Foolish call to "end corporate personhood"

Los Angeles Poised To Be The First Major U.S. City To Call For End To Corporate Personhood

The notion that somehow "corporate personhood" is the problem and needs to be abolished is abysmally foolish, ignorant, and stupid. It reflects a profound incomprehension of the fundamentals of law that have been painfully evolved over more than 2000 years.

One more time:


Repeat that to yourself 1000 times, reflecting on it each time, until it is burned into your consciousness.

Each individual is not one person, but many. In each of many roles we are a legally distinct person, each with its own rights, powers, and duties, and only a role, not the actor, can appear as a party in a court of law. Anything else would destroy the foundations of law of any meaningful kind. Moreover, it would be a denial of our right to associate to impede us from acting with one another in concert as a single person. That would be tyranny. And people acting in concert is the essence of what a "corporation" is. It means, literally, a "co-operation".

The problem, as complex as it is, is basically the same general problem we have always had: Excessive and unbalanced concentrations of power. That has two main components:

1. Organizations that are too large, and emergent behaviors that function like organizations even if they are not formally organized.
2. Imposition of fiat currency on all of us by statutes that make legal tender of something other than gold, silver, energy, or other physical assets, abetted by us acquiescing in that imposition.

Yes, concentration of excessive power in large corporations is a problem, but that has nothing to do with them being corporations. It would be the same problem if they were sole proprietors or just herds of players all playing the same strategy at the same time. It has largely been that herd behavior that has prevented shareholders of large organizations from reining in their managers and their foolish and dangerous practices. Greed can be good if many players each play a different strategy. When they all make the same moves together the result is disaster. It makes no difference how or whether they are formally organized, because the results are the same.

Thoreau and Gandhi had specific, well-defined objectives. For Thoreau it was to end the war with Mexico. For Gandhi it was to end British rule of India. What do the Occupiers seek? They seem to neither know or care to make the effort to learn.

They are like a dumb animal in distress who utters inarticulate cries of distress. But how can anyone respond to that? A physician might ask an articulate patient questions, or conduct tests, to try to make a diagnosis. But the physician is out, and even if he were in, he doesn't have a clue what to do, because he is part of the malady.

Make no mistake. We are all stupid here. We confront a challenge that requires almost all of us to be vastly more intelligent and knowledgeable than human beings can ever hope to be individually. The only chance we have is to become more intelligent and knowledgeable collectively, but the only institutional framework that might enable that to happen has been largely abandoned: the framework set forth by the Constitution of 1787-91, as originally understood. Either we return to strict compliance with it, and other nations do likewise, or we will descend into a new Dark Age from which civilization may never again emerge.

Corporations as a form of organization are no less accountable as a matter of law than any other form of organization, other than governments (which are also corporations). The difficulty with holding them accountable is that they are large, politically well-connected, and individuals within them are surrounded by henchmen that can make it difficult to prove a case against them. It makes little difference whether the entity is a for-profit manufacturer or distributor, a utility company, a labor union or trade association, a foundation, church, hospital or university, or a crime syndicate. If they can unduly influence public officials it can be difficult to hold them accountable, but the only way that can be done through campaign media still requires voters to buy the advertising messages, and if they are derelict in exercising good judgment about that, it can't be blamed on the source of the funding for the advertising.

The main ways large entities influence politicians is by influencing public opinion, and the responsibility for that rests on the public, not on the entities that provide the funding.

As for lobbying, the main way lobbyists gain influence is not by donating money to campaigns. It is by doing the expert staffwork for legislators that their staffs lack the time or talent to do for themselves. I used to do that kind of thing myself for a couple of years on Capitol Hill. I didn't have money or votes but I gained influence by reviewing and drafting bills and speeches better than the staffers could. The staffload needed by members exceeds by a couple of orders of magnitude what their paid in-house staffers could ever do, even if they had the knowledge, which they mostly don't.

The real threat that no one is adequately addressing is the herd behavior of all these large entities. They are like eusocial insects. Ants and bees are individually stupid, but they are wired to respond in certain ways to inputs that cause them to seem to collectively act intelligently, with no central direction. This is called Swarm intelligence. But it only works for certain kinds of situations for which they have adapted and evolved over millions of years. On the other hand we can see how lemmings can emerge into a mass migration that can lead them to their own destruction. No one lemming makes the decision or provides direction. And none of them can see far enough to avoid large bodies of water they might not be able to swim across. Many attempts have been made to devise regulatory interventions to prevent speculative bubbles, and no one has found a way that does not get overwhelmed by the fervor that infects the political process as much as it does the market.


What's Wrong with Wall Street

If financial institutions wanted to play games with monopoly money of their own creation, like the inhabitants of Second Life might do with their Linden Dollars, what they did would affect only them. That includes bailouts by the Federal Reserve, which creates the fiat currency they use.

The problem is that they impose their funny money on the rest of us, so that we can't get payment for labor or debt, pay bills including taxes, or have banks accept deposits or issue payments, in anything except that funny money. The problem is legal tender statutes, and the U.S. statute making federal reserve notes legal tender everywhere in the U.S., besides being unconstitutional, is the key legislation that needs to be overturned.

Here is an interesting question for the forum: Who actually owns federal reserve notes? Not the party in possession any longer, if he ever did. Now it may be forfeited unless the possessor can prove it is "his" to at least use. But who has equitable title.

The answer is not the U.S. Treasury. Apparently it is only the Federal Reserve banks, collectively. None of the FRNs in your wallet or bank account are really yours. You are only allowed to use them in certain ways as long as you are playing the game. When the owner of the monopoly game calls the game over, he gets to take the game board and all the monopoly money home with him (except he is already at home, so that means you have to go elsewhere).

The solution is for the rest of us to abandon fiat currencies and deal only in things backed by real assets.


Bill would end the Internet as we know it

The "Stopping Online Piracy Act (SOPA) — HR 3261 — and its counterpart in the Senate, "PROTECT IP," will LIMIT Internet freedom and commerce, and will give unprecedented power over the Internet to the government and law enforcement.

The House's Stop Online Piracy Act (SOPA) and the Senate's PROTECT IP Act would censor the Internet and create massive regulations for every website that utilizes user-generated content. That means sites like YouTube, Twitter, Facebook, and popular political blogs will all be under the watchful eye of the federal government. And if ONE PERSON posts ONE VIDEO or ONE IMAGE that has not been properly credited; THE ENTIRE SITE CAN BE SHUT DOWN, WITHOUT A COURT ORDER.

If passed, this bill will force almost all Internet business to leave the United States, beyond the jurisdiction of Congress. We would all have to move our servers off-shore and use IP numbers instead of domain names within the United States.

This unconstitutional legislation is being backed by a powerful cabal of commercial interests that don't care about our rights. Only about their profits. This legislation wouldn't even be good for their clients, but they don't care to think through the implications. And they have a lot of political clout. This is a battle for freedom and our Constitution, and the forces against us are well-funded.

