Cautions for "nullification" proponents

South Carolina in 1832 was political theater. it did some good, mainly because in those days the federal government depended on the cooperation of local officials to some degree, which it no longer does, and because there was a threat of secession (which occurred 29 years later anyway). But the 1832 SC ordinance per se did not actually repeal the 1828 tariff, as a matter of law.

The historical antecedents for nullification were the Kentucky Resolutions of 1798 and 1799, authored by Thomas Jefferson, and the Virginia Resolutions of 1798, and the Virginia Report of 1800, authored by James Madison. This documentation is collected into a book entitled The Virginia Report by J.W. Randolph.

The mythology comes with the labeling of the proposal "nullification", which sounds like some kind of magic spell to uneducated laypersons. It is overselling a method of protest that has value but is not magic.

"Nullification" is not some kind of simple act of repeal. It is relentless resistance to official action by so many people over a sustained period of time that officials become discouraged and abandon the effort.

Consider some historical examples. In the years leading up to the 1861-65 War of Secession northern juries were refusing to convict for violations of the Fugitive Slave Acts and to return escaped slaves to the ones who claimed to "own" them. That effort, extended over decades, effectively "nullified" those acts, and southern frustration with that caused them to adopt Ordinances of Secession complaining of that.

But nullification can be used for evil, too. In the 19th and first part of the 20th century we saw juries refuse to convict Whites of killing not just Blacks, but Native Americans, Chinese, and other disfavored minorities. Male jurors often refused to convict men of beating or even killing their wives and kids. Hopefully we have gotten beyond that.

During Prohibition, juries increasingly refused to convict moonshiners and even big bootleggers. That actually finally led to repeal of Prohibition.

Later, juries refused to convict for abortion, leading many officials to actually welcome a court decision that would get them off the hook for prosecuting such cases.

But most of those nullification efforts involved thousands of cases over the course of years or decades. No one case did it. Except for Prohibition, the statutes mostly stayed on the books, available for future prosecutions.

For professional prosecutors there is no single conviction rate below which they can be counted on to give up trying to prosecute such cases, although 50% is a good target for planning purposes. Many are likely to be content to use prosecutions to destroy the fortunes and reputations of people they don't like. Remember the old cop saying, "You might beat the rap but you won't beat the ride." If that is the intent, it won't matter if they never get a conviction. Of course, now they can get witnesses to "testily" and pile on enough charges to get the accused to cop a plea, so most cases never appear before a jury.

There is concern among many civil libertarians that if we become too successful in getting juries to refuse to convict for unconstitutional prosecutions, the law enforcement establishment will just report that every arrest was "resisted" and the agent was "justified" in killing him. Save the cost of a trial. Don't say it won't happen. It is happening already.

When Jefferson, Calhoun, and others called for state resistance to unconstitutional federal legislation, it was at a time when the federal government needed cooperation and support from state officials. They no longer do. They have their own army of enforcers, and don't depend on the states for anything important. A "tenth amendment resolution" is just an expression of opinion, with no more legal effect than a resolution that the sky is blue. It costs the state legislature nothing, because it changes nothing. Oh, it might nudge members of Congress from that state a little, but chances are that a state in which one can get such a resolution passed already has members of Congress who tend to agree with it. The trouble is, they are a minority in Congress. It might have a tiny influence on members of the House of Representatives in those states from urban districts, which is the main basis of support for unconstitutional legislation, but the city-dominated states are tough audiences for our message.

Don't misunderstand. It may have some value as political theater. I only object to overselling it as some kind of magic solution. You may know it is not, but too many people may not. If you misrepresent what is going on, or promise too much, it will inevitably backfire down the road. I believe in playing things straight, not oversimplifying or allowing followers to oversimplify or deceive themselves. We need to be the professionals.

If you think it is okay to let uneducated people be deceived or deceive themselves to get a political outcome, then we have a disagreement. That may be rhetorically expedient, but it is building on quicksand.

Civil disobedience is a major part of what we have to do, as individuals, and of course individuals can be mobilized with a leadership role for state officials or actions. But keep in mind that it is civil disobedience, and not formal repeal that courts will have to respect.

