Thoughts on Iraq

The last two elections were not referenda on Iraq, because they were not framed as a change in direction toward any particular policy alternative, not even immediate withdrawal. There was and is dissatisfaction, but no clear alternatives offered other than "to do something" differently. That can cause people to vote against incumbents, but it doesn't count as a referendum in any meaningful sense.
Yes, with the advantage of hindsight, we should have done certain things differently, including perhaps not going in at all, but it is important to understand what we missed, and when I say "we", I mean almost all of us, because most of us who had much of an opinion did think it seemed like a good idea at the time to get rid of Saddam. (A few of us opposed going in without a constitutional declaration of war, but the odds are that Congress would have voted for one.)
One of the things we didn't miss was the now common view that the people of Iraq are not ready for republican self government. The fact is that 94% of the Iraqi people of all sects are no less ready to govern themselves in peace than most of the people in every other country. They might not have enough sense to vote for "seculars" instead of for "sectarians", but that was something they could eventually have learned. No, what we missed, and it is important, was that remaining 6%.
Or to put it another way, Saddam did indeed have weapons of mass destruction, just not the kind we were looking for. They were that 6%, who Saddam had reduced to a state of barbarism that he very likely calculated would destroy the country when he was no longer around to keep them under restraint. What is happening in Iraq now followed our deposing of him, but would have happened anyway when he eventually died. We were destined to go in to clean up the situation, sooner or later. We just moved up the date by invading.
What perhaps we most missed is the fact that it only takes a small minority of determined barbarians to destroy a civilized society, and it doesn't matter how civilized the rest of the society might be. It is easier to destroy than to create, and no society is really ready to withstand that kind of destructive force. It is worse than most natural disasters. Historically, most societies that have faced similar internal barbarism have either descended into brutal despotism, the barbarians usually becoming the despots, or the barbarians were wiped out, usually along with a lot more innocents. Some of these "burnouts" have reduced the populations of countries by as much as 90%, and destroyed the entire civilized infrastructure.
The trouble is that most Westerners don't really understand bad guys like Saddam. He was expertly playing a "Samson" or "apres moi" gambit. He made Iraq a monument to himself that would self-destruct when he was gone, and trigger a chain of events he expected, with some good reason, would sweep the Middle East, deny oil from that region to the world, trigger a world war for oil and other resources, and bring down the industrialized nations and Western Civilization. We can argue that it would not get that far, but that it was what he tried to set up to happen is all too plausible.

So when it comes to considering our options, let us remember the answer Chinese Premier Chou En-Lai gave to the question, sometimes reported as being asked by Henry Kissinger, "What were the consequences of the French Revolution?" He is reported to have replied, "It's too soon to tell." We won't know whether there is anything else we could do or how it might turn out. History is not a game like chess where we can evaluate the state of the game at any given point. We are flying blind, and while we can try to do the right things, we can never be sure we may not be doing the wrong things, whatever we do.

Constitutional views on abortion

The abortion issue was misframed in the badly-argued Roe v. Wade case, which could not have been decided otherwise given the way it was argued.

The Supreme Court was hearing on appeal a case decided for the plaintiff (Roe), on the grounds that she had a Ninth Amendment right, incorporated on the states, to decide whether and how many children to have. That decision was correct, and the reasoning was correct. The Supreme Court should have just affirmed the decision, and the opinion, of the Fifth Circuit. Instead they took the case, and then struggled to find another way than the Ninth Amendment, to reach the same conclusion. The result was an exercise in sophistry. There is no good way to avoid the Ninth Amendment, to which there is intense opposition in the legal mainstream.

Part of the problem for opponents of abortion with the Fifth Circuit holding was that it "incorporated" the Ninth Amendment over the states, making it a federally justiciable everywhere.

Note however that the Fifth Circuit holding was only that a woman could terminate,the pregnancy, not that she could kill the fetus, unless she had no alternative. In principle, if the fetus could be removed from her body without killing it. that would be compliant with the holding. That is similar to the right to evict a trespasser, while taking care not to kill him. However, there is not presently a way to do that for a fetus. Should medicine eventually find a way to save the fetus, a state could require that be done. But there is also a Ninth Amendment right not to pay for rearing a child, so the state would have to bear all costs.

A person has rights, and a non-person doesn't, so if the issue is framed only as a contest between the rights of a person and a non-person, the person wins. However, (state) law may protect things that are not persons, essentially as a kind of public property. It may also restrain the ways a person with superior rights may exercise those rights against another entity, person or non-person. Thus, the owner of a piece of property who has consented to another person visiting him there, then orders him to leave, does not thereby immediately acquire the right to shoot him. He does not have the duty to allow the visitor to stay if the visitor will die of exposure if evicted, but he should still be alive when he is evicted. Thus, without violating the rights of the pregnant person, a state could require that the abortion be conducted, if possible, in a way that would leave the fetus alive at the point it is ejected, presumably into the care of others. However, this requirement could not constitutionally "burden" the right of the person to eject. It would have to be at least as easy as killing the fetus, and any additional expense would have to be borne by the party seeking live termination. Now, admittedly, there is presently no way to do that in most cases, but as a theoretical proposition, it is constitutionally permissible.

One problem with the debate on abortion is that it tends to gloss over the real issue: do we really want to criminally prosecute someone, the pregnant female, her abortionist, or perhaps even the guy who got her pregnant, with deprivation of liberty, or even life (as first-degree murder), for terminating a pregnancy (even if the fetus is left alive)? If a pregnant female hints to someone she is considering having an abortion, do we really want to lock her up or appoint a guardian to supervise her to prevent her from aborting? Can we really get a jury, if it is not stacked with anti-abortionists, to convict? Who is going to pay for the prosecutions, the incarcerations, the executions, and perhaps for the unwanted children who will be born if the measures to prevent abortion happen to be successful? How is any law enforcement agency even going to be able to investigate or prove cases if having an abortion becomes as easy as taking a pill that will be available either over the counter or on the black market?

Those who oppose abortion seem to try to avoid answering those questions. I have tried to find out why, and my conclusion is that for most of the stronger proponents of criminalizing abortion, the real motive is to punish women for having extramarital sex, by forcing them to either rear an unwanted child, watch it suffer and even die because she is inadequate for the task, or suffer the pain of first bonding to it and then having the state take the child away from her (and perhaps deliver it into to the clutches of pedophile "foster parents". (Does any of this resemble Prohibition or the War on Drugs?)

The proper libertarian position on this issue is that government is incompetent to intervene without making a bad situation worse, and that the way to prevent abortions is to encourage birth control, or abstention, at least for minors and mental incompetents. It is not a problem within the competence of government. It is a problem for social pressure and moral suasion.

There are no reliable statistics on the question of how the legality or illegality of abortion impacts abortion practices, so it is largely a matter of conjecture. However, anecdotal evidence from those involved in the field indicates that the impact of Roe v. Wade, making abortions "legal", and therefore presumably easier, was to shift the date of abortions back to an earlier stage of pregnancy, especially to the first trimester. It has also shifted the practice away from lay abortionists to physicians and clinics, reducing the mortality of the women. There is also evidence that the increased rate of abortion has had a significant impact on the crime rate and psychotropic dependency, as the reduction of juvenile crime and drug addiction has tracked the reduction in unwanted births, to the extent we can get reliable data. Although abortion may not be beneficial for the fetus, it appears to be beneficial, on balance, for almost everyone else and on society as a whole.

I have made a good-faith effort to find any ways that government intervention has or could make the situation better. I have found some theoretical ways, but none that work in practice, other than providing contraceptives and training in their use, or putting young people under 24-hour supervision, such as keeping them in gender-segregated boarding schools. Even government suasion, such as waiting periods, counseling, etc., appears to be counterproductive. Reduced funding tends to shift terminations toward later stages of pregnancy, and increases the rate of mortality and morbidity among the women. Any responsible policy analysis of this or any other issue must consider all the costs and benefits, not just those that support a particular position. It is easy in this field for emotion to distort judgment, and we must always be on guard against this.

As for leaving the matter to the states, it does not work to allow each state to have a different definition of personhood, given that all the rights recognized, explicitly or implicitly, in the Constitution, attach to persons, other than the rights of citizenship (voting, holding office). All that any state would have to do to deny someone any right would be to change their definition of personhood to exclude that individual, as was done (inconsistently) to justify slavery. Now, as I have pointed out in previous posts, a state may protect things without declaring them to be persons, but not to the extent that it imposes an undue burden on the exercise of a right by a person. That only leaves the possibility of legislation requiring abortions to leave the fetus alive if not unduly burdensome on the woman, but as yet this is infeasible in practice.

People who come to the abortion issue from a religious standpoint have trouble accepting that "personhood" is a matter of convention. It is not something that is somehow defined by nature or scripture. It is defined by law and legal practice, and has to be, because it is only "persons" (legal roles) that can meaningfully be deemed to have legal rights, powers, and duties. Too many people try to confuse the issue by framing it in terms of "human life" or other such term, but that is not a proper legal term.

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decisionmaking, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

What the issue comes down to is that not every instance of something that can be called "human life" is a person, and a "person" is not necessarily a human. If a human female gave birth to an individual that had the DNA of a human but managed to express that DNA as a cocker spaniel, with all the capabilities and limitations of a cocker, and therefore not the competences of a person, the law would have to treat it as a nonperson. On the other hand, we already find corporate entities to exhibit the competences of personhood and treat it as a person. At some time in the future, we could have a robot, a space alien, or a chimpanzee genetically enhanced to be able to speak and reason like the average human, appear in court with a legal claim and the expectation of receiving redress of its grievances. A judge might dismiss the claim of a robot or a chimp, but if the space alien has a saucer hovering overhead with its beam weapons directed at the courthouse, one suspects he would find its personhood apparent.

So what it really comes down to is whether a being has a gun or the support of something with a gun, to defend its rights. Law and politics, in the end, respects power and the willingness to use it. That comes down to money and votes.