SOPA is being marked up on December 15th. Our Internet Freedom is under assault. We must get our message to Congress IMMEDIATELY and tell them to OPPOSE SOPA! This has the potential for GREAT abuse by our government, and as freedom-loving citizens, we MUST take action now. Flood Congress with your Faxes and tell them to oppose this legislation and protect free speech and free enterprise in America.

The link below takes you to a site where you can send email to members of Congress, but email is largely useless. Send faxes or make phone calls!


First stop the lying

When Gorbachev set out to reform the Soviet Union one of the mottos he adopted was glasnost, “openness”. Or as he put it, “First we have to stop the lying.” He recognized that the problems with the Soviet system could not be solved unless or until people faced some unpleasant truths. We are in a similar position in the United States and the world today. Our way of life is threatened by our lies and our eagerness to believe them. There may not be easy solutions, or even any solutions at all, but without being brutally honest with one another, we have no chance.

Lies of our leaders

Leave the details to us. Demanding a reform without providing the details is not asking someone to do something for us. It is asking for something to be done to us.

We know what to do. No they don’t. There is not a single person in a position of power anywhere who really understands our problems or knows how to solve them, and neither does anyone else. All we’ve got are guesses and hopes for luck.

Tricky titles. Beware of titles of legislation that promise much and are better designed to be counterproductive: Patient Protection and Affordable Care Act that does not protect or care for patients and is not affordable. Patriot Act that isn’t. Jobs bills that destroy more jobs than they create.

Government needs taxes to pay its bills. No, it can always create money out of thin air to pay its bills. Taxes are to remove enough money from circulation to offset the money created so it doesn’t produce runaway inflation that would hurt investors.

Debt-based currency is good. No, it is recipe for disaster and the disaster is about to fall on us. Money not backed by something of stable value that cannot be created out of nothing has always let to disaster, through history. There may not be enough gold or silver for coins, but we could use units of energy to back our currencies.

Judges can be trusted to decide the law.  No, most become judges because they couldn't make it as lawyers, and learn law from the cases that come to them, but without having time to research or reflect deeply, and often lack the disposition to avoid bias or political pressure. That is why juries were invented, to review the decisions of judges in rendering a verdict.

Prosecutors and police can be trusted to only go after the bad guys. Not when they advance their careers by getting convictions regardless of injustice. That is also why juries were invented, and if you sit on a jury don't believe any of them.

The income tax, federal reserve notes, and entitlement spending are constitutional. No they’re not. They are nothing but a hoax, and people are gullible enough to fall for it.

Lies we love

Taxing the rich will be enough to avoid spending cuts. No it won’t. Even taxing not just 100% of the income of the rich, but 100% of their assets, would bring in nowhere near enough, and it would drive the money out of the country.

All we have to do is [something simple]. Probably not. Simple remedies will almost never work, and are more likely to backfire. If its simple, obvious, and easy, it is almost certainly a bad idea, and likely a disastrously bad idea. Public policy is not simple, obvious, or easy, any more than medicine or engineering. The simple solutions that work have probably already been in use for hundreds of years.

All we have to do is pass a law against [something].There are only a few countries in the world in which people obey laws without intense enforcement, and most not even then. The United States used to be one of them, but Prohibition and traffic laws have largely wrecked that kind of civic virtue. The reality today in most countries is that the only laws that most people are likely to obey are the ones that just codify what they are already disposed to do anyway. That especially applies to treaties. The U.S. is one of the few countries in which one can go to court to get a treaty enforced. In most a treaty is only enforced by a credible threat of war. That is why most environmental treaties are exercises in hypocritical window-dressing. No one is going to war to enforce them, and therefore they will be ignored in practice in almost every country.

Electing X will save us. Not just one X, and electing better people is only part of what is needed. We need better people in public office, but there are not enough who might be able to at least guess right to replace all the ones that need to be replaced. We need to cultivate a new crop, and it is very late to start. They need to institute fundamental structural and procedural reforms that are very complicated and subtle, reforms that almost no one grasps.

Major party nominees have been vetted. No, in many contests they are just the only ones who filed. Most major party nominations go to the candidate who spends the most money, who may not represent the rank-and-file of that party.

Voters decide wisely. Do you decide wisely? And if you don't, what about others? You and everyone else need to research election choices carefully, not just vote on the basis of habit or vague feelings.

A vote for a minor party candidate is wasted. No, it is not wasted if it influences public policy, and a vote for a minor candidate may do that better than one for a better-known and supported one. The election outcome is very unlikely to depend on one vote.

Spending cuts will save or create jobs immediately. No. They will help in the long run, and may avoid economic collapse in the short run, but in the short term all of the alternatives are likely to make things worse. Our choices do not include keeping things as good as they are now. We had those choices 40 years ago but we don’t now. Our only choices now are between bad and worse.

Deregulation will save or create jobs immediately. Not much in the short term. We have to do it for the long term but jobs have gone off-shore because capital investment has, and there is no easy way to get it to come back unless conditions elsewhere get so bad that this country looks safer. The good news is those jobs are coming back. The bad news is that when they do they will be done by machines.

Reduced emissions and green energy will save jobs. We have to do it, but it won’t do much for jobs other than avoid losing even more of them. China alone is increasing its emissions far faster than we could ever reduce ours. Only something like solar collectors on the moon beaming power to Earth might work, and not enough people understand the merits of that.

The market will save us. It is likely to be better in the long term, but as long as financial institutions are too big they will fail in ways that hurt all of us. No amount of regulation will avoid that, or save their stakeholders from their own mismanagement. They just have to be broken up into very small pieces, and that has to be done everywhere on Earth.

We can feed seven billion people. Yes, but probably not for much longer, because they won’t be able to pay for it, and neither can we. Things are going to get rough.

A good college degree will get you a good job. Get real. The main purpose of a college education is to learn how to learn all kinds of things, and to acquire a common cultural base and civic awareness, not to train for a narrow specialty.

Constitution Society, 2900 W Anderson Ln, C-200-322, Austin, TX 78757. http://Constitution.org
jon.roland@constitution.org 512/299-5001 Blog: constitutionalism.blogspot.com Twitter: Lex_Rex

Jon Roland for U.S. Senate Libertarian Jonroland.net lptexas.org lp.org


Help countries write new constitutions?

This is a comment to an article on the Comparative Constitutions blog.

It is correct that few Americans or other Westerners are skilled at constitution writing. Indeed, looking at the amendments to the U.S. Constitution, proposed and adopted, since the first ten, it seems we have not had anyone competent since James Madison, and with the benefit of hindsight we can find some flaws in his work as well. We can also discern that much of the incompetence that got into earlier proposals was due to political influence.

It is also correct that our suggestions to drafters in these countries may not receive our suggestions well, or even understand them. However, since they seem to take much of what they do from our models, which they often don't understand (nor do we), it may be of some value to try to explain our own models, and let them take from that what they will.

