Three needed voting reforms

While most of the attention has been on issues like campaign finance and voter identification, there are three reforms that have been somewhat neglected, which can be easily made, and which would be highly beneficial in many ways: allowing fusion candidacies, ending primaries, and ending straight-ticket voting.

Allowing fusion candidacies

Presently most states forbid two or more parties from nominating the same person for the same office in the same election. Such a candidate would be what is called a fusion candidate. Presently, fusion candidacies are allowed in only eight states: Connecticut, Delaware, Idaho, Mississippi, New York, Oregon, South Carolina, and Vermont. New Hampshire also allows it if a primary is won by a write-in candidate.

The main purpose and effect of not allowing fusion candidacies is to suppress minor parties and entrench a two-party duopoly. It has been argued that people have a First Amendment right to associate in political parties and to nominate any person eligible to hold the office,  but the U.S. Supreme Court decided by 6-3 in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), that fusion is not a constitutionally protected civil right.

The argument often made against fusion candidacies is that it is unfair for the same candidate to appear on the same ballot for the same office more than once, and that no one is deprived of the opportunity to vote for the candidate if his name appears at least once. The counterargument is that fusion candidacy allows a minor party to unite in supporting a candidate of another party and thus avoid dividing support by nominating someone else, and perhaps throwing the election to third least desirable candidate from their standpoint. It also allows the voters to signal their policy preferences by voting for the candidate under one party label instead of another.

Ending primaries

Party election primaries were originally sold as a reform measure, to prevent the undue influence of party bosses on the nomination of candidates by throwing the selection open to all the voters who care to vote in them even if they are not regularly active in the party. The problem with doing that is that it leaves the decision to people who don't know the candidates as well as party leaders do, and who cannot be reached by those party leaders at an affordable cost to inform them. It opens the nomination to candidates who may disagree with party leaders on issues but who have the support of monied backers who can afford to market them to voters who don't take the time to carefully inform themselves on their choices. This leads to a division between the party rank-and-file on one side and the well-funded candidates and their supporters on the other. Those holding one set of policy preferences who hold most of the party offices may nevertheless get candidates who do not represent their views, but the views of wealthy special interests and rent-seekers.

The main alternative is party nominating conventions, probably beginning with local precinct conventions, which elect delegates to county conventions, district conventions, and finally to a state convention. Some states combine a primary with a convention process, using the primary to select the delegates from the precinct convention. Primary elections are expensive, so if all or part of the costs are paid from public funds, that is a subsidy to the parties that receive those funds, and arguably an equal protection violation if some parties are given a preference for receiving such funds. While conventions may be open to voters who are not regularly involved in party activities, it at least allows the personal contact and deliberation that is not supported by the non-deliberative process of merely casting votes on election day.

An interesting alternative is the nonpartisan blanket primary, or "top-two" system, adopted, most recently and prominently, by California, and although called a "primary", is really a non-partisan general election with what was the general election being converted into a run-off election. Although sold as a reform to reduce two-party gridlock, it effectively causes every candidate to have to form his own party and get enough financial support to get on the ballot. It affords no way for the parties to advance through a convention process a meritorious candidate who is not wealthy or does not initially draw much financial support, and thus excludes candidates who are not supported by rent-seekers, including minor party candidates. That was undoubtedly the intention of the proponents, and they have effectively excluded any candidates who are not beholden to their donors or organized special interest groups.

If the aim is to reduce the public choice problem of special interests dominating the election process then unless one goes to some radical alternative like sortition, a convention system at least offers an opportunity to nominate meritorious candidates who are not owned by some rent-seeker group.

Ending straight-ticket voting

Leaders of the top two political parties like straight-ticket voting without a mixed-ticket option, so that their most popular candidate in the election, usually at the top office on the ballot, such as president, can cause lazy voters to cast a straight-ticket vote that includes him and all the other members of his party. That enables them to pack lower offices with less competent or honest candidates, more likely to serve special interests than the people. In many electoral jurisdictions 30-70% of voters will habitually vote straight-ticket, and without a mixed-ticket option for overriding the straight-ticket choice for particular offices, if there is no candidate of the preferred party who is a candidate, the vote for that office is lost, and a minor party candidate who may be the only alternative doesn't get the votes that might otherwise have come to him. Straight-ticket voting, whether offered as a ballot option or merely a habit of individually choosing only candidates of one party, is perhaps the main reason minor party candidates generally don't break out of single digits. If the option of straight-ticket voting were at least not offered as a ballot choice, it is possible that minor party or less-finally supported candidates might gain more stature or even win some elections and thus build a record for governance.

For more on this see:

Video of debate between Kathie Glass, former Libertarian candidate for Texas governor, and Dave Nalle, National Chairman of the Republican Liberty Caucus, on September 30, 2012, who discuss these three reforms:

Debt is a bet

For as long as men have sought profit from investment there have been speculative bubbles. Every one of those investments are bets that the investment will become worth more than what was invested. The bet is based on expectation of growth in value, but that expectation is not always wise, and may be unduly influenced by the enthusiasm and greed of others. Some of those expectations are not fulfilled, and the investment becomes a loss.

As long as it is many investors making small investments in many different things, without imitating others or playing similar strategies based on the same information, the losses may be spread over time among the investors, but most of them may come out ahead, at least for a long while.

However, when too many play a similar strategy, or capital becomes excessively concentrated in the control of a few investors playing a similar strategy, we get a speculative bubble, a bet on growth that cannot be sustained, and which must end in a crash.

A crash of a bubble backed by commodities that cannot be replicated without limit will at least be contained in its severity and duration by the supply of the backing commodities. No so if the bubble is of investments in debt instruments backed only by other debt instruments and an expectation that the supply of the ultimate debt instruments will not grow faster than the gross product of the economy. If the speculative vehicles become untethered from commodities, the inevitable positive feedback loop will drive expansion of a bubble whose burst cannot be indefinitely postponed. Every effort to postpone the crash will make the crash worse. In an interconnected world economy, the cascade of business failures that a crash brings will bring extreme misery to almost everyone. The last time that happened it cost perhaps 100 million deaths, and that was before so many nations had nuclear weapons ready to launch against one another.

The coming crash is perhaps the most anticipated of all time. So many now expect that that the expectation is self-fulfilling. Yet it seems no one in a position of power is willing to admit it is coming, or to tell the people the truth that nothing can be done to avoid it at this late date. They make lying promises that they can at least stave off catastrophe by government spending to create jobs and stimulate demand, or by reducing taxes and regulations to encourage investment in jobs and growth, or that entitlement benefits can continue, or that government can borrow enough to pay for all of that.

These are all lies and in this campaign season we need to call the candidates out on it. We are not going to grow ourselves out of this one. Most of the growth that seemed able to do that over the last 60 years has been a series of speculative bubbles, some of which have already collapsed, and the rest of which are overdue to do so.

