Cost of Reform

Let’s try to put some numbers on what it will take to achieve any of our reform goals.

The typical congressional district contains about 210,000 persons who are registered to vote and who can be associated with current addresses and phone numbers. Robo-calls delivering push polls of about 5-7 questions will run about $0.20/call, or about $40,000.

Multiply by 435 congressmen and one gets 91,350,000 voters, or a cost of $17,400,000.

I am familiar with petition drives. Here in Texas the Libertarian Party needed to gather about 50,000 signatures to get on the ballot. We found that volunteers weren’t gathering them fast enough to meet the deadline, and that it was a more productive use of their time to raise money to pay professional petition gatherers, at about $1 per signature. (We collected 80,000 signatures to make sure we would have enough after many were disallowed, and got on the ballot.)

I would expect a similar situation for gathering signatures for the Continental Congress 2009 Articles of Freedom (AoF), except that what the petitioners for LP ballot access were asked to sign was only one sentence. If you had to pay people to gather signatures for something even as long as the Declaration and Resolve (preamble), you would probably be looking at $5-10/signature. To get people to read and sign the entire AoF would likely run more than $100/signature. So an estimate of labor cost, even volunteer labor, to gather 15 million signatures, is likely to be in the range of $15 million to $2 billion.

Would having that many signatures make enough of an impact to justify that expenditure? As petition signatures, probably not. Yes, it is about 34,000 per member of the U.S. House, but that is not enough if they are mostly people who aren’t likely to vote for the congressman anyway. If they were mostly swing voters, perhaps. As supporters we can get to take action, such as write letters, make phone calls, demonstrate at rallies, or engage in civil disobedience, it could make a significant difference. In other words, it is not signatures on a petition we need to gather, but recruits for other activities.

In a presidential election the two main parties will spend about $1 billion to appeal to about 100 million voters. Since they will divide the vote about evenly, each will spend about $10 for each vote their candidate gets, or about $500 million. Down-ballot contenders will similarly spend about $10 for each vote the winning candidate receives. That does not count the millions of man-hours of unpaid efforts by volunteers, which if paid for would likely be an additional $10-20/vote received.

Let’s consider a more modest goal of reducing the odds to less than 50% that federal (and state) prosecutors can win criminal convictions under unconstitutional statutes. As I discuss in my blog article “Jury Size Matters” , it is only necessary to convert about 6% of the population from which jurors are drawn into competent and diligent jurors to get that result. But what would it take to do that?

Over the years I have tested various ways to recruit ordinary citizens into a state of enlightenment sufficient to make them good jurors. It is a lengthy process of one-on-one education. Although I have not tried to convert such efforts into automated telephone push-polls, I can imagine that 5 such calls to every person, each containing about 5-7 questions, and spaced over about two years, might reach that 6% conversion.

The calls would have to be made to all of about 100 million voters—every person likely to be in the jury pool—or judges could just screen out the ones receiving such calls by asking if they had received them. So that would be 5 calls at about $0.20 each for 100 million voters, or about $100 million.

Of course, the same result could be obtained with unpaid volunteers, but we would be asking them to devote time that would be worth about ten times that amount, or about $1 billion worth of their time. That is a lot to ask of people in hard times who are having to devote most of their time to finding work, if they aren’t doing extra work for no extra pay to keep the jobs they have.

I don’t want people reading this to lose hope. The situation is not impossible. But it is difficult, and these numbers should offer some insight into why constitutional compliance has been so elusive. Such expenditures in time and money are being made by our adversaries, often paid for with our taxes. The challenge is to be able to match such efforts.

Major parties have no firewall

Taking over the offices in one or both of the two main parties has often been suggested as the way to get the right kinds of candidates, but it doesn't work. It could if the parties used the caucus system in each state and had a rule that there always has to be a "none of the above" (NOTA) option (as the Libertarians have). The trouble is that in most states there are primaries, provided for by statute, and a filing requirement that allows anyone to file, and if he spends enough money, win the nomination, even though he does not represent the positions of the party officials. It is possible for party leaders to influence the voting of caucusgoers, but not the general public who votes in primaries. That would require them to spend as much money as the candidate does, and he is probably backed by some special interests.

In other words, the two major parties have no firewall. There is nothing to prevent corrupt outsiders from seizing nominations. You can hold every office in the party and not be able to prevent that.

The primary system was sold as a way to avoid the undue influence of the "smoke-filled room" of party bosses. It did that, but it also opened the parties to the control of moneyed interests in a different way.

A prophetic 1944 interview

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

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

This statement reveals several key ideas:

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

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

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

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

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

Most of Ron Paul's constituents don't vote for him because they agree with his positions. They vote for him because they like and trust him. It is more important for most voters to be comfortable with the personality than with his positions.

"Bait and switch" works in political selling as well. Voters are offered some charismatic personality or government benefit and never told that either represents a violation of the Constitution. Some will argue that the people have voted for the departures from constitutional compliance and thus ratified them in some sense, but that is deceptive, because the people were deceived by not having the constitutional implications of their choices explained to them. They did not vote for violation. The issues weren't framed to them that way.

That doesn't mean it is not a productive activity to educate people on constitutional compliance. We need to create a learning environment in which some of those charismatic personalities can "get it" and then bring their insights with them when they take office. We have to spread the education around because it is not always easy to discern who will be the charismatic personalities of the future, and because such people are herd animals like any other who are going to want the reassurance of like-minded people before they will venture forth with constitutionalist positions. The trick is to both educate those individuals and enough of the individuals around them.

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

What doesn't work

What doesn't work is for citizens to demand change from others without writing the language in which that change will be implemented. If you file a court action, complaining of some injustice, and demanding relief, you might "win" the judgment but lose the case if you don't draft the order for the judge to sign. Leave it to the judge to draft it and he is likely to accept a draft prepared by your opponent, which doesn't give you the relief you thought you won. Similarly with other reforms. We can't leave the drafting of the language of proposals to others. If we want it done right we have to write it. That applies not just to court orders, or to legislation, but to how we want the Constitution to be interpreted. That is why I have proposed Clarifying Amendments in my Draft Amendments to the U.S. Constitution. They need never be ratified if enough of us use them as a standard for our demands for how we want the Constitution interpreted.

I spent a couple of years in Washington, lobbying for various causes without pay. I learned how other lobbyists developed the kind of influence they have. It's not just that they bring money or votes. I didn't bring either of those. But I found I could earn access to members of Congress by helping them review their legislation to make sure it was what they wanted. Most members don't know how to draft legislation to the point where it is ready to be submitted, dropped in the "hopper". They provide a rough draft to the Congressional Research Service (CRS), who then puts it in final form, doing the numbering and finding the cites to existing legislation that would be affected by it and that it would amend. But they usually don't fully understand what the member wants to achieve, or get it quite right. A member will have a few legislative staffers to help with review, but they tend to be busy with other tasks, and they don't always understand exactly what the member wants, either. Of course, sometimes the legislation is really the staffer's idea and the member needs to make sure it is also what he wants. So I learned how to do that research and draft legislation ready for the hopper. I would try to anticipate objections from other stakeholders, and avoid ambiguities, so they would have less reason to tear it apart. I found that that was what the most influential lobbyists did. They didn't ask members to have legislation drafted for them. They did it themselves, giving sympathetic members a finished product. Interest groups who didn't do that seldom got anything like what they wanted, if they got anything at all.