A constitutionally principled and competent position on abortion is that rights belong to legal persons, that in a court contest between a person and a nonperson the decision must favor the person, that at the time the Constitution was ratified personhood was defined by convention to begin at birth and not earlier, and that there is no consensus or sufficient support to amend the Constitution to change the definition, therefore we hold that while a state may encourage pregnant a woman to terminate a pregnancy in a way that allows the fetus to survive, this must not be done in a way that unduly burdens her right to do so.

A few points need to be emphasized:

Congress has no authority under the Constitution to define when or how personhood begins or ends. That was done by the ratifiers of the Constitution when they froze the prevailing definition as of the time of ratification, which was that it begins at birth (or even somewhat after birth, such as baptism, entry into the family Bible, or registration with the county recorder). If Congress had such a power the majority party could define members of the minority party as "unpersons" not entitled to rights or the protection of the law. As much as some people might like to legislate against abortion, violating the Constitution is not the way to act against it.

Denying funding is certainly constitutional, but removing jurisdiction from federal courts is not. This approach is based on the wrongful decision in Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). See the decision at http://www.constitution.org/ussc/074-506.htm and my commentary at http://www.constitution.org/ussc/074-506jr.htm . The Constitution only grants Congress authority to reassign jurisdiction between original and appellate, not to remove jurisdiction from all federal courts for certain issues. For any judicial issue there always has to be a court somewhere that can hear it, even if it is only the Supreme Court, and the Supreme Court always has at least appellate jurisdiction. Congress also has no authority to recognize the authority of the states to do anything, like some kind of license. The states do have the authority to protect the unborn in certain ways, just as they have the authority to protect trespassers from being summarily shot without due notice or an opportunity to leave peacefully. They could similarly require that, if it can be done without unduly burdening the right of the woman to terminate her pregnancy, the termination leave the fetus alive. That may not be medially feasible today in most cases, but with medical progress it may become possible. Some might like to punish women for getting pregnant irresponsibly by forcing them to carry to term, but as a matter of constitutional law we have to make more subtle decisions.

Passing a statute criminalizing abortion would merely drive it underground, as it was before Roe v. Wade, when it was difficult to get juries to convict. Statistical studies show that the rates of abortion are about the same regardless of whether it is legal or illegal. Like the prohibitions on alcohol and psychotropic substances, such laws are unenforceable in practice, and do more harm than good. Law is not some kind of magic. Passing a law against something is as likely to cause more of it than less. Some interventions are simply beyond the competence of government, and we need to recognize those limits and use other measures, like education and social pressure, to do what government can't.

A law is a command from those authorized to issue it to the members of the public body bound to obey it. To be a law it must continue to mean what it meant to the lawgiver when it was issued, to the extent that meaning can be discerned upon investigation. It is not a stretch to interpret "writings" to include all kinds of communication of information, or "arms" to include all the kinds of tools that might be used by military or militia to accomplish their proper missions (from ammunition to computers). "Mile" has essentially the same meaning. All we have done has been to adopt more precise measurement operations.

Now consider some other constitutional terms, such as "jury" or "due process", and posit extreme departures from original usage. Are we really free to redefine those terms? The U.S. Supreme Court sustained the power of a state to try a case with a jury of as few as six in Williams v. Florida, 399 US 78 (1970), but I regard that as a wrong decision, if the term in the Florida Constitution is considered to have the same meaning the term has in the U.S. Constitution, which can be presumed if it is not redefined in the Florida Constitution. But suppose "jury" were interpreted to be a single individual designated by the Party (as in Orwell)? Or suppose "due process" were interpreted to mean, as it did for the Queen of Hearts in Alice's Adventures in Wonderland, "Sentence first--verdict afterwards." http://www.gutenberg.org/files/19033/19033-h/19033-h.htm . The defenders of that interpretation might argue that it is "due" because it is uniformly applied to everyone, but I would argue that it unconstitutional because it does not provide the minimal level of protection of the rights of persons that was the standard when the Constitution was adopted.

Now we get to the term "person". Are we really free to redefine it by contemporary usage? The slave states tried to do that for blacks to maintain slavery, although they tried to do it using the term "citizen" rather than "person" and attaching rights to citizenship instead of personhood, which is contrary to the usage of those terms in the Constitution. Proponents of making abortion illegal might try to redefine the term to include more objects, but if we allow that we must also, logically, allow redefinition to include fewer. To allow states to each adopt their own definitions would be to allow them to define "person" to exclude humans of German descent, or perhaps members of the opposition political party, making it legal for any person to kill anything not a person. Be careful what you ask for.

We can detect the onset of brain activity. For most fetuses it is a sudden event that occurs at about the 145-day point. "Like a lightbulb", said one fetal neurologist. The idea of moving the commencement of personhood back to that point has been proposed, but it would require a constitutional amendment.

Suppose we only redefine the term "person" to begin at some point before birth. That would mean that if there were any reasonable suspicion that the woman might terminate the pregnancy, the court would have the duty to confine the woman under constant supervision of a guardian ad litem to deprive her of the opportunity to abort, and charge the woman or her spouse the costs of the court-appointed supervisor. If anyone has been following what has been happening in family courts recently, this is not an implausible scenario. Be careful what you ask for.

I remember the days when the "conservative" position was to support abortion as a way to reduce crime, thought to be increased by producing more unwanted children, a hypothesis that has recently been supported by research). The reality is that if there is not more of a consensus to make it a crime than we have in this country today, anti-abortion criminal laws would be unenforceable, as they were before Roe v. Wade. What we don't need is yet more unenforceable statutes.

Considering personhood to begin at birth may not be a perfect solution from all viewpoints, but we can reasonably maintain that it is the worst solution -- except for all the others.

It is not a stretch to interpret "person" to include android robots, animals enhanced to have humanlike intelligence and ability to speak, or space aliens, but to do that we would be invoking a bundle of competences that they have and a fetus does not. We are still stuck with the meaning of the term for humans in 1787 that personhood begins at birth (or somewhat after).

Southern slaveholders denied rights to blacks by essentially adopting legal definitions of personhood that were different from the definitions used in other states. They tried to do it using the term "citizen" when they meant "person". If they had known what they were doing they would have used "person" and the issue would be more clear. But now that people are coming to use the words with greater precision, once we open the way for the states to redefine it there is nothing to prevent a local majority to redefine it to exclude anyone they don't like. How would you like it if some day those without social security numbers were defined as "nonpersons" subject to being killed by anyone on sight, and some bureaucrat deleted your SSN from the system?

I wouldn't be surprised if half of all pregnant women have thought about terminating the pregnancy, and hinted that to someone, which would create reasonable suspicion, and trigger confinement and 24/7 supervision. Consider the figures from http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm . You are probably looking at such draconian interventions for 1million women a year at a cost of $50,000 each, or $50 billion/year. Are you willing to pay taxes to do that? I suspect there would also be a cost from pregnant women assassinating the judges, supervisors, and other persons who tried to impose that kind of slavery on them.

Abortionists or even women acting alone have always been able to induce abortions throughout the gestation period without surgery, but at some risk. Surgery is safer but not necessary. Besides, long before Roe v. Wade juries were refusing to convict, especially when there was at least one woman on the jury.

There is no constitutional authority for the federal Congress to prohibit abortion, or any other medical procedure. The only constitutional federal crimes are treason, counterfeiting, piracy, felonies on the high seas, offenses against the laws of nations, enslavement, violations of rights by state agents, or impeding voting on certain grounds, such as race, gender, age 18 or above, nonpayment of a tax, etc. That's all. All those federal statutes prohibiting other things are unconstitutional. See http://www.constitution.org/col/02729_fed-usurp.htm .

Concerning whether the Supreme Court had jurisdiction to decide Roe v. Wade, the 14th Amendment is usually cited as having extended the jurisdiction of the federal courts to cases between a citizen and his state over a claim that the state denied a fundamental right of the citizen. That amendment was indeed intended to clarify the question of whether adoption of the Bill of Rights, except for the First Amendment, made such cases "federal questions" within the jurisdiction of federal courts. The decision in Barron v. Baltimore had been that they did not. I argue in my commentary on that case that it was wrongly decided. The 14th Amendment only clarified original meaning and understanding. It didn't change it.

The Constitution did not establish any mechanism other than that each and every person has to interpret and apply the Constitution himself, in any situation in which he might find himself, and may not relinquish the responsibility for doing that to supervisors, legal counsel, or even judges. If you read the opinion in Marbury v. Madison carefully, you will find that we are all on our own. One can say that this is a design flaw in the Constitution, but it is not. It is the only way a constitution can work, and if that is too much of a demand on citizens of a republic, then there is no constitutional design that can work, and a constitutional republic is impossible.

The founders adopted a system of constitutional republican government to surpass the limitations and defects of the old common law system, which incorporates nonconflicting parts of the common law, but established a completely new foundation on a historical act of ratification, not on custom, tradition, or precedent, except mainly to provide the definitions of key terms.

Opponents of abortion sometimes look for support to a quote from founder James Wilson, in Vol. 2 of his Works:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb.⁹⁸⁰ By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

980. 1. Bl. Com. 129.

However, that footnote 980 is to a passage in William Blackstone's Commentaries on the Laws of England:

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.6

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law a soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter.o(6) But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemesnor.^p

(6) But if the child be born alive, and afterwards die in consequence of the potion, or beating, it will be murder. 3. Inst. 50. But quere, how shall this be proved?

p 3 Inst. 50. q Stat. 12. Car. II. c. 24. r Stat. 10 and 11 W. III. c. 16.

So Blackstone's comment is in turn based on Edward Coke's Institutes (3 Inst. 50).

If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder: but if the childe be born alive, and dieth of the potion, battery or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.

So it is not murder, because not yet a person, if the death occurs before natural birth. It is a common law misdemeanor, a "misprision", in which the woman, not the fetus, is the victim. It should be understood that in that time, it could be held a common law offense to assault oneself as well as another. That is the basis for laws against suicide.

However, common law crimes are forbidden by the constitutional prohibitions on ex post facto laws. See my comment on United States v. Hudson, 7 Cranch 32 (1812). The way is still open for a state to pass a law against abortion as an assault on the woman, but if she doesn't complain, we come back to Blackstone's "quere, how shall this be proved?"

