2010/12/22

YouTube - So you want to nullify violations of the Constitution

YouTube - So you want to nullify violations of the Constitution

2010/12/14

Unnecessary and Improper

What are the origins of constitutional infidelity? Some go back to the Alien and Sedition Acts of 1798, but that was turned back by the Election of 1800. Although there are still proponents of similar measures today, for the most part the departures that still plague us began with some opinions by Chief Justice John Marshall, in which he included some dicta on the Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:

The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

The first case in 1819

The first case was McCulloch v. Maryland, 17 U.S. 316 (1819), which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.
CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carrying into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

In a letter to Spencer Roane, Sep. 2, 1819, an opponent of the opinion in McCulloch,  James Madison condemned the opinion, saying
... what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.
...
But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.
Thomas Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” That is a restatement of the ancient Latin maxims:

Potestas stricte interpretatur. A power is strictly interpreted. 
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
Next case

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.
Note this contains a logical error. From the proposition that all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.
All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.
Marshall goes on to say:
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.
This departure was only in dicta, which may be why Jeffersonians did not react by proposing amendments to overturn them. For a long time, further decisions were not based on the dicta, but eventually, pressure from statists to expand the power of government tempted them to seize on the dicta as authority. This led to the key decision of Wickard v. Filburn, 317 U.S. 111 (1942), and more recently, U.S. v. Comstock, No. 08-1224 (May 17, 2010).

Original meaning of "commerce"

As a matter of historical fact, the word "commerce" was almost never used in common parlance in the colonies or newly independent states prior to 1787. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
... commerce consists in mutually buying and selling all sorts of commodities.
Vattel was well-known to, and often cited by, the legally trained Founders, but not by ordinary citizens.

However, we have this from an article from the first edition of the Encyclopedia Britannica, 1771:
COMMERCE is an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged, by a set of men called merchants, for an equivalent, proper for supplying every want, without any interruption to industry, or any check upon consumption.
The rest of the article discusses as articles of commerce only tangible commodities, not services, debt instruments, or the activities of producers, merchants, or consumers.


Many have demanded a rollback of this line of precedents, but most of the proposals are inadequate. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result beyond making an effort, and that the power to regulate is the power to do whatever it takes to get a desired outcome. See Draft Amendments.

What is the meaning of "necessary and proper"?

It is useful to examine early usages of the terms "necessary" and "proper" using the Google Books Ngram Viewer for these terms.

These opinions did not go unchallenged in their own time. Lawyer and Jeffersonian civic leader Robert James Turnbull, in a series of articles collected into a book titled The Crisis, said:

[The Constitutional Convention] judiciously restricted the National Legislature to the enacting of such laws as were necessary and proper, for the execution of the delegated powers. The words necessary and proper, in the Constitution, have a peculiar force. Ingenious men may amuse us with their nice and their subtle distinctions — Philologists may puzzle us with their varied criticisms — but there is no need of skilful critics or refined reasoning, in a matter of this kind. The words necessary and proper, are in constant use among men. They have a plain and obvious import, and a popular signification. They are no sooner pronounced, than they strike us like a sensation, and that sensation instantly excludes from the mind, the idea of an unlimited choice of means. The means to be adopted by Congress, must not be simply appropriate, or fit, or adapted to the end, but they must be necessary, as well as proper. The words are not necessary or proper, but necessary and proper. Had it been the intention of the Convention to have given Congress unlimited discretion to have selected from the vast mass of incidental powers, any and whatever means it might decide to be proper, such an intention to confer a choice, might have been better expressed, and would have been expressed in other words. — They would have said, and "to use and exercise all other powers incidental to the foregoing powers." But the clause as it stands, is clearly a limitation on the implied powers of Congress. The Chief Justice, however, thinks not. He decides, that the clause is sufficiently explicit, and gives the National Legislature the most ample powers to accomplish the ends of the government, by any means which have a relation to the objects entrusted to its management. In fact, he is of opinion, that this power, "to make all laws, which shall be necessary and proper, to carry into execution" their other powers, was designed to enlarge, and not to abridge, the discretion of the Legislature.
What is the meaning of "carrying into execution"?

What is often overlooked is that the phrase "necessary and proper" is only for "carrying into execution", not "carrying into effect", the express powers. "Execution" is clearly only to make an effort, not to get an outcome, which would have been indicated by "effect" if that word had been chosen. That distinction can be found in the long pre-1787 tradition of legal word usage. If a delegated power were to do whatever it might take to get an outcome, then there would be no limit on the means, and the enumeration of limited delegated powers would make no sense. Once it is understood only to enable an effort, then it is clear that no enablement can lawfully extend an express power into another kind of express power. The power to regulate does not, therefore, imply the power to prohibit, or impose criminal penalties, or tax, or promote, or to do any of the other kinds of efforts enumerated.

Jurisprudence over the Necessary and Proper Clause has never really examined in depth the meaning of its key phrase, “carrying into execution”, that specifies the purpose for which powers be “necessary and proper”. In McCulloch Marshall just glossed over the phrase and inserted his own specification that it be for whatever purpose Congress might have, that it be for carrying into “effect” that purpose rather than “execution” of the effort authorized. However, examination of the historical background of the term “execution” finds it meant only to make a certain kind of effort, not to get a result for which that effort might be made. That distinction is the key to getting to original understanding of the clause.

There is a long line of cases that reads the clause as though the word “execution” meant “effect”, but I find no case in which that distinction was effectively argued. Therefore, the way remains open to making that argument for the first time and to have current cases decided on the basis of it.

