May the President pardon himself?

Article II §2 of the Constitution states that the President  "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It also states in §3 "he shall take Care that the Laws be faithfully executed." This defines his power with respect to law. He may not make, suspend, or repeal laws, but only execute them. He is not a monarch, and it is a source of confusion to take a term out of British monarchical practice and carry it over to American constitutional practice. That change in context changes the meaning. 

The Constitution also states in Article II §2, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That is essentially synonymous to a right to "equal protection" of the law, which was included in the 14th Amendment.

What is a pardon, for a president? Not for a monarch, but for a president. It is simply his determination not to enforce a criminal conviction and sentencing order of a federal court. It has no meaning until after there is a conviction, because the crime is  not defined until then. Nor may he issue a pardon before conviction as a way to prevent a trial. He has no power to prevent a trial, including a trial of himself, although the court may not have personal jurisdiction over him. Nor may he use it to remove personal jurisdiction from any other individual. A court has personal jurisdiction if the defendant appears in it, unless it is a special appearance. 

A pardon is not a reversal of a conviction. Even after a pardon the conviction stands, and may be enforced at any time, until it is reversed. A president cannot bind his successors, any more than a monarch may. His decisions and determinations expire when he leaves office. (That includes executive orders.) So, yes, he may pardon himself.

But the pardon doesn't last forever. The conviction may be enforced when he leaves office.

Russian "interference" in U.S. elections?

Much is being made about Russian "interference" in the 2016 presidential election, and about possible collusion between Russia and the Trump campaign to interfere to win the election for Trump. However, the suspicions are lacking in evidence.

However, we do have a classified report from the Director of National Intelligence, the declassified version of which is linked below. It Seems to have at least tacit support from other agencies, and it can be expected to be the basis for other investigations on the subject.

Despite the use of the word "Hacking" in the URL of the report, the only hacking discussed in the report is of the private Clinton server containing and sharing classified documents. It repeatedly says, "DHS assesses that the types of systems Russian actors targeted or compromised were not involved in vote tallying." In other words, there was no known hacking of vote counts.

However, the report is also loose about what constitutes a "Russian actor". The hackers using the handle "Guccifer.2.0" are presumed in the report to be working for the Russian government, which Putin denies. However, that they might be independent is entirely plausible. Russia harbors a swarm of hackers, mostly bent on selling drugs or stealing page rank. It seems doubtful that all of them would work for the Russian government. Of course, the government would soon have what they found.

So what kind of "collusion" with Trump supporters could there have been? Giving the Trump people advance notice of what they found ans asking them what to do with it? So the Trump people said "Upload it to Wikileaks." So what. That is not "collusion".

In the report it says that "Guccifer.2.0 is identified as Romanian. That was the original Guccifer (without a version number). The report may be confused about all the Guccifers.

The hacking of the Clinton servers was easy for almost anyone to do. It appears that many people did. That it revealed evidence of criminal wrongdoing is hardly "interference" in our election. We need more of that kind of interference in every election. It is also doubtful that the revelations did much to change the way people voted. Clinton supporters just dismissed the revelations as political lies, and her opponents weren't going to vote for her anyway.

Most of what the rest of the report discuses is just propaganda, mainly delivered through the RT (formerly Russia Today) network. I have frequently watched RT. Yes it is slanted pro-Russian, but one can compensate for that. Just as most of the media in the U.S. is slanted progressive or Democrat. (Now increasingly communistic and pro Islamic conquest.) Only Fox news and a few other independents seem not to be part of that spin machine. They are slanted, but it is easy to compensate for their slant. That same U.S. based media interferes in the elections of almost every nation on earth. in much the way RT does. Propagandists have a right of free speech. Spreading their slants on the news is hardly "interference". That is also what political campaigns do. All part of the game.

Now the spreading of "fake news" can be a problem, especially if done too close to an election, before the corrections can propagate.

The DNI report is long on assertions, but short on evidence. Perhaps they are in the classified version, but the declassified version does not hint about what such evidence, if any, could be.

It seems likely that the excitement about "Russian hacking" is intended to deflect attention from the Trump complaints of Democrats bringing illegal aliens to the polls to vote. That is plausible. Although I have not seen it done, I have heard Democrat campaign workers discussing how they did it. It was just a matter of rounding up illegals, driving them to the polls, and then having poll workers look the other way as the votes were cast. Most staff positions at the local government level are filled by Democrats, which puts them in position to do things like steal elections.

Links:

1. U.S. Director of National Intelligence, Background and Report, “Assessing Russian Activities and Intentions in Recent U.S. Elections: The Analytic Process and Cyber Incident Attribution,” Jan. 6, 2017, available at https://www.documentcloud.org/documents/3254239-Russia-Hacking-report.html

What is "societal discrimination"?

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Concurring, Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964).

American jurisprudence has strayed in response to demands from some social justice advocates who perceive an undesirable situation and attribute it to discrimination, racism, or other deplorable practice. However, what has too often occurred is the logical fallacy, post hoc ergo propter hoc. (The result was caused by a preceding event.)

The usual reasoning is that the result could not have occurred unless there was improper discrimination, and that therefore public policy must intervene against such discrimination. However, there can be many causes of undesirable outcomes, some of which may involve some kinds of discrimination, but not always improper discrimination.

We can propose an alternative definition: (Improper) discrimination is treating an individual as though his attributes were those common to his group. It is a failure to treat individuals as individuals, but rather to aggregate individuals into their group.

That brings us to having to confront something that most people don't want to accept or think about. More than a century of intelligence testing on people of many races, ethnicities, and nationalities yields some dismal results for those who want to believe than there are no differences in innate abilities. Tests have been criticized as biased or unsound, but tests have been modified to answer those criticisms. The results persist. American Whites get an average score of 103, Jews get 113, American Blacks get 85, and Hispanics get 89. This has been investigated by Black economist Thomas Sowell, who argues that while it is wrong to treat all members of those groups as though they had those average values. it does cast doubt on whether the low average performance of members of those in fields like education and employment is the result of societal discrimination. If they are in fact innately inferior, and genetic studies indicate that 50-80% of such differences are genetic, than that changes what we should be doing about such disparities.

I invite readers to put aside their reflex rejection of such results and seriously consider what we do if they turn out to be valid. Note that the above paragraph is presented as conjectural, not as an assertion, and it should not be taken as my position on the issues.

The key point here is to propose a better definition of "societal discrimination" than that which has become established in American jurisprudence today, where judges sometimes find that disparate outcomes are the result of societal discrimination, without evidence. That is not a proper basis for judicial intervention. The proposed definition is intended to work regardless of what might be the causes of any traits that might become stably manifest in a group, whether genetic, "environmental" which may include "discrimination", or whatever. It also doesn't matter what the "group" might be, or how it is determined. It works for any group, however defined.

Those who argue against genetic influence on intelligence as its manifestation stabilizes make a key mistake: they presume that there are only two general causative factors, genetic and environmental. In fact there is a third: emergence, referring to the fact that complex living systems are self-organizing, or chaotic, systems, in which small perturbations can have large consequences, and continue to have large consequences as the system develops.