______

In response to those who call for overturning Roe v. Wade, it is worth asking what the effects of that would be. The issue in the case was not a statute making it a crime for a woman to have an abortion, but for a physician or other person to assist in it, although it was treated as though the pregnant woman were the party targeted with prosecution, which is why it was argued to be moot after the period of the pregnancy concluded. We have to consider the following:

1. There is little or no drive to make the woman a criminal. It would also be nearly impossible to get juries to convict, nullifying the statutes.
2. The lack of medical assistance is not going to prevent most abortions, just make them more dangerous. Do we really want to criminalize physicians trying to minimize the danger? Juries are unlikely to convict those as well.
3. Is it really good public policy to make abortions more difficult or expensive? That has never prevented them.
4. Is it really true that there are plenty of people willing to adopt unwanted pregnancies? Not kids from disadvantaged backgrounds. Not if the kids are brain damaged or sociopathic. I know of people who have adopted children with the ever more common oppositional defiance disorder (ODD) (presumably caused by the birth mother taking drugs) for whom managing the kids is a nightmare.
5. Is it really punishing the mother to make her care for the child? I know many who welcome more unwed babies for the welfare benefits. (Most of which eventually become criminals.)
6. Advocates in this field should not presume that all affected are prosperous middle-class persons. Abortion appears to be a major way to combat multi-generational poverty. Do we really want to be overrun by desperate delinquents?

Links:

1. Legal issues of Roe v. Wade, Daniel J. Castellano, 2009, 2011.
2. “Sua cuique persona?” A Note on the Fiction of Legal Personhood  ... , Jeanne Gaakeer, https://doi.org/10.1080/1535685X.2016.1232920
3. “An Artificial Being”: John Marshall And Corporate Personhood, Christopher J.Wolfe, Harvard Journal of Law& Public Policy [Vol.40]
4. The Handmaid's Tale, Margaret Atwood, 1985. Amazon, Hulu , Wikipedia .
5. Originalism does not support social conservative agenda https://constitutionalism.blogspot.com/2016/12/originalism-does-not-support-social.html

Congressmen routinely violate duty under Constitution

I spent 1970-72 in Washington, DC, working with members of Congress and their staffers, and have had frequent contacts with them since. The subject of constitutional compliance has often come up. When I challenge the constitutionality of some proposed legislation, I often get that "You are the first person to contact us with that point."

Sen. John Glenn (D-OH) once admitted he disregards and has broken his oath of office to uphold the Constitution.

On July 16, 1996, the Senate Committee on Governmental affairs held hearings considering a bill to require Congress to specify for each new law which section of the Constitution gives it authority to pass the law.  Sen. Glenn spoke out strongly against this requirement stating, "Why, if we had to do that we could not pass most of the laws we enact around here."  He stated that  the Clean Water Act, Endangered Species Act, the Americans with Disabilities Act and others could never have been passed if Congress had to find authority for them in the Constitution.  He declared, "Americans just want us to solve America's problems of health and safety--and not be concerned if they can be constitutionally justified."

This is typical of the attitudes of members of congress, who, although few of them have a deep understanding of the Constitution, disregard it because their constituents don't make constitutional compliance a leading issue on which they decide who to vote for.

They also have, on more than one occasion, expressed to me (but not for attribution) that Congress passes many provisions that they know are unconstitutional (some have estimated more than 2000 per year), but they rely on the fact that the federal courts, and especially the Supreme Court, don't have time to hear cases on more than a few of those. In other words, their strategy is to flood the legal system with so much unconstitutional legislation that most of it will never be successfully challenged in the courts. This problem is the reason why many members of the federal bench have been pushing back, trying to avoid encouraging people to take constitutional issues to court, and encouraging them to take them to Congress instead.

I have asked several members about this and one of them once said to me, "If I only voted for things that are constitutional I wouldn't be re-elected." Others have said the same thing in similar words. So most of them know that much of what they are doing is unconstitutional. When I point out that Rep. Ron Paul gets re-elected by about 70% even when he is opposed, they seem baffled at how that can happen. I reply that Paul's constituents are not refugees from a libertarian planet. They are typical of people in other congressional districts, and that while they might wish Rep. Paul would "bring home the bacon" to their district, and say so, they also respect his adherence to the Constitution and vote for him despite their pocketbooks.

What the voters lack are leaders with some stature, such as constitutional scholars, to raise the issue of constitutional compliance for much of the legislation before Congress. If the question is framed as a choice between constitutional compliance and their pocketbooks, they often will vote for the Constitution. But their election choices are seldom framed to them in that way.

Stettinius v. United States shows original meaning of "criminal jury trial"

The case of Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322, needs to be studied to understand the original meaning and role of the jury.

There is one paragraph in this 1839 case which is key in the support of my position that the original standard for what a criminal jury trial was included arguing issues of law in the presence of the jury:

It is admitted by all who have advocated the right of the jury to decide the law in criminal cases, that that right extends only to the finding of a general verdict upon the general issue. When the issue is on some collateral point, it involves no question of law, but is confined exclusively to facts. When the verdict was upon such a collateral issue, there was no attaint. That process lay only in cases where the jury undertook to decide the law by a general verdict on the general issue. Whenever, by the pleadings, the law was separated from the fact, so that each could be seen and considered by itself, no [**15] pretence that the jury had a right to decide the pure unmixed question of law, has ever been set up by the wildest advocate of the rights of juries. In the trial of the impeachment of Judge Chase, Mr. Randolph, one of the managers of the prosecution, in speaking of this right of juries to decide the law, calls it "their undeniable right of deciding upon the law as well as the fact necessarily involved in a general verdict." He said, also, "There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application, by the court, of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him." Speaking of the prior decisions of the same points of law in some former cases by other judges, Mr. Randolph said, "They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law after it had been fully argued by counsel on both sides." Again, he said, [**16] "I do not deny the right of the court to explain their sense of the law to the jury, after counsel have been heard, but I do deny that the jury are bound by such exposition." Mr. Early, another of the managers of that impeachment, said, "It is no part of my intention to deny the right of judges to expound the law in charging juries; but it may be safely affirmed that such right is the most delicate they possess, and the exercise of which is to be guarded by the utmost caution and humanity." Mr. Edward Tilghman, who was examined as a witness in the trial of that impeachment, testified, that in Pennsylvania, the judges, "in their charge to the jury, state the law and the evidence, and apply the law [*1328] to the evidence. The court generally hear the counsel at large on the law; and they are permitted to address the jury on the law and the fact; after which the counsel for the state concludes. The court then states the evidence to the jury, and their opinion of the law, but leaves the decision of both law and fact to the jury." In Croswell's Case, 3 Johns. Cas. 346, the counsel for the defendant admitted it "to be the duty of the court to direct the jury as to the law; and it [**17] is advisable for the jury, in most cases, to receive the law from the court, and in all cases they ought to pay respectful attention to the opinion of the court; but it is also their duty to exercise their judgments upon the law as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions." The same counsel said further, that "in civil cases, the power of the court to decide the law, is absolute and conclusive, and may be rightfully so exerted. That in criminal cases, the law and the fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact." Judge Chase, in his answer to one of the articles of impeachment, says, "He well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law; and that hence results the power of juries to decide on the law as well as on the facts in criminal cases." [**18] "But he also knows, that in the exercise of this power, it is the duty of the jury to govern themselves by the laws of the land, over which they have no dispensing power; and their right to expect and receiver from the court all the assistance which it can give for rightly understanding the law. To withhold this assistance in any manner whatever; to forbear to give it in that way which may be most effectual for preserving the jury from error and mistake; would be an abandonment, or a forgetfulness of duty, which no judge could justify to his conscience, or the laws." And in the opinion which the court had prepared in the Case of John Fries [Case No. 5,126], they said: "It is the duty of the court, in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in this, and in all criminal cases, both the law and the facts, on their consideration of the whole case."

______
Now the above is not a holding, in that it was not the basis on which the case was decided (in favor of Stettinius, on the grounds the statute did not apply to the facts in the case). However. it does contain undisputed assertions that can be reasonably treated as declaratory of the law, and such dictum cited as such, just as the dictum in Marbury v. Madison

An earlier case, United States v. Fenwick, 25 F. Cas. 1062 (1836); 4 Cranch C.C. 675, makes a similar point, that the defense in a criminal trial has the right to argue the law to the jury (along with the bench and rest of the court), up to the point where the bench rules on the motion, and that such ruling is not to be made until all parties have concluded their arguments.


Sparf v. Hansen, 156 U.S. 51, 64 (1895), http://www.constitution.org/ussc/156-051jr.htm , did not overturn Stettinius. It only briefly mentions the case and does not contradict it:

These principles were applied by Judge Shipman in United States v. Riley, 5 Blatchf. 204, 27 F. Cas. 810, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322. They were also applied by Judge Jackson, in the District of West Virginia, in United States v. Keller, 19 F. 633, in which case it was said that although an acquittal in a criminal case was final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in order to discharge its whole duty, must take the law from the court and apply it to the facts of the case.

______
Shepardizing the case finds no other cases which could be construed as overturning Stettinius, so it may still be cited in court.

The URL for Stettinius is http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm and for Fenwick is http://www.constitution.org/usfc/fc/25/US_v_Fenwick.htm .

Jury size matters

In my article, "Mansfieldism Reconsidered", section "Trial by Jury", http://www.constitution.org/lrev/jdr/mansfield_recon.htm I state:

A unanimous verdict of twelve makes it more probable than not that there will be at least one juror who does not think the law makes the alleged act an offense if there is not at least a 94% level of support in the community for acts of that kind being offenses.

The key idea is that the jury system is not based on the assumption that the public from whom the jury is selected will be uniformly wise and skilled at jury duty. If it were, there would be no need for a jury of more than one.

Historical analysis indicates twelve was not just a "magic number", but a number arrived at through experience trying other sizes. The use of the number 15 for Scottish juries appears to be a legacy of that experimentation. And the ancient Athenians tried juries of 201 and sometimes 401.