2010/12/11

Varieties of jurisdiction

Jurisdiction is authority to act, generally in some official capacity. It presumes constraints on such authority, so that some acts may be lawful, while others are not.

The traditional breakdown for judicial jurisdictions is into three:
  1. Subject matter. In Latin, subjectam. The kinds of issues one is authorized to decide.
  2. Location, or locum. Confined to a geographic territory.
  3. Personal, or personam. The individuals or legal roles subject to the decisions.
These are discussed in a classic treatise,  A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824). It represents the understanding of jurisdiction in the Founding Era, although written later.

But a more complete analysis of the concept needs to expand on these.

First, different constitutions have their own jurisdictions. in Social Contract and Constitutional Republics I discuss the constitutions of nature, society, the state, and government. One does not usually think of at least the first two having "jurisdictions" because they don't have decisionmaking officials, but individuals and social groups make decisions, albeit informally, and the general concept needs to cover such situations.

Since each constitution of government has its own jurisdiction, then in a federal republic like the United States, we have political jurisdictions for the Union, for each state, and for each local polity, such as county, legislative district, school district, utility district, town, et.

Since each political jurisdiction generally divides into legislative, executive, and judicial branches, we have legislative, executive, and judicial jurisdictions. These may be tied together by our original breakdown into subject, location, and personal. Thus, a legislative body may have subject jurisdiction to adopt laws that are within the executive subject jurisdiction of some executives and not others, and within the judicial subject jurisdiction of some courts and not others. Similarly for territorial or personal jurisdiction.

But that three-part division doesn't really cover the concept. We need to extend it, and the obvious way to do that is to a seven-part scheme based on the basic interrogatives: who, what, where, when, how, why, and whither:
  1. Who. This further breaks down into two:  
    1. Personal, or personam, jurisdiction.Who is subject to the decisions made.
    2. Official. Who may make the decisions.
  2. What. This is subject matter.
  3. Where. This is territorial or locational.
  4. When. This is temporal jurisdiction. Authority may be constrained to certain periods of time, or certain conditions, such as during a declared state of war or emergency, during a certain fiscal period, or during certain hours or days of the week.
  5. How. This is procedural jurisdiction. Sometimes called due process. A power not exercised in the correct manner is not "due", and therefore the act is unlawful.
  6. Why. This is causative jurisdiction. It is a constraint on how action or decisionmaking may be motivated or initiated. It is sometimes combined with due process, but should be broken out for clarity.
  7. Whither. This is consequential jurisdiction. it is authority arising from the results or impacts expected from an exercise of authority. It is not a power to do whatever might produce a desired result, but a further constraint that the power encourage or discourage certain results.
Now we have a more comprehensive scheme, and can better understand the concept, and also the Principles of Constitutional Construction, in which we divide judicial decisionmaking into seven main methods: textual, historical, functional, doctrinal, prudential, equitable, and natural.

The temporal, procedural, causative, and consequential jurisdictions may seem unfamiliar to many readers, but a little reflection should show they are familiar, just not as "jurisdictions". This breakdown can help us understand the bounds on what is and is not constitutional.

For example, the Constitution delegates to Congress a pre-emptive power to regulate the time, manner, and place of congressional elections (except the place of senatorial elections). That is the temporal, procedural, and locational jurisdictions, but also the subject, congressional elections. It is not the power to regulate who may vote or conduct an election. It is unclear, but may include the power to call an election, which is causative. There is an implied consequential jurisdiction to regulate such elections in a way that serves a legitimate and reasonable public purpose, such as to make elections more convenient, fair, and accurate. A statute that required voting to take place within a 1 nanosecond timeframe, while standing on one's head, at a polling place on the moon, would obviously be an abuse of discretion on the part of Congress, but more than that, it would exceed its consequential jurisdiction. No power delegated is "plenary" within its "sphere", despite the opinion of Justice Marshall in Gibbons v. Ogden. Part of original understanding is that all delegations of power are constrained to be to make efforts in a reasonable manner for a legitimate purpose. To do otherwise is not just bad policy. It is unconstitutional.

One kind of jurisdiction often cited is in rem jurisdiction, used in asset forfeiture cases. However, the underlying principle is that only legal persons may be parties to a judicial action, so a case with an inanimate object as a "defendant" should be styled as "John Doe, unknown owner of [object]". In such a case there should always be due diligence to identify the owner, and the party in possession should be presumed to be the owner unless it can be proved otherwise.

One point sometimes overlooked is that not all collections of human beings may be treated as legal persons. In general, a deliberative assembly of an otherwise unincorporated group is not a legal person. That would include a court, a legislative assembly, a constitutional convention, a political campaign, a militia muster, or the whole people of a community. The use of the style "The People" or "The State" is really just a shorthand way of referring to the government officials representing those things. "The People" cannot appear as a legal person, except through their agents.

2010/12/08

Wikileaks constitutional issues

The Wikileaks saga raises a number of constitutional issues, which deserve to be discussed on this forum. Here are a few:

1. By original understanding and the law of nations as of 1787, an offense is "committed" at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson's Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be "high seas" for constitutional purposes.

2. The 20th century saw the advent of "jurisdiction creep" and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.

3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.

4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, "arrest" for "questioning" on a alleged "rape by surprise". It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.

2010/12/07

Majority voting not in Constitution

Does the U.S. Constitution prescribe majority votes in Congress?

This question came up in the Volokh Conspiracy forum.