However, Nathan Brown's article seems to suggest that the principles of constitutional design are more a matter of political culture and taste than they are. Despite differences in political or legal culture, the natural restrictions on constitutional designs that can actually work in the long run are more severe than he seems to think. I find those principles of design to be dictated not just by human nature, but would be similarly constrained for any broadly human-like species, anywhere in the Universe.

Even if they do not listen to our suggestions, it is worth making them if only to discuss among ourselves, as a way to learn better how to do this kind of thing. If some of them happen to listen and and learn something, that is all well and good.

Much can be learned by examining constitutions for how they have applied similar design principles, how they have deviated from those principles, and how that worked out. I find the recent attempt to forge a "constitution" for the European Union to be particularly instructive for how not to do it.

There are a few principles I would urge:

1. Keep out all the aspirational crap. A constitution is a law, not a political manifesto. It should stick to specifications of structures, procedures, rights, powers, and duties, and strike the right balance between specificity and coverage of every contingency that can be anticipated.

2. The main purpose of a constitution is to protect rights, and everything needs to lead to that. A well designed constitution will try to anticipate all the ways rights can be violated and provide remedies for each of them.

3. A constitution must never mandate the expenditure of a sufficient amount of any scarce resource. It must be realizable even when there is nothing to share and nothing except the efforts of unpaid volunteers to carry out its provisions.

4. Power needs to be divided in a way that allows for checks and balances, but which does not prevent action when action is urgent. That is tough, but it can be done. Generally, those to be checked should not have a hand in selecting those who must check them.

5. The key to republican government is not equal representation. There will never be equal representation. The key is deliberation, with equal opportunity to have one's concerns deliberated upon. It is, however, a good idea to create veto blocks against actions that may disadvantage individuals or minorities. That is one of the functions of courts.

6. Have as much of government done at the local level as possible without producing fragmentation. Local juries or shura should be an important part of any sound design.


Reforms to prevent wrongful convictions

There are limits to what legal reforms can do to prevent convictions of innocents if the prosecutors are determined to commit misconduct. A law is needed requiring investigators and prosecutors to share all evidence, not just exculpatory evidence, with the defense, but not the reverse, because prosecutors bent on misconduct could use disclosures by the defense to engage in misconduct in other ways.

One has to wonder how many other innocents have been wrongly convicted for whom there is no DNA or other evidence that could exonerate them. Such evidence is unlikely in most cases of wrongful conviction, so there must be a great many of them remaining to receive justice.

There is a larger problem here: the lack of sufficient evidence to prove guilt beyond a reasonable doubt. That the DNA evidence could exonerate indicates the remaining evidence did not meet the burden of proof, and the judge and jury should have recognized that. Evidence of opportunity is not enough. There must also be evidence of motive, method, and in the absence of eyewitnesses, evidence of a pattern of behavior with which the crime was consistent.

Thus, we have two main problems in need of reform:

  1. The incentives that induce prosecutorial misconduct, and the lack of disincentives to discourage it; and
  2. Lack of training of judges, and especially jurors, on how to judge both evidence and the law.

1. Prosecutorial incentives

The main incentive is re-election or re-appointment as prosecutor or election to a higher office, with the conviction rate being touted as the basis for that. As long as candidates get elected by winning convictions and not by refraining from prosecuting innocents, the problem will persist. That suggests two key reforms:

  • a. A limit of two terms for a prosecutor in the same jurisdiction.
  • b. A requirement that a prosecutor not seek or accept any other elected office, state or federal, for ten years after one or two terms as a prosecutor.
  • c. Make prosecutorial misconduct a crime and open the process to private prosecutors to prosecute them, which means opening grand juries to hear indictments from private citizens who it might appoint to prosecute.
  • d. Require all arguments of law be made to the jury, not just to the judge, because some wrongful conviction comes from the jury not getting all sides on what the law is. The judge may have to rule on motions on points of law, but the jury needs to review how such decisions were made in reaching a verdict.
  • e. Forbid plea bargains and reduced penalties for giving evidence.
  • f. Require juries in all criminal trials, even if the defendant pleads guilty. There are also falsely entered pleas, and a jury needs to be involved to spot that.

2. Training

Prior to about WWI people got training in how to serve as competent jurors in school, in public gatherings, and by serving on juries. In the 1950s my mother served on a jury about once every two years, and on almost every jury there were some members who had previous experience as jurors. They all took their duty very seriously, and were determined to do a good job as jurors. That situation deteriorated during the 20th century. That suggests we should:

  • a. Teach law and judicial process to high school students in courses on American government.
  • b. Teach evaluation of evidence in science courses.
  • c. Teach resistance to propaganda and logical fallacies in English and history courses.
  • d. Have students observe actual trials and interview participants. 
  • e. Have students conduct their own innocence projects.

More at Trial Jury Reform.


Binding precedent is unconstitutional

It should be understood that binding precedent is not authorized or required by the Constitution, and indeed may be inconsistent with it being the supreme law. It is entirely prudential, for convenience of the court, and "public policy", not law.

From Wapedia :

3. 1. 3. Formulation of federal precedent 

Unlike the states, there is no plenary reception statute at the federal level that continued the common law and thereby granted federal courts the power to formulate legal precedent like their English predecessors. Federal courts are solely creatures of the federal Constitution and the federal Judiciary Acts. [37] However, it is universally accepted that the Founding Fathers of the United States, by vesting "judicial power" into the Supreme Court and the inferior federal courts in Article Three of the United States Constitution, thereby vested in them the implied judicial power of common law courts to formulate persuasive precedent; this power was widely accepted, understood, and recognized by the Founding Fathers at the time the Constitution was ratified. [38] Several legal scholars have argued that the federal judicial power to decide "cases or controversies" necessarily includes the power to decide the precedential effect of those cases and controversies. [39]

The difficult question is whether federal judicial power extends to formulating binding precedent through strict adherence to the rule of stare decisis. This is where the act of deciding a case becomes a limited form of lawmaking in itself, in that an appellate court's rulings will thereby bind itself and lower courts in future cases (and therefore also impliedly binds all persons within the court's jurisdiction). Prior to a major change to federal court rules in 2007, about one-fifth of federal appellate cases were published and thereby became binding precedents, while the rest were unpublished and bound only the parties to each case. [38]

As Judge Alex Kozinski has explained, binding precedent as we know it today simply did not exist at the time the Constitution was framed. [38] Judicial decisions were not consistently, accurately, and faithfully reported on both sides of the Atlantic (reporters often simply rewrote or failed to publish decisions which they disliked), and the United Kingdom lacked a coherent court hierarchy prior to the end of the 19th century. [38] Furthermore, English judges in the eighteenth century subscribed to now-obsolete natural law theories of law, by which law was believed to have an existence independent of what individual judges said. They saw themselves as merely declaring the law which had always theoretically existed, not making it. [38] Therefore, a judge could reject another judge's opinion as simply an incorrect statement of the law, like how scientists regularly reject each other's conclusions as incorrect statements of the laws of science. [38]

The contemporary rule of binding precedent became possible in the U.S. in the nineteenth century only after the creation of a clear court hierarchy (under the Judiciary Acts), and the beginning of regular verbatim publication of U.S. appellate decisions by West Publishing. [38] It gradually developed case-by-case as an extension of the judiciary's public policy of effective judicial administration (that is, in order to efficiently exercise the judicial power). [38] It is generally justified today as a matter of public policy, first, as a matter of fundamental fairness, and second, that in the absence of case law, it would be completely unworkable for every minor issue in every legal case to be briefed, argued, and decided from first principles (such as relevant statutes, constitutional provisions, and underlying public policies), which in turn would create hopeless inefficiency, instability, and unpredictability, and thereby undermine the rule of law. [40] [41]

[38] Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), citing Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). http://caselaw.findlaw.com/us-9th-circuit/1480431.html

[39] Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 59.