Twentieth century "law office history" seems to hold that the size of the jury is to provide a "cross-section" of the public. In Williams v. Florida, 399 U.S. 78 (1970) the U.S. Supreme court sustained a state jury of less than twelve persons, finding that six was sufficient to provide a "cross-section". But from the experience of lawyers in jurisdictions where they have a choice of jury size, defendants usually choose twelve, which suggests a different dynamic, and that a jury of twelve provides a higher level of protection of rights, not just representation of diverse views.

Jury systems were established because the public could not trust the presiding officers of courts, the "bench", any more than they could trust the parties and their lawyers. Juries were thought to be less susceptible to being corrupted because they are assembled at random and serve for too brief a period of time to be easily compromised. On the other hand, juries composed of randomly selected citizens were also not as expert in deciding legal questions, and if they are not called to jury duty often enough to gain experience, the system has to rely on the attributes they bring with them from their ordinary lives. Justice systems tend to hold visions of things like a "reasonable man", an "ideal judge", or an "ideal juror". If any random selection of jurors drew nothing but ideal jurors, willing and able to exercise sound judgment and perceive the attempts to deceive them, so that they never render a verdict that would be a miscarriage of justice, then there would be little controversy about either using juries to bring verdicts, or the size of them. The system does not and can not depend on every citizen in the jury pool being ideal jurors, but it can work if a sufficiently large proportion of that pool are "adequate" in their judicial attributes, sufficiently resistant to miscarriages of justice, and the jury size is large enough to make it sufficiently likely that at least one such adequate juror will be selected, and, in a criminal case, the verdict is required to be unanimous.

Consider the formula

n^j = r

where n is the proportion of the population from which the jury is drawn who don't know or care how to be good jurors, j is the number of jurors in a jury, and r is the conviction rate.

Let's look at an array of several values of n, j, and r:

.98	6	0.8858
.98	12	0.7847
.96	6	0.7828
.96	12	0.6127
.94	6	0.6899
.94	12	0.4759
.89	6	0.4970
.92	12	0.2470

If the values of n can be taken as the proportion of the jury pool who does not take its jury duty seriously, then 1 - n are the proportion of those who do. That means for the jury system to render justice, for a jury of 6 we need to educate at least 11% (1 - .89) of the population to be good jurors, whereas for a jury of 12, we only have to educate 6% (1 -.94). In other words, the number of jurors required to make a jury can make all the difference between whether our efforts at public education are feasible. Reaching 11% is not just twice as difficult as 6%. It is likely to be 100 times as difficult. If civic education is not sufficiently productive of adequate jurors, then the remedy might be to increase the size of juries, perhaps to a number well beyond 12.

The historical background for the 12-person jury lies in English common law, where crimes were not in general defined by statutes, but by custom and tradition. Therefore, a jury was not just deciding whether the accused actually did the deed, but whether the deed itself was a crime. Without doing a mathematical analysis, their experience would tend toward a system in which there was at least 94% community support for a deed of a certain kind being a crime, if only to avoid public protests from those who did not support that.

The remaining challenge, then, is to prevent voir dire from being conducted in a way that strikes the few good jurors. To the extent the prosecution can identify them, the number of strikes it gets is sufficient to get juries that would convict a ham sandwich.

Going further back historically, the model for the English grand jury that developed in the 12th and 13th centuries was the Hebrew  סַנְהֶדְרִין sanhedrin, which was itself modeled during the time of Greek domination on the Greek  συνέδριον, synedrion, "sitting together," hence "assembly" or "council". It consisted of twenty-three men appointed from every major city in the land of Israel. The Mishnah arrived at the number twenty-three based on an exegetical derivation: It must be possible for a "community" to vote for both conviction and exoneration (Numbers 35:24-5). The minimum size of a "community" is 10 men (Numbers 14:27). One more is required to achieve a majority (11–10), but a simple majority cannot convict (Exodus 23:2), and so an additional judge is required (12–10). Finally, a court should not have an even number of judges to prevent deadlocks; thus 23, which became the number for a grand jury. The English reduced this to a petit (small) jury of a minimum of 12 that had to swear they believed the defendant's oath, in a system called compurgation, and later to render a verdict (from Latin veredictum, "to say the truth"). That led to the requirement for a 12-person trial jury that had to be unanimous, at least in criminal cases.

Right to petition does not entail a right to get an answer

The suit of the We the People Foundation (WTP) v. U.S. makes a flawed argument, that the right to petition entails the right to get an answer. It does not. The right to petition is only the right not to have a petition penalized or obstructed.

1. There is a right to answers to some kinds of questions, but not all kinds. The kinds to which we have a right include questions to officials of the form "What actions have you committed?" and "How and how much public funds did you expend?" An example of a kind to which we do not have a right is "What is the time of day?"
2. There is a right to redress, but the redress is not, with the exception of the kinds of questions to which we have a right to answers as in (1), the answers themselves, but the remedy sought if they do not answer. The proper historical names for the remedies are the prerogative writs, such as quo warranto, habeas corpus, prohibito, mandamus, procedendo, and certiorari. The correct way to have framed the WTP petition was as a petition for a writ of quo warranto, under which if the government does not provide answers, that is, proof of its authority to require persons to file returns and pay income taxes on wages, then the petitioners obtain the redress of a judgment by the court that the government must cease making and enforcing its unauthorized claims.
3. The provision of the U.S. Constitution that provides the basis for this right is not the First Amendment Right of Petition, which is only the right not to be penalized for petitioning, or obstructed in doing so. It is also not the Fifth Amendment Right of Due Process, which is only about restrictions on the ways that the exercise of rights may be disabled. It is not contained in the Seventh Amendment provision "rules of the common law" because that only applies to cases tried by a jury. It is contained in the Ninth Amendment, but the way to support that is to go back to the amendments proposed by the state ratifying conventions, which include:

• "Provided, That all commissions, writs, and processes, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person holding his place for the time being, or the first judge of the court out of which the same shall issue." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
• “10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• “That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.” “That the Privilege of the Habeas Corpus shall not by any Law be suspended for a longer term than six Months, or until twenty days after the Meeting of the Congress next following the passing of the Act for such suspension.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
• "10. That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful; and that such remedy ought not to be denied nor delayed.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
• "12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• "12. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property,or character; he ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
• "1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• "1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm

From there we have to go back to the historical meaning of those writs, adopted by reference, as remedies which may sought by the sovereign, which, following the Declaration of Independence, became the people, any one of which may appear on behalf of all.

Now, I realize this chain of reasoning is somewhat vague and indirect, and that is has been taken advantage of to deny the remedies, but if it is really understood the principles are clear. Our job is to not only understand it but assert it, and perhaps get a constitutional amendment that makes it explicit.

Why campaign finance reform efforts have it backwards

When I ran for Congress in Texas in 1974 I learned something important from my press agent: that one of the most important ways to influence voters were local, mostly weekly, newspapers, but that they would not provide free coverage unless the candidate buys advertising, and the amount of free coverage will be approximately proportional to the amount of advertising purchased. I later learned the same rule applied to radio. (That was before talk radio had become as great a factor.) I also found that, despite their protestations to the contrary, the attitude toward the candidates conveyed in free coverage was strongly influenced by the amount of advertising bought either by the candidate or by his known supporters, especially local businesses. Thus, if you had the support of local car dealers, you were likely to get more favorable coverage because car dealers pay for a lot of ads.

Not all of the media depend for their revenue entirely on advertising. Some get a substantial part of it from subscriptions or street sales. Those respond to what they perceive (correctly or not) as what their readers are willing to pay for. Some of them have come to realize that this will depend on the season (more interest in election information in the weeks preceding an election) or on recent events (e.g., legislation proposed or enacted that adversely affects people in the market for the media outlet).

The main reason why electoral processes worked better to avoid rent-seeking behavior in the early period of the United States was that voters demanded political information and were willing to pay for it. If a newspaper published the entire text of long speeches by candidates, they would sell more copies, and sell more copies than their competitors who didn't do that, enough to offset the additional cost of printing more column inches.

So the key to solving this part of the problem is to find ways to get more voters to seek out and pay for political information, and to do so in the mainstream media rather than in magazines, newsletters, and the Internet.

Part of the problem is that too many voters don't really think there is enough difference among candidates in what they are likely to do to justify them making the investment in time and money in acquiring more information. This is the problem of "rational ignorance".

I once joked to friends that the way to solve the problem would be to require that in every election there be a candidate who, if elected, would enact legislation that would select a date at random from the calendar, then summarily deprive everyone born on that date of all his property and his right to acquire more, then throw him in prison for life, and to hide a clue in his writings and speeches that he is the one who would do that. It would only take a 1 on 365 chance of being reduced to poverty and imprisoned to motivate intense investigation of all the candidates by every voter. But in fact that is exactly what existing candidates promise all the time, albeit not in those terms. It is just that voters don't think it will happen to them. If they realized it could, that would make a difference.

New Year's Greeting

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'
'The question is,' said Alice, 'whether you CAN make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'
Through The Looking-Glass: And What Alice Found There
Lewis Carroll

A word or statement has several meanings:
1. The meaning it had for the writer when he wrote it.
2. The meaning it had for the reader when he read it.
3. The meaning the reader thought it had for the writer when he wrote it.
4. The meaning the writer thought it would have for the reader when he read it.
5. The meaning the reader thought it should have had for the writer if the writer knew what the reader does.
6. The meaning the writer thought it should have for the reader if the reader knew what the writer does.
7. The meaning the reader thought the writer thought it would have for the reader when he read it.
8. The meaning the writer thought the reader thought it would have for the writer when he wrote it.
9. The meaning it has for the reader upon further reflection, perhaps years later.
10. The meaning it has for the writer upon further reflection, perhaps years later.

And then there are the meanings that third parties think the writer and the reader had at various stages in their evolution.

Some people become attached to their favorite meanings, and insist that others use the word to mean the same thing, even when they know they aren't, and won't, or can't.

Makes you wonder why anything thinks communication among human beings is possible, or that they can ever act in concert on anything.

