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

Donate Now!

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.


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