But part of the mistake is to lump emergent development into environment, or "nurture", as though it were something that could be managed purposely. It is inherently unmanageable.

A second mistake is to treat genomes (genotypes) as more deterministic than they are. Genes influence the probabilities of phenotypes, but do not determine them. A typical human genome is thought to contain about 30,000 genes. The information contained in those genes is about eleven orders of magnitude less than enough to determine all the phenotypes in detail. But all the information that can be passed through the senses to influence development is also many orders of magnitude less than what it would take to determine human behavior in detail. Since information cannot be created, that means something else is shaping the details. That something is self-organization, but unmanageable self-organization. It is not susceptible to deliberate intervention.

A third mistake is to imagine that societal interventions, individual or collective, are or can be more effective than they usually are, especially after some period of development when the things we want to change have become stably manifest. At some point the undesirable traits become difficult or impossible to reverse. Once they stabilize they become a reality that has to be confronted, regardless of the causes of the differences. This especially valid for cognitive development, for malleable youthful brains do not remain as malleable beyond a certain age.

Especially illuminating to the question of the extent to which genes are determinative of cognitive capacity are the way genes largely determine species, each of which has a characteristic range of cognitive capacities. Some species even have their own versions of "societal discrimination", but in most it is difficult to identify any systematic effect of the distribution of cognitive capacities. For that purpose it is useful too compare humans with their two closest relatives, chimpanzees and bonobos.

Bonobos differ greatly from chimpanzees in their behavior. Unlike Chimps, they do not become aggressive and ill-behaved after the age of puberty. Therefore they have become a favorite subject for learning studies. They are able to learn to understand spoken English, and to communicate using symbolic keyboards that produce spoken words when pressed, but so far only up about the level of a 2.5-year-old human. They share about 3% of the human genome, or 0.5 megabases, which is more than they share with chimps. Humans have about 14.6 megabases they share with neither of their cousin species. Within that subgenome we can expect to find the genes that most influence human cognitive development. It is a large number, but finite. We can speculate that the number is a few thousand. The genes don't have to determine the wiring of the brain. All they have to do is set up the emergent process which then determines its own structure and behavior. But that process is, in general, unmanageable, and once it stabilizes, either to work well or not, it is likely to be irreversible.

Consider fingerprints. Identical twins both have them, but they are not identical. The details of the fingerprint are the result of emergence. Similarly hearts. Identical twins both have them, but the details of vascularization are not the same. Tissue that is to become a heart becomes one by responding to pressures from adjacent tissue that shape its development. The result is a chaotic system, that beats but not governed by a pacing signal. Similarly brains. Both twins get one, but the details of neuronal net structuring differs, although there can be similarities in the ways each twin leads its life.

Much is made of the capacity of humans, unlike most other species, to choose to overcome their seemingly innate limitations through determination and effort, perhaps with a little encouragement. That works with some, although not with all. There may be genes for that as well. Of course, no one really overcomes innate limitations, only realizes the potential that was there, but the ability of the brain to learn can continue into later years, especially with enough fortitude. It can sometimes even compensate for damage, as from injury or stroke. But only sometimes. Such things cannot be counted on to solve widespread or entrenched disparities of outcomes.

And no amount of determination is going to enable someone of average ability to become a cosmologist. Perhaps a successful lawyer in a small market.

Something also needs to be said about "white privilege". Nothing is said about how it is supposed to work. When I was young almost anyone could get a job within a day or two if he pitched himself properly. There was plenty of work to be done, and if someone had work to be done it didn't matter much who did it. But things have changed.

I am a highly skilled, highly experienced computer professional, yet I have difficulty getting work. The hiring process has become so difficult that about the only way I have gotten work has been by random contact with a hiring manager outside the workplace. That leads to the old saying, "It's not what you know but who you know that counts." Jobs today are surrounded by hordes of gatekeepers, each determined not to hire anyone they find unsuited, or even if they do find someone suited. But of course, if most of the gatekeepers are white, or whatever is the dominant shade in the community in which the job is, then you have to get to know at least one of the gatekeepers, and if that person happens to be white, then one can come away with the impression that "white privilege" has been the deciding factor. Getting past the gatekeepers can be largely a matter of luck. Many a successful businessman, if pressed for the secret of his success, will confess it was mainly a matter of luck. Of course, persistence can overcome bad luck, but it can only overcome so much bad luck.

Most disadvantaged people just don't know how to enter the circles where hiring managers dwell. Part of that is in their appearance and manner of speaking. They don't have a Henry Higgins to coach them. To get a professional position one has to fit the image of a top professional.

Another problem is technological unemployment. Machines are taking or eliminating jobs. Rapidly. That means many middle class persons are going to descend in their economic status. It's going to get rough for everyone, even for the top 1%. Eventually even they will be replaced.

Is "societal discrimination" as important as some think?

There is a widespread belief that disparities of socio-economic condition are entirely the result of discrimination, in the absence of which everyone would be educated, middle class persons. But is that more myth than real? Or could disparities in the treatment of people be more the result of differences in their attitudes or merits?

Obviously there is some discrimination, enough to seize on as a explanation for much of what we observe, but that doesn't make it the explanation for everything. Some disadvantages are a matter of choice, and will not be overcome by "ending discrimination".

It means he's up against middle-class morality for all the time. ...
I ain't pretending to be deserving... no... I'm undeserving, and I mean to go on being undeserving. I like it, and that's the truth. -- Alfred P. Doolittle, My Fair Lady.

______

1. IQ and Race, Thomas Sowell, 11/26/2012. http://mobile.wnd.com/2012/11/iq-and-race/
2. Intelligence, New Findings and Theoretical Developments, Nisbett, Blair, Dickens, Flynn, Halpern, Turkheimer, February–March 2012, American Psychologist https://www.apa.org/pubs/journals/releases/amp-67-2-130.pdf
3. Commentary on the above, by Turkheimer, et. al., Vox Media, May 18, 2017.
4. The bonobo genome compared with the chimpanzee and human genomes, Kay Prüfer, Kasper Munch, Ines Hellmann, et al., 486/7404, Nature Letters https://www.nature.com/nature/journal/v486/n7404/full/nature11128.html

A prophetic 1944 interview

Norman Mattoon Thomas (November 20, 1884 - December 19, 1968) was a leading American socialist, pacifist, and six-time presidential candidate for the Socialist Party of America. He said this in a 1944 interview:

The American people will never knowingly adopt socialism. But, under the name of "liberalism," they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened.... I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.

This statement reveals several key ideas:

The first is that a third party can win support for its policy positions without winning any elections if one of the two main parties adopts its positions.

The second is that it is a winning political strategy to advantage a small segment of the voters at the expense of a smaller segment. Do that for enough small segments and eventually you will have socialism.

The third is that it is a winning strategy to avoid allowing your ultimate objective, or the constitutional implications, to be framed as the question to be decided by the voters. People wouldn't vote for socialism, or for violating the Constitution, if the question were framed in those terms, but will vote for incremental steps toward it, and fail to understand the opponents when they try to explain to voters what those steps lead to, or that they are unconstitutional.