The same principle works for publicity. The way to get articles written in the major media the way you want them written is to submit press releases that are ready to print without editing. Journalists are lazy. They would rather submit a press release and put their names on it than to write an article from scratch. You might have to submit hundreds of such press releases to get one published, but often all it takes is one to justify the effort to have written all the others.

Or consider court rules. They can be as important, if not more so, than legislation, although they are adopted by the judges, sometimes in defiance of legislation. Such rules tend to be written for the convenience of judges, but the language they contain usually started as the language in a lawyer's brief in some case. If enough lawyers submit enough briefs suggesting the same language for judicial rules, that language is likely to be adopted.

Another important area is administrative regulations. Agencies submit proposed regulations for public comment, and if enough members of the public object, they may withdraw proposed regulations, or greatly modify them to respond to objections. But what works best is for people not just to object to the language of regulations, but to propose alternative language, especially if enough people propose the same language.

In the field of rule drafting don't expect most lawyers to be experts. Most lawyers aren't even that good at drafting contracts, and drafting legislation, regulations, or judicial rules requires more advanced skills that it takes most people years to acquire. Even staffers in the Congressional Research Service aren't that good at it.

Don't write blank checks or neglect the fine print

Speaking of contracts, consider how often you are presented with contracts written by others and asked to sign, on a take it or leave it basis. Read all such contracts carefully. Don't assume they have been subjected to thorough scrutiny to protect the interests of people like you. If you find language that seems against your best interests, it probably is. Strike that language out before signing it, or propose alternative language.

What is most difficult is to draft things in a way that wisely intervene in what are highly complex systems, with many feedback loops that make them incomprehensible even to the best experts. Intervene the wrong way and you get hundreds or even thousands of unintended bad consequences. You can take it as a general rule that if it is simple, obvious, and direct it is probably a bad idea. All the simple solutions are already in use. The measures that might actually improve things are almost certainly going to be subtle, complex, indirect, and not at all obvious. That also means they will be difficult if not impossible for most people to understand, and may be impossible to sell. The way most successful reforms get done is that the one person who understands them sells people on trusting him. Most people relate to personalities more than to ideas.

Most people who supported ratifying the U.S. Constitution didn't support it because they understood it. They supported it mainly because George Washington did, and they trusted him. They also expected him to be the first president, and figured that with him in that position, if any problems arose he would take the lead in fixing them.

So read the Draft Amendments. Study them. Learn why they are written that way, and not another way. You may thus acquire the skills you will need to get anything useful done.

Reports to Congress on militia, 1789-1819

We have just uploaded a searchable PDF file of Military Affairs, Vol. 1, a collection of reports to the U.S. Congress from March 3, 1789, through March 3, 1819, on military and militia matters. It is interesting for the insight it provides on early thinking on militia and the right to keep and bear arms. Of special interest are the following reports:

1. Organization of the Militia, 1789 — Page 7ff
2. Militia Return, 1803 — Page 163ff
3. Militia Report, 1815 — Page 604ff

There are also militia returns for the years 1794, 1805, 1809, 1810, 1812, 1813, 1814, 1816, 1818, and 1819, which can be found using the Table of Contents or the Index.

It is planned to expand this discussion to comment on particular points in these reports and what they reveal.

What does clearly emerge is the total absence of any consideration of restricting firearms possession or use, other than for training purposes. The focus was on arming, organizing, and training citizens. If some could not afford to purchase weapons, there was discussion of paying for weapons from tax funds to be given to them. It is also clear that the weapons were to be the state of the art in military equipment.

We can also get a picture from these reports of what the Founders envisioned for how militia was supposed to be used for many of the functions of governance that has been taken over by paid professionals in the late 19th and early 20th centuries.

Selling constitutional compliance

At our next meetup Thursday Mar. 19 we will be discussing how to promote constitutional compliance. This is a selling job, and it has been studied under the heading of "diffusion of innovations". In the early 1950s a team at the University of Chicago investigated how effective various kinds of marketing could be and how to allocate scarce marketing resources. They found that the main way that an "innovation", whether it be a new product or a new idea, spreads through a population is by first being adopted by what they called "early adopters". It then spreads to the next level of "secondary adopters" who emulate the first adopters, then to the "tertiary adopters", quadranary adopters", and so forth. Tools like broadcast advertising could reinforce the process, but not by very much. Most influence was from person to person, down the chain of influence.

That chain is not necessarily down from the top classes of society or politics. Most decisionmakers are not early adopters, but late adopters. New ideas mostly come from outside the halls of power, and the early adopters seldom have direct contact or influence with key decisionmakers. Their ideas have to work their way up the chains of influence and reach all or most of the key decisionmakers at all levels, departments, and organizations, until a critical mass is achieved. That can be done in many ways, from writing, teaching, political pressure, litigation, or public demonstration. It can take a lot of time and money to make a difference, because you aren't operating in a vacuum. You have to compete with other demands and influences. A good idea won't get very far unless it is backed by a lot of people, and more people than back the competition.

The researchers also found that most people didn't adopt after only one exposure to an innovation. They had to be moved to adopt through a series of repeated exposures at a certain rate, each of which took them one step closer to "closing the sale". In other words, it was not a wise allocation of resources to expend too much on one prospect or try to move him too far too fast, and the best strategy was to figure out where each person was and how to move him as far as he was prepared to go on each occasion, then go away and come back later to take him another step further. There is an optimum pacing for each person. Going too fast or too slow wastes resources.

All of this was presented in a book, Diffusion of Innovations, which is summarized here.

Selling constitutional compliance, that for most people is a complex, abstract idea, is difficult, and it has to compete with other ideas that are simpler and seemingly more attractive. Most people tend to be inspired by charismatic personalities rather than ideas, especially complex ones. We can call that the "leader syndrome", because it tends to cause people to be misled into supporting the wrong people, and failing to do the hard work needed even to enable the right person to be effective.

There is also a real problem with accurately understanding the Constitution the way the Founders did. Legal scholars debate all the time how to do that. There is a popular myth that the Constitution was written to be understandable by ordinary people, but it would be better to approach the study of the Constitution like learning a foreign language. The ordinary people of the new American states in 1787 were in some ways more legally educated and sophisticated than are people today. There are also some words and phrases in it that have specialized meanings that it can take a lot of reading to deeply understand. Terms like "due process", "jury", "right", "commerce", "necessary and proper", "reasonable", and "regulate". Even the Framers of the Constitution during the Philadelphia Convention had to look up the term "ex post facto" in a legal treatise to understand what it meant.

One doesn't have to be a lawyer to understand the Constitution. Indeed, law students don't learn that in law schools. Most lawyers never get it. It is better to look to a good legal historian and linguist.

I have tried to provide the necessary study materials at the Constitution Society website. There is a lot to read there, and there are no shortcuts. You just have to read a lot, and the sooner you get started the better. Try to study a certain amount every day. Don't be misled by a lot of false prophets out there with their own half-baked legal ideas.

Oppression flows from insecurity

The essence of the issue was well stated by Ali A. Mohamed, Al Qaeda spy now in U.S. custody (from an interview on National Geographic Channel documentary):

"Islam without political dominance cannot survive."

It is that belief, and not Islam, that is his true faith, the one he acts on.