What is missing from most of these proposals are provisions to protect individuals who join in protest. If a state legislature votes to encourage its citizens to resist, then it should also vote to support them legally and financially when the agents of the central government proceed to enforce anyway.

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2010/01/19 9:53 PM
Addendum concerning Prigg v. Pennsylvania:

Prigg v. Pennsylvania is interesting in several ways. It is one of the first few cases in which the justices wrote separate opinions, and the diversity among them is revealing, especially the opinion of J. McLean, whose argument would require him to dissent, even though he didn't.

It is, of course, a political case, made to placate the southern states and avoid secession. I doubt anyone would seriously cite it today in a court. It makes the leap from a constitutional provision that leaves enforcement to the states, and asserts a new power of Congress to enforce it, in the Act of 1793, which did not authorize the seizure of the slave without getting certification of a state magistrate. That alone would require that the Pennsylvania statute not be ruled unconstitutional insofar as it was not in conflict with it.

Of course, federal courts would not recognize state "nullification" statutes, and they wouldn't need to invoke Prigg.

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2010/01/21 5:09 PM
Addendum concerning proposal for a nullification resolution by the Texas Legislature:

It won't work to demand a special session to enact a resolution opposing federal legislation that hasn't been enacted yet.

The South Carolina nullification ordinance of 1832 was opposing a specific Act, the Tariff Act of 1828. It did nothing about any further acts Congress might pass.

Rep. Leo Berman wants to make it a constitutional amendment, submitted to the voters for approval. That won't work for unenacted congressional legislation that can be renamed and repassed in the future.

What we really want is to adopt a process to challenge any present or future unconstitutional federal legislation. That means some general process for deciding what federal legislation is unconstitutional.

It won't work to demand the State Legislature that only meets every other year to adopt resolutions on every unconstitutional piece of federal legislation. It doesn't have enough time to consider everything proposed now, and we need a mechanism that can respond faster than in two years.

What we need is what might be called a "Congressional Legislation Review Commission" that would be set up as a kind of special grand jury, but that would meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, perhaps appointed by the Governor or Attorney General, or perhaps by the Legislative Council. It would be empowered to review the constitutionality of congressional legislation, and if it found such legislation to be unconstitutional, to issue an edict, with the force of law, requiring that no state officials cooperate in the enforcement of it, and urging state citizens to refuse to cooperate.

There should also be a state fund established to pay for legal and financial support of state citizens and officials who refuse to cooperate. States are barred by a Supreme Court precedent, Massachusetts v. Mellon, 262 U.S. 447 (1923), from representing the rights of their citizens in federal court (under a principle called parens patriae), but it can pay for private representation.

"It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 180 U. S. 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field, it is the United States, and not the State, which represents them as parens patriae when such representation becomes appropriate, and to the former, and not to the latter, they must look for such protective measures as flow from that status." 262 U.S. at 485-86.

If you have any further questions, first try to answer them from the resources on or linked from our website, and then ask me if you can't find them after a diligent search.

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2010/01/22 7:50 AM
Addendum concerning draft of proposed Texas nullification legislation:

Proposed Components:

1. Commission. Establish a "Federal Action Review Commission" — a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials and agents. No official, employee, or contractor shall be penalized for compliance with the edict.

4. Funding. Establish a state fund to pay for private legal counsel and provide financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.

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2010/01/23 10:54 AM
Addendum concerning prospects of proposed Texas nullification legislation:

The question has been raised about whether the proposal will be an enduring solution.

It can only work if the voters sustain the pressure over a long period of time. No one-shot enactment will ever endure.

But this one is structured to improve the odds that the voters will be kept active. The Commission is supposed to meet at least once a week, and is charged with finding federal actions that are unconstitutional, not with finding constitutional ones. No risk of running out of material for that.

What I would expect is that they would start out making somewhat timid findings on more obviously unconstitutional, but not very important, federal actions. Still, their findings would be reported, and I would expect, would bring a lot of interest and public discussion. Each such report would stir up demands to find more things unconstitutional, and likely embolden the Commission to make bolder and bolder findings.

If more than one state did this, the reports of one state would spread to other states, each building on one another, and building public demand for more states to join in with their own commissions.