The problem for libertarians is that liberty doesn't sell as well as government benefits. People don't really appreciate liberty until they have lost it, and too often they will not even realize they have lost it, or they will attribute the loss to something other than their own past election choices. It is easier for most people to imagine a prospective financial gain or loss than a loss of liberty. Money can be counted in a way that liberty can't.

The same may be said of constitutional compliance. Few politicians make it a leading issue in campaigns. Most people don't understand it and have come to think that calling the opponent's position "unconstitutional" is just rhetoric. The few who do understand usually don't have enough influence over the others. The number of people who can understand what is and what is not constitutional is fairly small, and always has been. The only time in history it was large was during the first three American revolutions: the War for Independence, the ratification of the Constitution, and the Election of 1800, the last of which entrenched the Jeffersonian position on constitutional interpretation for the period from 1800 through 1824, and then to a declining degree for most of the rest of the 19th century. But even during the ratification debates it is unlikely that the majority of the people really understood the proposed Constitution in its entirety. Some focused on particular provisions that seemed dangerous, and opposed it until their fears were alleviated. Most probably supported it because George Washington did, demonstrating that the way to get complicated reforms is not to educate all the people but to get the support of charismatic personalities the voters like and trust.

Most of Ron Paul's constituents don't vote for him because they agree with his positions. They vote for him because they like and trust him. It is more important for most voters to be comfortable with the personality than with his positions."Bait and switch" works in political selling as well. Voters are offered some charismatic personality or government benefit and never told that either represents a violation of the Constitution. Some will argue that the people have voted for the departures from constitutional compliance and thus ratified them in some sense, but that is deceptive, because the people were deceived by not having the constitutional implications of their choices explained to them. They did not vote for violation. The issues weren't framed to them that way.That doesn't mean it is not a productive activity to educate people on constitutional compliance. We need to create a learning environment in which some of those charismatic personalities can "get it" and then bring their insights with them when they take office. We have to spread the education around because it is not always easy to discern who will be the charismatic personalities of the future, and because such people are herd animals like any other who are going to want the reassurance of like-minded people before they will venture forth with constitutionalist positions. The trick is to both educate those individuals and enough of the individuals around them.

What we learn from the study of the diffusion of innovations is that most people don't adopt new things because they learn about them from some kind of broadcast message. They are influenced more by the examples of those they look to as role models, and that chain of influence tends to sort itself into levels, with "early adopters" at the top, "secondary adopters" below them, "tertiary adopters" below both, and "quadranary adopters" below the first three. We also learn that most people don't adopt new things in long leaps or from single exposures to messages or examples. Except for the early adopters people generally adopt in small steps spaced over a period of time in response to repeated messages. That means you need to target people who are ready to take the next step, figure out where they are and how far you can get them to go on that occasion, then move on to others, but return to the first before they go cold and move them on to the next step, repeating the process until you get many people recruited. Then you need to keep them recruited with positive reinforcements, because most adopters won't stick to a new things unless it rewards them in some way, and because there are usually competing innovations that may win them over if you neglect to hold them.

Intent of the 14th Amendment

To my 2000 article on the Intent of the 14th Amendment I make the following clarifying points:

1. The 14th Amendment did not confer U.S. citizenship on individuals born on U.S. soil, whose parents were not subject to the jurisdiction of a foreign power. That was already the established rule, inherited from English law, and U.S. citizenship arguably began on non-state territory with adoption of the Articles of Confederation (ratified 1781) and the adoption of the Northwest and Southwest Ordinances (1787), which transferred sovereignty of the western territories, previously subject to conflicting claims by the states, to the emerging United States (a term that originated during the earlier (1774) Articles of Association under which the War of Independence was fought.

2. Adoption of the U.S. Constitution made all persons born on the soil of any of the states U.S. citizens as well as those born on any of the non-state territories, and conferred on Congress the power to make rules for naturalization. That was not the power to make rules for immigration, which stem not from the Naturalization Clause but from the Law of nations Clause, since entry onto the territory of a nation without permission was an offence against the law of nations.

3. The U.S. Constitution put restrictions of the states in Art. I Sec. 10, and since all restrictions on government powers are rights, or more precisely, immunities, it thereby established rights of U.S. persons (not just citizens) in the states against their states, justiciable in U.S. courts.

4. The language of the Bill of Rights (1791), except that of the First Amendment, seemed to apply equally to the U.S. and state governments, and like Art. I Sec. 10, to make an exception to the omission from Art. III of federal court jurisdiction over cases between a citizen and his state, but it attached rights to persons, not just citizens. (The Framers, in writing Art. III, presumed a person who was a resident of a state would also be a citizen of that state, and did not anticipate states would later assert a different position.)

5. However, the states defined state citizenship as well, and in ways that did not include the same individuals as were included in U.S. citizenship, such as blacks.

6. Some of the southern, slaveholding, states belatedly realized that if the Fifth Amendment Due Process Clause applied to them, and federal courts had jurisdiction, slaves could sue in federal courts for their freedom, as deprivation of liberty without due process of law.

7. This led to two main cases. Barron v. Baltimore (1833) and Dred Scott v. Sanford (1857). In Barron, slavery was not the issue. The Takings Clause of the Fifth Amendment was the issue. But it was realized, when it got to the Supreme Court, that if the Court decided in favor of Barron, it would establish a precedent that would allow slavery to be challenged, so it decided against him, and CJ Marshall (wrongly) held the U.S. courts did not have jurisdiction to decide cases over the Bill of Rights between a citizen and his state, as that was already a federal question, despite Article III only mentioning "citizen" of a state in the list of court jurisdictions.

8. In Dred Scott slavery was the issue. The problem was that the federal courts could not avoid jurisdiction because persons of different states were the opposing parties. The Bill of Rights, and other provisions of the U.S. Constitution, associate rights with personhood, not citizenship, and it was already established precedent that blacks were persons, so CJ Taney for the U.S. Supreme Court weaseled out of the trap by (wrongly) holding that blacks were not and could not be citizens, and thus, federal courts would not have jurisdiction, since Art. III uses the term "citizen" instead of "person" in defining jurisdiction. The effect was to make the rights of persons not citizens non-justiciable in federal courts, contrary to the obvious intent of the Bill of Rights.

9. By the time the view developed that both precedents had to be overturned, and that it would take an amendment to do that, many more precedents had been built on those two cases. So it was not enough for an amendment to just refer to the two cases and explicitly overturn them. It had to adopt general language that would cover the entire system of precedents based on them, past and future.

10. That left the problem that the states could not be allowed to deny rights to persons on their territories by defining them as noncitizens. That could make the U.S. Constitution a nullity in such states, by doing something outlandish like defining Jim Bob and Red Neck as the only citizens. So what the 14th Amendment did do was make all U.S. citizens state citizens if they reside in the state (although it neglected to define residency). That included blacks. However, it also neglected to make clear that most rights belong to persons and not just citizens.

11. Some would argue that the language they chose was not very clear, and that a better wording was needed, but if one tries to find better language, it is not all that easy. (If I had been there, I could have done it, as I have, but I was born too late.)

