Hutaree indictment

Let's examine the indictment in detail from a constitutional standpoint.

1. The "general allegations" are inflammatory rhetoric that does not belong in an indictment. It is an attempt to make mere organization and training seem to be a crime, but it is not, even for the unconstitutional provisions of the U.S.C.

2. Count 1. "Seditious Conspiracy". The key statement is:

... acting as a militia group know as the HUTAREE, did knowingly conspire, confederate, and agree with each other and other persons known and unknown to the Grand Jury, to levy war against the United States, to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law.

The only provision of the Constitution for the United States that might provide authority for any part of this is the Treason Clause, Art. III Sec. 3 Cl. 1:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

In the 10th Congress, First Session, Senate, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50, a proposal was moved, debated, and rejected on constitutional grounds, to make conspiracy to commit treason a crime:

Conspiracy is an offence no where mentioned in the Constitution. ... This Constitution being a special grant of power, those acting under its authority cannot claim the exercise of any power not delegated or vested in them, except such incidental powers as may be requisite to carry the specified powers into effect or result from the exercise of them. The power to punish conspiracy cannot be included with the class of incidental or resulting powers. ... This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code. Conspirators, when their guilt is well ascertained, will generally be punished with sufficient severity by that great censor, public opinion. It does not appear to be entirely congenial with either the genius or practice of the American Government to punish a man for his wicked intentions, until they have eventuated in the perpetration of some unlawful act.

So by this original understanding, the Constitution really does require the crime of treason actually be carried out, and not just be planned or directed. One may argue this is impractical, that it would make the Constitution a "suicide pact", but the Constitution says what it says and until it is amended we are bound to its limits, no matter what apparent necessities might emerge.

Similar arguments can be made against the charges in the indictment, "to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law." There is no constitutional authority to make those things a crime, or any authority to make anything a crime under the Necessary and Proper Clause. For further discussion of why sedition is not a crime under the Constitution see the original draft and adopted version of the Kentucky Resolution of 1798:

That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatsoever

The indictment cites a "general concept of operations" but a concept is not a crime, even under state laws that make conspiracy a crime, but require there be a near-term timetable and a commitment to that timetable. A plan that is contingent on some future event that may never happen, or for a contingency in a distant future, does not qualify under even state precedents.

In the indictment "a. Conspirators acquired ..." a lot of things that are not criminal to acquire or possess, with the possible exception of "explosive devices" for which there is a provision in the U.S.C., that provision is based on the Commerce and Necessary clauses and is unconstitutional. It does not belong in an indictment.

In the indictment "b. Conspirators engaged in military-style training ..." is an improper attempt to portray a legal activity as something sinister or unlawful. It does not belong in an indictment.

In the indictment "c. ... planned the killing ..." could provide a basis for a proper charge of conspiracy in state court under a state law, if the plan was a commitment to a timetable and not just a fantasy, but absent a plan to do so on federal territory, there is no federal jurisdiction, and the Grand Jury erred in finding such jurisdiction by their indictment.

In the indictment "d. ... covert reconnaissance exercise... could be killed" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "would" not "could", and "could" only puts it in the realm of fantasy.

In the indictment "e. ... solicited a person he believed capable of manufacturing destructive devices ..." makes the charge void for vagueness. Anyone with hands and of normal intelligence is capable of that. " ... identified law enforcement officers ... as potential targets of attack" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "targets" without the "potential" qualifier.

In the indictment "f. ... engaged in training devoted to preparing for the planned covert reconnaissance exercise" refutes the position of the government that it was a conspiracy even under state law, because for that it would have to be a planned killing and not just a planned "reconnaissance exercise". "Each of the conspirators in attendance carried and used at least one firearm" is intended to provide a premise for an enhancement to the crime, but there has to be a crime, and the indictment itself does not establish the premise for that.

As thus explained, 18 U.S.C. 2384 is unconstitutional in every part, if applied to actions committed on state territory. See this brief.

3. Count 2. 18 U.S.C. 2332a(a)(2) -- Attempt to use weapons of mass destruction. The same arguments that refute a power to make conspiracy a crime also apply to make "attempt" a crime. Perhaps the federal government should have such power, but it is not provided in the Constitution, even under the Commerce and Necessary and Proper clauses. See this article.

4. Count 3. 18 U.S.C. 842(p)(2) -- Teaching/demonstrating use of explosive materials. Obviously unconstitutional. If if were, then every publicly available military manual, and many movies and TV programs, would be in violation, as would instructions for holiday fireworks.

5. Count 4 and 5. 18 U.S.C. 924(c)(1) -- Carrying, using, and possessing a firearm during and in relation to a crime of violence. This could be constitutionally applied as an enhancement to the sentence for a crime for which there is federal jurisdiction, but not as an offense by itself, where a constitutional federal crime is not proved, and it is unconstitutionally vague as to the definition of "violent".

Based on the indictment alone, without examining the evidence in the case, the charges are facially without merit, and the indictment defective. The matter should be turned over to state authorities to let them pursue it if they think it has merit.

The DoJ is also at fault for publicizing this case as an obvious propaganda campaign to increase its budget and get further legislation enacted. This is an improper and probably unauthorized use of public funds.