The main issue in the upcoming election is who will appoint which judges. It is essential that those appointments be of strict constructionists who will roll back 200 years of wrong decisions that have enabled departure from compliance with the Constitution as originally meant and understood. Those who rely on those departures will protest, but none of the apparent benefits they think the departures have brought are sustainable. They are all losing bets, and it will soon be time to count the money because the dealing's done.

No president or legislature or government can do anything but prepare for recovery after the crash has run its course. Of course, no candidate who is honest about our prospects can get elected, but if they are worthy of an office they need to abandon their effort to win and instead prepare the people for what lies ahead. Twenty years after the crash people may remember who told them the truth and tried to get them ready.

The solution, if we had acted sooner

The coming crash could have been avoided if we had taken the right steps at least 50 years ago, or even as late as 30 years ago, although that would have been much more difficult. The solutions begin with the realization that no government fiscal or monetary policy adjustments can manage the business cycle as long as currency is fiat and there are no mechanisms in place to prick bubbles while they are still small. But it is politically impossible to have a regime picking and choosing which bubbles to prick and when. Investors are going to speculate, and there is nothing government can or should try to do to manage how they do that. However, it can impose constraints that will schedule the pricking in a predictable way.

The solution is not new. It goes back to the ancient Hebrews, who called it shmita. It was a law that every seventh year the fields be left fallow (Exodus 23:11) and all debts be cancelled (Nehemiah 10:31). Some version of this law is what the nations of the Earth need today, not because it is Biblical law, but because it is a very good idea, for many reasons.

The idea is related to the experience of agrarian societies with cycles of abundant and lean harvests. We have evidence of this in the story of Joseph in Egypt who prescribed storing enough food during seven good years to sustain the people during seven years of bad harvests (Genesis 41:34). Of course, we have tried to have similar food bank programs in recent times, but those are currently unsupported.

Agrarian societies who depend on a single annual harvest have had to develop the technology, infrastructure, and governance to preserve and ration food consumption until the next harvest. Since not all harvests are good, they need to go further and preserve enough for perhaps another one or two years or more. Combined with the depletion of soil from unbroken annual cultivation, farmers have discovered through hard experience the need to allow fields to remain fallow for a year or more at regular intervals.

However, stored good is an asset that can become a speculative investment. It can be borrowed and repaid in an amount greater than the amount borrowed, even without a medium of exchange. That is debt, and by cancelling all debts on the same cycle as the suspension of production, speculative bubbles are never allowed to grow into a crash. They are all pricked at the same time whether they need to be or not. That takes any political heat off anyone who might otherwise attempt to prick the right bubbles at the right time and perhaps missing some.

To apply the solution of shmita to latter-day economies we need to suspend more than just agricultural production. We need to suspend all commodity production. The suspension need not be for an entire year, but it needs to be long enough to compel everyone do a minimal amount of storage and saving and not rely on just-in-time (JIT) deliveries of supplies. Competition now discourages the costs of storage, so a constraint is needed to offset that.

The U.S. Constitution presently does not provide authority for a shmita regime, and even if it did, for the U.S. or any one country to impose it on itself if other nations did not would put it at an unacceptable competitive disadvantage. There would need to be a treaty among the leading producing nations to impose nearly the same shmita rule on all of them, and it would need to be effectively enforced.

The following constitutional amendment, or one like it, might provide the solution:

Power to cancel or suspend economic activity

Congress shall have, and with a treaty with other nations collectively producing more than half of the world's tangible goods, shall exercise, power to do the following for each year evenly divisible by seven, for a shmita period at least three and not more than nine months:

1. Cancel all debts, securities, fiat currencies, and derivatives thereof;
2. Liquidate or break up all for-profit corporate entities and activities into organizations comprised of not more than 300 individuals and investors;
3. Regulate emergent behavior that might act in concert like a corporate entity;
4. Suspend all extraction, including mining planting, harvesting, and fishing, all manufacturing, and all transport beyond 100 kilometers of durable goods, other than those essential for defense, justice and law enforcement, water, power, or medical services;
5. Promote storage systems to enable persons to endure the shmita period;
6. Forbid the importation of goods subject to the shmita during the shmita period;
7. Call out militia to enforce the shmita.

Note that the cancellation would include government debt and debt instruments like fiat currencies. It would encourage everyone to convert all their assets denominated in fiat currencies into tangible commodities every seven years. Any currency that remained would have to be backed by commodities, and not bear interest or pay profits or dividends. No more 30-year mortgages. People would have less than seven years to pay off a house or lose it, and if the lender failed to repossess on a defaulted loan before the shmita period kicked in, the borrower would have the debt cancelled and get to keep the collateral free and clear.

Compensation for labor also represents a debt, so everyone would be laid off during the shmita period. This would actually result in nearly full employment, which can only be attained by periodically making everyone unemployed except as volunteers, which would hopefully provide critical services.

For-profit corporate entities also represent a kind of debt, and this plan would disperse them into small units that might re-assemble after the shmita period, but perhaps in quite different configurations, with different strategies than were played by the parent organization.

The business cycle has become a national security threat. The collapse of the financial sector would cause damage that if done by a foreign power would be grounds for going to war. The administrative methods of the Dodd-Frank Act are totally inadequate. Something much more effective is needed, and that is what is proposed.

Politically impossible? Of course. Today. After the Crash, maybe not, if those of us who are still alive learn the right lessons from it. It will be a hard lesson, and there may not be enough to bury all the dead. The author of this piece does not expect to be one of the survivors, but perhaps one will remember these words.

Chaos and Constitutions

One of the most important insights from chaos theory is that complex systems of interacting actors can exhibit patterns of behavior that seem designed but are not, the details of which are the result of self-organization, and which are not predictable in principle. Patterns like the spots on a leopard, the stripes on a zebra, human fingerprints, a beating heart or intelligent brain, the movements of flocks of birds, schools of fish, or termites building a castle of mud, are all broadly constrained in general by genes, but genes without sufficient information, by typically 11 or more orders of magnitude, to specify the details of swarm or herd behavior by elementary actors of limited intelligence, each responding to its local environment using fairly simple rules.

These insights have implications for public policy and constitutional design. Too often public discourse makes a presumption of determinacy, as though society, the economic system, and our system of government and laws, are fundamentally mechanical, and can be modeled and managed in principle using sufficiently complicated simulations. That is the systems dynamics approach that produced the classic paper, The Counterintuitive Behavior of Social Systems, by Jay Forrester (1970). However, it is not just that human mental models are inadequate. Our computer models, while they might improve our odds of making wise decisions a little, they cannot in principle guarantee desired outcomes. The underlying systems are chaotic, subject like the weather to butterfly effects, and a policy intervention that might have no appreciable result if applied today, can yield mass extinction if applied the day after, and heaven on Earth if applied the day after that.