The answer is no. Here is my comment:


The Constitution nowhere provides that a simple majority, either of the body or those present, is sufficient to pass a bill. What it does provide:
  1. That the House have “Power of Impeachment”, but nothing on a voting rule.
  2. That that state legislatures “chuse” U.S. senators. No mention of by what vote.
  3. That the Vice President shall have a vote if the Senate is “equally divided”, but not when if ever they might be equally divided.
  4. That each house shall “chuse” their officers, but no mention of by what vote.
  5. Senate requires 2/3 of members present to remove on an impeachment.
  6. Majority of members of each House to be a quorum, but nothing about voting rules for business, except as provided for specific kinds of issue.
  7. Submajority may adjourn or compel attendance.
  8. Each House may determine its own rules of procedure, but does not specify by what vote rules are to be adopted, amended, etc.
  9. 2/3 of members of a House required to expel a member.
  10. 1/5 of members present may require a record vote in either House.
  11. 2/3 of members of each House required to pass bill over a veto.
  12. 2/3 of Senate members present required to consent to treaties.
  13. 2/3 of members of each House required to propose amendments.
  14. 2/3 of state legislatures required to propose amendments or call constitutional convention.
  15. 3/4 of state legislatures or conventions required to adopt amendments.
Congress and state legislatures used variants on the rules of procedure of the British House of Commons, which contained supermajority rules on some points. The rules were codified in Jefferson’s Manual of Parliamentary Procedure, which evolved into Robert’s Rules of Order, as adapted to Congress.

2010/11/21

Not all powers of Congress in Art. I Sec. 8

Judge Andrew Napolitano (and others) continues to repeat the error of saying all the powers delegated to Congress are contained in Art. I Sec. 8. He needs to correct his misstatements. Here are some additional powers not in that section:

Art. I Sec. 4:
"the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
"appoint a different Day."
Art. I Sec. 9:
Power to suspend habeas corpus "in Cases of Rebellion or Invasion".
Art. I Sec. 10:
Power to consent to exercise certain powers by states.

Art. II Sec 1:
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
Power to compensate President.

Art. III Sec. 2:
"Exceptions, and under such Regulations as the Congress shall make."
Sec. 3:
Power to punish for treason.

Art. IV Sec. 1:
"prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Sec. 3:
Admit states into Union.
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
Sec. 4:
Power to "guarantee to every State in this Union a Republican Form of Government ... and protect them".

Art. V:
Power to propose amendments, call convention, or prescribe "Mode of Ratification".

The Constitution itself, in Art. I Sec. 8 Cl. 18, refers to powers outside Sec. 8:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Flawed Texas HB 297

The bill by Texas Rep. Leo Berman (R-Tyler), HB 297, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB297 , might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine any competent nullification effort.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out. Bold statements that are toothless only hurt the cause, even if they are enacted.

First, the Patient Protection and Affordable Health Care Act (PPACA) requires almost no cooperation from state agents or contractors that is limited to it. Since IRS agents are not allowed to levy or lien to collect the "mandates" -- insurance premiums -- it has to rely on employer tax withholding, and the mandate will be buried among other taxes, such as FICA, so there is no way state employers can refuse to withhold only the amounts going to the mandates.

As for the criminal penalties against IRS or other federal agents, since they will only be going after other taxes instead of the mandates, which at that point will have already been collected, the penalties would have to be imposed against collection of other taxes. That might seem like a good thing to do, but does this bill really intend to challenge all withholding? If it does perhaps it should spell that out.

Now what happens if an attempt were made to enforce the criminal sanctions? Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, through the banks, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be summarily dismissed, on the grounds that an agent has immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

Sue state agents for withholding? Even if the Texas AG chooses not to defend the state agents, which he is legally required to do, all that state agent has to do is remove the case to federal court where it will be dismissed, likely within hours.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.

But this argument misses the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

2010/11/19

Flawed Texas Health Freedom Act

The following was sent to Representative Ken Paxton, a leading contender for election as Speaker of the Texas House.

-------- Original Message --------

I have several questions about your Texas Health Freedom Act, which are interleaved in your message below.


On 11/19/2010 06:07 PM, Representative Ken Paxton wrote:

Protecting Patients in Texas with the
Texas Health Freedom Act 
Last March, when Congress passed the Patient Protection and Affordable Care Act, also known as "ObamaCare," I committed to work on passing a bill in Texas to reject this over-reaching federal legislation.  And so last week (the first week we were able to file bills for the upcoming legislative session, I filed the Texas Health Freedom Act as my first bill for the 82nd Legislative Session. 
The power of the federal government to require an individual to purchase health insurance coverage is not found in the United States Constitution.  Additionally, the federal government should refrain from imposing unjustified conditions and federal requirements that should be decided by state legislatures, rather than the United State Congress.
My legislation, (House Bill 97 and House Joint Resolution 24) would accomplish the following:
·         Guarantees that individuals in Texas have the right to choose or decline to choose health insurance coverage without penalties or sanctions or threats of penalties or sanctions;
How can any such legislation effectively guarantee such protection? Does the bill commit the State of Texas to paying all such penalties for Texans if it cannot prevent them from being imposed? If not, how, specifically, step by step, would the process of protection actually work in practice, under a full range of possible scenarios?

Remember, the Health Care Act (PPACA) specifically forbids the IRS to collect such penalties or taxes by levy or lien. That means all they can do is collect the money by other means, such as through employer withholding, and then refuse to refund the money, and perhaps go after the "taxpayer" for a deficiency, not for the insurance penalty, which would already have been paid at that point, but for the unpaid taxes. They can levy or lien for the deficiency. That is sufficient for them to collect from most. This can all be done by IRS agents from outside the reach of Texas law, through the banks. Does your plan contemplate defending Texans from having to pay those remaining tax claims, including paying for the lawyers, paying the IRS claims directly, or compensating the citizen for time served in prison?