I would wish you a good year, but you might not get my meaning of that, so I will wish you an interesting year. You can take that to mean anything you want.

Rep. Ron Paul on not depending on the courts for constitutional compliance

Many "conservatives", such as Lino Graglia, are now taking the position that "judicial activism" (see http://en.wikipedia.org/wiki/Judicial_activism, http://www.fed-soc.org/Publications/hottopics/august.htm and http://www.constitution.org/lrev/kmiec/judicial_activism.htm ) is a
court overturning an act of a legislative branch. In other words, not deferring to the legislative (and presumably also the executive branch), but following the doctrine of "presumption of constitutionality". Lino made that point in an op-ed Sunday ( http://www.constitution.org/col/np/aas/050710_gra-lev.htm ), and in comments to the Austin Federalist Society meeting June 16 (televised and archived at http://groups.yahoo.com/group/LibertyProspects/links/Liberty_InterNet_Rad_001029099481/
). On the other hand, Randy Barnett, at a recent session of the Heritage Foundation ( http://www.heritage.org ) in Washington, DC, took the opposite position, that it is the presumption of constitutionality that is the problem, implying that courts should be overturning more acts of the other two branches. This seems to define the divide between "conservatives" and "libertarians" on this question.

Lino's argument, like that of Scalia and some other "conservatives", seems to be that it is improper to pass the entire burden of complying with constitutions (both U.S. and state) onto courts, and leave it with legislatures and the political process where it belongs. The position seems to be that it is unhealthy to relieve people of their responsibility to enforce constitutions politically, and it is better to let the people suffer from the effects of unconstitutional legislation to induce them to exercise their responsibility.

While this prudential argument has some merit, my constitutionalist position is that the oath that judges and other officials take, and which is also a duty of civilians even without taking the oath, is to enforce the Constitution in any situation in which one becomes involved, even if that means accepting the burden that has been avoided by others. The problem of the judiciary is not that they deny support to the other branches in making decisions, but that the other branches are derelict.

Contrary to Lino's position, it is not "making law" to refuse to cooperate with the actions of the other branches when those actions are unconstitutional. Lawmaking is directing the actions of officials to apply coercive means and expend public resources in doing so. It is not "lawmaking" to block such positive action, only to order that coercive action be taken and public resources expended in doing so.

It is my general finding that in almost every case in which a court has found an official act to be unconstitutional, the court has been right. Although I do not like the term "judicial activism", if I were to define it consistent with originalism, it would be to sustain official acts when their constitutionality is in doubt. If there is any doubt, the decision should be that the act is unconstitutional. The logic of the Constitution is the presumption of nonauthority, and the burden must always be on officials to prove their authority, and to refrain from any action if their authority for it is challenged, until that authority is proved. That is the essential meaning of the Ninth Amendment.

That is why I call for a voting rule for multi-judge panels that the panel must be unanimous to sustain the constitutionality of any official act.

Why haven't nukes in U.S. been set off?

It is no longer a secret that the U.S. intelligence community is warning of the existence of suitcase nukes already on U.S. territory under the control of terrorists. Specifically, the estimated number is six or seven such devices, and that the terrorists in control of them are al Qaeda. Some of the rumors are more specific, saying the nukes consist of five 100kt devices and two sub-5kt devices. One of the larger devices could take out most of the people in metro areas like New York or Washington, DC.



The usual question raised by these reports is, "If they have them here, why haven't they set them off?" The standard theory from intelligence sources is that the devices are not operational, due to lack of maintenance, and that we are in a race against time until they can get them operational.

I am skeptical of that theory. The devices are presumably among the 40+ Soviet devices that Gen. Lebed reported were missing from the Soviet inventory, presumably made and last maintained in the late 1980s. However, if those devices are copies of U.S. designs, the word I am getting is that while U.S.-made devices of this kind become less reliable after a long period of lack of maintenance, they don't suddenly cease to be operational, and may continue to be likely to go off, perhaps with a lower yield, for several decades after manufacture. For the purposes of terrorists, it is not essential that all of them go off when planned. A 50% rate of success would likely be considered good enough.

I have a different theory, based on my reading of some of the literature and web sites associated with the Islamic imperialist movement, of which al Qaeda seems to be a part. The announced goal of this movement is not just to defend existing Islamic nations from the corrupting influences of the West, or even to destroy Western Civilization as the source of that corruption. Some of their web sites have put up maps of the world in the year 2100 that have the entire planet converted to Islam, presumably under a new caliphate modeled on the theocratic model of the caliphates of the past, somewhat similar to the Taliban.

Let's take those maps seriously, and ask how the leaders of that movement envision accomplishing that goal. Not by sending out swarms of missionaries, the way Christians would do. Not even by sending out hoards of mujahedin to conquer Western nations and give their populations the choice of convert or die, the way Omar and others spread Islam to much of the Middle East, North Africa, and to the other nations where it is now the dominant religion. They know those methods would not work. So what would work?

The answer is terrifyingly obvious. Beginning with the leading Western nation, the United States, smuggle in suitcase nukes until enough are in place, then set them off in random cities at random intervals, while delivering an ultimatum that they will continue to set them off until all the survivors convert.

The initial reaction to such a plan is that it wouldn't work. Americans would never submit to that kind of pressure. They would strike back, wiping out most of the centers of Islamic imperialist activity.

Strike back at whom, and to what effect? Would we nuke Mecca, or Medina, or Qom? That's not where most of al Qaeda is. All that would do is unite the Islamic world against the West, playing into the hands of the imperialists, who might regret the loss of the people of those cities, and some of the relics, but that might actually be welcomed by the imperialists, who see not just the West, but cities generally, as the source of moral corruption. Their Utopian vision is of a world of subsistance farmers and herders, with no cities and no technology more advanced than firearms. They not only don't mind if all of the Western cities are destroyed, but even if all of their own are. Their thinking is similar to that of Pol Pot and the Khmer Rouge, who emptied the cities and killed anyone suspected of being influenced by modern civilization, evidenced by the use of such technology as eyeglasses. The difficulty we have had in just rooting al Qaeda and the Taliban out of Afghanistan demonstrates the obstacles to effectively responding to this kind of threat, especially if we had to extend it to much of the world, or even within the United States to the terrorists that are already here.

I have another theory, that al Qaeda thinks it needs more than six or seven devices, and that it wants to get all it needs in place before setting off the first one. How many would it take, and how many might Osama or his cohorts think it would take? For the answer to the latter question we would need agents on the inside of their inner circle, but we can make some good guesses about how many cities would have to be nuked before the American people would capitulate. Make no mistake. If enough of our cities and other vital resources are nuked, at random sites and at random intervals, even the proud Americans will surrender. Not all of them, of course. There will always be sone holdouts. But I expect that after 20 or 30 nukes go off, either what's left of the government, or a new government that will emerge, will enforce at least outward shows of conversion to Islam on the entire surviving population. Although many of us don't like to admit it, that actually works, and has historically worked. It might take a few generations of cognitive dissonance for anything like genuine devotion to sink in, and while the majority might always remain hypocrites, they will be afraid to express dissent, even in private conversation. Orwell's classic 1984 remains a How-To manual for doing this sort of thing.

So my theory is that al Qaeda is trying to get at least 20 to 30 suitcase nukes into the U.S. and in place before beginning to set them off. That means we still have some time to stop them, either by stopping them from getting control of such devices, or from getting them into the U.S., or of course, by taking out the imperialists themselves. That is certainly the job of the intelligence agencies, primarily, but they do not have a good record of being effective in operating in the parts of the world that they must operate in to get this difficult job done. Building the network of agents worldwide to meet this kind of threat takes a long time, perhaps more time than we have. It is a job for human intelligence ("humint" in spookspeak), more than for signals intelligence ("sigint").

This means that the current half-hearted window-dressing that passes for governmental border security is not enough, nor is there any indication that the current administration takes the threat seriously enough to commit the resources it would take to seal our borders. The voluntary Minuteman Project shows how it can be done: putting a lot more people on the ground and in the air. Increased funding on the order of 10-20% is not nearly enough. Even a 100-200% increase would not be enough. But the policy of "catch-and-release" (to come right back over the border) is also not sufficient. The illegal intruders who are caught should at least be put to work building a fence or wall along the border, before being sent back.

It is also necessary to take firm action against another form the invasion of the United States is taking: the takeover of land and officials by criminal gangs. We get reports that the drug cartels are buying up large ranches and parcels of real estate along both sides of the U.S. border, both with Mexico and with Canada, especially on the U.S. side of the border with Mexico, and also land to create corridors for the movement of the criminals not only across the border, but from the border to transshipment hubs near major metro areas. The formula is "plata or plomo", "silver or lead". Landowners, officials, and other personnel the gangs seek to compromise are first offered purchase or bribes, and if that doesn't work, killed or threatened with violence. There is some indication that the titles to ranches are not being legally transferred, by deeds of record, but the landowners are being left in place, pretending to still own the land, and instructed to not cooperate with law enforcement or voluntary efforts like the Minutemen Project. There is even reason to suspect that drug money is being used to influence "civil rights" organizations to file lawsuits against such efforts as 'discriminatory". Those "civil rights" organizations might not realize they are working for criminal gangs, or perhaps even for terrorists, but they need to wake up and realize what is going on. It is not about harmless foreign jobseekers any more. It is estimated that at least 20% of the intruders are now criminals, prone to commit not just immigration crimes, but crimes of violence. The criminals and terrorists are using the flow of harmless jobseekers as a cover.

The threat of this kind of terrorism also strongly argues for decriminalizing drugs. Prohibition of alcohol didn't work, and prohibition of other psychoactive substances isn't working either. It doesn't prevent acquisition and use. All is does is create a channel of corruption, and worse, now creates a channel of corruption that can be exploited by foreign enemies bent on our destruction. We have enough to do to try to defend our borders against smugglers of suitcase nukes without also having to contend with narcotraffickers that create the underground pathways over which the terrorists can operate.