One should use the correct names for things. This from Arabic words for Soldiers, Sailors, Airmen and Marines to know and use:

Irhab (eer-HAB) -- Arabic for terrorism, thus enabling us to call the al Qaeda-style killers irhabis, irhabists and irhabiyoun rather than the so-called "jihadis" and "jihadists" and "mujahideen" and "shahideen" they so badly want to be called.

Hirabah (hee-RAH-bah) -- Unholy War and forbidden "war against society" or what we would today call crimes against humanity.

Shaitan and shaitaniyah (shy-TAHN and shy-TAHN-ee-yah) – Islam’s Arabic words for Satan and satanic [example: Osama Abd' al-Shaitan, Osama Slave or Servant of Satan]

You will also sometimes see the word fasad, meaning "mischief", or fasadi, meaning "troublemaker".

One might want to refer to such extremists as "uncivilized barbarians". A word that might be used is metawahesheen - متاواحشين

So depending on our attitude toward what irhabis really believe, one can call it irhabism, harab'ism, shaitanism, or fasadism.

Intolerance is indicative of those who have been taught to identify with a religion, but who don't really believe it, and don't have confidence it can survive or prevail in a competitive marketplace of ideas. It is not the true believers, but the nonbelievers pretending or deceiving themselves that they are believers. That is a problem of social pathology more than of religion proper.

We need to adopt proper labels for the sides in the clash. It is not the various traditional sects, or secularism vs. religious fanaticism. On the one side is constitutionalism, a belief in a rule of law, and particularly in a superior law from which all ordinary laws are derived, which embraces and protects any body of belief that teaches love, tolerance, and civic virtue. Constitutionalism is also a kind of religion, a civic religion as the political philosopher Montesquieu recommended, but a metareligion -- a religion about religions.

It is opposed by what? We have given many names to the opposition to constitutionalism: tyranny, fascism, totalitarianism, hate, intolerance, vice, barbarism, evil. But there is a danger in this, and a weakness that constitutionalists bring into the debate: We must avoid adopting the ways of the opposition, or we become them and they win. We also have the weakness that it is much easier to destroy than to create. Constitutionalism is about creation. But a single madman can destroy it all with the tools of modern technology.

We must gain control over the upbringing of all of our children. If we do not civilize them we will have barbarians in our midst, and civilization will fall.

The National Press Herd

The following are comments on the Feb. 6, 2009, Bill Moyers interview of Jay Rosen and Glenn Greenwald:
______

Humans are herd animals. They try to figure out where their herd is going and then position themselves somewhere in the middle for safety. Leaders seem charismatic only as long as they don't look too much like us, so, unable to agree on a leader from among the herd, people adopt the herd itself as its leader. However, there is no wisdom in numbers. Whenever too many people agree too easily they are probably wrong. The so-called "wisdom of crowds" only appears for specialized questions in selected situations.

The challenge for everyone is to learn how to perceive what herds we have become a part of and to overcome the bounds of herd mentality. "Thinking outside the box" needs to become not just a slogan but a habit -- and not just another orthodoxy.

Jay Rosen and Glenn Greenwald have become involved in their own orthodoxies in focusing on Washington, DC, and the mainstream media. Herd thinking is not just a problem in those areas, but in every level and branch of government, every profession and organization, every religion or school of thought. We have seen it within financial institutions and how it yielded the meltdown. It is especially dangerous in legal practice and the legal profession, where demands for strict constitutional compliance are dismissed out of hand as unrealistic or unworthy of acknowledgment.

It doesn't work to demand of those who are captured by the herd to break out of it and make needed change. We have to open it to disruptive outsiders. The Internet has enabled outsiders to become publishers, journalists, and lobbyists, but we still need to enable outsider intervention in administrative and judicial processes, public and private. The established institutions for that are the trial jury and the grand jury, but we have allowed judicial practice to disable their effectiveness. We will not reform those processes until we enable trial juries to review the legal decisions of the bench by hearing all arguments of law, and enable grand juries to hear complaints from any citizen, investigate any public or private institution or practice, and report on its findings, perhaps with an indictment authorizing a private citizen to prosecute. Citizens must not be denied standing to privately prosecute public rights, or to issue writs of quo warranto to challenge the authority of officials, public or private, to do what they propose to do. The presumption of nonauthority needs to be established as the bedrock of our institutions.

Dynamics of Deliberation

It is sometimes said that the essence of republican government is representation, but that is not correct. Its essence is deliberation. Representation comes when it becomes unwieldy for groups to deliberate directly, either because there are too many deliberants, or they have too much business to decide.

This matter is discussed in my Introduction to Constitutional Conventions: Their Nature, Powers, and Limitations, by Roger Sherman Hoar (1917).

Any scheme of representation must represent a balancing of several conflicting utilities:
1. Representation of diverse interests and expertise so that the body can avoid errors in their decisions.
2. Representation of interest groups in proportion to their numbers, so that distributive decisions can accurately weigh those interests.
3. Allow agendas that allocate enough time to every question for all views to be heard by all members of the body and commented on by all of those who wish to do so.

Experience indicates that there is a practical limit on the size of deliberative bodies, either of primary members or their representatives, if they have much business to decide. This emerges in the ways bodies of more than about 30 members tend to break up into committees of less than 15 members, each of which allows testimony and creates a record that nonmembers can read and comment on, but which otherwise limits the number of active discussants and the time each gets to make their points. Bodies of more than about 400 become extremely unwieldy if they have more than about a dozen questions of some complexity.

The throughput limits of deliberative bodies can be seen in such deliberative bodies as the U.S. Congress or the parliaments of most modern nations. About 20,000 bills are introduced in the U.S. Congress each year. That is more than any of the members can even read, much less deliberate on. As a practical matter only a few of those can survive a filtering process involving staffers and committees, during which what was originally proposed can be and often is substantially altered or even reversed in its intent or effect. Most of the real work and decisionmaking is done by the staffers, often influenced more by their handlers outside Congress than by their nominal supervisors, mainly because of the volume of business.

Some have proposed that to be more representative, representative assemblies need to be made larger. They cite that the original U.S. Constitution had each member of the U.S. House of Representatives represent about 30,000 citizens. That was based on the population of the U.S. in 1787, and when the size of the House became unwieldy, its size was fixed at 435, where it remains to this day, and each member represents about 700,000 persons.

A constituency of 30,000 was originally seen as appropriate in large part because it is infeasible to expect a representative to personally know or listen to more than about 3000 persons, which was about the size of a populous county in 1787, and that only about 3000 out of a population of 30,000 would seek to be heard. (The largest cities, Boston, Philadelphia, and New York, had populations of only about 20,000 each, small towns by today's standards.) Today 3000 is about the population of a voting precinct. Government by town meeting worked when not more than about 300 would show up at a meeting, but was soon abandoned when the numbers greatly exceeded that.

If 3000 persons want to talk to their representative every year, that is about 10 a day. If the representative allocated each one more than about 15 minutes each, or 2.5 hours a day, he wouldn't have time to actually do the work that he would be expected to do. (In the realities of today's permanent political campaign process, each member has to spend most of his time on fundraising and has to leave the deliberation and other work to staffers.)