Some have proposed the absurd remedy of making it a crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty.
·         Limits the power of the state agencies, public officials, employees, or political subdivisions from imposing, collecting, or enforcing a penalty or sanction intended to punish or discourage the right of the individual to choose their own private health insurance coverage; and
There is nothing in the PPACA that involves the State in any of this, or offers any point at which it could prevent collection by some kind of non-cooperation, except perhaps by refusing to withhold taxes from the wages of state or local employees, and the PPACA does not provide for separating out health insurance premiums from other amounts to be withheld, such as FICA. The IRS would just publish their tax tables, which would combine everything into a lump amount, and the separation would not be made until the "taxpayer" files his return and claims a refund. There would be no way state or local government employers could separate out the insurance premiums for non-withholding.

Or does your bill contemplate doing things like cutting off the utilities of federal offices until they leave the state, and do everything to Texas citizens from outside with little reduction in their efficiency?
·         Givers the Attorney General the authority to seek injunctive relief against the federal government and defend the state of Texas in court to uphold our state sovereignty.
The State, like everyone else, is forbidden from seeking an injunction by the Anti-Injunction Act, 28 USC 2283, a statute that dates back to the Judiciary Act of 1793.  The AG needs no special legislative authority to defend the State in court, but the PPACA would not be about suing the State, and the need is to be able to defend the ordinary "taxpayer". Two conjoined 1923 U.S. Supreme Court decisions block that. The first is Frothingham v. Mellon, 262 U.S. 447, which denies standing in court to anyone who does not face actual personal injury, and the second is Massachusetts v. Mellon, (also 262 U.S. 447) which denies standing to a state to represent the rights of one of its citizens in federal court, which had previously been an available remedy under the doctrine of parens patriae.
The U.S. Constitution sets forth the framework of government that limits the power, authority, and ability of the federal government.  When the government steps beyond the boundaries of their constitutional limits to require individuals to purchase private products under threat of penalty, then the freedoms of individuals are threatened.  The Health Freedom Act, which has been passed by a resounding margin in other states throughout the year, gives Attorney General Abbott the ability to defend our state sovereignty while allowing Texas to determine an appropriate course of action to develop health care delivery methods that maximize the rights of individuals. 
The AG is already one of the co-plaintiffs on litigation that has so far been stripped of all but two of its claims for relief in Florida by Federal Judge Roger Vinson, and most legal scholars expect the remaining two to be dismissed as well. The case is discussed here. There is a line of legal argument that would have merit, that would challenge federal withholding itself, but neither it nor this case, drafted by David Rifkin, has any real chance. Nothing short of a constitutional amendment can overcome the mountain of entrenched precedents, going back more than a century, that no Supreme Court is going to be willing to unravel.

We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

2010/10/31

Lawgiver anticipations

One of the things I find misleading about discussions of constitutional interpretation in the Founding Era, particularly by "federalists" and "anti-federalists", is the tendency to depict the differences as differences in the ways they understood the terms of the Constitution, and therefore as grounds for arguing that there was no common understanding that can provide a basis for interpretation of original meaning today. However, in reading the ratification debates I find a high level of common understanding, but disagreement about how the terms of the Constitution would be construed by future generations. Most of the fears of misconstruction were not directed at others in their own generation, but at those who would succeed them. Whatever else may be said about the Founders, they did take a long-term view, and they did not use the term "posterity" lightly. They knew that the crucible of revolution that united them in understanding would not continue to unite their children or future immigrants. They were very aware of how clever lawyers can twist language to serve their cases. The example of the ancient sophists loomed large in their expectations.

This can be most clearly seen in the demands for amendments in the ratification conventions, that let to the Bill of Rights. Except for the "Twenty Dollar Rule" they added no positive content that was not implicit in the original Constitution. They were only clarifications. Except for the enforcement clauses, even the Reconstruction Amendments may be considered no more than clarifications of the original Constitution, or at least of the clear implications of its language, but made necessary by misinterpretations of that language by a series of court decisions. They thus recognized that amendments might become the only practical means to return to original understanding after court precedents departed from it.

The principles of constitutional design, like the principles of statutory or contractual design, are largely a matter of trying to anticipate future contingencies and future misunderstandings, within the constraints of trying to maintain clarity and brevity in the writing. To understand lawgivers one must seek their anticipations.

2010/10/28

Two things to do

After years of study of our situation, I have concluded that there are just two things we can do, and that have to be done in tandem. The first is nullification commissions, discussed at http://constitution.org/reform/us/tx/nullification/nullcomm.htm , and the second are amendments, discussed at http://constitution.org/reform/us/con_amend.htm .

Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.

The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.

Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.

Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.

There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.

An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.

Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.

After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.

And it is essentially what they are already doing now. They are just being more subtle about it.

The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.

I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.

This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.

Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.

If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm

The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.

I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.

It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.

We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.

Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.

2010/10/27

Lingering Citizens United controversy

Lingering controversy on the Citizens United decision is getting arguments for what the law, in this case the Constitution, should be, but not enough about what the Constitution actually says. Some are desperately seeking some power of government to restrict the undue influence of money on election campaigns, citing all kinds of dire consequences if this is not done. I keep waiting for someone to make the argument that "the Constitution is not a suicide pact".

I suggest this forum should focus on what the law "is", rather than on what it "should be". However, there are two legitimate concepts of what the law is. The first is what was originally meant, intended, or understood. The second is what is current custom, policy, practice, or doctrine, even if it conflicts with the first. As a legal historian I favor the first, but it is to be expected that legal realists, focused on winning cases, might favor the second. The problem comes when people seek the exercise of governmental powers that don't fall within the first or second, not by formally amending the Constitution, but by pushing changes in current practice as an alternative to formal amendment.