Electoral candidates and lawmakers win support with appeals to "support me and everything will get better". It is an open question how many people are fooled by such appeals, but it only takes a few to swing an election or a vote on the floor of a legislative body. Most such decisions are made emotionally, not rationally, and we could probably get results as good through a lottery. We must bear in mind that humans evolved for making decisions in a paleolithic hunter-gatherer society grouped into small tribes or villages, not a modern, global, technological civilization. We are barely adequate to live together in a ward republic, much less a global urban world-state.

This has implications for constitutional design. Just as undifferentiated human stem cells might form a heart if they find themselves in a local environment that provokes them to "form a heart here", and the same cells would form a liver or a lung if placed somewhere else, so human individuals can be organized into structures that constrain them to function in a way that serves the health of the system as a whole. Constitutions and laws are attempts to provide such structure, but there are limits to the adequacy of human intelligence, even at its best, to design political and economic systems with an expectation of intended behavior. Nature shows us that such structural designs are generally the result of evolutionary trial-and-error, not intelligent design. When we find a design that works fairly well, it is best to avoid large departures from it, and to stick to small, incremental changes, with some time to observe the consequences.

One of the things we can conclude with some confidence is that humans cannot manage large organizations, even in principle. The best they can do is organize themselves into many small organizations that can then interact in what might be called a marketplace, for which occasional disasters may be unavoidable, but which have enough resiliency to allow some to survive.

The foundations of indeterminacy

The Newtonian view of the physical Universe was as a clockwork, perhaps complex but fundamentally deterministic, in the sense that if one had complete information about the behavior of its components, and sufficient computational power, one could in principle predict its behavior in detail as far into the future as one might wish.

That view was shattered by the emergence in the 20th century of quantum mechanics, which fit observation well but consisted of wave functions that could only be interpreted as probabilities, not as deterministic causation, and were not local but spread over the entire Universe. Some, like Einstein, could not accept this view. He said "God does not play dice with the Universe." They sought "hidden variables" that while they might be forever beyond reach of measurement, would at least explain the Universe as a deterministic system. Further work on this question, however, seems to establish that an underlying determinacy is not consistent with empirical observation. The Universe really is fundamentally probabilistic and indeterminate. If you could run it multiple times from the same initial conditions, it would turn out differently every time.

Yet many large-scale phenomena, like the movement of astronomical objects, seems deterministic to a high degree of precision. How can such phenomena be so predictable when their basic constituents are not? It was the attempt to model astronomical phenomena that led Newton to his physics, by examining the behavior of pairs of masses interacting gravitationally, called 2-body mechanics. Such pairs can be sufficiently replicative in their behavior to make reasonably precise prediction practical, but that only goes so far until the perturbative influences of other bodies becomes significant, and we encounter the n-body problem. There is no general solution to that problem possible, we are left with only approximation methods that may work well enough in restricted situations, by avoiding "singularities" that would defeat computational predictions, but even in those situations are fraught with uncertainties and may require more computing power than can stay ahead of real-time trajectories.

For chaotic systems small perturbations can be significant. It has been estimated that perturbation from the gravitational influence of the dwarf companion of the star Sirius can affect the outcome of a game of billiards, where small changes can have large effects. No matter how skillful the players, there will always be an element of randomness in the course of the game. And while the orbits of planets of the Solar System may have been fairly stable for the last 4 billion years, we can computationally predict that the system is also chaotic over a longer time span, and that eventually the Earth or other planets may be flung out of their current orbits, perhaps out of the Solar System or into the Sun.

In biology we have come to the realization that the amount of information carried in the coding of our genes falls short of being enough to specify the details of our bodies or our minds. We are all randomly self-organized systems, for which genes and environmental influences may have had some impact, but which are fundamentally indeterminate, even in principle. Our genes may make it likely that we will have fingerprints, but they do not specify the patterns in detail. Genes may make it likely that a leopard will have spots, or a zebra will have strips, but identical twins will not have the same fingerprints, the same spots, the same stripes.

Within our bodies, our hearts are chaotic systems. Our genes may constrain the self-organizing of stem cells into a heart that beats, albeit somewhat irregularly, and can respond to increased demand for it to pump faster, but without a master control mechanism like the pacemakers we install when the function begins to falter. We have brains, but evolution has not attempted to enable our brains to command every detail of our bodily functions. Social insects function using simple rules for each member of the colony with no command structure. Evolution has produced designs that allow for leadership but not command, and there is a deep reason for that. It is not just that command management of complex systems is unnecessary or inefficient. It is that such command management is impossible in principle. We will never be able to redesign our genomes by computationally predicting the effects of genetic changes on the chaotic structures and behaviors that unfold. We can borrow genes with known effects and apply them elsewhere, but we are doomed to having to rely on trial and error for real innovations. We can redesign ourselves as a species, but we must accept there will be many bad outcomes.

Some unsettling insights

The Universe is rational only to first approximation.
— Roland's First Corollary to Finagle's Law.

From all this one can come to understand that all large scale phenomena are chaotic systems. They may seem predictable under certain circumstances, which we may call islands of stability, and we may even be able to so structure complex phenomena that they self-organize into replicative patterns, but we must expect the unexpected when we push the boundaries of those islands of stability, and we can never be certain how any design change will work out as the self-organizing system emerges.

But it is not just large scale phenomena. How does it seem that some quantum systems are "entangled" and some are not, when theory suggests the entire Universe is entangled? The answer that now seems apparent is that those subsystems that seem more entangled are actually islands of stability in chaotic processes, that, like beating hearts, self-organize into predictable patterns for a while, until they are perturbed and the patterns dissipate.

For constitutional design, what does not work, except for a few things like going to war, is command management. The impulse to resort to hierarchical command systems arises from the mental tools we evolved for leading men into combat, but as Helmuth von Moltke said, "no plan survives contact with the enemy", and the outcomes of combat depend less on command management than on the ability of troops to self-organize in real time. Yet the instinctive impulse persists and leads to authoritarian attempts to do things like manage human behavior and the economy in ways that are fundamentally beyond the possibility of such control, even if it were desirable. We will never become able to prevent all human depravities or ward off all economic collapses, any more than we can do so for storms, earthquakes, or volcanic eruptions (although we might for asteroid impacts). All we can do is to try to prepare ourselves for surviving the calamities and emerging in some order after they have subsided.

However, we don't have to wait for authoritarian methods to fail before we abandon them. That is the wisdom of the libertarian impulse, understood by our constitutional founders. A constitution can and must structure how we self-organize, even if we cannot be sure what clauses will work or how, or how to change them to produce better outcomes. the same design change that has no effect if applied today might cause mass extinction of the human race if applied tomorrow, and heaven on Earth if applied the day after.