Congress receives more than 200,000,000 communications a year. That is more than 1000 per member per day. A member of the U.S. House typically gets about 200-500 letters a day from constituents, which can increase to many thousands during peak periods. (Postal letters, since the anthrax attacks, are processed in a way that delays them several weeks.) The average member has 14 staffers, 8 in the Washington office and 6 in the district office. That is barely enough to count the mail, or count positions on a list of issues, much less give consideration to complex content or positions on issues not on the list. Their main job is to serve as gatekeepers on access to their member, which is often strongly influenced by the advantage to their member of getting re-elected if access is granted. Members soon realize that those granted most access are most important to getting re-elected, even if they don't know the details of whether that is based on money donated or voter influence.

Numerous proposals have been made to make at least the U.S. House of Representatives more "representative". Some have addressed the ways election districts are drawn. The Voting Rights Act tries to legislate against "dilution" of "majority minority" districts, which is becoming mathematically impossible but is politically untouchable. Some have argued for a proxy system, others for sortition, which is the only method anyone has found to dispel the undue influence of special interests discussed in public choice theory. On theoretical and practical grounds some form of most of these has more merit than increasing the sizes of deliberative assemblies.

The NRA and the Beltway Mentality

Much has been written criticizing the NRA for becoming captured by the "Beltway mentality" surrounding the U.S. Capitol, and I tend to agree with the criticism, but it is useful to try to understand how this mentality arises. Essentially, it arises when busy decisionmakers decide how to allocate their time and attention, and decide it is not worth spending time talking to anyone unless one or the other side is likely to be persuaded to change his position. In particular, elected officials are generally only interested in talking to constituents who might change how they vote. It is not worth the time to talk to people who are determined to either vote for one or against. The same is true of fellow members for votes on measures before Congress. His fellow members don't call Rep. Ron Paul or return his calls because they know how he is going to vote on everything and nothing they can say is likely to change that. They also don't expect anything he might say, however wise it might be, is going to change their positions or the way they are going to vote.

This presents a problem for a lobbying organization who represents single-issue voters. They are in DC to persuade members of Congress and other decisionmakers, and they can't do that if no one will talk to them. But they won't talk to them unless they are willing and able to persuade their supporters to vote differently than they would otherwise. Most members of Congress either know they have the support of pro-RKBA voters or that they don't. There is therefore no reason for them to talk to a pro-RKBA organization like the NRA. The only reason would be for a member to throw the NRA a bone if they will agree to ask their members not to vote against that congressman for doing so, and that will only happen if the congressman is persuaded that the NRA-ILA can persuade enough of its members not to vote against the congressman if he does that. That is how we get those favorable ratings for anti-gun congressmen that so irritate gun rights advocates. It is the price we pay for getting an occasional vote switch from a congressman that can make a difference in a close contest. Of course we can ignore the NRA-ILA on that and vote against the congressman anyway. That is what I have always done, although I vote for the Libertarian candidate if there is one.

What is more problematic is when the NRA takes a public position supporting something adverse to the RKBA, or perhaps to some other provisions of the Constitution. They do it to get some concession on another point they think is more important, on balance. That is the way the game of politics is played in Washington, DC. Go along to get along. The Art of Compromise. The problem is that for most members of Congress the Constitution is just another policy position to be compromised like any other. To demand the Constitution be excepted from that is to stand outside the herd and that means the herd won't talk to you. The desire to have powerful people talk to you is a powerful corrupting influence. That is how the Elites control the media, not just by owning them or buying advertising from them, but by denying access to those who don't cooperate. Without access it is difficult for a reporter to get a story, so he or she plays the game to stay in the game.

This problem is not just at the higher levels of decisionmaking. It dominates at all levels, and not just in the public sector. Large private organizations have the same problem, and when organizations are too interconnected or play the same strategies, they begin to function like a single large monopoly. A market can operate among organizations but not within them. When organizations become too large, too well-connected, or too many adopt the same strategy, they overwhelm the corrective influence of the marketplace and we get crashes. But it all begins with refusing to communicate with others when one doesn't expect to persuade or be persuaded, and thus do the Cassandras get ignored until it is too late.

The problem is characteristic of any system whose principal operating components have a restricted information throughput. The bottlenecks of verbal and written communication and cognitive capacity among human beings limits the decision rates attainable by any system composed of them. Many of the critical systems in our lives are possible only because computers have enabled us to remove humans from impeding information and decision flows. Much fast breaking decisionmaking would be impossible for systems consisting only of humans, no matter how skilled they might be. The U.S. Congress today provides a case study of a system that is being tasked with having to process more information than it can, and that is a potentially catastrophic situation.

References:
Richard Janow, A Fundamental Limit on Productivity in Organizations: Collaborative Entropy Costs, NJ Institute of Technology, May 31, 2008. Link.

Mortgage-backed security model is infirm

It should now be clear the mortgage-backed security (MBS) model is fundamentally infirm, and only undoing it will suffice, but that will be a major undertaking and has serious implications for the entire financial sector, which is going to have to get used to not being able to raise unlimited capital using smoke and mirrors.

The only effective way to sort out this mess is to separate out each mortgage note and evaluate and manage each separately. The problem is the loss of information and control that has come from first bundling mortgage notes into securities, then selling shares of the bundles in further bundles, without conveying the details of each note and the collateral that secures it.

The result of this layered bundling is that it becomes difficult to credit payments to each note, work out delinquencies with the debtors, or execute foreclosures if that becomes necessary. It is not just failures to pay that is resulting in foreclosures, but failures to credit payments made, and having service agents go out of business leaving a question of whether there are uncredited payments, and whether payments received but not credited should be considered unsecured claims of the debtor or the mortgage holder.

Most of this debacle could have been avoided had courts not allowed foreclosures without presenting the original signed note instrument in court, and required the one owner and holder of it to personally appear in court to testify. The practice of accepting "affidavits of ownership" in lieu of the physical original note paved the way for the entire catastrophe.

If local lending institutions need to raise capital to make more loans, their proper solution is to continue to be the owner, holder, collector, and manager of each note, and sell stock in their institution, or at least in bundles they retain, not selling the notes, bundled or otherwise. It has never made sense to trade in bundles containing assets that come and go as they are paid off or not. What is the value of a bundle containing paid-off notes? Or of another consisting entirely of foreclosed properties being torn apart by vandals?

There is a problem with how it can be done, constitutionally, without violating the Contracts Clause (and the Tenth Amendment, since the Contracts Clause is only a restriction on the states). I have proposed creating jurisdictions for federal Art. III or bankruptcy courts to challenge foreclosures if the original signed note, a complete record of payments received by the servicing agent, and the owner and holder of the note (not just his attorney) be required to personally testify in court (for a corporation that would be a senior official). That would require disaggregation of all those MBS, if not as securities then as transparent administrative processes that could enable evaluation not just of bundles but of each component of them, in nearly real time.

The federal jurisdictions need not overburden the federal courts, as I would expect it to impose similar judicial reform in state courts, something that has already begun.

I do not, as a libertarian, favor regulatory interventions in the sense of administrative agents directing the actions of people, setting standards, or requiring them to report on their activities. The Nondelegation Doctrine needs to be revived, not further buried. However, it would be appropriate to use grand juries to investigate the inner workings of organizations too large or well-connected to be allowed to fail. Their role would not be to enforce rules written (and probably misconceived) from the last bubble burst, but to uncover things like conflicts of interest and actions between managers and their principals. Grand juries can keep trade secrets while making things transparent that must be known for investors to make rational decisions. Unbound by specific rules, grand juries could freely seek out dysfunctions that can arise from clever managers evading any rules that bureaucrats or legislators can devise, and prick emerging bubbles that regulators are likely to be discouraged from doing.