[40] Daniel A. Farber and Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law (New York: Oxford University Press, 2008), 70-71.

[41] Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595-602 (1987).

Also see How stare decisis Subverts the Law, especially the law review articles linked from it.


News from the Constitution Society 2011/09/24

This has been a busy month.

No lack of things to report. Here are a few of the salient ones.


I was asked by the Tenth Amendment Center to prepare a model bill for my proposal for a Federal Action Review Commission. This has been on my to-do list for a long time, so I finally did it, and you can see the result, Draft bill proposing amendment to Texas Constitution for establishment of a state grand jury for the review of the constitutionality of the actions of United States government officials and agents, and to authorize state grand juries to investigate public administration.

It is posted on the Tenth Amendment Center site at http://www.tenthamendmentcenter.com/legislation/10th-amendment-commission/

Note that it does not just establish a Nullification Commission for federal usurpations. It would also establish state grand juries with a mandate to investigate state and local official misconduct and public administration, and it would not be tethered to any particular court or prosecutor, so could remain independent of both.

You are welcome to ask questions or offer suggestions for improvements. It is not too late to fix it if there are any problems.

I can write versions of the proposal for any other state if someone is willing to push it there.


Once again the Republican-dominated Texas Legislature adopted congressional and state district maps based on the 2010 census, once again they were challenged in lawsuits by Democrats and minority groups, and once again I filed an action in intervention, proposing abandonment of maps being drawn by human beings and leaving it to be done my computers, drawing random maps according to well-established mathematical algorithms that do not favor or disfavor anyone based on party, voting history, ethnicity, or incumbency. The federal trial concluded this week in San Antonio, and as of this writing I have not gotten the decision of the Court, but I would expect it to make a few tweaks and call it the map, leaving it to any disgruntled parties to appeal it. I of course can't afford to do that, but one of the advantages of filing an intervention instead of only an amicus  curiae brief, besides enabling me to make motions, call witnesses, and argue the case in court, is that on appeal my intervention will be carried up the appeals chain along with the rest of the case file. If my proposal ever made it to the U.S. Supreme Court, there are indications that my proposal might be adopted there.

You can help us financially by clicking on the ads on our sites

We have broken down and finally begun inserting Google Adsense ads on our most popular pages, especially the gateway pages with multiple links to other pages that most people are not going to want to print or copy. For the few exceptions, we offer a "printer friendly version" link to a page without ads.

Every time you click on a different ad that interests you somewhere in our site or on one of our affiliated sites it earns us about $0.46, without it costing you more than a few minutes of your time.

We also earn revenues from people clicking on ads with our YouTube videos. See http://www.youtube.com/user/JonRoland1787 If you view them, don't forget to click on the "Like" buttons of the ones you want to help "go viral".

You are not encouraged to click on ads just to earn us revenue. Only click on the ads that interest you as a prospective purchaser. That helps Google know what kinds of ads to present. We have a stake in having people with a connection to constitutional topics advertise on Google and have those ads presented on our sites. This can encourage them, and in that way help advance the cause.

Want to purchase something from Amazon.com? Please do it through one of the web forms on our site, including the one on our home page, and we earn a referral fee. It won't cost you anything extra and it will benefit us.

If you have a Kindle e-book reader, please be aware that the Constitution Society is a Kindle publisher, and you can help us by downloading our offerings to read. Look for them, and let us know if there are any you would like that we haven't offered yet.

Please ask all your friends to do the same.

You can boost our search rankings

A new development on Google is that if you search on "constitution" we now come up twice: Position #6 for the home page and position #7 for the U.S. Constitution itself. For many years Google presented just the home page. Then for the last year just the U.S. Constitution (which of course also leads to the rest of our site). Now they do both, and it has boosted page views and Adsense revenues.

Our pages are highly ranked for searches on many other terms as well, but it seems that rankings are based in part on how many people doing a search first click on a given page in the search report. So please, whenever you do a web search, before clicking on a page other than one of ours, scan through the first several pages of the search listing, and click first on one of our pages. Again, please encourage others to do likewise. Make it a habit that will pay off for freedom.

Needless to say, if you have a website or blog, link to pages on our sites at every opportunity. You might also want to become a Wikipedia editor, because constitutionalists are outnumbered among the editors, and the others tend to give a statist point of view. It would not take that many to overcome them, but it does take some time and skill. For pages of special importance see http://www.constitution.org/refer/wikipedia.htm

Google also offers a new widget, a little "+1" button that appears in their search results (but not on all browsers), and which you can also find on our web pages. Click on it to indicate you like that page, and repeat doing so even if you did it before on that page. No word yet on whether our search rank will be increased by a lot of people liking the page, but it is worth a try.

Austin Constitution Meetup

Was held September 21, 2011, at the North Village Branch Library in Austin, Texas. Video is http://www.youtube.com/watch?v=1dXIgdzHJtA I presented much of what is contained in this message, but went into more detail.

Constitution Day celebrations

This Austin meetup was of course one of our ways to celebrate Constitution Day, September 17, 2011. But on Thursday, September 22, a wonderful Constitution Debate Celebration was held sponsored by Austin Community College at the Palmer Events Center in Austin. It involved a gathering of about 400 students, with 54 expert "guides", one for each of three tables supervised by one "facilitator", of which I was one. Each group of three tables had one of 18 constitutional issues to debate among themselves. At the end of the debate at the table, the guide and three facilitators selected one student from each of the three tables for that issue to represent the "pro" side, and one the "con" side, and then each pair of advocates presented a one-minute argument for his position at the microphone to the entire body. Although of course the arguments were not as polished as one might expect from law students, many of the students (some of which intend to become lawyers) did surprisingly well, considering most of them were barely out of high school. To the best of my knowledge there is no similar event conducted anywhere in the country, and the organizers at ACC are to be commended for developing a model, now in its fifth year, for the rest of the nation. If anyone would like to encourage a college in your neighborhood to hold a similar event, let me know and I will put you in touch with the organizers.

You can help by just donating

For your convenience we have buttons like this one

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on our website and in much of our email. But you can extend our reach, if you can insert HTML code in your own messages, by copying and pasting the above button into them.

Needless to say, despite the additional revenue sources mentioned, we still lack enough now to meet current expenses, and we need your help today.


"Facial" or "as applied"?

