2018/11/04

Written Constitutions Better

Written constitutions better

For forms of government let fools contest. That which is best administered is best.
Alexander Pope

That seems to be the guiding constitutional doctrine in the few countries without written constitutions, most prominently the United Kingdom. Those who have viewed the British comedy series, Yes Minister, and Yes Prime Minister, should have gotten some insight into some of the problems with a government of a few elected officials, dominated by a professional civil service that never seems to change.

The term “shadow government” was coined in the UK to refer to the “shadow” components of the civil service appointed by previous “governments” or ministers thereof, who continue to follow the policies of those tat appointed them, and often seem more accountable to thr now “shadow” ministers of the party that appointed them, if different from the party now nominally in power, who are expected to become their new bosses if that party comes to power. In the US, which uses the term “administration” for what are called “governments” in UK parlance, the term “deep state has come to be used for what is called “shadow government” in the UK. In the US “shadow government” refers to what is sometimes called the “military-industrial complex” and its “top secret special access projects” (TSSAP), funded  without accountability to Congress or the President.

Veteran journalist Sarah McClendon once asked then president Bill Clinton about UFOs and aliens (what I call exos). He declined to answer, and replied, “Sarah, there is a government within the government, and I don’t control it.” That meant that the president himself did not have access to what government was doing about that subject.

Then senator Barry Goldwater once asked then Gen. Curtis Lemay about the same thing, and was warned “Don’t ever ask me about that again.” That doesn’t mean Lemay was not “in the loop”. Perhaps only that he was afraid of those who were.

During the Stalin era and through the time of Gorbachev the Soviet Union had a fairly good Constitution, by the standards of sound constitutional design, but the reality was something else. The Communist Party ruled. It controlled the first, NKVD, which became the KGB, which became the FSB.  It assigned a party agent to each government official, as the shadow official for that puppet official, who made all the important decisions. The Red Army was separate, but had its own shadow officials, and controlled the GRU, or military intelligence organization. Vladimir Putin is a former FSB official. The Soviet Union fell apart because the Party fell apart, and the Army fell apart, and refused to fire on civilian protesters (the only time in history when “flower power” actually worked). After that, the former FSB and GRU officials saw an opportunity to divide the spoils of the USSR and become rich oligarchs.

If two such powerful nations are not constrained by their constitutions, then what use are constitutions? Actually, during much of this era the two nations were nearly in technical compliance with their own constitutions. The problem is that the framers of those constitutions did not anticipate how the spirit of their constitutions might be violated while complying with the letter of them.

1.      The US Constitution does not provide that debt be budgeted, only spending. Agencies are limited in how much they can spend but not in how much debt they can generate. Any agency can create debt which the US government is obligated to pay, without limit. Now it would be possible in principle for a TSSAP to operate without generating debt, but it would still have to report zero, and thus to that extent reveal its existence.
2.      The US Constitution needs to forbid Congress to make anything legal tender on state territory, or issuing debt instruments in payment of debts, anywhere. That means not to make debt instruments, like Federal Reserve notes. It already does, by not authorizing it. Only making legal tender by states is mentioned. Nor should agencies, like TSSAPs, get the Treasury to print more Federal Reserve notes for its use to exceed debt budget restrictions. The Constitution needs to forbid anything other than gold oir silver coins, or energy certificates, redeemable for some number of joules of energy, to be legal tender.
3.      However, TSSAPs could also be funded by either trade, such as importing and selling addictive substances, as documented in the reports Dark Alliance, by Gary Webb, Day 1, Day 2, Day3, or by accepting donations from private parties or other nations. Some of what the US government does is to extort such donations.
4.      Constitutionally excluding shadow officials from replacing “”constitutional” officials is a more difficult problem. Most constitutional officials are going to want advisers, and it is only a small step from being an adviser to being a decider. Frequent testimony by an official to a legislature can help, but it is not obvious how to constitutionalize that.
5.       It needs to be made easier for outsiders, like grand juries, to investigate and expose official wrongdoing. Killing an outside investigator or a whistleblower needs to be treated as treason, with the death penalty.