It is worth studying the history of money and finance, going back to John Law. This kind of thing has happened before. It is what led the U.S. Founders to require in the Constitution that only gold or silver coin be legal tender (on state territory). We can question today whether gold or silver are still suited for backing currency, but it should not just be the "full faith and credit" of national governments and their ability to withdraw enough currency from circulation through taxation to offset the amount they print to pay their bills. Perhaps the world should go to backing by something like kilowatt-hours of energy or its equivalent. But not by credit instruments whose value essentially depends on continued economic growth, which will eventually falter, bringing down all or most national currencies.

Biden Clueless on Constitution

In the Vice-Presidential Debate October 2, Sen. Joseph Biden continued a pattern I have observed over the years he has been in public office: He seems unable to mention the Constitution without getting it wrong. His mentions of it during this debate was no exception. Let's examine some of his statements:

... in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.

The fact of the matter is that under the Constitution we should be granted -- same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.

He seems to be vaguely referring to the Equal Protection Clause of the 14th Amendment, but that amendment does not address governmental benefits to couples, whether same-sex or opposite-sex. That is a state matter. Constitutionally, there are not supposed to be any federal benefits, one way or another.

Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The constitutional provisions on the Vice-President are in Article I, Section 3, Clauses 4-6. Here is what it says:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

It also provides, in Article II Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Senator Biden is incorrect. The Vice-President may preside over the Senate at any time it is in session, not just to break a tie. One would think that in 35 years in the Senate he would have noticed that the Vice-President has sometimes presided there.

It is interesting to note that there is a flaw in the Constitution here, in that it permits the Vice-President to preside over his own impeachment trial. One suspects he would be under some pressure not to do that.

Gov. Palin does not yet seem to be highly knowledgeable about the Constitution, but at least she hasn't gotten anything about it wrong.

Considering that Sen. Biden has taught constitutional law in a law school, one has to be concerned about how well his students learned the subject, and even more about what he might do if he ever ascended to the presidency.

Obama to Palin: 'Don't Mock the Constitution'

It is encouraging to see contenders introducing the issue of constitutional compliance into the campaign. However, none of them appear to yet have a firm grasp on the subject, including the two, Obama and Biden, who taught constitutional law in law schools.

The Founders did not, in general, use dictionary definitions of their terms. Dictionaries as we know them today were only just beginning to be written, and meanings of words were acquired by doing a lot of reading of works in which the words were used, and their meaning extracted by context, but seldom if ever defined.

It is therefore not surprising that Founder James Wilson, attempting to come up with a definition of "piracy", proposed "robbery and depredation on the high seas". However, from a more thorough examination of actual usages of the term, we can get something like this:

Piracy is a warlike act committed by a non-state actor, either a foreign actor against this country, or a domestic actor against another country.

But this covers what we are today calling "terrorism", and the Constitution, Art. I Sec. 8 Cl. 10, "The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas...", and we have a well-developed body of law on piracy.

We can then also see that the Constitution covers all possibilities, partitioning the set of warlike actions into those committed by state or non-state actors, those within the country by a domestic non-state actor (treason), and those committed between nations by a non-state actor (piracy).

That also makes a warlike act committed by an official without a declaration of war or letters of marque and reprisal an act of piracy.

From Sarah who? to Sarah wow! in one day

I predict history will conclude the Election of 2008 was decided when Obama unwisely chose Biden as his running mate and McCain brilliantly chose Palin. There are few more revealing tests of a candidate's judgment than his personnel choices, and for a presidential candidate the main such choice is the vice-presidential candidate.

Palin has much to learn on constitutional construction, but she is a quick study and we can work on trying to get her to attend to that.

I am not yet prepared to vote Republican myself, partly because there is still a need to move public policy in a constitutionalist direction and there is no better way to do that than by having the Libertarian Party get a lot of votes, but also because I vote in Texas which is safely Republican, so a Libertarian vote here will help libertarians, such as our friends in the Republican Liberty Caucus, take control of the Texas Republican Party, and even move the Texas Democratic Party our way.

Palin is being groomed as an eventual president, and while we might like a president to be a constitutional scholar of world repute, it is more important to be an inspiring leader, choose good advisers, and make appropriate nominations to the Supreme Court.

Sarah Palin may have an "ordinary" middle-class background and chosen lifestyle (until her selection for VP Friday), but she obviously has a natural talent for leadership and good judgment that is worth more than years in public office. That talent has now brought her to the center of power, and as she learns and grows, she will be doing things that are well beyond the capabilities of ordinary people. We can hope that she will not be corrupted by power the way so many others have, and I suspect she won't be. Whether that will cripple her prospects for ascending to the presidency, because the Establishment doesn't like people they can't corrupt, will remain to be seen.

During the weeks until the election, and afterwards if her ticket wins, she will be coached in policy issues to prepare her for campaigning and debate. We can hope that part of that will be on constitutional compliance. Now if she will break away from the Republican Convention to speak to the Campaign for Liberty rally nearby, she can solidify hopes for her as an emerging libertarian constitutionalist. We can speculate whether one of the factors causing McCain to pick her may not have been the growing strength of the Libertarian Party in the polls. If so, then the Libertarians will have moved public policy in their direction before the election even takes place.

The most encouraging sign that Palin may be a constitutionalist, or at least one in an early stage of development, is this quote:

[The Alaska Constitution is] my bible in governing. I try to keep it so simple by reading the thing and believing in it and living it. It's providential. Some of the crafters of the Constitution are still alive. They're my mentors, my advisers. I get to meet with these folks and ask, 'What did you mean by this?' And it makes so much sense.

• Interview by Dimitri Vassilaros for the Pittsburgh Review-Tribune, conducted July 12, 2007, published July 16, 2007

As several have noted, I think we see the first female president, and it is likely the lineup in 2012 will be Palin/Jindal, which will be as close to a libertarian, if not constitutionalist, dream ticket as we are likely to see in this generation.

Now if we can just get more libertarian constitutionalists elected to Congress....

Columnist Robert Novak: What is "Constitutional Compliance"?

Columnist Robert Novak was one of the two keynote speakers, along with former U.S. Rep. Barry Goldwater, Jr., at the evening dinner of the Austin conference of the Americans for Prosperity, Friday, July 18, the first of a two-day Defending the American Dream conference at the Renaissance Hotel.

After concluding his talk, he opened the floor for questions, and recognized Jon Roland, of the Constitution Society, who asked, "What will it take to make constitutional compliance the leading issue in these campaigns?"

Novak stumbled for a few seconds, then said (paraphrasing somewhat), "What do you mean by "constitutional compliance"? It may be difficult to make it an issue if [someone like me] has to ask what it means."

Roland then explained that the Constitution is presently being substantially violated, and that we need to return to compliance with it as originally understood.

Then Novak seemed to catch on somewhat that Roland was raising the issues being raised by Ron Paul. He said "I love Ron Paul, but not as a candidate for president. I want him to stay right where he is." He then went on to comment that we need the Federal Reserve.

After the meeting broke up, Roland handed Novak a card for the Constitution Society and invited him to visit its site to find out what "constitutional compliance" means. Novak laughed and said he would.

For someone in Novak's position to fail to even recognize the phrase "constitutional compliance" is revealing about the state of our civic culture and awareness of opinion leaders at the top of it. He is at the confluence of information flows on civic topics of all kinds. I have gotten similar deer-in-the-headlights reactions from congressmen and other decisionmakers.