12. There is actually no U.S. Supreme Court decision that sustains the offspring born on U.S. soil of parents who have entered U.S. soil illegally to be natural born U.S. citizens. Such parents are arguably not "subject to the jurisdiction" in that they did not seek and obtain consent to enter. All the cases have either been parents who entered legally, or for which the legality of their entry was not before the court. There is a presumption that those born on U.S. soil are natural born citizens, subject to proof to the contrary, and in the absence of someone to argue that position, the presumption stands. If someone wants to get a precedent to that point, one needs to take a case to the U.S. Supreme Court.

1866 Civil Rights Act.

Following the War of secession, Congress adopted the 1866 Civil Rights Act, under its sovereign power as the victor in the war. But there was no constitutional authority for most of its provisions. So the need was recognized to enact an amendment that would authorize that act, albeit retroactively. The problem was how to word it so that it would encompass the entire act. The 14th Amendment, declared adopted in 1868, needs to be understood as their attempt to do that. The result is rather broad, sweeping language.

The bill plainly sought to overrule the Black Codes by affirming the full citizenship of newly emancipated blacks and by defining citizenship in terms applicable to all persons. Under the bill, the designation as an American citizen meant that one possessed certain specific rights, such as the right to make and enforce contracts, the right to file lawsuits and participate in lawsuits as parties or witnesses, and the right to inherit, purchase, lease, sell, hold and convey real property. In defining citizenship in this manner, the act effectively overruled state-sponsored Black Codes.

At the same time, the act specified that these rights were "civil rights," giving the first clear indication that, in the context of race relations, there were different levels, or tiers, of rights at stake. "Civil rights" at this time were understood in terms of property rights, contract rights, and equal protection of the laws. These rights were distinct from "political rights," which involved the right to vote and hold public office, and "social rights," which related to access to public accommodations and the like. Thus the bill reflected the common view that political participation and social integration were more or less "privileges" and not basic elements of citizenship.

Section 1

The 14th Amendment begins:

Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It is a source of some confusion that the first sentence did not use the legal term of art "natural born citizen" used in the Eligibility Clause of Article II, leading some to argue that the 14th Amendment created some new kind of citizenship. It did not. The words

All persons born ...  in the United States, and subject to the jurisdiction thereof, are citizens of the United States ...

Mean the same thing. The rule, jus soli, which was already established in Anglo-American common law, goes back to Calvin's Case, 7 Coke Report 1a, 77 ER 377 (1608). In 1868 "in the United States" included all the territory of all the states and also the (incorporated) western territories. Citizens of those western territories were also citizens of the United States.

The first sentence then introduces something new:

and of the State wherein they reside.

That made U.S. citizens, with all their rights, citizens of a state in which they lived. It did not specify how long they needed to reside there, and that was arguably a serious oversight, but the words have so far not been abused as much as they could have been.

The third sentence begins:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

This is the Privileges or immunities clause, which was ignored by the Supreme Court in reaching its decision in the Slaughterhouse Cases, and which has been ignored ever since. Note that it is the "privileges or immunities" of citizens, not persons, which is used in the remainder of the sentence.

The words "privileges and immunities appear in Article IV:

Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Does it make a difference whether the conjunction is "and" or "or"? Some have argued that in Article IV the "privileges" must be identical to the "immunities", but earlier usages of those terms both ways establishes that the two may be different, although perhaps overlapping.

The "privilege-immunity" distinction therefore goes back to the Framing in 1787, even though the Bill of Rights uses the term "rights". It was recognized by Madison when he introduced the Bill of Rights that there are different kinds of "rights" with different sources:

Madison, from the Debates on the Bill of rights:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.

Madison here recognizes that trial by jury is not a pre-existing natural right, but a right arising out of the social compact. There are other such rights, explored at "The Social Contract and Constitutional Republics". The rights that pre-exist the Constitution include natural rights, social rights, arising out of what Madison called the "social compact", and what we may call "dominion" rights, arising out of the dominion, the society with exclusive possession or sovereignty over an established territory. Those would include the rights of denizenship, to remain at or return to one's place of birth or residency.

What are sometimes miscalled the "rights of citizenship", such as to vote, other than to ratify a constitution, which is a social right, or hold office, are not among the pre-existing rights, but are "privileges" created by the Constitution or by government. The pre-existing rights are in general protected by restrictions on the delegated powers of government, and as such are "immunities".

So we have two kinds of things: "rights" that stem from nature, society, or dominion, and are protected by immunities, or restrictions on the powers of government (or the nondelegation of them), and "privileges" that stem from a constitution or a government, that may be established but which may be removed at any time.

Some scholars have attempted to research the historical record to find examples, sometimes called "rights", sometimes "immunities", and sometimes privileges", indicating a lack of consistency in the use of such terms.

An early attempt to define privileges and immunities is found in the opinion of Judge Bushrod Washington the case Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823:

... what are the privileges and immunities of citizens in the [Volume 4, Page 503] several states?" We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, 

But these are  examples pulled from memory as the judge wrote. The are not systematic analyses of the principles by which privileges or immunities can be identified, which is what we provide here.

Due process

The last sentence of Section 1 states:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This is clearly taken from Article IV Section 1. But after the Slaughterhouse cases, which ignored the Privileges or immunities Clause to reach its verdict, this has been the only clause on which subsequent Supreme Court cases have been based, although they have introduced ideas like "procedural due process" and "substantive due process" to try to recreate them.

Slaughterhouse Cases

The Slaughter-House Cases, 83 U.S. 36 (1873), was the first United States Supreme Court interpretation of the U.S. Constitution's Fourteenth Amendment which had recently been enacted. It was a pivotal case in early civil rights law and held that the Fourteenth Amendment protects the privileges or immunities of citizenship of the United States, not privileges and immunities of citizens of a state from their state governments. But the entire point of the 14th Amendment had been to protect state citizens from being deprived of privileges or immunities common to citizens (and resident persons) of the United States. To this day the interpretive error of these cases has not been corrected, although it has been worked around.

It came closest to being corrected in two cases, Roe v. Wade, and McDonald v. Chicago. In the first, the Supreme Court heard an appeal of the case decided in the district court, which found for the plaintiff on the grounds of the Ninth Amendment right of privacy being one of the privileges or immunities protected by the 14th Amendment. The Supreme Court justices all struggled to avoid reaching that result, through convoluted reasoning, but in the end decided the case on due process grounds.

Read carefully, that case reveals the real reason for the reluctance of the Supreme Court to accept the Privileges or Immunities clause, and incorporate it, because that would require then to incorporate the Ninth Amendment, and when a court did that, it found a "right of privacy" that provided a basis for making abortion a right. The Supreme Court, even though it did allow abortion to be treated as a right, is reluctant to find any more rights than those enumerated in the Bill of Rights and elsewhere in the Constitution.

This controversy over the Ninth Amendment has been central to constitutional scholarship, with former judge Robert Bork likening it to an "ink blot" that should not be used because one could not be sure what it means.

McDonald v. Chicago, 561 U.S. 742 (2010), was expressly argued on the Privileges or Immunities Clause, but the Supreme Court of the United States found that the right of an individual to "keep and bear arms" as protected under the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment against the states, not the Privileges or Immunities Clause.  Justice Thomas dissented on that.