In the Volokh Conspiracy a post argues that a facial challenge to the constitutionality of an action, seeking to strike down the entire statute, is based on who committed that constitutional violation, specifically Congress, by passing the act.

The issue is being misframed. To understand constitutionality we need to examine all the main interrogatives: who, what, how, when, where, why, whom, and whither (what impact or significance). We need to return to the basics.

We start with a challenge to some action. Initially, we know what the action was but not the authority for it. That remains to be determined.

The party that committed the action claims he was enforcing a “law”. Now we have to determine whether it was in fact a “law” (what) and whether he (who) had the authority to enforce it (how) on that occasion (when) and place (where) and whether actions of the complainant made the “law” applicable (why) and perhaps whether his enforcement served the public good (whither).

The question of whether it was a “law” does rest on the fact issue of whether it was Congress (who) that adopted it. Perhaps it was not Congress. Perhaps it was a false report by the congressional clerk that Congress passed it when in fact they didn’t even vote on it. Or perhaps it was “adopted” by some administrator with no legislative authority for it. We may have largely abandoned the Nondelegation Doctrine but even so there usually has to be some delegation of some authority from Congress.

So in principle an alleged violation of the First Amendment could turn on the “who” question of whether it was Congress that adopted it, but it is more likely to turn on the “what” question of whether either the act itself, or the application of it, was an abridgement of speech, press, assembly, petition, or an establishing of religion.

It is misframing to characterize the violation as facial because it was Congress that did it. It is probably not a matter of “who” but of “what”, and it comes down to whether the mere passage of an act can violate a right, or whether the violation does not occur until the act is applied to some situation.

Now it can certainly be argued, and many if not most of the Founders might have argued, that we all have a right not to have our officials violate the Constitution, regardless of whether such violation is carried into execution against anyone. The mere existence of the unconstitutional legislation is an injury, in this view, and anyone should have standing to bring a judicial claim for at least declaratory and perhaps injunctive relief. But courts have come to disfavor such complaints as a prudential matter.

Therefore, the facial/applied distinction is not really about “who”. It is about “what” and perhaps “how”, “when”, “where”, “why”, "whom", or “whither”.

The question comes down to whether the court has judicial notice of how a statute may be applied constitutionally. If the government can show that, then it comes down to the constitutionality of when, where, why, against whom, and perhaps whither in the particular case. That becomes an “as applied” issue. If, on the other hand, no constitutional application of it is presented to the court, it is not up to the court to give itself notice of such, and the facial challenge is that no such constitutional applications exist, or that they are so unlikely or obscure that the prudent decision is to strike down the entire statute so the court doesn’t have to deal with more cases under it.


Is it a "tax" or not a "tax"?

Rob Natelson wrote an excellent article titled Is it a “tax” or not a “tax”? The original understanding I recommend it. But I have a few comments:

My findings on the question, from my reading of the foundation literature, are as follows:
  1. A “tax” is assessment and collection of money or items of value for the purpose of raising revenue to meet the expenses of government. Agreement here.
  2. A “regulation” is a restriction on the modalities of something, but not the prohibition of all modalities.
  3. A tax and a regulation can have different objects, but their objects can also overlap.
  4. A power to tax does not imply a power to regulate and vice versa. The powers are disjoint.
  5. A tax can have a regulatory effect, but applying a tax for a regulatory effect does not make it a regulation, and it may only be done if there is a power to regulate the same objects. It is still a tax, though perhaps not a constitutional one. Therefore,
  6. A charge that does not to raise revenue but only to have a regulatory effect, but on objects for which there is no power to regulate, is not a “tax”, but it is not a “regulation” either. It is unconstitutional on both points.
  7. The key qualifier and purpose of exercising powers “necessary and proper” is only for “carrying into execution”, for making a certain kind of effort, not to accomplish some outcome sought by the sponsors of the act. It is not “carrying into effect”. Therefore,
  8. Powers to carry into execution a regulation are only to do things like draft and publish regulatory rules, lease office space, hire workers, inspect, and impose civil penalties on violators. It extends only to tangible commodities and the transfer of title and possession of them for a valuable consideration. It does not extend to the activities of those engaged in trade, only to attributes of the commodities themselves. It also does not extend to criminal penalties.


Roland intervenes in Texas redistricting case

Jon Roland has filed a petition in intervention in Perez v. Perry, the current Texas redistricting case, similar to his intervention in the redistricting case LULAC v. Perry in 2006. The full text can be found at http://constitution.org/reform/us/tx/redistrict/cnpr.htm along with related material.

With this filing Roland appears as the only litigant who does not represent a special interest group using the case in a struggle for power. Rather than argue the merits of particular maps, he argues for a totally new process in which humans are taken out of the map-drawing process and the job is left to a computer set to draw maps at random.

Please spread this message widely.

The core of the proposal follows:

Proposed solution
Intervenor moves the Court adopt the following solution:
(1) Constraints on the maps. The smallest unit of area shall be the voting precinct, as presently established by law, which shall be of equal population within a county and not differ in population from county to county by more than necessary to accommodate counties of low population.
(a) Equipopulous. The population of each district shall not differ from that of any of the other districts by more than a factor of 0.0001 or the margin of error of the census count, whichever is less.
(b) Aligned. Only counties with a population of more than a factor of between 0.1 and 1/3, initially 1/3 unless or until amended by the State Legislature, of the average population of a congressional district, may be split between districts, unless a larger number of counties must be split to meet the specification (a) above, and a smaller number of counties shall be split if specification (a) can be met.
(c) Contiguous. Districts must be contiguous, so that there is always at least one continuous line of points connecting any two points within the district, and no connection between parts consists only of a line or point.
(d) Simply connected. Districts must be simply connected, so that any continuous loop of points within the district may be shrunk to a point within the district without crossing boundary lines. This means no holes in districts, and no surrounding of one district by another.
(e) Compact. Districts shall be maximally compact, resulting from a running time of at least 6 and not to exceed 24 hours, adjusted for improvements in processor speed, with compactness defined by minimizing the value of p²/4πA, where p = perimeter and A = area of the district, with all other values remaining constant or improving. For an area bounded by a circle the value of this expression is 1.
(2) Procedures. District maps shall be generated and finally adopted mechanically with minimal human intervention using a computer program.
(a) The software to be used initially shall be the TARGET software already developed, but may be modified or replaced at the discretion of the State Legislature thereafter. But source code for the production version of any computer redistricting software and the database shall be made accessible for downloading from the web site of the State for public examination and comment, and to be shared with other states and communities, at no cost other than storage media.
(b) The State shall establish and maintain adequate safeguards to insure that no unauthorized alterations are made in the software or interventions made in the running of it that might bias the output. As soon as feasible, a version of the present database containing only information needed to satisfy the public constraints established herein or by act of the State Legislature shall be prepared, and made the only database accessible to the redistricting program during the generation of maps for official selection.
(c) A commission or grand jury, hereinafter called the “Redistricting Commission”, consisting of 23 individuals, either drawn at random from all qualified voters in the State, or from members of the Texas House of Representatives, at the discretion of the Texas Secretary of State, unless or until the State Legislature shall provide otherwise, shall supervise the redistricting process.
(d) Initially, and thereafter after the most recent decennial census results are available, and prior to filing deadlines, the Redistricting Commission shall cause to be randomly generated at least three times as many maps as there are members of the Redistricting Commission.
(e) Each Commission member shall have the right to reject or strike one map from among the maps randomly generated during the current redistricting session.
(f) One map shall be selected at random from among the randomly generated maps that remain after strikes, and that map shall become the district map for the next election without amendment or debate.