Eventually, this process of ratcheting demands for constitutional compliance would spill over into election campaigns, with candidates competing to be out in front of public demands for it.

This in turn could lead to public demands for constitutional amendments that would entrench constitutional compliance and overturn adverse judicial precedents.

Needless to say, reliance interests would be opposed to such commissions, so it would be a battle to keep them strong, but it is certainly attainable.

If we can get one such commission going, it could bring the revolution we have been wanting, and do so in a peaceful and reasonably orderly way. This could be the key to everything if we do it right.

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2010/01/24 12:58 PM
Addendum concerning scholar Thomas Woods, Jr. on nullification:

Videos of Thomas Woods:

http://www.youtube.com/watch?v=aayyKKGXACI

http://www.youtube.com/watch?v=IRcw1NVYZVQ

http://www.youtube.com/watch?v=5qd5Lo4BsmM

Message from Thomas Woods 01/24/2010 12:20 PM:

Thanks. I've seen that post, and I in fact agree with your cautions. I don't think people consider nullification some kind of silver bullet. It is useful because it symbolizes the people's willingness to engage in civil disobedience. If that willingness isn't there, no declaration of nullification is worth anything. Also, even to raise the question serves an enormously useful purpose in that it jolts the people into the realization that the states need not be passive victims but can in fact defend themselves in various ways. Nullification likewise puts the Constitution back into our discussion of political issues. For these reasons alone, the current wave of interest in the subject is to be cheered.

I don't trust historians and legal scholars to determine constitutionality, by the way, and I suspect you don't, either. Which ones do you think would be appointed -- people from the 98% who think the current system is just fine, or the 2% (who happen to be correct, but will be dismissed as cranks) who actually understand the situation?

Cordially,
Tom Woods
--
http://www.TomWoods.com
Check out my latest book, a New York Times bestseller -- Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse.
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Reply from Jon Roland 01/24/2010 12:53 PM:

You're right. I don't trust most legal historians and constitutional scholars in academia, but I suspect that if the panel of 230 were selected as I propose, in Texas at least the pool would be heavily loaded with members of that 2%, and that a random selection of 23 from that pool would likely yield majorities that would find at least some things unconstitutional.

We shouldn't want such a commission to immediately start challenging every unconstitutional federal act, including some of the worst. If, for example, they found the income tax on wages unconstitutional, it would yield a firestorm that would likely bring about the destruction of the Commission. It needs to work up to that step by step, each step building more and more public support, not only in one state but across the country. It might be better not to have the first panels loaded with the 2% for that reason. I have found that even among the 98% there are plenty who don't think everything is just fine, and if tasked to find something unconstitutional, and surrounded by others similarly tasked, might stick their necks out and call it so, perhaps timidly at first, then bolder and bolder.

This is also intended to re-educate that 98%, to get them to shift into the 2% (which would not remain 2%), who we are going to need with us down the road. Most of them seek the safety of the middle of the herd. We need to reposition the herd. This is a cultural revolution.

I am on many forums with such academics. When I started in the late 1990s I was ridiculed. Then I got angry rebuttals (most of which crashed on the rocks of my well-supported arguments, backed by all the primary sources on my website). Now I often get, "Okay, you're right as a matter of history and logic, but your position is impractical." They're begrudgingly coming around.

Reply from Thomas Woods 01/24/2010 12:56 PM:

Thanks a lot. These are all excellent points. I have benefited very much from your excellent site, by the way. It is an understatement to call it a great public service.

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2013/09/04 09:04 AM
Addendum concerning the merits of a state making federal enforcement a state crime

Nullification is not resistance to usurpation but the abandonment of usurpation as the result of the resistance. The resistance doesn't have to survive a court challenge to be effective, as state criminal penalties on federal officials trying to enforce a federal statute initially would not. However, it can be useful to set up a court challenge to the constitutionality of the federal statute in a way that would give the state standing to litigate the case. Present doctrine denies standing in federal courts to a state attempting to defend the constitutional rights of its citizens, since Massachusetts v. Mellon (1923), but if a federal agency challenges state interference with its agents in the enforcement of a federal statute, it creates standing for that state to challenge the constitutionality of that statute, and that puts a player into the game with more clout and is likely to draw more public attention to the case. That may induce more voters to make the case an issue in the next election, and members of Congress more likely to repeal the federal statute.