Public debt

The 14th goes on to say:

Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

Some have tried to misread this to say that no federal debt shall be questioned. Of course, it only applies to federal debt incurred during the War of Secession, but it did have a profound impact on debt and money in the United States.

During the war the Union did not have enough gold or silver to pay its debts, so it issued paper money (greenbacks), fiat currency that the Union required its suppliers to accept as legal tender. But when those suppliers tried to pay their own suppliers with greenbacks, and those suppliers refused to accept the greenbacks, litigation ensued, called the Legal Tender Cases, that established that federal fiat currency was legal tender, not just on federal territory, but within the states as well. That situation continues to this day.

Enforcement

The 14th Amendment ends with

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

So what did that allow, with the Privileges or Immunities clause read out of the amendment? Evidently, a great deal. Congress went on to enact what became 18 USC 241 and 242, making it a criminal offense for a state actor (but not a federal actor), or a private party acting at the instigation of a state actor, to deprive or conspire to deprive a state citizen of his rights, and 42 USC 1983, allowing a civil claim for damages against the state, or at least a state actor. However, such civil claims have been circumscribed by the doctrine of state sovereign immunity.

Ratified?

There is a lingering controversy over whether the 14th Amendment was actually ratified. The ratifying states did so under duress, and there is some doubt whether their ratifications were accurately reported.

Courts do not allow arguments that the 14th was not ratified. Any party or lawyer who attempts to make such argument would be thrown out of court, and the lawyer fined or disbarred. The reason is that such arguments conflict with established jurisprudential doctrine ("custom, policy, and practice").

About the only way a conscientious litigator could introduce doubt about ratification into the record would be to preface an argument with "If, arguendo, the 14th Amendment had been ratified ..."

The way forward

The challenge is to steer cases to the Supreme Court that will encourage them to undo the damage done by the opinion in the Slaughterhouse Cases. That was almost done in McDonald v. Chicago, but the Court backed away from reestablishing "privileges or immunities". That case was a Second Amendment case, and now that it is a win for them, the same litigants might not be so anxious to push the envelope further.

The key to advancing jurisprudence and overturning wrong opinions is to set up cases carefully. That is not easy, considering the high costs of litigating before the Supreme Court.

One approach would be to bring a case that requires invoking the Ninth Amendment, since that is the great hurtle to be overcome. Such a case might be over mass surveillance, for which the Fourth Amendment is inadequate. But as long as (mostly conservative) judges think of the Ninth as some kind of "inkblot", opening the way to finding unenumerated rights would present them with a kind of "terra incognita" they may be reluctant to explore. The solution is to encourage scholarly discussion of just what are the "unenumerated rights", which, by the way, are not really "infinite". An attempt to do this is presented in the chapter "Immunitates". Yes, there are many such rights (or more properly, "immunities") but the list is not infinite. It needs to be examined and debated, and any missing rights identified and included.

This is mainly a task for libertarian legal scholars, since conservatives seem more likely to see an inkblot. It would also help to get some libertarians appointed to the Supreme Court.

If this were done, the next step would be to revive the Tenth Amendment, and roll back all the federal criminal statutes based on the Necessary and Proper Clause, as Wickard v. Filburn was.

Links:

1. The Civil Rights Act of 1866 (14 Stat. 27). http://www.encyclopedia.com/social-sciences-and-law/law/law/civil-rights-act-1866
2. Intent of the Fourteenth Amendment was to Protect All Rights, Jon Roland, 2000. http://www.constitution.org/col/intent_14th.htm
3. Presidential Eligibility, Jon Roland. http://constitution.org/abus/pres_elig.htm
4. Debates on the Bill of Rights, http://constitution.org/ac/001/r01-1/bill_of_rights_hr1789.htm
5. The Social Contract and Constitutional Republics, http://constitution.org/soclcont.htm
6. Natelson, Robert. "The Original Meaning of the Privileges and Immunities Clause", Georgia Law Review, Vol. 43 1117-1193, at 1183 (2009).
7.  Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823, http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.html
8. Slaughter-house Cases, https://en.wikipedia.org/wiki/Slaughter-House_Cases
9. Roe v. Wade, 410 U.S. 113 (1973). https://en.wikipedia.org/wiki/Roe_v._Wade
10. Ninth Amendment to the U.S. Constitution, https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution
11. Presumption of Nonauthority and Unenumerated rights,  http://constitution.org/9ll/schol/pnur.htm
12. McDonald v. Chicago, 561 U.S. 742 (2010). https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago
13. Legal Tender Cases, https://en.wikipedia.org/wiki/Legal_Tender_Cases
14. 14th Amendment ratified?  http://constitution.org/14ll/14ll.htm
15. 
    

Effective judicial oversight

Many complain about judicial corruption and call for judicial accountability, but generally fail to propose effective processes for achieving it.

In an effort to make judges independent of political pressures, they are generally left with great discretion to be used justly or not. In some states they are elected, and come under they sway of the law firms that support them. They are generally under the loose supervision of an "administrative" judge, who has his own docket and can't exercise daily oversight, even if he were inclined to do so. He is usually limited to assigning judges to courts, and can reassign them to no court as a way to get rid of them. Judicial decisions can be appealed, but the appeal process is so difficult and uncertain that the risk of being overturned is small, and can be ignored. Judges are generally not removed for having too many of their decisions overturned, and if they are it is likely to be for making right decisions rather than wrong ones.

There are judicial misconduct boards, but they tend to get so many complaints that they come to dismiss them out or hand, and such boards do not investigate complaints made while trials are still underway.

What is needed are grand juries with agents who can sit in on trials and intervene if misconduct occurs. That would be a major undertaking. It would need to be able to rapidly respond to complaints made during trials in time to be effective, and they could not be visible enough for parties to play to them rather than to their judges. We can imagine having school classes of students assigned to observe trials reporting on any irregularities they might observe, and calling in judicial inspectors as needed.

Scientists abandoning their training in policymaking

In 1970 I attended the First National Congress on Population and Environment, with mostly scientifically-trained people. I was impressed by how the scientists abandoned their scientific training when they went into policy analysis, and resorted to intuitive leaps that they then tried to justify with seemingly scientific reasoning. I was coming from a background in computer systems, so was skeptical of this kind of unsystematic thinking. So was Jay Forrester, of MIT, who wrote “The Counterintuitive behavior of Social Systwms”. http://constitution.org/ps/cbss.pdf I subsequently tried to leaven the more extreme analyses with doses of systems analysis.

I became involved with the Limits to Growth computer modeling effort that forecast a peak in growth followed by decline and collapse as resource limits were reached. The result was an article,  "The Disturbing Implications of World Dynamics", The Futurist, Mar 1971. Review of the book and discussion of its methodology and the Limits to Growth computer  model. I concluded that the LtG model made some incorrect assumptions about the alternatives we had: that resources were limited to those available to surface extraction. Leaving aside the alternative of mining asteroids, there was also the alternative of extreme conservation in compact "starship cities" on or beneath the surface of the Earth. 
That led to my article "Three Futures for Earth", http://pynthan.com/vri/3f4e_002.htm in which I laid out a more comprehensive analysis of the full range of alternatives available to us. That analysis remains valid, although if I were to rewrite it today, I would forecast that the cities would house few if any human beings, their role being replaced by machines. They would not be places out of Star Trek. The crew would be replaced by Data or its equivalent. That would leave humans to live in the wilderness, as wild animals perhaps with a 19th century technology. 
I have written a novel in which this scenario is presented, Wayward World. 