But this threat also strongly argues strongly for reviving the constitutional militia. When Secretary of State Rice takes the position, as she did in a recent speech, that border security is the "exclusive job" of the government, she is taking a position that is dangerously inadequate. She deserves credit for alerting the public of the danger of the first sign of the threat being "mushroom clouds" over our cities, and of relating how her father once organized a militia to defend their neighbors from violence, but she and others in government need to realize that the efforts that government can make are not enough and can never be enough. Nothing less that the total mobilization of the entire population can hope to significantly reduce a threat of this kind. Yes, civilians are disorganized, untrained, and difficult to control, but so are government operatives. The solution is to organize and train the civilians to function not just as an informer network, which is the opposite of what we need, but as militia, able to meet local challenges locally, even to securing and disarming things like suitcase nukes. There is simply no way government operatives can provide the coverage that is needed. It will take everyone working. There is no really good substitute for requiring everyone to show up for periodic training and organization, if only to break down the barriers of anonymity that now allow criminals and terrorists to operate freely without anyone spotting signs of the threat some might present. Surveillance will require intense socializing and community activity that involves everyone. Many government agencies need to work on this within their own organizations. Could Aldritch Ames have gotten away with his espionage activities if his colleagues had visited him and his wife in their home and noticed he was enjoying a lifestyle his salary could not support? An agency might review the security clearances of its personnel if they don't pay their bills, but does it check up on those who pay their bills too easily?

Finally, I have a theory on why the Bush Administration went into Iraq. Now I am not excusing it as a matter of law. Without a declaration or war, or letters of marque and reprisal, issued to the President and forces under his command, it is illegal, a violation of several clauses in 18 USC Chapter 45, and grounds for impeachment. On the other hand, that doesn't mean that the Iraqi policy of the Bush Administration is not a good idea, apart from its illegality, which could have been avoided by getting Congress to issue a declaration of war or letters of marque and reprisal. I am also aware of many reasons for that Iraqi policy, among which securing the flow of Iraqi oil into world oil markets to keep down the world price of oil is not a bad one. But I find another good reason, one that involves more subtle strategic thinking than this Administration is perhaps able to manage, but which would do them some credit if it was part of their thinking. The theory is this: to give al Qaeda something it wants, a recruiting ground sufficiently rich to induce them to concentrate their efforts on an insurgency there, and to delay setting off nukes on U.S. soil, giving us more time to try to find and secure those devices. The reason I suspect it is not part of the Administration's thinking is because they don't seem to be doing all that it would take to keep more nukes out of the U.S. Perhaps they are doing more, and being more effective, than is apparent from sources of information available to me. I hope so, but I doubt it. They need to be doing so much more for border security and militia activation than they are, it seems unlikely they are pursuing a diversionary strategy that is not combined with such other elements of a complete strategy.

See
http://en.wikipedia.org/wiki/Suitcase_bomb
http://www.nationalterroralert.com/suitcasenuke/
http://nuclearweaponarchive.org/News/Lebedbomb.html
http://cns.miis.edu/stories/020923.htm
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=25157

Thomas comes closest in Ashcroft v. Raich

The decision in Ashcroft v. Raich (restyled Gonzalez v. Raich since Alberto Gonzalez succeeded John Ashcroft as U.S. Attorney General) is a setback for constitutional fidelity. Of all the members of the U.S. Supreme Court, only Justice Clarence Thomas came close to getting it right, and even he got it wrong on a few points.

For the decision see http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html , and particularly the dissent of Justice Thomas. While he gets the essentials of original understanding of the Commerce Clause nearly correct, he commits the first error in considering the original meaning of "commerce" to include both "goods" and "services". My research, including recent research of documents archived from the Founding Era, makes it clear that originally it included only tangible commodities, not services, and that the defining attributes were (1) transfer of title; (2) transfer of location (from a foreign nation or state to a different state in this nation); and (3) transfer of possession; and all this (4) for a valuable consideration.

His second error is to accept the doctrine that the power to "regulate" "implies" (authorizes) the power to "prohibit" or to impose criminal penalties (deprivation of life, limb, or liberty). The power to regulate originally meant only the power to restrict some modalities of something, not all modalities, and it only authorized the civil penalties of deprivation of property or privileges.

The third shortcoming of his dissent is not to make it more clear that the delegation of a power is only authorization to make a certain kind of effort, not to do whatever it might take to obtain an outcome. The Necessary and Proper Clause only makes sense, "for carrying into Execution", if understood in this way. The express delegation of a power may only define a subject matter, but it should always be understood that the delegation is not plenary within the meaning of the subject matter, but is further restricted to constitutionally legitimate public purposes, which if exceeded are abuses of discretion. The Constitution is not written to enable the achievement of any or all of the purposes for which delegated powers might be exercised. If the effort authorized by the delegation is not sufficient to accomplish the purpose, it may be because the outcome is beyond the competence of government, or it may mean the Constitution needs to be amended to delegate additional powers, but it is not a legitimate remedy to expand powers to whatever extent the accomplishment of a desired outcome may require. That would be a formula for extending powers without limit in every subject area, because there are always outcomes that no delegation or exercise of governmental powers can achieve.

See my article "Original Understanding of the Commerce Clause" at http://www.constitution.org/col/02729_fed-usurp.htm.

French voters reject incompetent European Constitution

Today 55% of the voters of France showed they had enough sense to reject a European "constitution" that must stand as the most incompetent effort to draft a national or federal constitution in history. At http://www.constitution.org/cons/natlcons.htm we have copies or links to every national constitution we have been able to find, both past and current. None of them, including the Constitution for the United States, is perfect, and some are pathetic or corrupt, but none of them are as badly drafted as the proposed "constitution" of Europe.

The art of constitution writing is a highly advanced art. It is not just another kind of legislation. Every word is critical, and a single defect in wording or punctuation can make the difference between success and failure of the government and its society. There are probably not more than a dozen persons on Earth who have the advanced skills to do it right. Compared to constitutional design, fields like computer circuit design, or the design of space missions, are trivial. The men who designed the U.S. Constitution were geniuses who spent decades of intense study and the years between 1776 and 1787 experimenting with the design of their state constitutions. During the ratification debates of 1787-89 nearly the entire population of the American states became experts in constitutional design in a way that no other population has done before or since, hammering out a common understanding and agreement on the meanings of the words in the proposed Constitution drafted by the Philadelphia Convention. Even so, they left many ambiguities that led to civil war and ongoing controversies that continue to this day.

I usually refrain from criticizing the ways the constitutions of other nations are written, because the peoples of those nations seldom understand the criticisms and are just offended by the criticisms in a way that prevents them from thinking about what I am saying. I have avoided much criticism of the proposed European "constitution" because I wanted to let the Europeans discover its shortcomings for themselves. Unfortunately, a few of the proposed member nations have ratified it, allowing their hopes to triumph over their intellects.

The problem with the draft is that it is the result of political negotiations and compromises that became expressed in what is not a law but a political document, worded like a political platform or party manifesto, full of vague aspirations, suggestions, and abstractions that are the kinds of things overschooled European intellectual imbeciles would come up with.

The English version of the proposed European "constitution" is at http://europa.eu.int/constitution/en/lstoc1_en.htm and its deficiencies should be readily apparent to anyone familiar with the U.S. Constitution or its state constitutions, but I will just point out a few examples of them:

The term competences. What does that mean? It is used throughout the document, and seems to suggest authority to do something, rather than ability to do something with a likelihood of success. It is associated not with specifics like legislative bodies, officials, or courts, but with the "Union" generally. It does not delegate powers, or mandate their use as duties, or forbid the exercise of specific powers as rights, or specify procedures for taking actions or making decisions, including interpreting the provisions of the "constitution" itself. What does it mean that "the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas".

The term right. Instead of using it correctly to refer to restrictions on the powers of government officials, it is used loosely as "principles" that are nowhere defined, or suggestive of some vague "rights" to receive a sufficiency of a scarce resource, which has no place in a constitution of government. Socialistic drivel.

The various principles. What in the world is the "principle of conferral", the "principle of subsidiarity", the "principle of proportionality", the "principle of sincere cooperation", or any of the other "principles" it refers to? Sounds like a formula for the exercise of unlimited powers.

What does it mean that "The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions." What does "jointly" mean, and what does "functions" mean?

What does it mean that "Representation of citizens shall be degressively proportional"? How does anyone get from that to an exact number of representatives for each well-defined group of citizens, and who decides? Sounds like empowerment of some legislative body to exercise plenary powers to effectively rewrite the constitution from one day to the next.

What does it mean that "Citizens of the Union shall enjoy ... the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections ..."? Even children, or the mentally incompetent, or convicted criminals?

I could go on, but the reader can find more of the same kind of deficiency. The problem is that more voters in the European countries haven't pointed out these shortcomings in their public debates.

A properly designed written constitution of government must specify structures, procedures, rights, powers, and duties with sufficient unambiguity and precision that most ordinary people can understand all its provisions and consent to all the processes by which disputes over their interpretation are decided. Ultimately, all law rests on common understanding and consent by the people in general. It must provide for every process contingency and not mandate anything that is beyond the competence of government, such as providing people with a sufficiency of some scarce resource. "Creative ambiguity" might work for some treaties if all parties are cooperative, but it does not work for constitutions or other kinds of laws. It must never presume consensus on anything but the text of the written constitution, and allow for worst-case scenarios: wars, depressions, natural disasters, subversion, corruption, incompetence, and popular ignorance and passion. The American Constitution arose out of recent experience with war and depression. Hopefully, Europe won't have to go through another war to learn to get this kind of thing right.

The proponents of an European constitution need to go back to the drafting process with the help of competent constitutional designers, without the involvement of politicians or diplomats.

Contrasting Conferences

This is a report on two conferences I attended during early April, 2005, both on the topic of the Constitution, but profoundly different in many ways that are instructive. I expect to modify and expand it over the coming days, so look to my blog at http://constitutionalism.blogspot.com for the latest version.

The first was a gathering of self-identified “conservatives” entitled “Judicial Tyranny”, held in Washington, DC, April 7-8, details of which can be found at http://www.stopactivistjudges.org, sponsored by a group called the “Judeo-Christian Council for Constitutional Restoration”. In the discussion that follows, I will refer to this conference with the abbreviation JT.