There are more reforms, but these will do for now.

The UK is often said to have an “unwritten” constitution. That is not quite true. It is comprised of hundreds of documents, or fragments of documents, going back almost 1000 years, some written in an English that is incomprehensible to modern readers.

We have books online that contain most of the important such documents:
Select Documents of English Constitutional History, George Burton Adams and H. Morse Stephens (1904) — Collection of excerpts from the main documents that comprise the English "constitution".
Sources of English Constitutional History: 600-1937, Carl Stephenson & Frederick George Marcham (1937) — Collection of the documents that define the English "constitution".
The publisher of this second one asked us to take it down for copyright violation, which we did. A few years later, with no prompting from us, they asked us to put it back online. We we did, within a few minutes.
For many years the only place where such documents could be found was on our website, hosted in the US. Nowhere in the UK. The last time we checked this was still true. To us this seems embarrassing, and may explain a great deal why Brits think that have no written constitution. They have what passes for one, but most of them don’t know where to find it.

There have been attempts to draft a written constitution for the UK by several political science academics. No lawyers or lawmakers. They are pathetic, and haven’t gained much support. The problem with them is that they only attempt to codify most of existing practice. But the UK is a federal state, combining several countries under a single House of Commons that tries to function as a constitutional convention for a unitary republic, and it is not a unitary republic. Any well-written constitution of government needs to recognize that fact.

They also try to constitutionalize the monarchy, as some other “constitutional monarchies” have tried to do. That doesn’t work. Monarchy and constitutional republican government don’t mix. It is the essence of monarchy to be unbound to any law or constitution.

Now that does not mean the legislature can’t create a statutory office of monarch, appoint a member of the “royal” family, pay him or her a salary and expenses, require him or her to perform ceremonial functions, and tax him or her like any other citizen (not “subject”, loyalty is to the Constitution, not to the person of a “monarch”). People might think they have a monarchy, but it would only be for show. In any case, this can be done by statute and does not belong in a “constitution”. People might want to keep their monarch, but that is only to satisfy tradition.

Another instructive effort was the attempt by some political leaders, most prominently Valery Giscard d’Estaing. It was put to a referendum in the counties of the European Union, and rejected by the voters of two of them, most notably, France. That killed the project. It is not a constitution. It is too long, and written like the party platform of a socialist party, full of handouts to various special interest groups and promises that could not possibly br kept, but largely devoid of the content that a true constitution needs to have, which is a tightly written list of powers, duties, and non-powers. The proposed EU constitution spoke of vague “competencies”, by which it presumably meant subject-matter jurisdictions, without defining the powers for such jurisdictions.

The people of France deserve credit for making the wise decision to reject that atrocity.

We have written what is initially billed as a “model constitution” for the US, as how it should have been written. We put the Bill of Rights, which we call Immunitates, in a separate document, which is made difficult to amend. It is binding on all levels and every branch of government, in every country.

The final provisions of the Constitution are actually tailored for the UK, and it is ready of adoption by that country. With minor modifications, it could adapted to the European Union, and to any federal republic, like Germany, Switzerland, India, Mexico, Australia, Canada, or Brazil. With further modification it could be used by Israel. Note that selection of officials is not done by direct election, but by multistage process called fetura (Latin for breeding), which alternates random selection with merit selection. There is little scope for political parties in such a system, and people do not vote for parties, but for individuals, at the first level.

The head of state is called a leiter, the head of government the executor, and the head of defense the protector. The three roles may be combined in the same individual. Each is required to consent to legislation from a bicameral diet.

Judges, or richters, are appointed for life to a pool of richters, from which richters for particular courts and cases may be drawn at random. Richters are also selected by fetura.

Could the people of the UK be led to support such a constitution? No way to know, but someone needs to lead such an effort.

