers, so that distributive decisions can accurately weigh those interests.
3. Allow agendas that allocate enough time to every question for all views to be heard by all members of the body and commented on by all of those who wish to do so.

Experience indicates that there is a practical limit on the size of deliberative bodies, either of primary members or their representatives, if they have much business to decide. This emerges in the ways bodies of more than about 30 members tend to break up into committees of less than 15 members, each of which allows testimony and creates a record that nonmembers can read and comment on, but which otherwise limits the number of active discussants and the time each gets to make their points. Bodies of more than about 400 become extremely unwieldy if they have more than about a dozen questions of some complexity.

The throughput limits of deliberative bodies can be seen in such deliberative bodies as the U.S. Congress or the parliaments of most modern nations. About 20,000 bills are introduced in the U.S. Congress each year. That is more than any of the members can even read, much less deliberate on. As a practical matter only a few of those can survive a filtering process involving staffers and committees, during which what was originally proposed can be and often is substantially altered or even reversed in its intent or effect. Most of the real work and decisionmaking is done by the staffers, often influenced more by their handlers outside Congress than by their nominal supervisors, mainly because of the volume of business.

Some have proposed that to be more representative, representative assemblies need to be made larger. They cite that the original U.S. Constitution had each member of the U.S. House of Representatives represent about 30,000 citizens. That was based on the population of the U.S. in 1787, and when the size of the House became unwieldy, its size was fixed at 435, where it remains to this day, and each member represents about 700,000 persons.

A constituency of 30,000 was originally seen as appropriate in large part because it is infeasible to expect a representative to personally know or listen to more than about 3000 persons, which was about the size of a populous county in 1787, and that only about 3000 out of a population of 30,000 would seek to be heard. (The largest cities, Boston, Philadelphia, and New York, had populations of only about 20,000 each, small towns by today's standards.) Today 3000 is about the population of a voting precinct. Government by town meeting worked when not more than about 300 would show up at a meeting, but was soon abandoned when the numbers greatly exceeded that.

If 3000 persons want to talk to their representative every year, that is about 10 a day. If the representative allocated each one more than about 15 minutes each, or 2.5 hours a day, he wouldn't have time to actually do the work that he would be expected to do. (In the realities of today's permanent political campaign process, each member has to spend most of his time on fundraising and has to leave the deliberation and other work to staffers.)

Congress receives more than 200,000,000 communications a year. That is more than 1000 per member per day. A member of the U.S. House typically gets about 200-500 letters a day from constituents, which can increase to many thousands during peak periods. (Postal letters, since the anthrax attacks, are processed in a way that delays them several weeks.) The average member has 14 staffers, 8 in the Washington office and 6 in the district office. That is barely enough to count the mail, or count positions on a list of issues, much less give consideration to complex content or positions on issues not on the list. Their main job is to serve as gatekeepers on access to their member, which is often strongly influenced by the advantage to their member of getting re-elected if access is granted. Members soon realize that those granted most access are most important to getting re-elected, even if they don't know the details of whether that is based on money donated or voter influence.

Numerous proposals have been made to make at least the U.S. House of Representatives more "representative". Some have addressed the ways election districts are drawn. The Voting Rights Act tries to legislate against "dilution" of "majority minority" districts, which is becoming mathematically impossible but is politically untouchable. Some have argued for a proxy system, others for sortition, which is the only method anyone has found to dispel the undue influence of special interests discussed in public choice theory. On theoretical and practical grounds some form of most of these has more merit than increasing the sizes of deliberative assemblies.


The NRA and the Beltway Mentality

Much has been written criticizing the NRA for becoming captured by the "Beltway mentality" surrounding the U.S. Capitol, and I tend to agree with the criticism, but it is useful to try to understand how this mentality arises. Essentially, it arises when busy decisionmakers decide how to allocate their time and attention, and decide it is not worth spending time talking to anyone unless one or the other side is likely to be persuaded to change his position. In particular, elected officials are generally only interested in talking to constituents who might change how they vote. It is not worth the time to talk to people who are determined to either vote for one or against. The same is true of fellow members for votes on measures before Congress. His fellow members don't call Rep. Ron Paul or return his calls because they know how he is going to vote on everything and nothing they can say is likely to change that. They also don't expect anything he might say, however wise it might be, is going to change their positions or the way they are going to vote.

This presents a problem for a lobbying organization who represents single-issue voters. They are in DC to persuade members of Congress and other decisionmakers, and they can't do that if no one will talk to them. But they won't talk to them unless they are willing and able to persuade their supporters to vote differently than they would otherwise. Most members of Congress either know they have the support of pro-RKBA voters or that they don't. There is therefore no reason for them to talk to a pro-RKBA organization like the NRA. The only reason would be for a member to throw the NRA a bone if they will agree to ask their members not to vote against that congressman for doing so, and that will only happen if the congressman is persuaded that the NRA-ILA can persuade enough of its members not to vote against the congressman if he does that. That is how we get those favorable ratings for anti-gun congressmen that so irritate gun rights advocates. It is the price we pay for getting an occasional vote switch from a congressman that can make a difference in a close contest. Of course we can ignore the NRA-ILA on that and vote against the congressman anyway. That is what I have always done, although I vote for the Libertarian candidate if there is one.

What is more problematic is when the NRA takes a public position supporting something adverse to the RKBA, or perhaps to some other provisions of the Constitution. They do it to get some concession on another point they think is more important, on balance. That is the way the game of politics is played in Washington, DC. Go along to get along. The Art of Compromise. The problem is that for most members of Congress the Constitution is just another policy position to be compromised like any other. To demand the Constitution be excepted from that is to stand outside the herd and that means the herd won't talk to you. The desire to have powerful people talk to you is a powerful corrupting influence. That is how the Elites control the media, not just by owning them or buying advertising from them, but by denying access to those who don't cooperate. Without access it is difficult for a reporter to get a story, so he or she plays the game to stay in the game.

This problem is not just at the higher levels of decisionmaking. It dominates at all levels, and not just in the public sector. Large private organizations have the same problem, and when organizations are too interconnected or play the same strategies, they begin to function like a single large monopoly. A market can operate among organizations but not within them. When organizations become too large, too well-connected, or too many adopt the same strategy, they overwhelm the corrective influence of the marketplace and we get crashes. But it all begins with refusing to communicate with others when one doesn't expect to persuade or be persuaded, and thus do the Cassandras get ignored until it is too late.

The problem is characteristic of any system whose principal operating components have a restricted information throughput. The bottlenecks of verbal and written communication and cognitive capacity among human beings limits the decision rates attainable by any system composed of them. Many of the critical systems in our lives are possible only because computers have enabled us to remove humans from impeding information and decision flows. Much fast breaking decisionmaking would be impossible for systems consisting only of humans, no matter how skilled they might be. The U.S. Congress today provides a case study of a system that is being tasked with having to process more information than it can, and that is a potentially catastrophic situation.

Richard Janow, A Fundamental Limit on Productivity in Organizations: Collaborative Entropy Costs, NJ Institute of Technology, May 31, 2008. Link.


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