The second was a gathering of self-identified “progressives” entitled “The Constitution in 2020”, held at the Yale University Law School in New Haven, CT, April 9-10, details of which can be found at http://islandia.law.yale.edu/acs/conference/index.asp, sponsored by a group, mainly composed of liberal-statist lawyers and law students called the American Constitution Society[1], http://www.americanconstitutionsociety.org/, which was formed to oppose the influence of the conservative-libertarian Federalist Society http://www.fed-soc.org. In the discussion that follows, I will refer to this conference with the abbreviation C2020.

The JT was only attended by about 100 persons, although they included a number of past and present public officials, such as U.S. Reps. Lamar Smith, Steve Chabot, and Todd Akin, or staff members representing Sens. Tom Coburn and Orrin Hatch. Former ambassador Alan Keyes spoke, as did former Alabama Chief Justice Roy Moore, and leaders of many of the conservative activist and evangelical Christian and Jewish groups. The first day of the JT was covered by C-SPAN, and the entire conference was videotaped, with DVDs of the proceedings available for purchase.

The C2020 was attended by a larger number, perhaps 600, mainly students from most of the universities that have ACS chapters. It appeared most were law students, and most of the students of the Yale Law School seemed to be there. The speakers and session leaders were mostly law professors or prominent lawyers. The only officials seemed to be some former judges. There did not appear to be any video cameras other than my own, and after I taped part of a general session a young lady on the conference staff directed me not to tape any of the breakout sessions, on the ground that it might inhibit candid participation. I took that to mean that the session moderators didn't want a record of what they would be saying to the student participants.

A sense of the C2020 can be obtained by visiting http://keywiki.org/Constitution_2020 and http://constitutionin2020.blogspot.com.

Neither conference presented any new papers or original contributions with which the attendees were not probably already familiar, other than a few handouts by the moderators in the breakout sessions.

Although the JT had a previously prepared "Declaration of Constitutional Restoration" with “action items” they wanted the conference attendees to approve and sign, the session was open to debate on the language of the Declaration. Several changes were made. Most of it was merely aspirational. I argued for deletion of two items that were unsound, the first of which is unconstitutional, and for the addition of a new item that would have advanced the cause, but the attendees were not prepared to understand my arguments and rejected my motions. However, in later conversation several said they agreed with me after further thought, and some decided not to sign the "Declaration of Constitutional Restoration" because of my arguments.

The C2020 did not discuss action proposals. There were general sessions at which a panel of 3-4 would take turns making their arguments for what was essentially a socialist agenda, although there were some mentions made of “reforms” that in practice would make it easier to elect liberal Democrats. At the end of each such session they took questions and statements from the audience, and I offered several myself, intended to introduce some new ideas to them. More about that later. There were also “breakout” sessions in which groups of 20-60 attendees were led by usually two moderators who made sure to frame the discussion to suit their agendas and make sure no new ideas not consistent with those agendas could be introduced. Every effort was made to encourage the attendees to recite a litany of socialist dogma, resistant to any challenges or innovation.

It is interesting that at both conferences many conference leaders claimed to be “constitutionalists”, and at least one of those at the C2020 actually claimed to be “strict constructionists”. People at both conferences complained of “activist” judges, but it was clear that the label applied to judges who made decisions they disagreed with, often without really understanding the constitutional issues. Both conferences were dominated by policy preferences, and in the case of JT, two action items, that are clearly inconsistent with the written Constitution as originally understood. The JT were more motivated to effect change, and the C2020 were more academically advanced, but from my standpoint they both have a long way to go to achieve what I would consider accurate and adequate understanding of the Constitution, of what is wrong in this country that relates to the Constitution, and how to make changes that might actually improve things from their own viewpoints. They also represent a cultural divide that won't talk to or listen to one another, or frame the issues in anything other than a conservative-liberal bipolarity, a term I choose deliberately to suggest it is a form of pathology that threatens this society.

Now in fairness to the people at both conferences, they are basically good people trying to do what they think is right. The people at the JT, however, were much more willing than the people at the C2020 to learn and consider new ideas, even though less intellectually prepared to do so. The people at the C2020, were, by contrast, amazingly closed minded, unwilling to consider anything that did not fit their ideological doctrines, even material of a purely mathematical character. They are two herds, composed of members unwilling to wander from the herd, although the JT people might eventually move in a new direction with enough guidance and thought. I suspect only hard experience will bring around the people at the C2020, and they aren't likely to get that in the academic world or even in conventional legal practice. At both conferences I said things and took positions that were fairly simple, straightforward, accessible, and not inconsistent with their ultimate goals, but which left the attendees stunned by incomprehension, unable to intelligently respond, even to ask questions. It is clear that if this country is ever to attain constitutional compliance, there is a lot of work ahead and not much time to get it done.

If we are to try to identify a single intellectual deficit of both groups of people it is what might be called linear thinking. Most members of both groups have a vague familiarity with the notion of unintended consequences, but it seems unlikely that many, or even any, of them know what a feedback loop is, outside of something that is a problem with sound systems, or how complex systems of many interacting feedback loops respond to interventions in nonintuitive and not easily predictable ways. They persist in seeking solutions to problems that are simple, direct, obvious, and wrong. The interesting thing is that they are not that far apart in their views of the ultimate state of society that is desirable. Where they differ is in their perception of the alternatives actually available and how those chosen would play out. I have noted before that it seems like the few people who grasp constitutional issues readily and competently are mostly comprised of persons with backgrounds in computer science and complex systems engineering. The “informal reasoning” taught to lawyers and most other people today does not prepare them to make policy or constitutional choices. Unfortunately, that too often means such decisions are either made badly, or are made by specialists paid to obtain an outcome favorable to some special interest against the best interests of society in the long term.

Society and constitutional issues were simpler in the Founding Era, and it took highly motivated men of genius and a society of constitutional scholars to make constitutional choices that were barely adequate to the problems they faced then. Today the few who might make competent choices of that kind, to deal with the current complex situation, are marginalized and largely disregarded, and most today in decisionmaking positions come nowhere close to being able to attain even the level of understanding that the Founders struggled to achieve. People today have the tools to enable them to pretend to be wise, and to delude themselves into thinking themselves less inadequate than they are, but as long as they continue this self-delusion, they will never make the enormous effort that adequate understanding requires.

The final approved form of the Declaration of Constitutional Restoration issued from the JT can be found at their website. Most of it is aspirational and unobjectionable, but it contains two items that are objectionable from a constitutional standpoint, and one from a policy standpoint:

2) Congress should withdraw jurisdiction from all federal courts to hear any challenge to the Defense of Marriage Act, state marriage acts, or state constitutional provisions, which are claimed to be a violation of the U.S. Constitution.

3) Congress should withdraw jurisdiction from all federal courts to hear all challenges to the acknowledgment of God as a violation of the First Amendment Establishment clause, rightfully returning these matters to the several states.

5) When and where appropriate, Congress should reduce or eliminate the funding of federal courts, the salaries of judges excepted, that overstep their constitutional authority.

I made motions to delete (2) and (5), even though I also object to (3) on the same grounds as (2), but for the purposes of that effort it was sufficient to make my arguments once.

In my argument in support of my motion to delete (2), I admitted that there is a U.S. Supreme Court precedent, which I did not name, Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868), the opinion on which is at http://www.constitution.org/ussc/074-506.htm), that seems to support such congressional removal of jurisdiction from all courts, but that it was clearly decided wrongly. As I argue in my commentary at http://www.constitution.org/ussc/074-506jr.htm the purpose of having a judicial branch is to decide questions arising under the Constitution and laws authorized by it, that if Congress could constitutionally remove jurisdiction from all federal courts on one subject, they could do so on all subjects, and they could effectively destroy the judicial branch and subvert the Constitution by adding a provision to every bill that “federal courts shall not have jurisdiction to decide on the constitutionality of this act”, then proceed to enact something like “voters may vote only for the candidates approved by the Select Committee”.

In defending the provision, a member of the drafting committee, a lawyer, cited the McCardle decision, and while he seemed to recognize the logic of my argument, argued that it was not unconstitutional to do this on these particular subjects. Of course, this doesn't work, especially when as in (2) it is applied to an Act of Congress. Although it has not been often invoked, the McCardle decision is one of the more pernicious, subversive, and potentially dangerous USSC decisions ever made. If people are going to complain of judicial tyranny, they should not make proposals that rely on instances of it.

In my argument on a motion to delete (5) I said that one of the main reasons for judicial tyranny is overcrowded dockets due to inadequate funding, which, as long as the judges are paid, doesn't hurt the judges, but only the litigants, and results in too many decisions made hastily, without due consideration of the arguments, often on the basis of personal relations with the lawyers. Reducing funding of the courts would not put pressure on judges to make better decisions, but worse ones, and removing all funding would not just inconvenience the judges, but would have the effect of removing their dockets, so that they could play golf while receiving their salaries, perhaps sign a few ex parte orders for their buddies, while litigants would be screaming for justice and perhaps resorting to violence and civil disorder when they didn't get it. This proposal is another example of one that is simple, direct, obvious, and wrong, that would produce results exactly the opposite of what is intended.

Now part of what is going on here is an effort of some conservatives to increase the power of Congress at the expense of the Judiciary, because they perceive that they now control Congress, and that the liberals control the Judiciary. Interestingly, at the C2020 a panelist made the statement exactly to that effect, that progressives control the Judiciary and need to gain more control over it, largely, it seems, by indoctrinating the next generation of lawyers and judges. A number of others, especially leaders of the conference, made statements about finding ways to make sure only progressives "ascended", to the bench, to clerkships, to academic roles, or to other positions of influence. They spoke in a way that indicated they were part of a concerted effort to accomplish that.