So the wisest rule is likely to be a conservative one: Avoid changes that are simple, direct, obvious, and large, because they are almost certainly a bad idea. That cannot be avoided for a new constitution, but sound design of further changes should proceed carefully, and make no move toward micromanaging society and the economy. The best that can work is structuring self-organization, and for that we can learn from experience to make some outcomes more likely, while swimming in a sea of intrinsic unpredictability.


Notes


See also

• Chaos theory. Wikipedia article.
• Quantum mechanics. Wikipedia article.
• Quantum entanglement. Wikipedia article.
• Hidden variable theory. Wikipedia article.
• N-body problem. Wikipedia article.
• Perturbation theory. Wikipedia article.
• Complex system. Wikipedia article.
• Self-organization. Wikipedia article.
• Complexity strategy. Wikipedia article.
• Information theory in complex systems.
• The butterfly effect gets entangled. How entangled systems may be chaotic.
• Chaos Hypertextbook, Glenn Elert.
• Chaos and Constitutions. Copy of this article.

McCulloch Redux

Much has been written about the decision in McCulloch v. Maryland, as though it was a given, not subject to question, but there is a problem analyzing a decision and opinion that were wrongly argued, wrongly decided, and wrongly opined. Trying to do that is just an exercise in rearranging the garbage. The first step should be to present the way it should have been argued, decided, and opined, and then draw comparisons with that to the actual case.

First, it is not unconstitutional for the U.S. government to recognize a corporation created by private parties within the District of Columbia, where it has the legislative jurisdiction of a state, as a variety of common law trust, and even to grant it a monopoly on the use of its name. That is not "creation" unless the government is one of the incorporators..

Second, it is not unconstitutional for the U.S. government to enter into a contract with a private bank to receive, hold, and disburse public funds. There is a problem if the contract is not the result of competitive bidding. There is also a potential problem if bank officials exercise governmental functions that are not under a chain of command leading up to an elected official. Executive powers  may be delegated but not without supervision of their exercise by the executive branch and the courts.

Third, it would be unconstitutional to forbid a corporation incorporated in one state or territory from conducting business operations in another state or territory, subject only to reasonable regulations or taxes that do not discriminate against out-of-state entities. So the National Bank was certainly within its rights to conduct business in Maryland, and be treated there like a Maryland bank.

Fourth, it would be unconstitutional for Maryland to tax that part of the National Bank that involves the handling of public funds, but not the part that is entirely private. Maryland could reasonably require the Bank to keep accurate books that keep the two sides of its business separated and separately subject to taxation or regulation.

The decision should have been that Maryland may tax the National Bank on its private business on the same basis as it would a Maryland bank, but not on its public business.

All the dictum about "necessary" being merely "convenient" and everything else not needed to reach the above decision should have been omitted.

Read James Madison's notes regarding his objections to Marshall's opinion in McCulloch:

 . . . reasoning of Supreme Ct — founded on erroneous views & — 1. as to the ratification of Const: by people if meant people collectively & not by States. 2. imputing concurrence of those formerly opposed to change of opinion, instead of precedents superseding opinion. 3. endeavoring to retain right of Court to pronounce on the consty of law after making Legisl omnipotent as to the expediency of means. 4. expounding power of Congs — as if no other Sovereignty existed in the States supplemental to the enumerated powers of Congs — 5. making the Jud'y — exclusive expositor of the Constitutionality of laws: the co-ordinate authorities Legisl — & Execut — being equally expositors within the scope of their functions.

James Madison, Detached Memoranda, reprinted in Writings at 756.


See also:

• What is the limiting principle? — Exploration of question raised by Justice Kennedy in oral arguments.
  
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• Supreme Court decisions on Commerce and the Necessary and Proper Clause — Spreadsheet of cases showing the chain of deviation from original understanding.
• Clarifying Amendments — In the form of a bill.
• U.S. Constitution annotated — We will be adding links to diagrams from this copy.
• Commentaries on the Constitution of the United States, Book III Chapter 24, Joseph Story (1833) — Discusses the clause, but in a way that exhibits the infection from McCulloch v. Maryland.
• Diagram of the Necessary and Proper Clause — Parsing helps understanding.

Most voter ID statutes unconstitutional

Most proposed or enacted voter ID statutes include a requirement to prove eligibility to vote by presenting proof of identity, and require that proof to be some kind of government issued ID. Such requirements are unconstitutional. Voters may constitutionally be asked to prove eligibility, but not identity. The two are not the same.  Eligibility can be proved without revealing identity. It is unconstitutional to deny a right or privilege for failure to present something one is not constitutionally required to possess, and there is no constitutional authority that requires anyone to even have a name.

Eligibility can be proved in various ways that do not disclose identity. The traditional way was for a notary or other official who knows the person to testify that he is eligible. His testimony, such as an affidavit, would be the proof. The individual's identity would be disclosed to the notary, but need not be disclosed to anyone else. Now of course the witness has to be trustworthy, but that is no different from trusting the clerk who prepares and issues an ID card.

Some go so far as to propose a national ID system. Proponents of such a system suffer from a naive faith that government is benign, with only rare exceptions, and can be trusted with the power that would come with control of personal identification in their hands. But such an ID would immediately become a national ID card for all other purposes as well, as the convenience of it would drive the emergent behavior of people everywhere.

Suppose such a proponent says something critical about some government official. Suppose some anonymous clerk then amends his record in the central identification database. Now he is a "fugitive, child-molesting cop-killer terrorist, armed and dangerous". Suppose he goes in to vote, and, just as he is raising his pen to sign the register, a swarm of cops pours in and guns him down, pointing to the pen and saying, "He was holding a weapon!" Cops who shot him are put on paid administrative leave pending the investigation, which finds the shooting justified, and the cops return to duty without even a negative comment on their records.

The elevation of personal identity to the importance accorded it today is an innovation in our legal tradition. Historically it has had much less importance, usually where ownership of property was involved.

Be careful what you ask for. What I described is not some paranoid rant. All of the elements of it are things that are happening to real people right now.

You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered. — Attributed to Lyndon B. Johnson or Hubert Humphrey, but unconfirmed.

See also:

• No government-issued ID to vote
• List of constitutional rights
• The Net, 1995 movie starring Sandra Bullock.

Construing "strict construction"

It is a common mistake of modern readers to presume that a term used in many instances in a document such as the Constitution has the same meaning in each of those instances, but the 1787 users of English, and particularly legal English, were not that precise or rigid. For that matter, neither are people today. The meanings of terms can and do differ from one context to the next, within the same instrument, and not just because it was the work product of multiple authors.

Legal and constitutional exegesis is an advanced art that must regard words as evidence of meaning but recognize that the evidence is "holographically" distributed over the entire document and beyond. Our problem can be seen in illusions such as this one in which a pattern of light and dark patches is not recognized while still but becomes apparent when animated. When the Framers drafted the Constitution, they were imagining how the words would play out in use, and we must try to do the same when we try to construe them.