So is it better to have a written constitution? The lesson of history seems to be that it is. But constitutions or laws are not magic self-enforcing machines. Any of them can be subverted if enough people are determined to do so. The question is whether other people will have a standard by which they may oppose such subversion. How can anyone decide whether government is best administered? Ultimately it is a political decision, but good people need a standard in writing. Unwritten constitutions, like unwritten laws or contracts, aren’t worth the paper they are printed on.








2018/09/12

Disparate impact not a measure of disparate treatment

Are disparate outcomes always the result of discrimination against protected groups? Many on the left claim claim that, but are they factually correct? They seem to want to deny all evidence that discrimination is not a significant cause, and to attack anyone trying to present such evidence of differences in merit as "racist", "sexist", "homophobic", or "xenophobic" to shame them into withdrawing their evidence. But do such attacks have any merit themselves? Are differences in hiring, lending, or congressional district drawing the result of "institutional racism" or whatever is the latest popular target for scorn?

It is the thesis of this article that while there are cases of what might be called "institutional racism" at play, for the most part it is now almost insignificant, and attacks on it more often an attempt to deny selection for merit in ways the accuser doesn't like or doesn't want to accept.

The touchy issue centers on IQ, used as an estimate of general intelligence g. Despite ages of attempts to measure it in an unbiased manner, too many measures appear which attempt to measure it that tend to agree, which tend to estimate the average IQ of white Americans as 100, of Black Americans as 85, of Hispanic Americans and Native Americans as 90-95, of Chinese, Japanese, and Korean Americans, and Scots, as 105. and Ashkenazi Jews as 115. Those numbers tend to predict the success of those groups in school and in the workplace.

Those who attack those who make these points generally commit an error in logic and statistics, They try to cast them as asserting that everyone in one of these groups Has the average IQ of that group. They way to use the statistics is to compare the performance of persons of about the same IQ from any group. If those performances are about the same, and they are, then that can be taken as compelling evidence of the absence of discrimination of one group by another, contrary to the doctrine of some that there is pervasive systematic discrimination operating. The evidence is clear. There might be a little discrimination at work, and that is troublesome, but the amount is so little that it doesn't make any difference to average performance. It may then be seen as not just the best predictor of performance, but the only one that matters. That is not the result that satisfies the narrative of "social justice warriors".

A perverse effect of such disparate outcome jurisprudence is that it tends to validate the proclivity of "social justice warriors" to find bigotry everywhere, even where none exists. That enables them to shame virtuous people into irrational, and ultimately harmful, behaviors.

Notes:

1. Disparate impact was established United States Supreme Court as Ricci v. DeStefano. At the heart of the Ricci case was the doctrine of disparate-impact discrimination, which the Supreme Court first articulated in its 1971 decision in Griggs v. Duke Power Company. At issue in Griggs was the requirement that employees hired into service jobs at the power company's facilities had to possess a high-school diploma and achieve a minimum score on an IQ test. The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

The Supreme Court agreed, ruling that job criteria with an adverse or exclusionary effect on minorities — even if those criteria were "neutral on their face, and even neutral in terms of intent" — could violate the Title VII ban on race discrimination in hiring. The Court further stipulated that employers could escape liability for "disparate impact" only if they demonstrated that their adverse selection practices had "a manifest relationship to the employment in question" or that they were justified by "business necessity."

In the Ricci case, a 5-4 majority of the Court read the facts narrowly to conclude that New Haven's civil-service exam was sufficiently related to the jobs in question to survive scrutiny and ultimately sided with the firefighters who had sued to have their scores reinstated.


2. The Dead End of “Disparate Impact”, Amy L. Wax, National Affairs, Summer 2012

"In the sphere of employment, the key questions are: "Why do some people compete more effectively than others for jobs and social rewards?" and "What can be done about it?" These questions are complicated and pressing, and the law of disparate impact does nothing to address them. It in fact only distracts us from finding urgently needed answers."

