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?

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