A literalist approach to interpretation doesn't work. Justice Antonin Scalia rejects it in his new book (with Bryan A. Garner), Reading Law: The Interpretation of Legal Texts, p. 355, where he calls it "strict construction". That is the meaning that term might have for some of its critics, but is generally not the meaning it has for its proponents, which has its roots in law Latin:

Ex tota materia emergat resolutio. The construction or resolution should arise out of the whole subject matter.

Quae communi legi derogant stricte interpretantur. Laws which derogate from the common law ought to be strictly construed. Jenk. Cent. 231.

Quod factum est, cum in obscuro sit, ex affectione cujusque capit interpretationem. Doubtful and ambiguous clauses ought to be construed according to the intentions of the parties. Dig. 50, 17, 168, 1.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Potestas stricte interpretatur. A power is strictly interpreted.

Since a right is a restriction on delegated powers, and a delegated power a restriction on rights, from this last maxim we can conclude that a right against government action must be broadly interpreted, and the presumption must be in favor of such a right. See Presumption of Nonauthority and Unenumerated Rights.

Potestates stricte interpretantur, iura late. Powers are to be interpreted strictly, rights broadly.

Potestates enumerantur; multis iura non enumerata. Powers are enumerated; many rights are not enumerated.

So from our Latin heritage we can construe "strict construction" (stricte interpretantur) not as literalistic but as strict for delegated powers and broad for rights against such powers. The implication is that the courts must never defer to Congress in its claim to exercise a power, and always require strict proof of its authority for such power, lacking which the presumption must be that it does not have the power.

That only leaves the ambiguity of powers delegated to protect rights. Is such a power to be construed strictly, or does it borrow some of the broadness of the rights it is to protect? It depends on which rights with respect to what, and the cost and risk of abuse. Generally, a power to protect rights against government should be construed broadly, and against natural threats or private acts should be construed narrowly. Otherwise every government would have general police powers, and the federal government does not. But that is a matter for future discussion.

Exerceatur constitutio, ruat caelum. Let the Constitution be enforced, [though] the heavens fall.

Also see

• Constitutional Construction
• Social Contract and Constitutional Republics
• List of Constitutional Rights
• How can text enable governance? 
• The original meaning of "carrying into execution" 
• What "commerce" meant to the Framers 
• Binding precedent is unconstitutional

Rule of Law - 1

In his excellent book, Design for Liberty: Private Property, Public Administration, and the Rule of law, Richard Epstein begins his discussion with a cite to Lon Fuller, The Morality of Law, in which he lists some components he does not not call components of the rule of law, but which is widely regarded as such:

Eight Routes of Failure for any Legal System

1. The lack of rules of law, which leads to ad hoc and inconsistent adjudication.
2. Failure to publicize or make known the rules of law.
3. Unclear or obscure legislation that is impossible to understand. [Or difficult for most people to agree on the meaning of.]
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of the subjects and the ruled.
7. Unstable legislation (ex. daily revision of laws).
8. Divergence between adjudication/administration and legislation.

These are a good start, but we can identify more, and better organize them, in this first part of a discourse on the topic.


Fuller's formulation addresses the need for internal consistency and predictability, but omits the critical component, that it provide for the reasonable protection, and accessible remedies for violations, of the natural and social rights of the people, whether individuals, minorities, or majorities. With that in mind, we can begin to prepare our own list.

Specifications for a Rule of Law

1. Laws that apply uniformly to everyone, including lawmakers, administrators, and adjudicators, except as individuals may earn different treatment, consistent with the general good.
2. A written constitution of government that is consistent with the superior constitutions of nature, society, and the state (understood as society with dominion over a well-defined territory), from which all other laws must be derived, and with which such derivative laws, administration, and adjudication must be consistent.
3. Institutional structures and procedures that allow orderly and competent notice, deliberation, and decision of legal issues, both for the society as a whole and political subdivisions of it, and for individual cases, in which all stakeholders are represented.
4. Affordable access to remedies for anyone whose rights have been violated or are threatened, and for anyone seeking to protect the rights of others.
5. Establishment of the right to a presumption of nonauthority.
6. Establishment of the right to the means to supervise public agents and hold them accountable.
7. No contradictions among laws or the administration or adjudication of them or of cases involving private matters.
8. Reasonable and impartial discretion consistent with general principles of law, not used abusively or to redistribute.

These will be further discussed in subsequent installments of this series.


See also:

• Social Contract and Constitutional Republics
• Presumption of Nonauthority and Unenumerated Rights
• List of Constitutional Rights

Is the Constitution fit for Americans?

Most of the constitutional debates in which I participate are about whether to comply strictly with the Constitution as originally meant and understood, or with court precedents even their defenders admit have drifted far from original meaning, or even with disregard for the Constitution altogether as a relic that is no longer relevant to solving modern problems.

The second most common thread is among those who would like to be able to strictly comply with the Constitution as originally meant, but lament that so many seem bent on not doing so that they represent a political force that is difficult for the constitutional loyalists to overcome. Most of those see the problem not as a deficiency in the Constitution but as a decline in civic virtue, and wonder how that decline might be reversed.

Some see a problem arising from the evolution of legal English, such that the language of the Constitution, written in the legal English of 1787, is no longer readily accessible to modern users of the language, suggesting either the need for translation or amendments to clarify the language for moderns.

But there has been raised a different argument, that the problem is the Constitution, because it demands too much of people, and that it needs to be replaced by a constitution that demands less. The argument that the people are naturally unfit to govern themselves has often been made by monarchs and oligarchs.

About the time of the English Civil War, 1645-49, a royalist was quoted to have said, "A commonwealth is not fit for the people, because the people are not fit for a commonwealth."* By "commonwealth" he meant a representative democracy or republic, such as that once proposed by Simon de Montfort in 1265 and by the Levellers during the English Cromwellian period.

Since 1787 many countries have experimented with various constitutions of government, written or unwritten, most modeled on those of the United States and Britain, with varying success, and with occasional reversions to monarchical or dictatorial forms, which usually return to some kind of republican form after a time. From this experience we can conclude that constitutional republican government is marginally fit for people, and people for it, although either may fall short for periods of time that usually drive the people to improve. Most people only learn from suffering, and some challenges are only met if people don't become too comfortable.

What I call civic virtue seems to have been at its height in the aftermath of the American Founding, was high on the Frontier, and seems to rise during periods of war and to decline during long periods of prosperous peace. That is what prompted William James to write his famous essay, "The Moral Equivalent of War", in which he tried to identify alternatives to war that might encourage that increase in civic virtue, although his suggestions are not very convincing.

Although we can identify a basic "human nature" that changes only through genetic evolution, and which sets some bounds on what it is reasonable to expect of civic virtue, the range of performance within those bounds is large, and can vary with time and circumstance for groups and individuals, who may rise to some challenges and not to others.