The reality, of course, is that both sides are wrong, from a competent constitutional standpoint. More than 98% of the instances of judicial tyranny consist of sustaining unconstitutional acts of Congress and the Executive Branch, so it is not a solution to reduce the restraint of the Judiciary on those usurptive branches. In the rare cases in which federal courts have overturned acts of the other branches, they have almost always gotten it right. The single most important thing the federal courts need to do to reduce judicial tyranny is to hold more acts of Congress and the Executive Branch unconstitutional. As sympathetic as I may be to the concerns of the people at the JT, I am concerned that they are unwittingly playing into the hands of a faction for whom “constitutional restoration” is only a cover for an unconstitutional agenda of their own.

After my motions to delete items (2) and (5) were rejected, with not a single vote in favor other than my own, I proposed adding an item that might ultimately operate to restore constitutional compliance:

Congress should amend the Rules of Judicial Procedure to require that in all cases in which the government is a party, all issues of law shall be argued in the presence of the jury, that the jury shall receive copies of all pleadings, and that the jury shall have the use of an adequate law library.

In support of my motion I explained that in the late colonial and early Republic period it was standard due process to argue all issues of law in the presence of the jury, because even though they were not asked to decide motions, in rendering a general verdict, such as guilty or not guilty, they were necessarily ratifying the decisions on motions by the bench, and could not properly bring such a verdict without hearing the evidence of the argument on the motions and the ways the decisions of the bench were made.

I made the same argument in a question I put to a panel at the C2020 that included the lawyer David Boies, asking them to join me in supporting the proposal. More on that below.

After I made my argument at the JT, long-time conservative activist Howard Phillips rose to support my proposal in the future, but said it thought it was premature at this time. The lawyer on the drafting committee was asked what he thought and said he would need a few months to study the matter. When the vote came, I did get some timid votes, indicated by the ayes being spoken softly, but the nays were louder and more numerous. I wonder whether, if there had been several votes, more of the attendees, realizing there was some support, might not have joined in supporting it, sensing the movement of the herd.

The somewhat limited proposals of the Declaration of Constitutional Restoration should be compared with the more comprehensive, detailed, and effective proposals contained in several documents on my website:

1. Constitutionalist Platform http://www.constitution.org/pol/us/consplat.htm
2. Declaration of Constitutional Principles http://www.constitution.org/consprin.htm
3. Statement of Grievances and Demands for Redress http://www.constitution.org/grievred.htm
4. Legal Reform Act http://www.constitution.org/pol/us/leg_ref_act.htm

I provided printouts of these documents to the lawyer on the drafting committee for their consideration in drafting future proposals. We will see what becomes of that.

In contrast, there was no opportunity to hand out papers at the C2020. Only the moderators of the breakout sessions seemed to have been allowed to do that. The conference leaders seemed to be trying to maintain tight control over what was said and read. The most I was able to do, other than during the general session questions, was to mention www.constitution.org and pass out my business cards.

I made three question-comments in the general sessions. The first was to a panel composed of Guido Calabresi, Judge in the U.S. Court of Appeals 2nd Circuit, and Patricia Wald, former Chief Judge in the U.S. Court of Appeals DC Circuit, and moderated by Paul Gewirtz:

If we are to take seriously the authority of the written Constitution as the “Supreme Law of the Land” then we need to re-examine the way we have come to use stare decisis, and recognize that in treating judicial precedents like constitutional enactments, untethered to the written Constitution as originally understood, we are making judicial decisions that are in fundamental conflict with the written Constitution.

Judge Calabresi made an intelligent response to my comment, explaining to the audience that each decision based on a previous decision can drift away from the written Constitution, and that it may become necessary to “ratchet it back” by reversing some of those precedents. Judge Wald did not respond directly to the point, but identified herself as a “strict constructionist” on some issues. It would be interesting to explore further what she meant by that.

My second question-comments was made to a panel consisting of law professors Yochai Benkler, Pamela Karlan, Burt Neuborne, and Nate Persily, moderated by Robert Post. Their discussion had been on partisan gerrymandering, so I said:

I filed an amicus curiae brief in Session v. Perry, the Texas Redistricting case. I found there were two groups of litigants, one arguing for setting aside the 2003 map gerrymandered in favor of the Republicans, and returning to the map of 2001, gerrymandered in favor of the Democrats, and the other favoring the 2003 map. In my amicus brief I argued that the arguments for setting aside the 2003 map are valid, but also apply to the 2001 map, and no one was representing the Constitution or the people with a nonpartisan solution. In my brief I proposed using computer software developed by the staff of the Texas Legislative Council that works very well to randomly draw maps that are equal in population, compact, contiguous, aligned to political boundaries, and simply-connected, and have it draw many such maps, selecting one at random, leaving the legislature with only the task of legislating the specifications for the program to draw the maps, without human intervention in the actual drawing. This nonpartisan solution did not come from a Republican or a Democrat, but from a Libertarian.

There was no response to my comment, indicating to me that the panelists had no interest in nonpartisan solutions, only in advancing their own partisan agenda any way they could.

My third question-comment was made to a panel composed of lawyers David Boies, John Podesta, Theodore Shaw, and Kathleen Sullivan, moderated by Walter Dellinger:

The standard of due process during the late colonial and early Republic period was to argue all issues of law in the presence of the jury. This is shown by transcripts of some of the trials during this period, some of which can be found online at www.constitution.org.[2] This is not the practice today. It was recognized then that although juries were not asked to decide motions, in bringing a general verdict of guilty or not guilty they were necessarily ratifying the decisions of the bench on motions, and they could not bring a verdict intelligently if they could not hear the legal argument and decide whether the bench had decided correctly. Are you prepared to join me in trying to remedy this departure from due process and get all legal issues argued before the jury?

They didn't respond, other than that David Boies had a surprised and perhaps alarmed expression on his face, and the moderator, Dellinger, said the proposal was “interesting”.

The first breakout session I attended was moderated by Bruce Ackerman and Jacob Hacker, but Ackerman took control of recognizing people to speak. He recognized me once, and I said, in response to confusion about how economic inequality occurs and persists:

These problems are well understood, but the understanding is not spreading rapidly. For example, if you go to www.constitution.org, click on Basic Principles, and scroll to the bottom, you will find links to papers on aggregating networks.[3] This research explains how the rich get richer, why equal distributions of wealth are unstable, why monopolies occur, and why a single species will displace all others in an ecological niche.

Ackerman asked me to summarize the research, which I did. But thereafter he pointedly refused to recognize me for further participation, turning to each of the others several times. It was clear that he didn't want the introduction of new ideas.

One thing that was interesting was Ackerman's pushing of his proposal that the rich be taxed enough to pay everyone, including the rich, $80,000 a year, without them having to do anything to earn it. He admitted at one point this might cause problems like capital flight (no kidding!), and he seemed oblivious to the problem of who is going to produce anything to tax if no one has to work. Perhaps Americans are to own the production of the rest of the world and pay themselves dividends for exploiting foreign labor. Hmm. Doesn't sound very progressive to me. No wonder they didn't want the breakout sessions taped.

After the session, I shook his hand and said, “Thank you for systematically ignoring the one person here who actually has solutions.” He grinned and said, “You have solutions?” Of course, progressives don't want solutions. They want the problems to persist that justify their activities. Like government workers everywhere, actually solving problems would put them out of their jobs.

That session with Ackerman ended early, so I had time to slip into another breakout session just before it ended, and I said:

All these discussions are ignoring the problems of legal and judicial misconduct and abuse. I cite as typical the case of a former lawyer who represented clients in seven civil rights cases against the Police Department of Lago Vista, Texas, one of which, Atwater v. Lago Vista, went to the Supreme Court, but without the original attorney, because the police chief went to a federal judge, who got the FBI to investigate the attorney, and miraculously “discover” that two sevens had been turned into nines in his social security number, which they used as the basis for a federal criminal charge, punishable by 5-30 years, which they used to pressure him into giving up his bar card, and thus drop the cases. Law professors teach law without criticizing judicial misconduct, because they are lawyers who can be disbarred for doing so.

The room responded with stunned silence. No one had anything to say about the problem of corruption in the courts and the practice of law.

Of these two conferences, clearly the JT was on a more promising track. Like most of them I grew up in a very different America, a small town in Texas where what are sometimes called “moral values” or “family values” were triumphant. There was some economic inequality, but no one was starving, and everyone who wanted to work could get a job and live comfortably. There were social circles, but no real social inequality. Everyone, rich and poor, went to the same churches and their kids attended the same schools. The kids went to school to learn, not to disrupt, making teaching them easy. Almost no one got divorced. There were no narcotics, almost no crime, no bullies, no gangs, and the kids didn't have too much money to spend, but had to earn it themselves. Everyone was on the same track to get as much education as possible, then start a career, and then and only then get married, have sex and start a family. It was idyllic, not just from a “conservative” viewpoint, but from a “progressive” one as well. Those were words we read in American history textbooks but they didn't have much relevance to our daily lives.

The situation was different in the cities, where the breakdown of values, as seen today, began, but even there the small town values prevailed until fairly recently.

But I witnessed the breakdown, and observed it closely. I understand very well what happened and why, and what might work to undo the decline, and what won't. A lot of people do, but too many people don't want to listen to what they have to say. They prefer their own theories and their own solutions. This is not the place to expand on what I learned about this, except to point out that it has nothing whatsoever to do with whether there is prayer in the schools, or whether homosexuals call their couplings “marriage”, or any of the many other things that too many people fasten on as the silver bullets to fix the problem of declining moral values. Until such folks, however earnest they might be, learn to put aside their delusions and come to understand what is really going on, they are likely to be more a part of the problem than a part of the solution.

Fortunately, these two conferences are not all that is going on in the field of constitutional compliance. If they were we would be in a desperate state indeed.

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1 The ACS should not be confused with the Constitution Society, http://www.constitution.org, which I represent. They initially took the name Madison Society, but found another organization already had that name, and that we already had the name Constitution Society. Some have suggested a better name would be Anti-Constitution Society.

2 The transcripts of such trials, supporting my thesis, can be found at http://www.constitution.org/trials/trials.htm .

3 “Evolving Complex Networks in Constitutional Republics”, by Jon Roland, http://www.constitution.org/ps/ecncr.htm .