So there is definite method to efforts of this kind. It is not just grandstanding.

The Top Ten Ways You Can Tell When a Federal Judge is Lying

'Tis the season for Top Ten lists, so here is one, in no particular order:

1. When the judge tells the jury "You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them."


2. When the judge instructs the jury to follow what he tells them the law is when all he is doing is telling them what is his opinion on what the law is.


3. When the judge disallows a party to present a certified copy of a constitution, statute, code, regulation, or court decision to the jury as a "misstatement of the law".


4. When the judge instructs the jury that "if the defendant did X then you must find him guilty of X".


5. When the judge quotes anything as "the law" except a constitution or statute, such as the U.S. Code, a regulation, or an administrative instruction.


6. When the judge says he is bound by oath to follow precedent.


7. When the judge holds any constitutional argument, or an argument he disagrees with, or finds inconvenient, to be "frivolous".


8. When he calls what he has empaneled a "grand jury" whose members are not selected at random.


9. When he says he is trying to be fair but only socializes with prosecutors, and probably was one.


10. When he gives speeches or writes opinions obviously designed to appeal to those who might appoint him to a higher judicial office.

Could come up with a few hundred more, but that will do for now.

Justice in the Courts?

Courts are not to deliver justice. They are to resolve disputes that might disturb the operation of the economy. All that matters is money and power. Courts make political decisions and disguise them as legal decisions to deceive people and keep the public from civil disorder that would be bad for business. Keep that in mind and everything will make a lot more sense.

If you want justice prove that if you don't get it the result will be bad for business.

The purpose of the courts, as they see it, is not to render justice but to remove obstacles to the smooth flow of business. The only way to get justice is to get judges to fear that if they don't provide it there will be civil disturbance that would be bad for business. They will provide just enough justice to deceive people into thinking they have a chance to get it in court, and exhaust themselves in the judicial process, thus defusing anger that might otherwise erupt into violence.

Keep in mind that the foundations for even the little justice the system provides was laid less by wise and beneficent jurists than by mobs of citizens who burnt down courthouses and hanged any judges they could catch. It took that to happen from time to time to get the judges' attention.

Some ask why the major media don't cover the topic of judicial corruption and abuse. I have discussed this with people in the media, who admit that they now avoid touching official corruption in general, and judicial corruption in particular, because they are afraid of the officials, and especially the judges. They feel vulnerable and think they need to keep on the good side of judges. They often cited the fact that at any time they can be sued for something and if the judges are unfriendly they can be put out of business. I have also spoken to leading advertisers and they echo those sentiments. Gone are the days when the media felt they could engage in muckraking exposes. That ended with Jack Anderson.

The only way we can get the major media to cover our concerns is to create breaking news they can't ignore, or get the foreign press to pick up on it and have their coverage bleed over to our media.

If you haven't seen it, try to catch the movie Law Abiding Citizen for a sense of what a lot of people are feeling.

"Nothing important ever happens unless someone is willing to kill somebody if it does not happen." - George Bernard Shaw.

A Lawyer’s View of the Justice System, Joseph H. Delaney, July/August, 1999, issue of Analog Science Fiction and Fact, Vol. CXVIX No. 7 & 8 — ”... the proportion of judges who are dishonest, who are on the take, who harbor prejudices against parties or counsel, is far greater than the lay public realizes. ... Corruption is rampant in courts at every level throughout the country. It is equally rampant among prosecutors and law enforcement people. ... The primary corrupting influence is the drug business. ... the dope interests own contemporary justice. ... There is no greater shock than to find that even with both law and the facts in your favor your constitutional rights are worthless because you can’t get the crooked regime to enforce them.”

http://www.constitution.org/abus/narc/lvjs.htm

If you don't want corrupt officials, stop voting for them. It's easy to spot them. They're the ones who get large amounts of money donated to their campaigns. Only candidates without much money should ever be voted for.

Unfortunately, most people vote for the candidate they expect to win so they can say "My candidate won!", rather than say "I voted for the best candidate but he didn't win." Too many people would rather be on the winning side than on the right side.

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.