3.  Why Cognitive Inequality Matters, Stefan Molyneux.

4. Heterodox Academy. Challenge political correctness.

2018/07/10

U.S. Supreme Court: Issues with current contenders

The four current contenders for the U.S. Supreme Court, including the nominee, Brett Cavanaugh, do present some constitution issues.

Unenumerated rights

The first issue is presented by the statement by nominee Brett  Cavanaugh in his acceptance speech, that he would not find rights not explicitly recognized in the main Constitution.. This has been an issue since the nomination of Robert Bork, who considered the Ninth Amendment, which calls for the nondisparagement of rights that are not "enumerated" (made explicit) somewhere in the Constitution, as amended, to be an "ink blot".There is strong opposition to Supreme Court judges doing that, especially from so-called "conservatives", who don't understand that constitutional rights are all "immunities", restrictions on the powers of government. They are not "privileges" to receive a sufficient amount of public resources, such as for education, healthcare, elder support, or any other objects of public subsidies.

Interestingly, in the case of Roe v. Wade, the Fifth Circuit decided that a "right to an abortion" was a Ninth Amendment right of a woman  "to choose whether to have children", which by the 14th Amendment, was "incorporated" for the states. This presented the Supreme Court with an apparent problem,  because there was opposition to funding unenumerated rights in the Senate. The Fifth Circuit found a Ninth Amendment "right  to choose whether to have children". So the SC tried to sustain the Fifth Circuit without embracing the Ninth Amendment. The result was an incoherent opinion. There was no way to avoid the Ninth Amendment.

It would perhaps too much to expect a nominee to venture into an extended discussion of what a "right" is, and what it is not. It is awkward to say "I will not find a 'right' to a sufficient amount of a public resource." That is too complicated for most senators. So the candidate denies he will try to find any "unenumerated" rights. That is somewhat disingenuous, but the issue needs to be discussed.

When "life" begins

One of the potential nominees, Amy Barrett, has been reported to have stated that human "life" begins at conception. That is a misstatement of the issue in Roe v. Wade. which in its essence was not about "life" nut about "personhood" because "Rights (immunities)" attach to "persons", (roles in court), not to "life", despite what the Declaration of Independence says. (That is why some activists have sought to move the commencement of "personhood" back to conception. That would be a mistake. We cannot allow each state to redefine "personhood", because if we did, a state could define some people to be nonpersons, without rights. So there has to be a uniform definition across all states if the protections of the Constitution are not to be meaningless. That is the basis for finding the right to be incorporated under the Ninth Amendment, as the Fifth Circuit did.

So when does "life" begin?

Not at conception. Each individual is the latest in an unbroken chain of life that goes back to at least the point when the first single-celled organism became a multi-celled animal, which occurred about 650 million years ago, during the pre-Cambrian era, when the surface of the Earth was covered with ice ("snowball Earth") and there was only one continent, Rodinia. We are all descended from that multi-celled organism. That is when "life" began.

So when does "personhood" begin?

This was declared by the jurist Edward Coke in the 15th century, and later restated by legal scholar William Blackstone, in the early 18th century, who provided most of the definitions for terms used in the U.S. Constitution. They held that "personhood" begins at natural birth, or induced natural birth (they had Cesarean sections in those days). Some of the states later found that personhood began with baptism, entry of a name in church records, or even later. Not at "conception", the date of which could not have been defined with any precision in those days, or even now.

Consider what would happen if we defined "personhood" to begin at conception? It would make every fetus the ward of a court, with the court having power to supervise the pregnancy. It could order the woman to continue a pregnancy, and not terminate it, under penalty of law. That would be forced pregnancy. Do we want that? Every pregnant woman chained to a bed. Anyone see the play "A Handmaid's Tale". Good way to stop everyone from having sex.