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Individual mandate goes down in the 11th

The 11th Circuit Court of Appeals issued a 2–1 ruling August 12 striking down the individual mandate, in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit decision that went the other way. The opinion is available here. It’s the most important victory for the anti-mandate advocates so far.

 The opponents of the individual mandate are still neglecting to make an argument that is critical to their eventual success: that “carrying into execution” only meant to make an effort defined in the delegation of the base power, and not to do whatever it might seem convenient to get an outcome for which the power might be exercised. It is “carrying into execution”, not “carrying into effect”. This point has never been lifted out of the N&P clause for a focused finding, and it is past time to do so. That doing so might unravel a long string of precedents going all the way back to McCulloch notwithstanding.

We have records of the debates in many of the conventions that provide evidence of original understanding. More than that, we have evidence of what legal authorities the framers and ratifiers looked to, and can there find the meanings of the terms of legal English of the time. So if a point of law was not explicitly debated in the ratifying convention, one can look to authorities like Blackstone, Coke, Vattel, and others the framers and ratifiers read and accepted.

From Vattel we get the meaning of “commerce”, which was a term of art, not a common term on the streets of colonial America. It meant only transfer of title and possession (trade) of tangible commodities. Marshall in McCulloch even acknowledged that meaning. He and subsequent judges have based every exercise of power less on the Commerce Clause than on the N&P Clause. Medical care is not “commerce”. Neither is insurance. The only nexus is that they “affect” commerce (tangible commodities), but that is only a correct interpretation if one first accepts the premise that one cannot carry a power into execution unless one can also exercise such power over things that are not “commerce” but “affect” commerce. It interprets “carrying into execution” as meaning “carrying into effect”. That was not its original meaning. “Execution” is a effort, not obtaining a result.

If you read SC opinions carefully, you will find that after all is said and done, the decisions for the last 74 years have not been interpretations of what is “commerce”, but on what “affects” commerce. Yes, there were several pre-1937 decisions that expanded the definition of what is “commerce”, but on closer reading they were reaching for what affects commerce, not commerce itself.

So for example, mining is not commerce. The ore may be commerce when it is sold, but not the extraction, transport, or storage of it. That activity affects commerce without being commerce.

Similarly, agriculture is not commerce. The food and fiber is commerce when traded, but tilling, planting, fertilizing, irrigation, harvesting, storage, and transport are not commerce. They are activities that affect commerce.

Medical care is not commerce. It is is a service, and services are not commerce. It may involve the sale of pharmaceuticals, or use of medical instruments or supplies. Those are commerce, but the surgery is not. It comes in because it affects commerce.

Insurance is not commerce. It is a service. And it doesn’t involve the sale of any tangible commodities, so it does not affect commerce, and is not subject to regulation, by original understanding.

Likewise, debt instruments like federal reserve notes are not commerce. Neither are stocks or bonds.

To understand court decisions people need to understand that economic activity generally is NOT commerce. It is only brought under regulation because it affects commerce.

Now Art. I Sec. 8 Cl. 3 does not delegate power to regulate things that affect commerce, only commerce itself. Therefore, the only place one can find the alleged authority to regulate things that affect commerce is in the N&P Clause.

So how does one get that interpretation? Only by interpreting the power to regulate as the power to do whatever it takes to get a regulated outcome, not just to do things like adopt statutes with civil penalties, hire inspectors, rent office space, publish documents, etc., which are necessary and proper to make the effort authorized by the Constitution.

So everything comes down to the meaning of what is “carrying into execution”.

The way to understand what the Founders meant by a delegation of a power and a supplemental necessary and proper power to carry it into execution is to examine what it meant to sentence someone to hang and issue a death warrant to carry out the execution. There were cases in which the guy hung did not die. Either the rope broke or he had a tough neck. It such situations the courts often held he could not be re-hung to make sure he was dead, because he had already been hung once.

The power was only to make the effort, not to get the result.

This understanding seems strange to modern users of the English language, but it was the understanding in 1787, and that is the meaning to which we are bound, to the extent we can discover it, and we can. The historical evidence is there. It make take a lot of research and reading, but enough such effort will find what was meant.

We are now confronting our slide down a slippery slope that began with McCulloch and has proceeded through Wickard, Raich, and Comstock, until we can see the bottom and realize our mistake in not arresting the slide earlier.

We need to unwind that entire line of precedents. It is not enough to try to distinguish. The action/inaction distinction is likely not to fly, and hanging everything on the meaning of “proper” is a weak argument. The Supreme Court might not be willing to overturn the entire line of precedents in a single decision, but we can offer them a starting point for doing so, and the way to do that is to focus on the meaning of the phrase “carrying into execution”, which was only to make a certain kind of effort, and not to do whatever it might seem convenient to get a desired outcome. It is not “carrying into effect”.

Now if this argument were made the justices would no doubt realize that it would eventually lead to rolling back all the way to McCulloch, but they don’t have to explicitly recognize that. By overturning the individual mandate on the finding that it does not affect the power of Congress to make a regulatory effort, even if it might affect an outcome of such effort, they could leave it to lower courts to begin the unraveling.

However, someone needs to make that argument. The Court can’t be expected to make it themselves.

For more on this see the ACA Litigation Blog and especially the Brief for the NFIB, Ahlburg, and Brown. My criticism is that the brief does not adequately develop and clarify the original meaning of "carrying into execution" as "making an effort", rather than "getting a regulated outcome". Section III of the brief makes a start at that, but needs more clarity and focus. If Congress has a necessary and proper power to regulate things that interfere in the exercise of an effort, that does not extend to things that interfere in commerce itself, and the argument in the brief seems to accept that, severely weakening their position.

So for example, if a state required shippers of commodity X to pass through inspection points A, B, and C, and Congress required them to pass through points B, C, and D, that would not be something that could be properly enjoined. It would just mean that those shippers would have to pass through B or C. If the state required points A, E, or F, then the combined effect would be to forbid shipment of X totally. But that would still not be interference with the regulatory effort of Congress, only with commerce itself, and enjoining it would not be necessary and proper to carry into execution of the regulatory power. To be interference in the regulatory effort, it would have to do something like obstructing federal inspectors from arriving at their inspection stations to do their jobs.

The unavoidable problem is that the correct understanding of "carrying into execution" is in logical conflict with the precedents in McCulloch, Wickard, Raich, and Comstock. One can pretend to accept them and try to distinguish them, but there is no getting around that a correct decision in this case on that understanding will begin the unraveling of those precedents, even if it takes several cases and years for the unraveling to run to completion.