I urge all recipients of this message to flood decisionmakers and opinion leaders with messages that use the phrase "constitutional compliance", that explain how the Constitution is being violated, what has to be done to bring officials into compliance, and the importance of doing that. Pick your own favorite areas of noncompliance.

I realize it may seem incredible to most people that such people don't even recognize the concept when they are confronted with it. We need to realize that those of us who are determined to bring this country back into compliance are a subculture that has not yet reached key countrymen with even the language of our concerns, much less the concepts. We have to make sure they can't escape being confronted with them, or having to answer questions about them.

Individual Rights View of the Second Amendment

Rather than searching for evidence of courts taking an individual rights view, it might make more sense to seek evidence from near the Founding of anyone taking the "collective rights" view. I confidently predict you will find none, because it was first introduced in the late 20th century to rationalize gun control, and would have been thought bizarre by the Founders, for whom all rights were inherently individual. For them, rights, which would be called "immunities" by the framers of the 14th Amendment, were restrictions on the power of officials to act against individuals. ("Privileges" were created by government, by contrast to "immunities", which preceded government.) Even something like voting (a privilege), which can only meaningfully be exercised on a collective occasion, is still individual, not collective.

It is not likely to be productive, after an issue has been misframed by partisans, to seek historical evidence of it being otherwise framed in the past, because anyone can always invent some new way to misframe an issue that previous generations would never have thought of and would produce no evidence on the matter one way or another.

This is perhaps negatively illustrated by the absence of attempts to exhaustively list ("enumerate") all rights ("privileges and immunities"), an effort which Justice Bushrod Washington found to be "more tedious than difficult" in Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823) , before making an effort to broadly list a few of them. Even the state ratifying conventions in their proposed amendments did not attempt to list them exhaustively. I have tried to do that in Presumption of Nonauthority and Unenumerated Rights. It can be done by proceeding from a higher level of abstraction and then working down to more specific levels, but people in the Founding Era were more accustomed to thinking in terms of more specific rights arising from particular disputes, without getting around to abstracting them systematically. We have made some philosophic progress in 232 years.

The Case against Thierry & Nugent for Libels and Contempt of Court illustrates something else: the original standard of due process according to which issues of law were supposed to be argued in the presence of the jury. See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573.

The term "states' rights" is a somewhat misleading abbreviation of "powers reserved to the states or to the people" from the Tenth Amendment, but even so it refers to the individual right not to have the central government exercise undelegated powers against either a state government or its citizens. We sometimes forget that the original idea was that individuals could privately prosecute a public right in court without having to have been personally injured first, a right that was not formally abridged until Frothingham v. Mellon, 262 U.S. 447 (1923). See "The Metaphor of Standing and the Problem of Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

The key point, as I have often stated, is that militia is primarily defense activity and only secondarily those engaged in it, as was common usage of many words in that era, and that there is no minimum number of those who may engage in it. An individual is always and at all times at least a militia of one. But 18th century English is a foreign language with respect to 20th century English.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

There is an important distinction between the legal duty to respond to an official call-up, enforced by penalties such as fines or imprisonment, and the social duty to defend the community. The two kinds of duty, the first deriving from the constitution of government, the second from the constitution of society, define two different subsets of the population, which I call the mandatory militia and the general militia, using the term to refer to those engaged in defense activity. The first is a proper subset of the second. People in the Founding Era often loosely used the same word to sometimes refer to the first, sometimes to the second.

However, there is a social duty to respond to a not necessarily official call-up that is enforceable by exclusion from protection or ejection from the community. As a duty, militia is the duty that defines the social contract, and as such precedes government. The authority to issue a call-up is a threat, and the duty comes with awareness of that threat, no matter who might become aware.

As discussed in "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, communities in the 18th century were managed by juries and militia (and a jury was seen as a kind of specialized militia), with little government other than perhaps one part-time sheriff and judge. Militia was often called up not just for defense, law enforcement, or disaster response, but to perform community services such as repairing roads and bridges, erecting schools and town meeting halls, etc. These things were seen as defense activities. One was asked to care for those with smallpox because the disease was a defense threat. (And it is interesting that the understanding of disease as caused by an infectious agent was widespread long before Pasteur.) In an age when everyone was needed for defense, it made sense to make sure everyone could make a living and provide for his family. Care for the elderly was care for veterans who had done their part when they were younger.

DC v. Heller: Mixed Bag

DC v. Heller is an important win for the right to keep and bear arms. It's holdings are narrow: that two provisions of the DC statute, one banning possession of handguns, and the other requiring long guns to be kept in a non-functional state, are unconstitutional. The majority decision, by Justice Antonin Scalia, based that holding on the finding that the Second Amendment protects a pre-existing individual right to keep and bear arms apart from participation in militia. Much of his opinion consists of an etymological and historical analysis of the words in the Second Amendment. It seems likely that this decision will at least settle the issues of whether the right is individual, and whether participation in state-organized militia is necessary to assert the right.

The problem with this opinion is in the dicta that indicate the Court would accept as reasonable restrictions on the exercise of the right that could render it meaningless in too many situations. It is possible that these dicta are concessions that Justices Scalia, Roberts, Alito, and Thomas felt they had to make to win the swing vote of Justice Kennedy. However, it would have been better to omit them, since they are dicta and thus not necessary to reach the decision.

One thing missing from the decision is a holding on the level of scrutiny to be applied to any restrictions. Heller had moved for scrict scrutiny, which would bar most of the restrictions, federal, state, and local, that are presently enacted. The Court, as indicated by Justice Roberts, did not decide on the motion since it was not necessary to reach the decision on the DC statute.

In what follows I will be examining the points made in some detail, and expect to revise and extend this article over the days ahead, so readers may want to revisit it from time to time to get the latest version.

Troubling indications of what restrictions might be held reasonable

While in oral argument Justice Scalia indicated that only restrictions at the time the amendment was adopted might be reasonable, in this opinion he went far beyond that.

The only restrictions that existed at the time of ratification included:

1. Local militia commanders, but not state governments, could require militia participants to declare the numbers and kinds of weapons each could bring to a muster. There were no serial numbers in that era, but it is not too much of a stretch to require serial numbers for the limited purpose of making sure weapons could be returned to their owners if they got misplaced during operations.
2. Local militia commanders, but not state governments, could require militia participants to sign a roster and thus disclose their names.
3. Local militia commanders, but not state governments, could require militia participants to drill and practice with their weapons unloaded to prevent accidental discharges.
4. Local militia commanders, but not state governments, could require militia participants to use one kind of weapon in an operation rather than another, as best suited for the mission of each.

But then Scalia mentions that states began to assert a power to prohibit the carrying of concealed firearms without a license, and that such a restriction might be reasonable. However, it was not a restriction that appeared prior to about 1840, so does not meet the standard he stated in oral argument. It does indicate, however, that application to the states under the 14th Amendment is contemplated, since there are no federal concealed carry statutes.

Misreading of Miller

Although the decision in U.S. v. Miller, 307 U.S. 174 (1939), was not examined in depth, what was said about it missed what it was about.

The National Firearms Act (NFA) was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia than, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.

About the only thing in the opinion that offers hope of incorporation under the 14th Amendment is Footnote 23:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

But that is a slim reed.

Fatal concessions in DC v. Heller?