First, let us dispose of one argument: there is no such thing as a "natural right" to not have private parties spend their money to influence voters. The right is not to have government restrict how anyone may spend his money to do so. That is the right of free press (miscast as "speech"). "Congress shall make no law" means Congress shall make no law. What part of "no law" is unclear?

A more useful discussion would be on the question, "How might we amend the Constitution to delegate the power to restrict the undue influence of money in election campaigns?" Assuming we had any agreement on what constitutes "undue", which we don't, we would need to examine what government agents could do that would be effective in that regard. Imagine an ideal world in which there is no undue influence, and then try to find the actions by agents that could make that so.

I have yet to find any proponents of such restriction that can describe how that could be made to work, short of just picking the winners or abandoning elections altogether and going to some kind of sortition process. As long as voters can be influenced by others and those others can be paid to influence them, money will find a way to influence voters. Overcoming that would take godlike powers and government agents don't have godlike powers (although some might think they do). The system simply does not have leverage points at which interventions can be applied that would not make things even worse.

There are limits not only to what government is authorized to do, but to what it can do even if authorized, and people do not act wisely to try to exceed those limits.

Official power does not come from need. It comes from a delegation of authority from someone having the power to do so. The Universe may end without the exercise of a power, but that does not confer the slightest iota of authority, unless there is a prior delegation of authority to act if a need arises. There is a logical fallacy that covers this: Necesse ergo praesto. I have the need to do it, therefore I have the (legal) authority to do it. No you don't. If you act without authority to save the world, history may praise you, but it may still be lawful and dutiful to prosecute and execute you for it. After you are dead you will get a statue in your honor. That is the way law works, and is supposed to work.

The decision in Citizens United had nothing whatsoever to do with corporate personhood, nor do other statutes or court rulings on the subject of speech and campaign finance. The First Amendment state "Congress shall make no law ... abridging the freedom of speech, or the press ..." No law means no law. It makes no difference whether the speaker or publisher is an individual, a corporation, a genetically enhanced animal, an android, a space alien, or a rock. There is no constitutional power of government to try to restrict any attempt by anyone or anything to persuade anyone of anything. Voters have the absolute responsibility to decide how and by whom they will be influenced, and if they make bad choices, those are their choices to make. They are not children and we are not their parents.

2010/10/25

Right to Petition for Redress of Grievances

One of the best period treatises on the subject is The Subject's Right
of Petitioning
, Anonymous. (1703)

It is important to explain that the First Amendment was written with a
view to the penalties and impediments that had been imposed in England
in the period preceding it. See particularly the suppression of the
London Corresponding Society and Society of Constitutional Information.

The right to petition is only the right not to be penalized or impeded.
It is not the right to get redress. Originally, courts and government
were not viewed as a "redress delivery service". One got redress through
"self-help" or with the aid of volunteers from the community. Since this
could devolve into civil conflict, courts were established to allow a
pause in the dispute while disputants presented their arguments and
evidence and gave the community an opportunity to line up on one side or
the other. A court decision was supposed to represent the community
consensus, which is part of the reason the jury came to be the principal
decider.

So one should not look to the First Amendment for a right to redress,
only to petition for redress. There is a right to a kind of redress, but
it is to be found in the Ninth Amendment, not the First, and it is
represented in the prerogative writs, which were presumed to be remedies
without having to be explicitly declared as such, as evidenced by the
demand by the New York Ratifying Convention for a right to bring such
writs "in the name of the people", which was a recognition that the
people were now the sovereign and inherited the prerogative writs. See
Presumption of Nonauthority and Unenumerated Rights


Perhaps the most important of the prerogative writs was the writ of quo
warranto, whereby any person, as demandant, could file and serve the
writ on an official, the respondant, whereupon he would have 3-20 days
to prove his authority to the court, failing which he would be expected
to cease such exercise, and perhaps vacate the office if it was holding
the office that was being challenged. Note that this was not a petition,
but a demand. The burden of proof was on the respondant. The writ would
issue as an order even if the court failed to hold a hearing.

We've come a long way since the law worked that way.

2010/10/24

Missing from Schrader v. Holder

The case of Jefferson Wayne Schrader and Second Amendment Foundation v. Eric Holder and Federal Bureau of Investigation is on facts well-selected for rolling back the unconstitutional provisions of 18 USC 922. However, it is missing several claims for relief that need to be included in the petition to establish a predicate for eventual appeal.

The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.

To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.

Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.

I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.

It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?

How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre?

2010/09/26

Common law crimes unconstitutional

Most people today take it for granted that for some act to be a crime there has to be a statute that forbids it and imposes a criminal penalty for violators. Without knowing the Latin, they have a sense of the maxim, nullum crimen sine lege, there is no crime without a law.

However, that maxim only dates to Bavaria in 1813. In the English legal system inherited by the United States, crimes were for the most part not established by statutes, but by customary common law, in which judges sought to discover and impose natural, unwritten laws against crimes, especially after the local courts conducted by nobles were replaced by a national system of courts with judges appointed by the king. A few "high" crimes, against the state, were established by statute, such as treason, sedition, and libel, but crimes like murder, robbery, fraud, perjury, and assault, continued to be charged on the basis of court precedents.

The problem with using court precedents as the law for criminal charges is that they are always for a different case. The law "found" for the immediate case is thus always in some sense undefined until charged, which is after the offense was committed, and thus is a kind of ex post facto law.