It may be useful to try to define metrics for the talent and virtue that various challenges require to meet them, and that are distributed among a population at any given moment. An adequate metric must be many-dimensional, reflecting the many functions that must be exercised to solve the problem the challenge presents. It will in general have a unimodal gaussoid or bell-shaped distribution that varies with time, the civic culture, and the challenge, both actual and perceived.

An appropriate and effective collective response to a challenge, whether it be to a war or depression or the demands of a written constitution of government, may depend on the current talent-virtue distribution meeting or exceeding the distribution the challenge requires, but not necessarily across its entire range. Challenges are usually met by the efforts of a subset of the population, and their effectiveness may depend less on support from the mass of the people than on that mass merely refraining from interfering with them.

Remember that the American War of Independence was won with the active participation of only about 3% of the population, and moral support of about a third, who joined in electing and following the few. Another third even opposed their efforts, but that opposition was not as well-organized and focused. Today that third is organized, as government employees, contractors, pensioners, or recipients of entitlement benefits. Indeed, it is estimated that more than half of the American population are tax getters rather than tax payers, consumers rather than producers. Most of government and the legal profession is composed of persons whose careers are built on the departures from constitutional compliance, not on strict adherence. They are collectively called "reliance interests".

There is also a problem with cognitive dissonance, a term coined by social psychologist Leon Festinger, who observed how people compelled to act contrary to their beliefs will change their beliefs to agree with their actual behavior. Being embedded in a herd of constitution violators causes many to first abandon constitutional compliance as a personal value, then abandon the Constitution itself as a supreme law.

The Constitution could use some clarifying amendments to adjust for the changes of an evolving legal language, but the most important reform needs to be to reduce the number of people who rely on violation of it.

* Seeking the cite for this.

Some quotes:

"[N]either the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt." ― Samuel Adams

 “Among a people generally corrupt, liberty cannot long exist.” ― Edmund Burke

 "Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters." ― Benjamin Franklin

“Experience has shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” ― Thomas Jefferson

 "Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition." ― Thomas Jefferson

"To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea." ― James Madison

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." ― John Adams

 "No free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." ― George Mason

"Freedom is never more than one generation away from extinction." ― Ronald Reagan

“Power attracts the corruptible. Suspect any who seek it.” ― Frank Herbert, Chapterhouse: Dune

See also:

• Video: Is the Constitution fit for Americans?
• Quotes About Corruption
• Quotes on Liberty and Virtue
• Political Reform
• Legal Reform
• Proposed constitutional amendments
• Diffusion of Innovations

What motivated Roberts in his health care opinion?

Many people are trying to find the motivation of CJ John Roberts in his extraordinary opinion in NFIB v. Sibelius, the health care case.

Perhaps a better explanation is that Roberts was engaging in pushback against people turning to the courts for what they should be trying to get Congress to do, effectively treating the judiciary as a third house of Congress. Several former justices have complained about that, and in reaching so far to defer to Congress he is sending a signal to Congress and the people that they should stop neglecting their duty to get Congress to comply with the Constitution.

It comes down to money. As expensive and uncertain as litigation can be, it still takes a lot less money to take a case to the Supreme Court than it does to get a bill passed by Congress or an amendment adopted to the Constitution. A position can sometimes prevail in court on its merit, but merit carries little clout with Congress, which is buried by countless demands on its attention. On the other hand, the Supreme Court feels it can take only about 80 cases a year of the 8000 cases that seek a decision, whereas Congress can typically pass more than 20,000 separately justiciable legislative provisions a year that are mostly unconstitutional, more than 100 times as many as the courts could decide. For the people to supervise all this would be more than a full-time job for every citizen in the country. That is a crisis in constitutional governance.

Now I don't think that kind of strategic signaling is what judges should do. Their duty is to say what the law is, fiat iustitia ruat cœlum. That means adopting a doctrine that all congressional legislation and other official acts are to be presumed to be unconstitutional unless proved otherwise beyond a reasonable doubt. That means overturning more than 500 precedents beginning with McCulloch that expanded federal power or denied a right of an individual against the exercise of such power.

When the Supreme Court sustains a right they are usually correct, and when they sustain a government power they are usually wrong. Those wrong decisions need to stop.

Let us hope the next president can place some libertarian constitutionalists on the Court. Imagine if only two of the liberals were replaced by someone like Randy Barnett, Richard Epstein, Elizabeth Price Foley, Kurt Lash, Gary Lawson, or Rob Natelson.

See also:

•  Proposed Bills — The way to reform.

List of constitutional rights

A question I often get is to indicate a comprehensive, authoritative list of constitutional rights. Most legal scholars in the past have declined to offer such a list, saying that it would be infinite, so no listing could ever be adequate. Of course, some have provided partial lists, as James Madison did with the Bill of Rights, which included a catch-all, the Ninth Amendment, for all the other rights not made explicit in the other amendments. Essentially, he was referring people to legal history for the details, but too many judges refuse to acknowledge rights that are not spelled out.

I offer two things that try to identify the rights in more detail. The first is a law review article, Presumption of Non-authority and Unenumerated Rights, that goes into the historical background to find what got lumped into the Ninth. The second is a proposed Civil Rights Act to be introduced in Congress. For the convenience of readers, here is the part of that Act that lists the rights:

a. All rights already recognized in the above titles, and in the Constitution as amended.

b. Due process and efficient remediation

1. General

1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.

2. Fair hearing and decision on the legal merits, with redress for just grievances, including damages, property, or injunctive or declaratory relief.

3. Not to have just remedies made inaccessible or excessively difficult or costly.

4. Mandated testimony of witnesses.

5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.

6. Direct presentation of complaints to a grand jury without the presence of any other government actor without the consent of the grand jury.

7. Standing to privately prosecute a public right without having been injured or expecting personal injury.

8. Not to be subject to retaliation.

9. Not to have admitted any plea or testimony induced by a plea bargain.

10. Not to have any property or asset taken or forfeited without civil or criminal judgment in a trial, with possession presumed to establish title unless proved otherwise.

11. Not to have any right, privilege, or immunity disabled by statute unless one is a minor, which by default shall be any individual under the age of 18 unless the disabilities of minority are extended or reduced by court order.

2. Criminal trials:

1. Indictment by twelve members of a randomly selected grand jury of 23 who elect their foreperson, upon a finding that the court has jurisdiction and that there is sufficient evidence for a trial, except for persons subject to military or militia discipline.

2. Service as prosecutor upon receipt of an indictment by a grand jury, subject only to consolidation by the grand jury if more than one person seeks to prosecute the same offense.

3. Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in criminal cases for which the penalty is more than 90 days.

4. No excessive bail when there is little flight risk.

5. No excessive fines imposed.

6. No  cruel and unusual punishments inflicted.

7. Speedy and public trial before an impartial jury of the state and district previously defined by law, wherein the offense shall have been committed, and to have the location of commitment be deemed where there was concurrence of mens rea and actus reus.