History of legal corruption in the United States

Having been asked for a quote of a prominent legal figure on prosecutorial corruption, especially the kind that results in wrongful convictions, it is difficult to find something pithy.

There is nothing new about prosecutorial corruption. It is as old as prosecutors. We can see it in the prosecution of John Lilburne, in the prosecution of Penn and Mead, and the subsequent prosecution of the jury foreman, Edward Bushell, for acquitting them. Those are the classic cases. Everyone knew the prosecutions were corrupt, but you won't find compact quotes to that, partly because the prosecutions failed.

Corrupt prosecutions were a major issue in the British colonies, which led to many of the complaints in the Declaration of Independence.

It was also an issue in prosecutions under the 1798 Alien and Sedition Acts, such as that of John Fries. But although unconstitutional, they were not called "corrupt" at the time.

Prosecutorial corruption is part of the larger problems of judicial and legal corruption. From devotion to the ideals of justice in the Early Republic, there has been a steady and sometimes rapid decline in legal ethics in the United States, until now the entire profession has become corrupt in different ways and to varying degrees. It is difficult today for an honest lawyer to practice conscientiously and not be disbarred. Requiring lawyers to be members of the Bar is another way they are controlled for corrupt purposes.

It is important to understand that the modern institution of the "public prosecutor" is relatively recent. Before about the 1890s most cases were prosecuted by private attorneys either hired to do it or appointed by the judge from among the lawyers locally available. This became too much a burden on them, so they sought to have a office of public prosecutor created that would be fully funded. The public wanted the elect the person who held that position, because they didn't trust anyone who might appoint them. Seemingly a good idea, but the public mostly didn't know enough about candidates for the office to select only those of good character. They wound up voting for those with the most convictions, regardless of how those convictions were obtained. We would have been better off if public prosecutors were selected at random.

Originally grand juries were supposed to screen proposed prosecutions to weed out any corrupt ones, but grand juries became captured by public prosecutors, or in some states, beginning with California, reduced to a role as auditors of public administration.

It didn't help that many judges rose from the position of public prosecutor, and carried a prosecutorial bias with them.

So now we get prosecutorial corruption that is massive. A new prosecutor in Dallas found that his predecessor has conspired with police to use bags of plaster of Paris as evidence of cocaine. He then tried to get most of the resulting convictions overturned. But he was exceptional.

One prominent legal figure who has condemned legal corruption, and not just prosecutorial corruption, is Alan Dershowitz, in private conversation. Whether one could get him to make a statement on the record is another matter.

Links:

http://constitution.org/jury/pj/pj-us.htm
http://constitution.org/jury/gj/gj-us.htm

Arrest Assange? For what?

CIA Director Mike Pompeo has announced that they have "found" a legal basis for arresting Julian Assange for his handling of classified information, and he seems to be supported in this position by Attorney General Jeff Sessions. Both men are constitutionally illiterate, and should never have been appointed to those positions.

Some constitutional background on the Assange situation.

First, there are only two bases for charging someone under the Espionage Act.

1. Prosecution under the "contract" that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.

There is also no authority to make conspiracy or complicity a crime. This was discussed in the Eleventh Congress and it was agreed that no authority existed.

Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information.

So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.

2. Persons can be prosecuted under the treason Clauses for giving "aid and comfort to an enemy", by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.

It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.

Chemerinsky on judicial abuses

Many if not most of Chemerinsky’s complaints are valid, just misattributed. Judicial abuses are not a matter of conservative vs. progressive judges, as you point out, or of Art. III, which were corrected by thew 14th Amendment.

The Eleventh Amendment, properly interpreted did not confer sovereign immunity on the states, and if it did the 14th overrode that. The Eleventh was about getting money judgments against states that could be collected by executing on assets of the judgment debtor’s choice, like a capital building. There can not be a constitutional bar against a state being sued. States must appropriate a claims fund for the payment of judgments upon application thereto, without relitigating the case in opposing payment. The same principle applies to official immunity, which should never be taken as a bar against suit. Nor should an official be immune for acts committed outside his authority, even if he is “on the job” at the time. The act can be lawful or unlawful from one penstroke to the next.

- See more at: http://www.libertylawsite.org/2017/04/21/whining-about-article-iii/#comment-1537324

Gun-free or free-fire

No man's life, liberty, or property are safe while the legislature is in session.

Its an odd year so the Texas legislature is in session. The big issue this year is "constitutional carry", the proponents of which want Texas gun laws changed to allow almost anyone to carry handguns openly anywhere and at all times, the way they can now carry long guns. Texas now licenses concealed carry, but forbids open carry, something that irks Second Amendment devotees. Several states have adopted constitutional carry, without becoming war zones, and it seems likely that Texas will soon join them. But Texas does have its complement of gun controllers who are seeking to restrict where and when people can carry openly, with the support of some police professionals. They have introduced several bills, HB 234, 255, 899, and 3989, that would try to expand "gun free" zones, which deserve to be cast into legislative oblivion.

Constitutional carry is appealingly simple, but it does not address all the legitimate concerns reasonable people may have. On poor legal advice to many proprietors adopt the simplistic policy of banning firearms from their premises, thinking that will protect them from being sued if a firearm is misused there. It will not. Eager lawyers will sue anyone from whom they think they can get a settlement. But since many of them rely on liability insurance, and the liability carrier is often eager to settle to reduce costs, that carrier is likely to require the banning of weapons as a condition of coverage.

So we need a different kind of legislation:

Proprietor liability protection

A bill needs to provide that:

1. Proprietors of premises are not liable for the misuse of weapons on their premises unless they personally instigate such misuse, even if they do not forbid weapons on those premises.
2. Suit for such liability must bear all costs of litigation unless they can prove personal complicity.
3. Liability carriers may not make their coverage conditional on banning weapons on the premises.
4. A proprietor who wishes to ban weapons must take custody of such weapons upon entry onto the premises, keep the weapons safely locked in an armory, return them to the bearer upon departure, and return such weapons to the bearer in the event of an incident requiring the weapons.
5. A proprietor is liable for any death or injury that could have been avoided had the weapons been left in the possession of the visitor.

Rival proponents of legislation are trying to write laws applicable to all kinds of people. Proponents of constitutional carry contemplate a population overwhelmingly composed of mature, responsible, competent, "law abiding" people, who are not disposed to misuse weapons, or are even disposed to help enforce the law. Proponents of gun control legislation see a population largely composed of ill-behaved delinquents, drunks, hotheads, untrained, and even members of criminal gangs.

Proponents of constitutional carry see gun control laws as only restrictive on responsible persons, the kind we want to have bear weapons. They see "gun free" zones as "free fire" zones for delinquents seeking easy targets, who will not only ignore laws and signage, but see them as opportunities.

That perception is distorted by the desire of police to be able to justifiably shoot to kill anyone they find bearing a weapon. If the possession of a weapon is not proof of delinquency, their decisions are much more difficult.

