2011/03/30

Notice of silver claim

The following was sent to the  U.S. agent for holding the silver seized from the Liberty Dollar organization:


I hereby certify that I am the bearer of Liberty Dollar warehouse receipts and an interested party in any forfeiture action regarding my property. I demand the return of my property in a timely manner and to be informed with sufficient time to reply to any and all actions until my property is returned.

It has been suggested that that I offer to accept "fair market" value of the silver in lieu of the silver itself. That is not acceptable, for the following reasons:

1. The silver was purchased and the warehouse receipts received on the territory of the State of Texas, and not within a federal enclave established under U.S. Const. Art. I Sec. 8 Cl. 17. Therefore, they are subject only to the legal tender laws of the State of Texas.

2. The State of Texas has not established gold or silver as legal tender within the State, which are the only things it may make legal tender under the U.S. Const. Art. I Sec. 10 Cl. 1. Texas statutes only reference legal tender of the United States, but the United States Congress has no constitutional authority to make anything legal tender within state territory. Therefore, there is no legal tender defined in the State of Texas.

3. With no legal tender defined, there can be no substitution of anything of equivalent "fair market value" for the items purchased, not even of equivalent amounts of silver from a different repository. It has to be from that repository unlawfully seized by the U.S. government.

4. Furthermore, the silver must be delivered to me at no charge for delivery. That was the terms of the original purchase and by seizing the silver the U.S. government has assumed liability under those same terms.

Under no circumstances will I accept federal reserve notes in payment for any debt by the U.S. government. The "full faith and credit of the United States" no longer has any value, if it ever did. The U.S. government may accept them for payment of debts to it, but it has no constitutional authority to prescribe what others are to accept in payment from it to them, except on non-state U.S. territories, which are the only places on which the U.S. Supreme Court decisions in the Legal Tender Cases constitutionally apply.

2011/03/29

Militia deterrence

The main role of militia, as of firearms, is deterrence. It works best when it never has to be used. But its effectiveness as a deterrent depends on widespread use and support by the public. If they fail to recognize they are all militia, or are supposed to be, freedom dies.

It is highly likely that the United States would have long since fallen into fascism but for so many citizens being so well armed. Sometimes it is what doesn't happen that matters most.

For more on this topic see

Constitutional Defense
19 April 1775 vs. the DC Gun Case, by Edwin Vieira
Armed citizens: the deterrent factor, by Massad Ayoob
Credible Deterrence & the Logistics of Liberty, by Mike Vanderboegh
An Armed Community: The Origins andMeaning of the Right to Bear Arms, by Lawrence Delbert Cress
A Dissenter's Fate in Fascist America, by Kevin Ellul Bonici

Immunity creep

It is a long-established doctrine of law that officials should not be subject to civil or criminal prosecution for acting within their jurisdiction, and constitutions and laws sometimes make that official immunity explicit. However, over time judges have been extending that immunity from momentary actions to everything done "on duty" or perhaps even "while in office". The practical effect of this is to convert official titles into "titles of nobility", putting officials beyond the law or accountability for their misconduct. Removal from office can be a remedy, but too much misconduct needs other remedies, and we are headed for a clash in which the public will demand them.

For more on this see

Immunity - Official Immunity
Qualified immunity — Wikipedia
Defenses: Official Immunity
Supreme Court Case Establishes Official Immunity for Police Officers and Police Departments in New Hampshire, by Charles P. Bauer
Defenses: Qualified official immunity
Private-Law Models for Official Immunity, by Richard Epstein
Tort - Defamation - Elected Official Immunity, by Edward Wesoloski
The Case Against Official Immunity, by Jesse Walker
Absolute Immunity on Trial, by Radley Balko
Supreme Court rules witnesses cannot be sued under 1983 for the content of their testimony - Briscoe v. LaHue, 460 U.S. 325 (1983)

The original standard was that while officials might have immunity from judgment, they did not have immunity from prosecution, and that it was for a trial to determine what immunity, if any, the defendant should have.

2011/03/27

Is punishing interference necessary?

The question has been raised whether 18 USC 111 is authorized by the Necessary and Proper Clause. In the words of one correspondent,
Protecting officers and employees doing their actual authorized constitutional tasks seems like a paradigm case for the application of a "necessary and proper" clause, whether in a constitution, statute, corporate board resolution, or similar grant of authority.  If punishing violators/interferors is reasonably necessary to keep the tasks being performed, which it seems likely, then why not?
That argument is sometimes made, but all the delegated powers to which the Necessary and Proper Clause might be applied are only to make an effort, not to get a result. That principle was subverted by Justice Marshal in McCulloch v. Maryland, who made a similar argument, but he was wrong. The power to punish or prevent interference with the exercise of authority is not logically necessary, because it is still possible to make the effort even if it doesn't succeed in its object. Punishing or preventing that interference was left to state law, and federal officials were just expected to have and use whatever force they needed to overcome interference. If interference is effective it is not because it is not subject to punishment, but because the effort is not supported by enough force or resources. Because the exercise may always be made effective with enough support, punishment of those who interfere is not strictly necessary.