8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.

9. To be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence, but not to have counsel or an attorney imposed on him without his consent.

10. Not to be compelled to be a witness against himself.

11. Not be disabled in the exercise, or deprived, of life, liberty, or property, without due process of law, by unanimous verdict of a jury of twelve.

12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.

13. Unimpeded presentation of all legal argument to the jury, up to the final instructions to the jury, except for argument on a motion in limine that cannot be made without disclosing evidence properly excluded.

14. Unimpeded presentation of all pleadings, alternative instructions, and certified copies of applicable laws and constitutions, to the jury.

15. Not to have a sentence that does not separately disable the exercise of the immunity, and order deprivation of it, within the scope of that disablement

3. Civil trials:

Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in which the amount at issue, including costs, exceeds the equivalent of at least 15.46875 troy ounces of pure silver.

4. Appeals

Appeal from a jury verdict on a writ of error or habeas corpus, according to the rules of the common law in the United States as of 1787, unless the Constitution is amended to provide otherwise.

c. Nonauthority

1. Presumption of nonauthority for any claim to authority, to be strictly proved by an unbroken logical chain of derivation from a constitution.

2. Not to have any government actor exercise a power not delegated, regardless of whether one may be personally injured by such exercise.

3. Not to have government actors exercise powers on the pretext of being "necessary and proper" when they are not just to perform his official duties but to get a desired result beyond such duties.

4. To have delegated powers construed as narrowly, and rights, privileges, or immunities construed as broadly, as the language of the Constitution as meant and understood when ratified permits.

5. Priority docketing of all prerogative writs filed by a any person as demandant in the name of the people with a court of competent jurisdiction and served on the respondant, within three sederunt days, unless the respondant requires more, but not more than 20 calendar days, including but not limited to, demurral, quo warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari, and scire facias, and to have default judgment even if no proof is presented or a hearing is not held.

6. Unimpeded and unpunished communications, including speech, press, and education, except such as instigate or direct a felony, misdemeanor, or tort.

7. Unimpeded assembly and exercise of rights in concert with others.

8. Unimpeded assembly as militia for organizing, training, and response to threats to public safety, subject only to direction by state militia officers during a call-up.

9. Unrestricted keeping and bearing of weapons, equipment, and supplies commonly used by military forces, or suitable for militia, subject only to court order of disablement for being a threat to oneself or others, or to the lawful orders of militia officers during a call-up.

10. Unimpeded and unpunished petition for redress of grievances.

11. Unimpeded devotion or practice of religion, not preferentially supported by public funds, that does not instigate or direct a felony, misdemeanor, or tort.

12. Exclusion of government actors from intrusion into one's real property, body, or use of one's personal property, for search, seizure, or for any other reason, without consent, a declared state of war or emergency threat to public, safety, a warrant supported by an affidavit of probable cause, and just compensation for any losses incurred, for each incident.

d. Supervision of government actors

1. Access to observation and recordation of any government proceeding except trial and grand jury deliberations or their equivalent, or deliberations on matters of security requiring secrecy.

2. Receipt of records of all proceedings, and accounting for all receipts, loans, debts, and expenditures, and reporting thereof, for eventual examination prior to an election in which the issues may be reviewed.

3. Accurate recording, counting, and reporting of all votes cast by eligible voters in any public election with protection from disclosure of how each voted.

4. Access to all information about oneself, and either copies at cost of all documentation or to make one's own copies using one's own equipment.

5. Effective low-cost remedies for getting information about oneself corrected, and use of such information restricted to that for which there is consent by oneself.

f. Not to be subject to meddling without a clear, present, and compelling public need

1. Association and contract to do things not unlawful, including practice of a profession or occupation, marriage, procreation, and acceptance or denial of medical prevention or treatment, except prevention of contagious diseases.

2. Formation, conduct, and revision or dissolution of corporations, partnerships, and other trusts, in which settlor, trustee, and beneficiary are distinct persons who may not be impeded or penalized from directly appearing in any court in such capacities.

3. Not to have some accorded special privileges or protections that favor them over the rest of the people, in ways not essential to the performance of public duties.

4. Travel within, to, and from the United States and any State, territory or locality.

5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.

6. Not to be enslaved or submitted to peonage except as punishment for a crime, but subject to militia, jury, witness, and other public duty.

7. Not to be impeded or punished for voting if one is a citizen and resident on grounds of race, color, creed, previous servitude, gender, age 18 or above, or failure to pay a tax.

8. Custody and care of close relatives who are non sui juris.

9. Not to be neglected or abused while in custody.

10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.

11. Not to be deported without proof that one has not been born or naturalized as a citizen, unless one is born to a person not subject to the allegiance of the United States, such as a foreign diplomat or an invader.

12. Not to be subject to penalty for not doing something, such as not paying a tax, if government agents refuse to allow it to be done, such as not accepting payment of a tax.

13. Not to deny relief from some government action for lack of an appropriation to process the application for relief, or having an official to receive the application, and to fail to recognize the demand for such relief as being granted by default.
14. Not to be required to procreate or to refrain from procreating.
15. Not to have imposed upon one any unwanted belief or expression of devotion or to be pressured into conformity with such.

g. The foregoing list is not exhaustive, and further rights, privileges, and immunities are to be found in the historical record. The rule of expressio unius est exclusio alterius shall not be applied.

Go to the link for the latest version.

  

See also:

• Presumption of Non-authority and Unenumerated Rights
• Civil Rights Act — Proposed bill, ready to be filed.
• Social Contract and Constitutional Republics
• Constitutional Construction
• Constitution Society — Site for research on this topic.
• UN Universal Declaration of Human Rights

Diagram of Necessary and Proper Clause

One of the most controversial clauses of the Constitution is Art. I Sec. 8 Cl. 18, which reads:

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

To keep the Reed-Kellogg diagram size manageable we have removed the words in square brackets [] that aren't essential to the analysis.

There appears to be no grammatical ambiguity in this clause as there is in the Tax/Spend/Welfare Clause previously diagrammed, so interpretation is mainly a matter of finding the original meanings of the words.

The key is the mandate that the laws authorized by this clause must be "necessary and proper". The conjunction "and" means they must satisfy both conditions, so in any case on whether such a power is legitimate, one would need to prove both "necessary" and "proper", not just one.

However, "necessary and proper" are further restricted by the prepositional phrase beginning with "for" that defines the purpose for which the laws must be "necessary and proper", specifically for "carrying into execution ... Powers", a gerund phrase. Therefore, anyone claiming a power under this clause must not only prove it is both "necessary" and "proper" but that it is also "for carrying into execution" a power otherwise delegated or "vested".

The implied power is only of a delegated or vested power found elsewhere in the Constitution, not of another implied power. This clause is not recursive. Only one level of implication from an explicit power is allowed.

