2012/03/22

How can text enable governance?

How can beings with diverse ways of understanding use symbols to communicate and cooperate with one another, and give us laws that we might understand the way they meant them, when they did not always understand them the same way among themselves? It is an ancient question. After all, no two of us understand things quite the same way, and most of us don't even understand things the same way from one day to the next. Spouses sometimes don't learn to understand one another after decades together.

If you choose to dwell on the differences you would conclude that it is impossible for people to ever reach agreement on anything.

But they do.

You don't have to dwell on the differences. You can choose to focus on the commonalities, on the underlying principles that unite them, even if none of them deeply understand or can explain those principles themselves.

The answer is that while some of the differences may be important, and indeed, may be fatal, people who want to work together can usually find a way to reach common understandings, at least common enough to get by. Spouses who don't understand one another can still learn to finish one another's sentences, and to live together in some kind of harmony, or at least an armed truce.

Constitutions, statutes, contracts, customs, traditions, symbiotic relations among social species -- all of these rest on achieving a common understanding. But it can take some work to bring out those underlying principles. It is easy, in doing so, to pick apart their words as though they chose them with more care than they did, but that is often a mistake. Text must be read with due regard to the circumstances of its composition, the pressures to make haste and get through the moment. Lawgivers themselves sometimes get it wrong, leaving us to discern their functional, if not their motivational, intent.

After all, the alga and fungus that make a lichen would be hard pressed to deliver a learned exposition on the principles that unite them. It is up to the biologist to articulate the articles of their social contract.

See New Year's Greeting.

2012/03/21

The original meaning of "carrying into execution"

Much of the argument on the ACA should turn on the original meaning of the qualifying phrase in the Necessary and Proper Clause. Here is an outline.

THE ORIGINAL MEANING OF "CARRYING INTO EXECUTION"

  1. DELEGATION OF POWER IS AUTHORIZATION TO EXECUTE AN OFFICIAL ACT
    1. Lawmaking power has two parts.
      1. To enact a statute and publish it.
      2. To authorize an executive agent to enforce the statute.
        1. Only application to oneself or discharge of official duties can be continual.
          1. For most enforcers, “execution” occurs only during specific acts of enforcement.
          2. To be continual the enforcer must be able to enforce even when asleep.
        2. Application to subordinates or private parties is discrete, with a beginning and an end, although it may be an overlapping series.
  2. COMPLIANCE BY NON-GOVERNMENT ACTORS AND OUTCOMES ARE NOT PART OF EXECUTION
    1. Established usage in 1787 did not call compliance by non-officials “execution” of a law.
    2. Established usage in 1787 did not call outcomes beyond the duties of an official “execution”.
  3. “NECESSARY” MEANS WHAT MUST BE DONE FOR SOMETHING ELSE TO BE DONE
  4. “PROPER” MEANS FOR A LEGITIMATE PUBLIC PURPOSE, REASONABLE, AND JUST
  5. “CARRYING” MEANS MAKING AN EFFORT
  6. “EXECUTION” MEANS AN ENFORCEMENT EFFORT
    1. It is performance of an official enforcement act.
    2. Only interference with an enforcement act would bring private action within the scope of what is necessary and proper.
    3. Private action outside of official enforcement action is not within the scope.
  7. “POWERS” ONLY THOSE VESTED IN U.S. GOVERNMENT ACTORS, NOT PRIVATE PERSONS
    1. Compliance with statutes by private persons is not “execution”.
    2. The results of compliance by private persons is not “execution”.
    3. Private persons cannot be made government actors other than through militia call-up, without their consent.
    4. A power to command private persons to enforce statutes is found only in the Militia Clauses, and that is only when called up as militia, not between emergencies.
    5. Purchase of health insurance is not defense activity, or militia, and therefore cannot be commanded by statute or officials enforcing statutes.
  8. THE RESTRICTIVE PHRASE “CARRYING INTO EXECUTION” HAS NEVER BEEN RESOLVED BY THIS COURT
    1. The phrase was not argued or decided in the cases beginning with McCulloch v. Maryland.
    2. Without such argument, the Court presumed “necessary and proper” was for the purposes of the lawmakers, whatever those might be.
    3. But U.S. Const. Art. I Sec. 8 Cl. 18 does not state “for the purposes of Congress”, but the much more restrictive phrase “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.”
  9. THERE IS NO VESTED POWER FOR WHICH THE INDIVIDUAL MANDATE CAN BE NECESSARY AND PROPER
    1. Medical insurance is not “commerce” subject to federal regulation.
    2. The individual mandate cannot be necessary and proper to performance of an official enforcement act.
  10. INDIVIDUAL MANDATE MAY BE CONSTITUTIONAL FOR SOME
    1. For United States officials, agents, employees, and contractors.
    2. For persons residing in federal enclaves created under U.S. Const. Art. I Sec. 8 Cl. 17, but only if they are represented in Congress, if it is deemed a “tax”.
    3. It is not constitutional for all others, and the Court should so hold.