My preference would be to preface every reference to those precedents with "if arguendo, ... was decided correctly", to make it clear what the issue is. To gloss over this isn't likely to fool anyone, least of all the members of the Supreme Court. This is the case that will either finally entrench the overthrow of the Constitution, or overthrow 192 years of wrong precedents. We have to choose. We can't keep balancing on the edge of the knife. We can't keep both. This is the fork in the road.

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A way around the debt ceiling

The 14th Amendment misinterpretation, that exercise by Congress of the authority to incur debt implies a power to raise taxes or borrow enough to pay that debt, deserves deeper examination, as so many people are indulging in that misinterpretation. Since only Congress has the power to tax or borrow, then a contradiction between that and the power to incur debt, when the numbers don't match, is simply without remedy. Delegation of discretion in the exercise of powers entails the power to make mistakes, even mistakes that can bring down the entire world economy, which it now seems likely will not be avoided. The remedy, such as it is, is the punishment that will be inflicted by the law of economics on those who try to ignore them.

There are six main ways government may acquire funds:
  1. Taxation
  2. Fees for services
  3. Sales of assets
  4. Borrowing
  5. Grants from donors
  6. Coining or printing "money"
The reality is that the deficit and debt will not be covered by taxation or borrowing. There are simply not enough dollars (federal reserve notes) in circulation that are accessible to either method of acquisition. The only way forward is to create more currency out of thin air, which has now been done twice, through "quantitative easing". The Fed can do more of that without the authority or direction of either Congress or the President, and both can get around the debt ceiling by not selling bonds to the Fed, but by just having the Fed donate the new currency to pay government bills. Unsound as a business practice, but when things that people accept as money can be created out of thin air, it makes little difference whether such currency is lent or donated.

There appears to be no bar to the Fed simply donating the currency it creates, to the government, without accepting bonds in exchange.

It is, of course, unconstitutional, on state territory, but the reason why it is unconstitutional is instructive. The Constitution delegates no power to Congress to make anything legal tender for the payment of debts, except perhaps on the territory of federal enclaves created under Art. I Sec. 8 cl. 17. Only states may make anything legal tender on their respective territories, and only gold or silver. The Union government may accept other things in payment of debts and taxes to it, and require acceptance of other things in payment of its debts, on its exclusive territory, but despite the wrong Legal Tender Cases, it may not do so on state territory. The acceptance of federal reserve notes as legal tender is only a custom, and one that undermines our constitutional order. That custom needs to end, and it appears it will end soon.

Those two rounds, QE1 and QE2, were done because the sovereign lenders wouldn't loan us the money. Indeed, they have already lent us most of the dollars they hold, and are only acquiring new ones at the rate of about $800 billion a year, which is not enough to cover the $1.7 trillion deficit. Nor are domestic lenders going to be willing to buy bonds. First, all they are holding is about $1.5 trillion, which they need to stay in business, and second, it would take interest rates of more than 20% to get them to loan it, especially if they lose confidence that they would get paid back in currency that is still worth anything.

My model indicates the Fed will soon begin inflating the currency at a rate of 20%, rising to 40% by mid-2012, at which point it will go runaway, quickly ascending to rates that rival what happened in Weimar Germany or Zimbabwe. Social Security and Medicare checks might still go out, but the recipients won't be able to buy anything with them. Eventually, the checks will cease because there won't be any more government workers working to issue them.

I try to explain all this in a few animated videos:
So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)


Has John Marshall been understood?

Rob Natelson, a former law professor and now a constitutional scholar at the Independent Institute, wrote an article titled "The Greatly Misunderstood Chief Justice John Marshall". He argues that although later jurists have misconstrued three of his key opinions, Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden, they were correctly decided by original understanding. I have to disagree in part, and it goes to the larger question of whether the failures to comply with the Constitution are the fault of the Framers, or of ourselves.

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org. Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.

About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.

The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.org . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sandford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.

I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

Rob Natelson tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy not to cross the line into eisegesis.

See also Unnecessary and Improper .

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Does the Constitution Still Matter?

The cover of the July 4, 2011 issue of Time magazine depicts a shredded Constitution superimposed with the question: “Does it still matter?”, by Time Managing Editor Richard Stengel. His answer to that question is that it does not, that it is little more than a relic of a different time, of interest perhaps to historians but no longer to be taken seriously as defining our civic duty. He recognizes that it increasingly being ignored and that there does not seem to be the political will to return the nation to compliance with it. His implicit question is, if people are not going to follow it or insist on it, then why bother to pay homage to it? Let's be honest with ourselves, he suggests, and scrap it.

There was a burst of objections to the article in many forums, 538 at the Time website. As I usually do, I added comments. Here they are:
The main cause of deviation from the Constitution is money: there is a lot more money for violating it than for defending it. See http://constitution.org for how you can help.
Our challenge is to educate people in a competent understanding of the Constitution as originally meant. There are a lot of myths out there, competing for their acceptance: some from the self-interested elites and some from earnest but misguided laypersons (many of whom may be spreading myths as agents of the elites). The problem is complicated by the fact that the Constitution was not written in the English of today, but in the legal English of 1787, and people in that time disdained things like dictionaries, expecting legal scholars to immerse themselves in the subject for many years to acquire competent use of the language. The effort is worth it, but it is not just a matter of reading the Constitution with a modern (mis)education. See http://constitution.org
For more on the subject see
Constitutional Construction http://constitution.org/cons/prin_cons.htm
Kentucky Resolutions & Virginia Report http://constitution.org/rf/vr.htm
Constitutional Convention http://constitution.org/dfc/dfc_0000.htm
While the many objections to this article might seem encouraging, we need to recognize that there were very few, and most not of high quality.

One of the better ones was by Rob Natelson, who wrote a response addressing some of the many illogical or inaccurate claims therein. It led to a discussion by David Kopel on the Volokh Conspiracy, in which I commented:
Sasha is correct about the flexibility of Latin word order. But it is worth while to segue into the general subject of the ways Latin (and Greek) influenced the language of the Constitution, and therefore the meanings that language had for the Founders.
An important example is the term “militia”. In Latin, it does not mean “armed group”. That would be volgus militum. The best translation would be “defense activity”, because soldiers were used not just for war but also for law enforcement and disaster response. The word, like many in English, is a kind of polyseme called an actronym, a word having the primary meaning of an activity that comes to also be used to refer to those engaged in the activity, or the occasion or place of the activity.
So to understand the meaning of “militia” in the Constitution, substitute the phrase “defense activity” wherever it appears.
However, that discussion became somewhat pedantic. What was missing from these discussions were plans of action to correct the problem. There is much "viewing with alarm", but almost no one seems to be doing much about it, other than a handful of people like me, and I am not getting much support in my efforts. I do get a lot of favorable comment that I seem to have the only good ideas for action, but when I ask people to commit to taking action, they make excuses or just glaze over.