What is "necessary"?

In the 1787 legal idiom "necessary" are not just about logical necessity, but practical necessity.

Consider a chain beginning with power A, for which power B is deemed necessary for carrying A into execution, for which power C is deemed necessary for carrying B into execution, and so forth. To make the discussion more concrete, let power A be the power to regulate some kind of interstate commerce, and power B the power to conduct official inspections of items of commerce at a border checkpoint. Strictly speaking, B is not logically necessary unless one inserts the additional premise, "Something may be regulated only if it is inspected by officials." But it is also possible to regulate by voluntary compliance without inspections, or perhaps by having competitors sue one another for noncompliance. So the necessity is practical rather than just logical.

Now in the next step we find a practical necessity, to carry into execution the power to conduct inspections, the power C to hire inspectors. That is a second level of inference. From that point we can move to a power D to pay inspectors, a power E to train inspectors, and a power F to supervise and discipline inspectors. However, all those steps in the chain are tethered to the original power A to regulate commerce.

The problem arises in that the tether may get broken as the chain grows. Persons may be hired to hire persons to hire persons to hire persons, none of whom actually conduct any inspections and thus carry into execution the power to regulate commerce. One can construct similar chains for things like acquiring land or equipment, initially for inspection stations but eventually for its own sake, or for imposing penalties, or for issuing forms, instructions, reports, etc.

If the practical inference were recursive, it would enable the growth of unlimited power, not tethered to the base power, contrary to original intent. Therefore, it is not recursive, and the phrase "for carrying into execution the foregoing powers ..." is a requirement that the "implied" power must always be practically necessary for carrying into execution the base power.

What is "proper"?

 Some means were not considered proper, even if they might be practically necessary. We can identify some ways means may be improper:

1. They violate a fundamental natural or social right, not just a negative right arising from the non-delegation of a power.
2. They are not reasonable ways to attain the end.
3. They do not serve a legitimate public purpose.
4. They are not done in a way that satisfies due process or public deliberation.
5. They exceed the bounds of public consent.

One can elaborate on those further, but that is sufficient for now.

Latin roots

Thanks to Rob Natelson for finding a passage in a 1724 English book on legal forms in Latin:

... ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna ... .

with the abbreviations spelled out.

The words necessaria and opportuna are the neuter plural forms of necessarius (necessary) and opportunus (proper). In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. From that we get the strict notion of something being logically or practically necessary, but also subordinate.

The legal English of 1787 was largely derived from Latin and Law French, the languages of law until English was made the standard in English courts in the Proceedings in Courts of Justice Act 1730 (4 Geo II. c. 26). Although English had been allowed in courts since 1362, legal English continued to be dominated by the official use of Latin and Law French, to which one needs to refer to get the original meanings of many terms used in the Constitution.

What is "carrying into execution"?

The term of art "carrying into execution" had a fairly restrictive meaning in 1787. It did not extend to getting a desired outcome, such as compliance by the public with a law authorized by a delegated power. It meant only for an official to perform the duty of his office defined by a law, that is, to make a certain kind of effort. It was well understood and expected in 1787 that laws and enforcement efforts were unlikely to ever have full compliance, and might have very little compliance. That did not mean the official had whatever power he might need or find convenient to get such compliance. If he lacked enough power then he either had to have Congress amend the statute, if that was inadequate, within the Constitution, or amend the Constitution, with concurrence of 3/4 of the states.

So essentially, "carrying into execution" meant only administrative powers to acquire and use tools and resources for, and to remove obstacles to, performing duties. Extending powers under this clause to things that might "affect" commerce is a usurpation, because this clause only authorizes Congress to do things that enable the regulators in the performance of their duties. To extend powers any further would be to remove any limiting principle on the exercise of power under the Commerce Clause, and if "Commerce" is redefined to include all "economic activity", and not just trade in tangible commodities, then Congress would have unlimited power to do anything, which was obviously not intended or understood by the Framers. It would make the rest of the Constitution redundant.

To fix the precedent

To attempt to correct the erroneous line of precedents stemming from McCulloch v. Maryland (1819), the following clarifying amendment is proposed:

Article I Section 8 Clause 18 of this Constitution shall be construed to only include enablement of the completion of duties by duly elected or appointed officials, to make a limited, reasonable effort strictly necessary to exercise an express power narrowly construed, and not to go beyond completion of the duty to do whatever might be deemed convenient to get an outcome or result for which the effort might be made.

The diagram

See also:

• What is the limiting principle? — Exploration of question raised by Justice Kennedy in oral arguments.
  
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• Supreme Court decisions on Commerce and the Necessary and Proper Clause — Spreadsheet of cases showing the chain of deviation from original understanding.
• Clarifying Amendments — In the form of a bill.
• U.S. Constitution annotated — We will be adding links to diagrams from this copy.
• Commentaries on the Constitution of the United States, Book III Chapter 24, Joseph Story (1833) — Discusses the clause, but in a way that exhibits the infection from McCulloch v. Maryland.

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Diagram of Tax/Spend/Welfare Clause

A useful exercise is to diagram the clauses of the U.S. Constitution using the Reed-Kellogg method many of us learned in public school. Here is the diagram for a slightly abbreviated version of the Tax/Spend/Welfare Clause,

[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] to pay the Debts and provide for the common Defence and general Welfare of the United States.

The omitted words are in square brackets [], omitted because they don't contribute much to analysis of the sentence structure, and to keep the size of the diagram small enough (990x480).

The key points are that "to pay and provide" don't modify "Power", but "Taxes", and "for Defense and general Welfare" modify "provide". Each modifying phrase restricts the word it modifies.

The tricky part of the analysis is to recognize that there is a phrase "to be spent" omitted after "Taxes". In the legal jargon of 1787 a tax was almost always raised to be spent for something that was typically specified when the tax was authorized.

To reach the interpretation some seek to give to the Clause, "to pay and provide" would have to modify "Power", and the Clause would have to insert the word "and":

[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] and to pay the Debts and provide for the common Defence and general Welfare of the United States.

The lack of the "and" after "Taxes" is critical, and it shows that "for common Defence and General Welfare" are a restriction on spending, not a delegated power unto themselves.

At the time the Constitution was written, "general" meant "not specific or special", and that "general" is a restriction on "Welfare" makes the Clause a directive that taxes and spending not be done for the benefit of some parts of the country at the expense of others. It was a bar to intentional redistribution.

That interpretation is further emphasized by the second clause in the sentence:

but all Duties, Imposts and Excises shall be uniform throughout the United States;

The diagram

Joseph Story analysis

Supreme Court Justice Justice Joseph Story, Book III, Chapter 14, of his Commentaries on the Constitution of the United States (1833), explains the clause:

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views. The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects, -- the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed. 

Click on the link for the rest.

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