When the Thirteen States declared independence July 4, 1776, and established their own constitutions of government, with the people replacing the Crown as sovereign, they continued the English legacy of common law crimes. However, by adopting the Constitution June 21, 1788, with its prohibitions of ex post facto laws for both Congress and the states, they removed the authority for such a criminal justice system at all levels of government.

It is not clear that the delegates to the Constitutional Convention were aware that in prohibiting ex post facto laws they might also be forbidding criminal common law.  In some of their statements and language, they seemed to presume the continuation of it, but during the Constitutional Convention they were focused on other issues, only thought of a few crimes that got written into the Constitution, and just assumed all the rest could be handled by the states. In those days it was assumed that if, for example, a federal official committed bribery he could be prosecuted for that under a state statute in a state court. Criminal prosecutions were rare, and generally done by private persons rather than by public prosecutors. Those would not become prevalent until the late 19th century. It was a different time, when most government was local, and consisted mainly of militia and juries.

This is seen when the first congress made it a capital offense to rob the mails. If the offense was not among the expressly delegated penal powers of Congress, or an implied power of them, then the question arises of whether they understood their own new adopted Constitution, or whether it is a mistake for us to conclude that such penal powers were not implied.

The mistake comes in looking for a single, fixed common meaning and understanding of the words of the Constitution at the time it was framed or ratified. However, it is also a mistake to argue that because there is no evidence of such a fixed common meaning or understanding, we are not bound to it today.

The Founders were engaged in a process of discovery, learning, and discussion. Some of the leading Framers began with meanings they wanted words to express, discovered some words in their legal training and reading, and adopted the words they found, without perhaps always knowing the full meanings the words carried from more than a 1000 years of usage. In adopting those words, they were adopting the legacies of usage of those words, as found in the works of legal scholars they respected. Therefore, they were essentially adopting the applicable work of those scholars as part of the background of meaning, even if many or most of them had not yet learned all of that.

The meanings of words can be reasonably fixed at the time they are issued even if the writers haven't yet fully apprehended those meanings. It is a process of learning. Essentially, it is a somewhat foreign language for the framers and ratifiers as well. We saw that in the way Dickenson, in the Constitutional Convention, sought the meaning in Blackstone of the meaning of ex post facto. They started with a meaning they wanted, but weren't sure until they looked it up that those words carried that meaning. Having made the choice, they were also choosing the legacy of meaning of the terms, much of which they remained to discover.

 At the framing only a handful had a fairly firm grip on the meanings. Others in the Convention learned as it proceeded to a conclusion. Then the process of discovery spread to others, who initially lacked consensus, but a consensus emerged, converging on a common understanding by the point of ratification and adoption of the Bill of Rights, which is really part of the ratification, the second phase. Note however that common understanding of the words doesn't mean agreement on which words to adopt, especially on how they expected events to unfold from the words chosen.

As members were elected to Congress, some came in who had not joined in the consensus, or who resisted it. This led to the departures leading to the Alien and Sedition Acts, and the reaction, which brought the Election of 1800, which we can take as a consolidation of the consensus on understanding. So we are looking at a learning and consensus-building process that took about 13 years. It was not just the appearance of a single fixed meaning[/understanding] at one moment in time.

Thomas Jefferson responded to the Alien and Sedition Acts, in the Kentucky Resolutions of 1798:


2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

Jefferson omitted high crimes and misdemeanors, which include ordinary crimes, applied to federal public officials, military, and militia when in federal service, and are a kind of private law. U.S. Const. Art. II:
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. 
That clause contains an implied power to criminally prosecute and convict such offenses, as does, in combination with it, the clause in Art. III
Section. 1. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour ...
imply the power to criminally prosecute bad behavior of judges, without explicitly stating "Congress shall have power to ...", because jurisdiction is established by assuming a position of public trust with its attendant duties.

The Uniform Code of Military Justice provides a legacy indicating what the Framers meant by "high crimes and misdemeanors". They were offenses peculiar to officials, such as perjury of oath, abuse of authority, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. Offenses by officials also included ordinary crimes, but carried different standards of proof and punishment. They also included offenses against officials by civilians that would interfere in officials performing their duties. The term "high" was used to refer to operations involving officials and their duties.

We inherited a legal system in which all officials, including "civilian" officials, were regarded like military personnel, as they were in feudal times.

However, in United States v. Hudson, 7 Cranch 32 (1812), the Supreme Court held that there was no jurisdiction to try common law crimes in the courts of the United States. In the final paragraph, Justice Johnson states:

Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt — imprison for contumacy — inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.
Thus only the common law crime of contumacy survived the decision, which was essentially an interpretation of the Necessary and Proper Clause, not an invocation of the ex post facto prohibitions. It also neglected to mention that since the Constitution vested all lawmaking powers exclusively in Congress (as do state constitutions in their legislatures), judges have no power to make or change law, only to find and apply it.

The issue would come before the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 (2001), in the dissenting opinion of Justice Scalia:

The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process.
... what a court cannot do, consistent with due process, is ... change (to the defendant’s disadvantage) the criminal law governing past acts.
However, common law crimes are still prosecuted in some states. This creates a tension in the law that remains to be resolved.

There is also a growing departure from original understanding, that seeks to justify the exercise of criminal powers. For example, we have this from West's Enclopedia of American Law:
The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.
This apostasy is based on the misinterpretation that a power is delegated not just to make a certain kind of effort, but to get a desired result, and therefore that any power that gets the desired result is "necessary and proper". If that were correct, the Union government has no limits and there would be no point in having a written Constitution.

2010/08/29

What motivates patriot mythmakers?