Ergo, to punish or prevent interference is a distinct power that, to be exercised, must be separately delegated, which would require an amendment. The Framers didn't think of everything. They omitted much that we might now want to add, but the way to do that is by amendment, not usurpation.

To understand the distinction one has to get into the heads of the Founders, and understand their legal English, which is not the legal English of today. In that context, to delegate a power was only to authorize a certain effort for a reasonable purpose of the polity. That authority was accompanied by an appropriation of resources to be used in making the effort. If that appropriation was not sufficient, it would not be within the jurisdiction of the delegated power to use more resources than were appropriated. Similarly, while the effort might involve shoving aside anyone who attempted to interfere, punishing the interference after the fact, perhaps to discourage future interference, is not an effort that the original delegation implied, but a new kind of effort that requires a separate delegation of authority.

To make this more clear, suppose the official is delegated power by a corporation, church, university, or other private institution to do something, such as conduct some event at a location and time specified. Perhaps that power even comes from a delegation from the local government. That is a certain effort. Now suppose someone interferes with that effort, such as by shouting or other disturbance. Does the official have the implied authority to punish the offender? He may, if the offender is a member bound by contract with the private organization and its by-laws so provide, but they probably only provide for expulsion from the organization, perhaps if a fine is imposed and not paid, but not for imprisonment or death. That would require a separate delegation of authority, and to the surrounding government, not to the private organization. The private official could file a criminal charge of disturbing the peace or trespass, and have a public official prosecute, but he would be at most a complaining witness, not the prosecutor under the authority of the private organization. He could be delegated authority to prosecute as a public official by a grand jury, but that is a separate delegation.

Now one may argue that this separation for an official of a private organization within a polity does not apply to a situation in which it is a public official, but it does. I just used that to show the powers are distinct. A public official may have both kinds of power delegated to him, but the first power does not imply the second.

So, yes, the Necessary and Proper Clause does authorize things like buying the bricks to build a post office, if funds for that are appropriated. But if all the funded bricks have been bought and delivered to the site, all the official may do is lay them, unless he also has funds to hire workers to do that. Now suppose that the source of the funding is the U.S. Treasury, and that someone interferes by throwing rocks at the workers laying the bricks. Does that alone provide constitutional authority for Congress to pass a law to make rock-throwing at federally-funded workers a crime? No. The federal official would be expected to file a state criminal charge under state law. He could prosecute the charge. Under original standards, anyone, including a federal official, may prosecute in a state court under state law (and a state official prosecute in a federal court under federal law). But on state territory the activities of federal officials have very much like the same position as those of a private organization, except when they have specific delegated powers to go beyond that.

Federal officials have authority on state territory to prosecute for treason, counterfeiting, piracy and felony on the high seas, or offenses against the law of nations, but not for murder, assault, vandalism, theft, fraud, perjury, or anything else not specifically delegated. Penal jurisdiction is defined by what is done (subjectam), where it was done (locum), or who did it (personam), but not on to whom or to what it was done. On state territory federal officials outside their jurisdictions are not privileged to receive more favorable treatment or protection than any other person would be. That includes conferring more privilege or protection to themselves than to others, beyond what is explicitly delegated.

"Federal agent" is not a title of nobility. Or at least it is not supposed to be.

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Democracy and Liberty

We should try to make some of these broad concepts more precise.

There are two main rights associated with liberty:
1. The right to a presumption of non-authority. Our public agents may only do what we formally authorize them to do.
2. The right to effective means to supervise public agents. We have to be able to find out what they are doing and hold them accountable for their action or inaction. That includes the powers to remove and to penalize.

Self-determination does not just mean voting in referenda and elections of officials, nor does it mean majority rule. Support of a majority is necessary but not sufficient, and for some more important issues other decision rules, such as supermajorities or structuring decisions into deliberative assemblies, or random selection of deciders (sortition) rather than election or appointment of them, may be required to protect the rights of individuals and minorities, especially from undue influence by rent-seekers.

Citizenship is inseparable from civic virtue. That means not just the opportunity to vote or hold public office, but diligence in doing so knowledgeably and wisely, and willingness to help defend the community (militia) and enforce constitutional laws. It also means resisting the tendency to hire public servants to do things the public should be doing, or to trust public servants to do the right thing without actively supervising the details of their work. It means restricting the numbers and activities of public servants to a level that makes effective supervision manageable without it becoming a full-time job for everyone.

The U.S. Constitution and imitations thereof remains the exemplar for how to balance conflicting values for real people in a real world. Nations have now experimented with enough variants to find that there are certain principles of sound constitutional design that are not mere expressions of cultural relativity. Some designs work better than others, and it is important that we discover which work and support them.

As for what the peoples of other countries want, I find most aspire to the same ideals we do (or used to do). The problem is that most, even in our own country, don't always understand what that requires of us, or accept doing what it requires of us. It is indeed hard, for everyone. Part of what makes it hard is that the institutions of liberty are vulnerable to brutal determined men, whether from outside or from within. Every child begins life as a barbarian and if not inducted into civilization becomes a threat to it. We are "never more than one generation from barbarism" (Arnold Toynbee, A Study of History). A few brutes can dominate the meek majority if the meek do not organize and hold firm against them.

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