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2012/03/19

How did sovereign immunity emerge?

One of the key problems today is sovereign and official immunity and its abuses. I can only hit a few highlights here.

First, people should be aware, if they are not already, that legal writers of the era before 1787, and after, were not as systematic as philosophers who seek comprehensive exposition and rigor would like. Many of them were just stringing together lecture notes and case opinions, and their analytic skills were often not very good. That does not mean there are not principles of law that they were trying to elucidate, even if they were not always attentive to some of the elements and details they should have been, from our viewpoint. But to get at those foundations one has to drill down to the principles they themselves often only dimly understood or poorly expressed, and build a logical structure on what we can discern.

The sovereign is the supreme lawmaker in any situation, especially on some land. There is no law without a sovereign. Originally, it was a victorious warlord who asserted dominion over a country. By the Magna Carta in 1215, especially Article 61, the concept had evolved into the distinction between the person of the crown, an office, and the individual actor who might fill that office.

The maxim that "the king can do no wrong" was just a polysemous way to say "the crown is not accountable", because it is the sovereign, and a court created  by the sovereign can't command the sovereign. It can in principle command the individual who wears it, as Charles I was judged. And of course it can command the ministers of the crown, although not all judges are superior to all ministers. That is why the jury was established, to provide a way for the sovereign to intervene.

But of course, that made the people sovereign, if they tried to pursue the institution of the jury to its logical conclusion. For a long time the only person to both wear the crown and recognize its authority rested on the consent of the people was Elizabeth, England's first, and it would seem last, deep thinker to play that role. She surrounded herself with other deep thinkers, most notably Bacon and Coke, who laid the foundations for further progress.

American independence made the recognition that the people are sovereign explicit, and did more: It provided a structured process through which the people could express their sovereignty, through constitutional ratifying conventions, which freed them to hold the individuals who might office accountable because they had an orderly and legitimate way to replace them without impairing the office itself. That was done not by the people as sovereign, but by the people in the office of electors, an office that is as much subject to the constitution of government as other officials are.

Originally, immunity was a privilege granted by the sovereign to establish a legal claim against the actions of officials who also represent the sovereign, although perhaps not perfectly. That evolved into the concept that even the sovereign did not have unlimited power. He or it was limited by the superior constitutions of nature, society, and the state, and none of its agents could legitimately infringe on immunities that ultimately stem from those prior constitutions. The Framers called those immunities "rights" in the Constitution of 1787 and the Bill of Rights.

Strictly speaking, sovereign immunity is the immunity of the sovereign against itself. The erosion about which many justly complain has been the tendency for officials to claim a share of the sovereignty that properly belongs only to the people as a whole, and to seek the protection of the immunity of the sovereign. To the extent the agents are in fact acting within their lawful jurisdiction and discretion, they may legitimately claim that immunity. The problem is when they exceed that jurisdiction and discretion, and are their own judges concerning whether their actions are within or outside.

The traditional remedy for this was to subject all such decisions to a jury, but officials have removed many such decisions from the jury, where it properly belongs. That means the jury must review decisions of law, and reverse judges in favor of defendants. And it means private parties must be able to bring actions, including criminal actions, without being blocked by gatekeepers that do things like stack grand juries or prevent access to them for private criminal prosecutions.

One of the confusing parts of discourse on this has been a tendency for too many legal scholars to treat all judicial remedies as being for damages or property, and overlooking equitable remedies and the prerogative writs. The Eleventh Amendment was written with only damage claims in mind, and should have specifically excepted other kinds of remedies. The concern for that was that if states could be sued without their consent, plaintiffs could dismantle the states. But the framers of that amendment missed the point that what they wanted to do was provide immunity from execution of money or properly judgments, not from suit. Actions at law serve many purposes than commanding the loser to pay up, such as bringing out the truth.

Official immunity was restricted and tolerable as long as officials did not band together as a tribe dedicated to protecting one another from the public, but year by year they have done just that, and gone from official immunity for momentary acts within their legitimate authority, to immunity for anything they do while they hold the office. That makes their title of office a title of nobility.

All the conceptual tools we need are to be found in the Constitution, but not without some analysis of its historical and conceptual roots.

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