It is useful to try to understand how some people construct often elaborate but mistaken beliefs about law and government. Almost all of them are desperately seeking to make some sense out of what seems senseless: the obvious departures from compliance with what they think the Constitution requires. They are hoping that if they can find the theory, or rules of the game, of how the usurpers operate, they can somehow beat them, usually in their courts, at their own game. It is like seeking the combination to a safe, or the magic words "Open sesame" that will open the entrance to the cave containing all the treasure. It is a false hope. There is no combination, no magic words.

Part of what is going on is insecure people trying to appear authoritative, by adopting "explanations" that make them seem like they know what they are talking about. Instead of adopting theories that have merit, that they can't understand, they spread theories that lack merit, that they can understand. The result is the spread of patriot myths that just play into the hands of tyranny.

The only theory anyone needs to explain what is happening can be summarized in the following few words:

Agents usurp when we let them.

The only remedy needed or possible can be summarized with fewer words:

Stop enabling usurpation.

That is all anyone needs. The rest is details.

Of course, it is not only laypersons who seize on foolish ideas. The legal profession is full of fools too. They just choose different foolish ideas, like "living Constitution" or "binding precedent".

Their hope is fed by the ways judges rationalize their decisions, including their wrong decisions, basing their rationalizations on the rationalizations of other judges in previous cases, which may also have been wrong. Each departure, or "error", is built on the ones before, in a long chain, until the original meaning of the Constitution is forgotten, and a system erected that bears little resemblance to that the Founders intended.

Along the way a lot of people come to depend on those departures. They invest in them. They build careers on them. They write articles and books on them. They are called the "reliance interests", and over time they can become a strong majority faction within the legal community, and even among the general public and therefore the voters. Ask yourself how many people are planning to rely in part on Social Security or Medicare some day to get a sense of what we are up against if we proposed to go back to strict constitutional compliance.

But no one should support those departures as themselves based on some coherent theory or alternative rules of the game. In almost every case, they represent concessions to power. In other words, they were political decisions, based not on logic or history or the linguistics of original understanding, but on choosing the easiest course, the path that seemed least likely to get the judges in trouble, or make more work for them, or incur more criticism of them, or make it less likely they will get raises or promotions, or that those close to them will get nice jobs.

Once such chains of departures get entrenched, there is generally no alternative but constitutional amendments. Perhaps a lot of them. Not necessarily to change what the Constitution originally meant, but just to get back to that. Clarifying amendments. Remember that the first 14 amendments were largely for clarification rather than to correct original mistakes in the design of the Constitution.

Constitutional amendments are difficult. They were designed to be difficult, so people wouldn't make too many foolish ones. They managed to do that anyway, as Prohibition illustrates. In an age when most people don't understand how the Constitution was supposed to work, or how the departures from it work, it is difficult to get them to understand how to fix it, or to unite enough people behind a sound solution. We don't have James Madison around anymore.

I have made my own effort to compose amendments that might work. You can find them at http://constitution.org/reform/us/con_amend.htm

Example of how a myth gets made: UCC

One of the most persistent family of myths are built on misunderstanding and misuse of the Uniform Commercial Code (UCC). The misuse comes in applying it to areas of business and law to which it does not apply, such as criminal law, finance, real estate, and court transactions.

The UCC is to personal property as mortgages/trust deeds are to real property.  It gets entangled with real estate only when fixtures, minerals, timber, crop or consumer goods are involved. The security agreement behind each UCC loan transaction is the practical equivalent of the mortgage behind each real estate loan. Real estate uses a document recording system, whereas UCC uses a notice filing system. The UCC includes provisions for the sale of goods, commercial paper, bank deposits and collections, bulk transfers, investments securities, secured transactions, and several types of warranties.

The UCC is not the same as the Uniform Consumer Credit Code. The UCCC is designed to provide protection to consumers who buy goods and services on credit.

The UCC also  does not apply to securities, such as stock, bonds, or mortgage-based securities often used by the former investment banks and financial institutions. These are governed by securities statutes. It does not apply to taxes, including real and personal property taxes, rents, fees, commissions, fines, currency, or a host of other debt-like instruments.

Yet mythmakers try to apply the UCC to everything, sometimes even to law itself, as though it were superior to all law. They apply it to trusts, statutes, wills, estates, and many other things that are covered by entirely different laws. The fallacy involved is called reductionism. But real law doesn't work that way.

Malevolent myths

Not all patriot myths are earnest but misguided. Mythcrap is used by evil persons who try to spread it to fools to serve as their cannon fodder in a violent revolution they don't have the guts to start themselves. They are like the evil men who send suicide bombers to their deaths but refrain from going themselves. Their purpose is to send so many fools to their destruction that the judicial system and prisons will be overwhelmed and enough of the fools will become enraged to resort to violence. I have listened to federal agents gloating about this, how they were encouraging it, and expecting it to bring them easy convictions and easy promotions.

Lawyer Brad Henschel reported this about tax protester Irwin Schiff:
I know Irwin Schiff well and he admitted to me that he lied to many people or fudged the truth and his intent was to incite the rabble so the flood of civil disobedience would overwhelm the Government.
In other words he was giving advice he knew would get people prosecuted, in the hope of either filling the prisons with too many people for the government to handle, or get the victims or their friends motivated to engage in political opposition.

Another side of this is those who reject the Constitution altogether as a "failure", and either call for a return to the Articles of Confederation, or some kind of anarchy. They concoct myths of their own to try to discredit constitutional compliance. They seem to be coordinated with the cultivators of cannon fodder.

Using people in this way is immoral and discrediting to the cause they espouse.