Need for uniformity

Incorporation of a Ninth Amendment right is required by the need to have a uniform definition of "personhood" (legal role) across all jurisdiction, since constitutional rights attach to "persons" and not just to "citizens" or "life".  If states could define personhood, they could deprive anyone of rights by defining him to be a "nonperson". Thus a state could find that Blacks are not persons as a way to deprive them of their liberty.Thus a state could find that Blacks are not persons as a way to deprive them of their liberty

Notes:

1. Roe v. Wade, 1221 (N.D. Tex. 1970) (“On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.”).

2. Roe v. Wade, 410 U.S. 113 (1973)

3, A Handmaid's Tale, Margaret Atwood.

4. Robert Bork and the Inkblot, Kurt Lash.

5. Constitutional views on abortion

2018/04/29

Collusion?



The word “collusion” is much in use today, not because it is a crime (it is not), but because it sounds sinister. It has generally been used in attempts to investigate whether Trump colluded with Russia in a way that would be grounds for inpeachment and removal of Trump from office. That would not put Hillary Clinton in that office. It would put Mike Pence there, and Trump would undoubtedly continue to rule by telling Pence what to do, in much the way the Communist Party ruled the Soviet Union before it fell, by having a party official for every government official, telling him what to do. Or like Putin continued to rule Russia while Medvedev served in that office. Impeach Pence. Being guided by a shadow government is also not an impeachable offense, or every president since 1913 would be in violation. Remove Pence and the presidency just passes to the Speaker of the House. Sorry Hillary, but none of these things leads to a do-over of the 2016 election. Not before 2020.

So what is the reasoning of Hillary supporters? It seems to go like this:

1. An excellent candidate like Hillary Clinton could not possibly have lost an honest election.
2. Therefore, the vote count had to have been hacked. But who has the means to do that? Only Russia. Perhaps.
3. Would Russia have wanted to elect Trump? Not without a strong inducement. Perhaps the return of Alaska, or help in regaining control of Eastern Europe. Would anyone, even Trump, have had the means to offer such an inducement? Not really. No US. president has such power. Not even paying off enough Russian oligarchs would likely be enough. (Give them all our Uranium? That’s already been done. By Trump’s opponent.)

Early in this controversy some of the intelligence agencies, led by the CIA, reported that the 2016 presidential election had been :hacked”, but not in ways that changed any election outcomes. This was an irresponsible report to make, because most computer=naive people will seize on that word to conclude that election outcomes were flipped. The use of that word has fueled the entire “Russia hacked our elections” narrative. It should be noted that those people have not sought to make vote-counting systems more difficult to hack, but to attack the suspected beneficiary of such a hack and to try to overturn the results of the 2016 election. It seems they don’t care about flipping elections in favor of Democrats. Only in favor of Republicans.

2016 election outcomes were not flipped.

There are too many different kinds of voting machines in too many voting precincts in more than 3000 counties. There are no centralized vote counting machines, although there are machines that add the number of votes from each precinct. But a simple recount can reveal if there are any discrepancies. Much has been made about voting machines being hackable, but there are too many voting machines of different makes and models. Hacking an election remains a potential threat, but the solution remains voter verifiable paper ballots, such as those used in Brazil. Absentee ballots are a greater path to corruption. The greatest threat is still trucking in millions of illegal entrants and inducing local voting officials to accept them. That can only be done in a few areas, however. Requiring state-issued voter photo ID is the best way to prevent that, although it has to be made easy to get them.

This point is well -made in an article in Fortune, 5 Reasons Why Hackers Can’t Rig the U.S. Election, by Jeff John Roberts, August 9, 2016.

What should have been done

1. The special prosecutor, Robert Mueller, should never have been charged to find “collusion” between the Trump campaign and Russia without specifying a reasonable deadline for reporting his findings.

2. He should have been charged to find only successful “collusion” to change the results of the 9016 election, not “collusion” of any kind.

3. He should have charged only with the above, not with finding violations of other statutes, especially 18 USC 1001 (which is arguably unconstitutional as usually applied). Only seek indictment of perjury under oath.















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