The oral argument yesterday in DC v. Heller, the Second Amendment case before the U.S. Supreme Court, involved what I regard, and have regarded in the brief as well, as fatal concessions, even if Heller wins a complete affirmation of the DC Circuit decision to hold the DC ordinance totally unconstitutional. The most important came during this exchange during the argument made by Alan Gura, representing respondant Heller:

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly --

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

The problem with this concession is that it opens the door to the legislative violation of rights if the violation is "reasonable", shifting the question from a binary, either-or decision, to a slippery slope that can render all our rights protections meaningless. As may be seen in my previous article on this case, I argued that this would become the central issue in the case, and it was important to proactively define in the briefs what is and what is not "reasonable", rather than letting the opposition define it. Alan Gura, and for that matter, the supporting amici curiae, failed to do that. They might still win this case in a narrow decision, but at the cost of allowing an opinion that will cripple future cases that need to broaden Second Amendment jurisprudence. Lawyers have an unfortunate tendency to focus on winning their present cases at the cost of the cases to come. The opposition has put us in this position by pursuing a longer-term strategy, and we need to do that as well.

Another flaw was in allowing the opposition to frame the issue by not addressing the definition of militia. The term militia had more than one meaning, either at the same time or depending on context:

a. Defense activity (the original Latin meaning, and the leading Founders were Latin-literate).
b. Those engaged in defense activity (a common idiom of the era).
c. Those with a potential of engaging in defense activity.
d. Those who have a moral duty to respond to a militia call-up.
e. Those who have a legal duty to respond to militia call-up (with penalties for failing to do so).

The Second Amendment uses the term in the sense of (a) or (b). During the oral argument the participants were using the term in the sense of (c), (d), or (e), and as a plural or collective noun rather than as an activity that can involve a single individual as well as many of them. This can also be seen in the exchange about the distinction between "self" defense and "common" defense, forgetting that in law the plural contains the singular so that common defense includes self defense and self defense is part of common defense.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is also a type of noun called an actronym in which the word for an activity acquired the meaning of those engaged in it. It is most often used by the Founders as an outiseme, a polyseme with at least two meanings at the same time, the basic meaning of "defense activity" and a secondary meaning of those who engage in the activity or are obligated to do so.

Gura also left unchallenged the point made by Justice Alito that the power delegated to Congress in Art. I Sec. 8 Cl. 15 and 16 to regulate militia was "plenary", so that the power to organize the militia could include the power to disband it. Gura did briefly dispute this, but should have anticipated it in his brief with the argument that no delegations of power are plenary, because there are only certain directions in which power may be exercised that are constitutional.

The brief endorsed by the White House, which conflicted with that of the Solicitor General, Paul Clement, made the beginning of a good point by drawing an analogy to the preemptive power to regulate the time, place, and manner of congressional elections (except the place of senate elections). But it failed to go on to make the point that it is only constitutional to regulate elections to make them more convenient, fair, and accurate. It is no more constitutional for Congress to prescribe the disbanding of militia than it would be to cancel elections (especially if they didn't go the way Congress wants).

There are several important distinctions that cannot be overemphasized. They are very basic, and one might expect trained, professional lawyers to make them in the normal course of their profession. It is alarming to see members of the U.S. Supreme Court and lawyers arguing before them failing to make them.

The first such distinction is the proper meaning of the term constitutional right. In the U.S. Constitution this means an immunity, that is, a right against the exercise of a power by government officials, what is sometimes called a "negative right" by some commentators. To be such an immunity, it must not be legislatively disabled or restricted. The exercise of an immunity may be disabled or restricted by judicial due process, to resolve a conflict among parties, or if it is proved in court that if not disabled or restricted there will be harm to the subject or to others, or as punishment for a crime defined by a constitutional criminal statute. But that is not the same as a legislative disablement or restriction, which would be a constitutionally prohibited bill of attainder. See my article, Public Safety or Bills of Attainder?

Now it may happen that the exercise of some power happens, incidentally, to put a burden on the exercise of a right. This most often occurs with the exercise of a taxing power. The question then becomes whether the burden is undue, or excessive. For example, a court may reasonably find that it is not an undue burden on the right to a free press to impose the same 7% sales tax on the sale of newspapers or newsprint that is imposed on almost all other commodities. However, a 100% tax just on newsprint, especially that sold to a disfavored newspaper, would indeed be an undue burden. But that is not the same as a direct or indirect legislative restriction, regulation or prohibition of the exercise of a right, such as by doing what was done in the district of Columbia, by passing a criminal ordinance requiring firearms to be registered, then, beginning in 1976, refusing to accept further registrations.

Also confused in the oral argument was the question of what is the authority for any legislative restriction or regulation. Would it be the exercise of a municipal police power, of the alleged power of Congress under the Commerce Clause as extended by modern (incorrect) interpretations of the Necessary and Proper Clause, or of the Militia Clauses of Art. I Sec. 8 Cl. 15 and 16 and Article II. It should be clear that with militia involved, whether active and organized or not, the power of Congress and the derivative authority of the District of Columbia, considered as akin to a state, that power is limited to the Militia Clauses. That means that while the U.S. or DC government may require citizens not in a called-up status to keep certain weapons and equipment, they may only regulate or restrict such weapons or equipment for persons in a called-up status, and it would be unconstitutional to keep everyone, or some disfavored group, in a called-up status indefinitely as a way to authorize the regulation or restriction.

Another point of confusion was in discussion of United States v. Miller, 307 U.S. 174 (1939), in which the discussants took from it that the weapons that could not be properly prohibited were those that were in common use by the people (when not in called-up status), rather than, as the opinion states, suitable for militia use, which is quite a different thing. The issue in the case was whether the weapon in question could be taxed, because if it was suitable for militia use, it would be properly tax exempt, on the grounds that a tax on it would be an undue burden on the exercise of a right. Neglected in that case was the question of whether it was constitutional to make it a criminal offense to possess something on which a tax had not been paid, which, given the limited delegations of powers in the U.S. Constitution, is itself unconstitutional. But that point was not argued in that case, perhaps in part because the party, Miller, was dead, and no one appeared to represent him in court. That fact makes the entire case infirm. The Court did signal that it had to make the distinction between items suitable for militia use and those that are not because if everything was suitable for militia then nothing could be taxed. However, since almost any working item might potentially be used for militia in some scenario, the real distinction that has to be made is whether that item was so used for some significant period of time, or would be likely used for militia at least some of the time. The issue arises because while the materiel of regular military forces are normally acquired through a formal acquisition process, in which the items are clearly identified, with purchasing being tax exempt, for irregular forces where militia materiel is acquired informally by individuals, the taxability of each item becomes ambiguous.

Apparently, the respondants were trying to avoid arousing fears that their legal position might threaten restrictions on the possession of such things as fully-automatic firearms, armor-piercing ammunition, rocket-propelled grenades, or plastic handguns, or possession of firearms by various classes of persons administrative deemed to be "dangerous" (see my article above), which were not issues in this case anyway. The members of the U.S. Supreme Court seemed to want to explore that area, and none of the litigants seemed as prepared for that as they should have been. It is difficult to tell a justice of the Supreme Court that his question is not on point to an issue in the case, but that should have been done. What should not have been done was to concede that there were weapons suitable for militia that could nevertheless be prohibited as not protected by the Second Amendment. The remedies for misuse of such weapons are to organize and train people as militia, and if someone is not fit to have or use one responsibly, to disable his right in an individual due process proceeding.