One way to limit possession of handguns to the more responsible has been to require a license to carry, available to those who pass a course in the safe and effective use of handguns. The idea of training is a good one, but it should be a requirement for everyone, not just as a condition for obtaining a license.

So what Texas needs is a

Militia Act

1. Each county shall have a Militia Board which shall maintain a roster of residents of the county fit for militia duty.
2. Each resident of a county fit for militia duty must register with the Militia Board of that county.
3. The sheriff and constables of each county and ward or precinct shall serve as commanders of militia in their jurisdictions.
4. In the event a sheriff or constable should be derelict in his duty to serve as commander, the residents of that jurisdiction may convene as militia to elect a commander.
5. All persons fit for militia must be called up at least once a year, organized into militia units, and trained in defense, law enforcement, disaster response, and jury duty.
6. Militia training shall begin at age six, and be conducted in public schools.
7. Militia personnel shall provide their own tools and equipment.
8. Personnel unfit for militia shall be identified, segregated from the remainder of militia, and shall receive remedial treatment.

Such a militia system would be a return to the system contemplated by the Founders, and would go a long way toward reducing misbehavior of all kinds.

Through the hellhole

Through the hellhole

As a leading futurist organization, we are frequently asked how can the world, or the U.S., avoid economic collapse. People who ask that are usually disappointed when we answer, we can't. The only opportunity we had to do that passed after WWII. It didn't just pass. It was overrun by a stampede of crazed investors screaming GROWTH!! By that of course, they meant growth in the value of their own investments, never mind that it might be along a path that leads to global catastrophe. There is no resisting that kind of stampede.

There is nothing new about speculative frenzy. There are many instances of it in history, which have generally ended badly. They are not always discussed in those terms, but that was often what was really going on.

Consider the French revolution. It is usually taught as an eruption of violence that occurred in the late 18th century, but it was actually centuries in the making. Only a generation before, French King Louis XV famously said "Aprés moi, le deluge." "After me, the flood." Meaning that he foresaw the coming debacle, nut was unconcerned as long as it did not occur until after he was dead. It came in his son's lifetime, and Louis XVI lost his head on the Guillotine., along with thousands of other "aristocrats".

Could Louis XV have avoided the French Revolution? In principle, yes. But his base of political support was the aristocracy. He would have had to do something like tax them, so that to avoid losing their estates to taxes, they would have had to turn to the lowly pursuits of crafts and trade to make additional money, and in doing so, created opportunities for the peasants, craftsmen, and merchants that might have led to the industrial revolution first appearing in France rather than in England. But a tax in his time would probably have acted too slowly. Perhaps in the time of his father Louis XIV.

The main thing Louis XV illustrates is the concept of the generational  discount rate.  Everyone discounts value at some rate over time. That's why a sum of money today is worth more than the same sum ten years from now. It is the basis for loans and annuities. What Louis XV was doing was discounting the interests of future generations at a rate of 100%. If he had cared about his children and grandchildren, but not beyond, it would have been at 18% per generation.  Anything less than 18% values more highly the interests of future generations beyond this and the next two by more than that of this and the next two.

We can conjecture that when the Framers of the U.S. Constitution wrote of posterity they were attempting to draft a constitution that would provide for generations beyond three, although they would not have understood the notion of generational discount rate.

Resources for Earth humans

There are mo truly renewable resources. Only resources that keep coming, until they stop. For a human in the Earth system, a resource is a subsystem that holds a certain amount of "free" or available energy. That means energy available to do work. It is only a resource if one has the means to extract the available energy from it, either for sustenance, or to acquire more available energy.

In the Earth system there are only two sources of available energy. the sun, and the supernovae that created most of the heavier elements that comprise most of the mass of the planet. The major component of these are the radioactive elements that are gathered in the Earth's core, whose decay make the core hot, and are responsible for volcanoes and volcanic vents. We can also count the minerals that can dissolve and provide nutrients for life. We can describe the users of such energy as sun-eaters, core-eaters, and rock eaters.

Available energy moves down a gradient from its source to the larger universe. As it moves down, a value called its entropy, the measure of disorder of the system,  increases. It also increases when we extract the available energy, using it to either keep the entropy of our system low (while increasing it faster everywhere else), or to acquire more available energy from somewhere.

Grow or die

Each day one has a choice whether to consume one's available energy, or to save part of it either to consume tomorrow, or to invest it in acquiring more available energy. One can use available energy to acquire more than that amount of available energy, in which case one is operation at a profit. Otherwise one is operating at a loss.  Operate at a loss too long and the enterprise, which could be one's own life, fails, which is economic collapse for it.

While it is possible in principle to operate in a steady state of no growth or decline, in practice it is almost never sustainable for long. One either grows or dies. Since no one wants to be part of an enterprise that fails, that means one wants to always grow, and the faster the better. In any system of enterprises in which the average growth rate is zero, some are always failing, while others grow at the expense of the others. That is why enterprise is necessarily competitive.

And there is a tendency for the rich to get richer, since the richest tend to have a competitive advantage over the less rich.

Grow and die anyway

The supply of available energy is not the main limiting resource in most sectors. The problem can be understood by examining the growth of actual animals and plants. They do not in general grow to use all available energy. They stop growing well short of that point. The limit is internal manageability. A lifeform can overgrow its capacity for internal management. The result is usually death. But animals and plants generally have internal controls on their growth that prevent that. Human financial institutions do not.

 have yet to see a Nobel awarded fro a breakthrough in manageability theory.  Or for that matter, good papers on internal manageability as constraints on the growth of metabiota.

How might collapse come?

It is sometimes said that the problem is not too much debt, but too much easy money. It is both, since it is easy money that makes too much debt possible. The 1931 collapse came from the failure of a single bank, the Creditanstalt of Vienna, Austria. The 2008 crisis came from too many bad mortgages, and the problem was not solved. It was only made to appear it had been solved. The deck chairs were moved around on the Titanic. It could come from collapse of Italy, Spain, or Greece. More unsolved problems.

No one knows how it might start. but it could spread rapidly, to the entire planet. No one has a solution, other than to print fiat currency, and pay off debt with worthless banknotes. That is when we might begin to see governments fall, and be replaced by dictatorships. After that, things could really get out of hand.

Buy physical gold?

People had physical gold in 1933. The government ordered all of it to be turned in. Gave them $35 an ounce for it. But try to take your $35 to a bank and get an ounce of gold for it. Forget it. A lot of people buried their gold then. Much of it is still buried. That's what treasure hunters look for.

Try to spend any of your gold or silver? Forget it. Federal offense.

Bitcoins. For a while, perhaps. Until the government decides to confiscate them as well.

Find a piece of fertile land with clean water on it far from a city? Most of those are already owned and not being sold.

Keep firearms and ammunition? The government will just order those turned in. Try to resist? Do you really want to die defending your rights against hoards of swat officers? They are not going to arrest you. Just kill you.


The economy runs on debt

Almost every major transaction in the modern economy is financed. Most enterprises have become so dependent on easy money for financing that they couldn't self-finance if they wanted to. That means food from farm to market. Fuel from mine or well to power plant or filling station. If the financing fails, so do shipments. Suddenly, supermarket shelves go barren and electric companies turn off the electricity. Without electricity, the water systems fail. Governments could step in to order services to continue, but that wouldn't last long.