2010/08/27

What it takes to understand the Constitution

Those who claim a few minutes is “all it takes” to understand the Constitution are sadly unaware of the journey they have taken to get to that point. The Constitution is a document written in the legal English of 1787. That is not the same language used in 2010. If you use the legal English of 2010 to read the legal English of 1787 you won’t understand it. You might think you understand it, but that is the position of an undereducated person.

When you try to understand a passage in the Constitution, or any other document, in any language, the process of understanding did not begin when you opened your view of it. It began when you were born and first heard language spoken around you. Your ability to understand it then developed through childhood, then perhaps 12 years of public school, 4 years of college, 3 years of law school, and then 5-6 years of interning with a law firm before the senior partners think you are ready to take a case on your own. So maybe by the age of 30 people might expect you to be able to read a contract, a court opinion, a statute, or a constitution.

So don’t say it only takes someone a few minutes (perhaps with the help of an old dictionary) to understand the Constitution. It took you at least 30 years, even if it seemed like the first few years were slow, at least for legal English.

But that was the legal English of today, not of 1787. That’s a foreign language to us. It might be superficially similar, or even be substantially the same for large parts of it, but there are a lot of words and phrases whose meaning has changed a great deal in 200 years. For a discussion of them see Originalist Issues.

For someone to learn the legal English of 1787, starting at age 30 or more, it should be approached like learning the San language spoken by the tribal !Kung (yes, the exclamation point is not a typo — it stands for a clicking sound made with the tongue) people of Southwest Africa, lovingly depicted in the hilarious movie The Gods Must Be Crazy. It is not just a difference in coding, but a difference in cultures, something one doesn’t get just by reading or writing (the !Kung don’t have a written language). Outsiders who have learned it say it takes at least 15 years to get most of it, and they are still not sure.

I have been studying the Constitution, trying to understand it the way the Founders did, for more than 50 years, and I’m still discovering new meanings in it. Much of that time has been spent trying to explain it to people who don’t even understand their own language, much less the language of the Founders.

Yes, the Constitution has definite meanings that can be discovered, but don’t underestimate the effort that requires. It is an effort well worth making, but it does take a long time.

What happened with Wickard?

Much discussion of the Wickard v. Filburn line of precedents portrays what happened as a misconstruction of what the term “commerce” means in the Constitution, but that is not what happened. The 1942 Supreme Court did not say Filburn’s corn was “commerce”, but that it had a “substantial effect” on commerce, enough to thwart the attempt by the government to “regulate” it. That is a construction of the “Necessary and Proper” clause, not the Commerce Clause. The decision erred by construing a “power” as “getting a desired outcome” rather than “making a proper effort”. It conveniently overlooks the trailing words “to carry into execution the foregoing powers…” which is about making an effort, not getting a result.

The Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:
The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

This misconstruction in Wickard is not something new. It goes all the way back to McCulloch v. Maryland, 17 U.S. 316 (1819), which it cites as authority, and which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.
CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carry into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.
All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.
Note this contains a logical error. That all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.

Until this misconstruction is understood it is not easy to overcome it. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result and that the power to regulate is the power to do whatever it takes to get a result. See Draft Amendments.

2010/07/20

Legislation nightmare

The San Jose Mercury News is running a series of articles, "How our laws are really made", with videos, about how lobbyists participate in the drafting of legislation that the sponsor often knows little about. See Part 1 and Part 2.

These articles resonate with my own experience working as a volunteer lobbyist on Capitol Hill 1970-72. I didn't bring money or votes, but I did bring skills and the willingness to work, beginning with answering mail and proceeding to first reviewing legislation and then drafting it. That earned me access.

In the course of that I learned why professional lobbyists have the undue influence they do. It mainly comes from their greater ability to do research and staffwork. The issues that Congress and state legislatures are confronted with each year exceeds by several orders of magnitude what members and their staffs can even read, must less understand or work on intelligently. They do not have "domain knowledge" of most of the subjects they must legislate on, and they can't get that by just holding hearings for "expert witnesses". That is just a charade. I once stood on the side of a hearing room scribbling notes with questions for the members and answers for the witnesses, neither of whom had a clue about the subject of the hearing. I was the closest thing to an expert in sight.

Much of the staffwork is and must be done by lobbyists, often on subjects in which they are not interested, but as a service to earn access.

Send a rough draft of a bill to the Congressional Research Service to put in final form? Hah! Lots of jokes in that. They couldn't even get the cites right for what would need to be amended. Often their version would do the exact opposite of what the member intended.

I used to go out in the evening to the Hawk and Dove, which is still near the Capitol, and overhear congressional staffers meeting with their handlers to get their orders and envelopes containing legislation. In most of the conversations I overheard, the handlers were not private sector lobbyists, but people from executive branch agencies. If you think the CIA might be controlling Congress, you would be partly correct.

If a new congressman takes office and tries to pursue his own reform agenda, he will soon discover he is frozen out. Eventually, he may complain to a colleague, who will advise him that to get anything done, he needs to hire a professional staffer, and he just happens to know of one who's available. So the no longer quite new member hires the staffer, and suddenly his phone calls get returned and members become willing to talk to him. He might even make some progress on his own agenda items, although probably none will make it to passage. All he will be doing is staffwork for the leadership in his body. That is the origin of the old saying, "If you want to get along, go along."

From what I observed, I became amazed that we don't have catastrophes every week or so. No one in government, or for that matter in the private sector, really know what they are doing. The only reason it works as well as it does is that people have the delusion that everyone else knows what they are doing and are doing it. If the curtain were drawn, the entire thing would fall apart.

If the American people really knew what goes on in legislative bodies (or courts, or administrative agencies), they would have screaming nightmares and look for bunkers or distant islands as places to hide.

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