The old saying is "Power goes to those who show up." Yet a survey of constitutionalist groups across the country finds few and their meetings are not well attended. I have asked some potential participants why, and their vague answers indicate they don't want to get into a situation in which they will be asked to do anything, especially donate money. It is like people who don't go to church because they dread being presented with the collection plate, or being asked to volunteer for some charitable service.

I hope Stengel is wrong, but so far the evidence supports his position. What are you going to do to prove him wrong? If you don't set the example of action, don't expect others to do so.

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So you want to raise the debt ceiling?

So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)


Sixth Circuit upholds individual mandate

Thomas More Law Center, et al. v. Obama, et al., No. 10-2388


This case is instructive for how to pursue further argument in the issue. The case is the first appellate decision, and is expected to be appealed to the U.S. Supreme Court. This Circuit was considered the most likely to overturn the individual mandate, and thus provide a circuit conflict that the Supreme Court would want to resolve.

It appears the opinion of Judge Sutton is directed toward U.S. Supreme Court Justice Kennedy, expected to be the swing vote on the case. The dissent by Judge Graham provides support for the opposite position.

Judge Sutton provides the key language:  “The Court has upheld other federal laws that involve equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals.  If, as Wickard shows, Congress could regulate the most self-sufficient of individuals – the American farmer – when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it.  And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Further:  "What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Further: “The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.”

See also pp. 47-48, discussing the EMTALA requirement that hospitals provide emergency care even to those who can’t pay. Judge Graham points out that "...Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects." Or because the states do the same, by requiring "emergency" treatment of everyone, and then broadly interpreting "emergency" to include everything needed to extend life indefinitely. The individual mandate to buy insurance rests on the mandate to treat everyone. The way to solve the collective action problem is to repeal the mandates to treat. If any legislative body mandates treatment then it incurs the duty to pay for it, respondeat superior. A mandate to treat cannot create a constitutional authority to do anything. Constitutional authority is not contingent on legislative acts that create some condition.

Note that Judge Sutton does not rule out future as-applied challenges to the mandate but only the current facial challenge. See pp. 37-38, 49-50, and 52-53.

A sentence in the dissent weakened Judge Graham's argument.  It said that the decision to self-insure is noncommercial, to justify its holding.  But this contradicted by Wickard.  If the case for constitutionality turns on this, then there is little chance of prevailing unless it is distinguished from the line of cases from McCulloch through Wickard and Raich.

Once again we see the cited cases as those that have the most pernicious impact on jurisprudence, and that the key is to attack the line of precedents that began with McCulloch v. Maryland, as I argue in Unnecessary and Improper. Focusing only on the "action-inaction" distinction is a weak reed on which to hang the issue. The original meaning of "carrying into execution" has never been addressed by the Supreme Court, and we need persuasive argument that the phrase limits powers "necessary and proper" to only making an effort, and does not allow doing anything that might serve an outcome for which the authorized effort might be made.

If we lose this one, it is unlikely that even winning the presidency and both houses of Congress (the Senate by 60 votes) would be able to overcome the momentum of the Health Care Act, the repeal of which ar this point would wreck the health care system as thoroughly, and more abruptly, as enactment of it will. The only way forward is nullification and constitutional amendments.

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Cigarette labeling and the Commerce Clause

The recent rule laid out by the FDA for the labeling of cigarette packs with scary images of injury caused by smoking on the upper half of each pack has been opposed by the cigarette industry as an infringement on "commercial speech". Once again, even the wealthy industry doesn't seem to be able to find lawyers who know how to make competent constitutional arguments.

Under the Commerce Clause as originally understood, Congress does indeed have authority to regulate the time, manner, and place of items shipped in interstate commerce, and thus the labeling of packages. However, no power is plenary. Any power must be exercised only for a reasonable public purpose. Thus, it would be improper to require items to be shipped in packages with no labels at all, so that an inspector would have to open each package to find out what is inside. At a minimum, it should have a label identifying the sender and receiver and some code that the receiver and inspector knows how to interpret to tell him what is inside. Congress may reasonable also require the label to identify the contents to an inspector, and also show things like the quantity of the contents.

But what about a requirement to put gruesome images on the upper halves of both sides of packs? In my interpretation of the Commerce Clause, that would be authorized only if cigarettes are shipped across state lines as separate packs. That would also mean each pack would have to be labeled with its own sender and receiver. If packs were shipped in opaque cartons or cases, Congress would have authority to require such gruesome images on the cartons or cases, but not on the packs they contain, if those do not become visible until the carton or case is delivered to its recipient within a state and opened there. Once the recipient accepts delivery the item is no longer "commerce" among the states. At that point only the state has jurisdiction.

Could Congress get around this interpretation by requiring cigarettes not be shipped in opaque containers, but only in containers that are transparent and revelatory of the labels on the packs? Yes, but the cigarette companies could get around that by shipping cigarettes in cases without packs, and putting them into packs after they arrive in a state. Congress would have no authority over the labeling of such local packs.

The FDA would argue, of course, that Congress has power under the "substantial effect" doctrine of the Necessary and Proper Clause to regulate items of commerce beyond the delivery to a shipment recipient within a state, but the counterargument is that it is only power of "carrying into execution" an express power, that is, to make a certain kind of effort, not a power of "carrying into effect", that is, to get a desired outcome. The Supreme Court has never ruled on that line of argument. That is the argument the cigarette companies need to make, not an appeal to the First Amendment.

I am not a smoker, don't like smoking near me, and don't like having to help pay the medical bills through my taxes of persons with smoking-caused morbidities, but this is a case of good intent not being enough to overcome the lack of congressional constitutional authority.  The remedy needs to be left with the states.


Case interpreting the Petition Clause

The Supreme Court rendered a decision June 20, 2011, in Borough of Duryea v. Guarnieri

This is probably the most significant case interpreting the Petition Clause of the First Amendment, which states:
Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances.
The particular holding in the case is not very important. It is that in cases involving a government employee suing the government employer for retaliation for filing a grievance, the employee’s claim that such retaliation violates the Petition Clause of the First Amendment is governed  by the same Connick v. Myers/Pickering test which applies when the employee claims that such retaliation violates the Speech Clause of the First Amendment.

But the case is significant in several ways:

(1) It recognizes that lawsuits are “Petitions” under the First Amendment. This is a much-debated academic issue, and one on which Justice Scalia dissented in the opinion;

(2) It explains that the Petition Clause and Speech Clause are not always coextensive, and leaves open the possibility that here may be additional claims under the Petition Clause which plaintiffs may invoke consistent with the purpose of that Clause.

Here is the relevant language from the majority opinion on this point:
It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.
Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are“not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan Inc., supra, at 896–897.
This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.
The question of the Petition Clause’s scope is relevant to constitutional limitations on lobbying lawsBorough of Duryea suggests that lobbying laws may be subject to both Speech and Petition objections.  It will be interesting to see how the jurisprudence in this area develops given this opening from the Court to develop a broader basis for the Petition Clause claims.


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