If fiat currency becomes worthless, you won't be able to buy anything with it. Riots would probably break out, and the government would declare martial law. Soldiers and police might get stuff, but the rest of us would be out of luck.

An early indicator would be if the government to order banks to confiscate all savings accounts, and pay for them with bank stock or Treasury bonds.  It might also order confiscation of most of checking accounts as well, as happened in Cyprus.

What might happen to us

There was a document posted to the FBI website, Project Megiddo, which we copied before it was taken down, that presents a chilling plan for rounding up undesirables, including blacks and Hispanics,  in the event of civil disorder. The document was vague about the fate of those people, but we can assume the worst. There are also persistent rumors of lists of dissidents, including the red list of those to be killed immediately.

During the dictatorship in Argentina, critics of the government were detained and never seen again. They were called the desaparecidos (disappeared ones), and none of them have been seen again, nor have mass graves been found that could account for them. The rumor is that they were taken in cargo planes out over the South Atlantic, stripped, weighted, and thrown out the planes. A weighted body would descend and be consumed by abyssal scavengers so that no trace is found. It is said they learned their methods from U.S. intelligence agencies, and called it "feeding the fish", alimentando el pescado. See "Painful search for Argentina's disappeared".

hat is not to say the U.S. government will do such things to American citizens, but the signs are ominous.

How these events might play out has been the subject of many movies, science fiction novels, and prepper speculation. We don't meed to repeat it here.

Enter the joulenote?

Much depends on how those in power react. The prospects are not encouraging. I don't find much thinking among them about what could happen or what we should do about it.

If financing ends and fiat currency is no longer accepted, then we have limited options, although the powers that be might not know what they are.

The critical move would be to nationalize energy holdings, oil, coal, gas. etc., and issue certificates convertible to units of available energy, probably measured in megajoules or gigajoules. They could be distributed through a kind of modified EBT card that would enable people to purchase minimum amounts of food, energy, etc., to get the economy moving again and meet the basic needs of people. Once this new currency took hold, it would not take people long to figure out how to use it. The unit of money might become known as a joulenote.

But all this would need to be done quickly, before mass starvation sets in.

Energy is already traded internationally in terms of its equivalent in gigajoules. See this. Introducing energy currency down to the consumer level would not be such a stretch.

The threat from political Islam

It is estimated that perhaps 7% of Muslims see world domination as both a good thing and attainable in the near future. If the West collapses economically, that number could greatly increase. They are already seeking to dominate through infiltration and subversion. A weakened West would present an irresistible target.

In a training video taped while he was a U.S. Army sergeant at Fort Bragg, NC in 1987 Al Qaeda spy Ali Mohamed openly states what has now become the goal of ISIS: the creation of an Islamic state.

This is a direct quote from Mohamed in that video first reported in Peter Lances's HarperCollins investigative book TRIPLE CROSS in 2006.

“Islam cannot survive in an area without political domination. Islam itself, as a religion, cannot survive. If I live in one area, we have to establish an Islamic state, because Islam without political domination cannot survive.
“We have what we call a dar ul harp, which is the world of war, and dar ul Islam, which is the world of Islam. Dar ul harp, the world of war, comprises all the territory that doesn’t have Islamic law.
“So if I live in an area of Egypt, for example, or in the Middle East, I will consider it dar ul harp. I will consider it the world of war, because actually it doesn’t apply the Islamic law one hundred percent. As a Muslim I have an obligation to change dar ul harp to dar ul Islam and establish Islamic law. It’s an obligation. It’s not a choice.”

To that danger must be combined the likelihood that many of those will acquire nuclear weapons. Suitcase nukes are already in danger of getting into their hands. If they do, we can expect them to use them to compel our submission. That might even work for some countries.  It won't work for the United States. If we start losing cities to the cries of Allahu Ackbar, there will be an irresistible demand to annihilate the entire Muslim world, perhaps using autonomous robots. That would be a tragedy unprecedented in history. But it is one we need to prepare for.

On the other side

Can we emerge into a better world on the other side of the hellhole? Yes, if we make the right decisions about our systems of governance. I have tried to set forth such systems in the Model Constitution and Bill of Immunities.

The president can restrict immigration

In a February 2, 2017, column, Andrew Napolitano posted an article, The President and Immigration, in which made the following incorrect statements:

The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.
In 1882, Congress gave itself the power to regulate immigration,

Then he goes on to say, correctly:

In 1952, Congress passed the Immigration and Nationality Act (INA), which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons. 

 But then he states:

Yet the courts have limited the president's exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant's political views, religion or colleagues.

However, such court decisions are in conflict with the discretion of the 1952 Immigration and Nationality Act, which contains this clause:

GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND EXCLUDED FROM ADMISSION SEC. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:...(27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States;   

That language provides complete discretionary authority for the executive order.

Sometimes cited in opposition to the executive order, is this clause from the Immigration and nationality Act of 1965:

2. Section 202 of the Immigration and Nationality Act (66 Foreign states. Stat. 175; 8 U.S.C. 1152) is amended to read as follows: (a ) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence, except as specifically provided in section 101(a) (27), section 201(b), ...

However, that act did not repeal or amend Section 212 of the 1952 Act, which remains in effect, and allows discretionary exclusion on grounds of national security.

Constitutional authority for immigration laws

It is not correct that the Constitution does not delegate to Congress no power to control immigration. It does so not in the Naturalization Clause, but in in the Law of Nations Clause: "Congress shall have power ... to punish ... Offenses against the Law of Nations." Entry without official consent is an offense against the law of nations. Indeed, perhaps the most serious such offense.

Like many people, I was curious about this clause and what it meant, so I did some research. Most of the leading treatises were in our online Liberty Library of Constitutional Classics at http://constitution.org/liberlib.htm. It was not easy, because the discussions were not very systematic. I finally summarized them in an article, "Original meaning of offenses against the law of nations" at http://www.constitution.org/cmt/law_of_nations.htm. I composed a partial list:

Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone's Commentaries, and prosecution of those who might violate them:

(1) No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.

Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.”

(3) Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.

(7) Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas.

And, although it was not yet firmly established with all nations in 1788,

(8) Prohibition of enslavement of foreign nationals and international trading in slaves.

Item (2) covers control of entry into a country without official permission.

So, although some prohibited discrimination on First Amendment grounds, the 1952 Act left discretion to the president on grounds of national security.

Religions, invasions, and tribal dominance

But does every movement that calls itself a "religion" qualify as one?

No. If its major tenets are to conquer the nation by infiltration and subversion, then it is political, not religious, and may be properly excluded.

History is a sad tale of struggles for dominance among competing tribal and other groups, some just for land, plunder, and slaves, others over religion. War was so entrenched that religious movements just took it for granted they would be at war with other movements, and those expectations became self fulfilling. 



Links:

1. Immigration and Nationality act of 1952.
2. Immigration and Nationality Act of 1965.
3. Rob Natelson The Constitution does indeed permit immigration caps as part of ‘the law of nations’