Another annoying error made in reporting on this case is to treat the word "General" as a title or rank of the Solicitor General, Paul Clement. It is not a title or rank. It is just a way to distinguish the official as not a "Special" solicitor. Similarly, the term "Attorney General" only means the person holds a general power of attorney, instead of only a special power of attorney, and it is similarly incorrect to call an attorney general by the title "General". The proper term of address is only "Mister".

From my viewpoint all the briefs of the parties and amici were deficient in various ways. I find the arguments shallow, lacking in a deep, philosophic understanding of the issues, as well as failing to anticipate the course of future litigation. It will mean more work for the lawyers, and a continuing ability of the gun rights organizations to recruit members and solicit donations, but it does not move us to where we need to be. Gura, the respondant's team, and supporting amici were too willing to concede many ways that firearms might be "reasonably" restricted, ignoring the fact that there is no constitutional authority to do so even if the Second Amendment allowed it, which it does not.

Ron Paul 2008 Campaign Postmortem

As a veteran of many election campaigns and movements, going back to 1960, and as having spoken to a lot of voters in this campaign season, I have a somewhat different take on the Ron Paul campaign than Sean Scallon does.

Although there are still many voters who have never heard of Ron Paul and his message, there are also many who haven't heard much about the other candidates, either. I find that polling in single digits was not the result of not enough people knowing. This is best indicated by the results in his own congressional district, where 70% of Republicans voted to return him to Congress, but only 12% voted to nominate him as the Republican presidential candidate, not enough to pass the 20% threshold for getting delegates. Those results don't come from not knowing, or even accepting, him or his message. Voters in his district know him fairly well. They like and trust him, and more people vote for him for that than agree with his positions, most of which they don't understand and prefer to trust him to think about.

The 5% of the vote he got in the Republican primary in Texas, normalized by multiplying by .6 to project it to the results that might be expected in a general election, yields 3%. That is the same percentage I received in the 2006 election when I was the Libertarian candidate for Texas Attorney General, and I got and spent far less money and had far fewer campaign workers. In other words, when it came to the final test, we both only got a hard core of libertarian voters who are more concerned about sending a message to policymakers to move toward libertarian constitutionalist positions than they are about nominating a candidate that they think can win in the general election. They perceive that, even if they are ready for a president who takes such positions, most of the rest of the country is not. It is not unlike the perception that the country is not ready for a black or female or Muslim or gay or openly agnostic president, even though oneself might be ready. Their perception is that the country is more ready for any of those than it is for a libertarian constitutionalist president.

I do not find any serious deficiencies in the efforts of the many campaign volunteers, other than there not being enough of them. I have been involved in campaigns in almost every election during the last 48 years and this was without doubt the best organized, most effective, and most enthusiastic I have seen. Everyone involved should be proud of his or her contributions to the effort, and I commend them all.

But we were up against a mindset we could not overcome: voters just did not perceive Ron Paul as someone who could win the general election, or, even if he won, be allowed by the Establishment to govern. I find that only about 10-15% of Republican voters tend to agree with his libertarian constitutionalist positions on domestic issues, and less than half of those agree with his strongly non-interventionist foreign policy positions. While he attracted many volunteers who opposed the Iraq war and foreign intervention, most of the voters with those views preferred to vote in the Democratic primaries or caucuses, largely out of habit and their herd affiliations.

There was also the problem of there being too many candidates competing for the same libertarian constitutionalist voters, especially, toward the end, Mike Huckabee. If the Establishment wanted to defeat our movement, they could not have found a better way to do it than by loading the field with multiple candidates to divide and conquer. If Brownback, Hunter, Tancredo, Huckabee, and Thomson had just stayed out of the race Paul might have gotten as much as 20% of the vote, not enough to win, but enough to shift the policy direction of this country toward libertarian constitutionalism. The Republican voters were gullible enough to fall for that.

The movement has its work cut out for it. Don't get discouraged by that. It took 200 years to get into this predicament and it may take a few generations, or perhaps a major catastrophe, to get us out of it. We are about changing the civic culture of a country, without the benefit of most parents or schools helping to transmit the traditions and habits of thought that founded it. As my grandfather, who used to teach in a one-room schoolhouse, predicted, we have become a nation of historyless adolescents, and growing out of that fast usually takes a lot of pain.

Now the movement needs to shift to electing libertarian constitutionalists to lower offices. It was never realistic to think that electing a president could change anything without first electing like-minded people to every other level and branch of government. Without the rest of the building, beginning with the foundation, the weathervane to be put on top will just lie in the ground, never showing which way the wind is blowing.

I am a candidate for the Texas Libertarian Party nomination for U.S. Senator. There are other such candidates, perhaps even a few within the Republican and Democratic parties, but mostly not. If you want to move the civic culture in the right direction, that will mostly mean supporting or becoming Libertarian candidates.

Let us challenge the voters to vote for the Constitution, because any vote not for the Constitution is a vote against it, and that means a vote for most Republicans or Democrats. Make it clear that to vote against the Constitution is to vote for letting government spy on you, destroy your reputation, assault you, imprison you, take all your property, kill you, molest your family, and force you to dishonor yourself, with no recourse but violence and none to come to your aid. If that's what you want, then volunteer for it, but don't vote for having that done to the rest of us.

The Genomic Contract

The concept of the social contract (or compact, as some prefer), developed by such political philosophers as John Locke and Jean-Jacques Rousseau, heavily influenced the Founders. It describes a society as the result of a kind of unwritten contract among its adult members to cooperate and not prey on one another, who pool their powers and jointly decide to delegate some of those powers to agents who function as a government.

In 1976 Richard Dawkins wrote The Selfish Gene, in which he developed the concept that the fundamental unit selected for fitness in biological evolution is not the individual but the gene, and that it is a success strategy for genes to have their organisms sacrifice themselves to insure the survival not just of their own progeny, but of the genes they share with their relatives. This view of genetic evolution explains the advantage of individuals uniting in societies, because it is the society, more than the individual, that enables the survival of the genes shared by its members.

If we carry forward this gene-centric model of evolution, however, we see that it is not really "the gene" that is the fundamental unit. Genes mutate, and the mutations, if they make the organism more fit, tend to survive and yield "progeny" that are descended from them, but not the same. So it makes more sense to describe the fundamental unit not as a gene but as a genetic line of descent.

However, genes do not survive or propagate in isolation, any more than individual organisms do. It therefore makes sense to describe a genome as a kind of society of genes, united by a kind of contract, analogous to the social contract, which we may call the genomic contract. As a society, instances of genes cooperate to propagate the survival of a few copies of themselves, or mutated descendants. In multicellular organisms, especially those that reproduce sexually, most cells are nonreproductive and do not act to insure the survival of direct copies of their own genes, but the genes of cells differentiated to function as reproductive cells, in much the way that social species of organisms do.

Looking at genomes as societies of genes united by a genomic contract is not just a philosophic exercise. It can help us understand how genes are organized into genomes, how they adopt specialized roles, how they sacrifice themselves for the benefit of others, and even how they make collective "decisions". We may even be able to identify persistent transactions among them. We may be able to apply variations on economic, political, and anthropological models to help us understand them. We can speak of games with genes as players, and apply the methods of game theory.

This is only an introduction to the use of this concept. It is hoped that others will pick up on it and develop it further.