The mainstream media should be criticized for referring to the Hutaree as "militia" in connection with these charges. They do not refer to themselves as militia, although they have some links to militia unites on their website. If the charges are valid, they are not militia, by definition. The original correct meaning of "militia" is defense service. It is not militia to incite violence, or even to threaten to do so.

Taxability and apportionment

There is some confusion about what "apportionment" means or originally meant. To be apportioned any tax would have to be adjusted so that the amount collected in any political jurisdiction would be proportional to the number of people who live in that jurisdiction, such as a "head" tax of an equal amount on every individual, collected and paid directly to the IRS, not to the states or other political subdivisions. It should be clear that such a tax on merely being alive is unfair to the poor, so a way was sought to collect more from those better able to pay to offset what would otherwise be a burden on the poor, but still keep the total collected proportionate to the populations of states and other subdivisions. That is not easy to do, because the calculation of the tax can't be done at the level of the individual taxpayer until it is done for all taxpayers in the subdivision. It would have to be done in two phases: first to generate an estimate of the now unequal assessment on each and every individual, and second to adjust all assessments so that the total for the subdivision comes out proportional to population for that subdivision.

The power to tax in Art. I Sec. 8 Cl. 1 does not define what are and what are not proper objects of taxation, and it is a mistake to interpret that to mean that any conceivable object is taxable. The Framers presumed an understanding of what objects are and are not taxable, but left the boundaries to be found by historical investigation.

Generally speaking, the exercise of fundamental rights were not deemed properly taxable, except in an incidental way that did not impose an undue burden. Constitutionally, it would not be permissible to tax people for merely breathing, which calls into question anything like a head tax unless it were extremely small. That would also exclude taxes on things like speaking, publishing, religious devotion, petition, assembly, etc. This principle was recognized in the Militia Act of 1792 when it exempted the tools of militia from being taxed or claimed for debts, not as a change in their taxability but as a recognition they were already untaxable under the common law understanding of taxability.

So what were taxable objects? Generally, they were only money-making activities such as sales or purchases for money or earnings on investments in land or capital. Taxes were payable in money so there had to be some money in the transaction from which taxes could be taken. Equal exchanges were generally excluded, which would include barter, with no monetary consideration.

The term "income" is not used in the Constitution, and not defined in the income tax amendment, so as Brushaber points out, by implication it could only mean "income" as of 1787. In 1787 "income" would not have included wages or other compensation for labor. Only earnings on land or capital, such as crop sales, rents, interest, dividends, or capital gains. Compensation for labor would have been considered an equal exchange, like barter. If an employer doesn't pay an employee right away, but lends himself the money for a time, then later pays with interest added, the interest would be "income" on the labor, but not the wages that are the principal on which the interest is calculated.

The usurpation involved here is the redefinition of "income" to include revenues generally, rather than just earnings on land or capital. That meaning is now so familiar to most people that they have trouble understanding it didn't always mean that.

The appropriate common law rule of construction for legal terms is expressed in the maxims:

Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

They mean that if there is any doubt whether a power has been delegated, it must be presumed not to have been delegated. If there is any doubt about whether something is "income", it must be presumed not to be "income".

Government by indirection

Many people naively believe that if government officials exceed their authority, there is always a judicial remedy that might be sought in court, to find that usurpation has occurred and refuse to support it. However, officials in general, and legislators in particular, have learned ways to use government power to achieve their ends without providing victims with points of legal attack. We may call this, for lack of a better term, government by indirection.

This technique may perhaps have been inspired by Henry II, who got rid of Thomas Becket by remarking to aides, "Will no one rid me of this turbulent priest?" (some accounts say "meddlesome" instead of "turbulent"), who took it as an order to kill Becket, but leaving Henry with deniability that he had intended that result. History tells us Henry wore sackcloth as penance for his negligence, but that he did not prosecute the assassins, who escaped with little consequence.

The technique is essentially to issue only vague guidance to underlings, expecting them to go further than the actual words written or spoken, providing deniability and avoiding legal attack to the issuer of the words, yet also failing to act against the underlings, allowing their usurpations to stand. When the victim seeks redress, he finds the underlings shielded by official immunity and no laws or directives on which a legal challenge in court might be based.

This was done for the government killers in the incidents at Ruby Ridge and Waco.

The recently discussed "holes in the health care bill" are examples of this. This kind of thing has also been done with the rest of the tax code: Write it with holes that avoid judicial attack, but then encourage logic-challenged IRS agents to use the code, holes and all, to browbeat citizens with their own interpretations, knowing the courts won't stop them. Now the other holes in the tax code (26 USC and CFR) are just omissions, such as omissions of any definition of "income" or "taxpayer" on which a legal challenge might be pinned, but that has not prevented IRS agents from writing their own rules in the instruction booklets or making their "assessments" that have little or no connection to law or the Constitution.

We have an interesting example of a case in which "government by indirection" was pled:

328 F.2d 165
PORTLAND GENERAL ELECTRIC COMPANY and Publishers' Paper Company, Petitioners,
v.
FEDERAL POWER COMMISSION, Respondent.
CROWN ZELLERBACH CORPORATION, Petitioner,
v.
FEDERAL POWER COMMISSION, Respondent.
No. 18427.
No. 18432.
United States Court of Appeals Ninth Circuit.

February 7, 1964.

Petitioners argue that, by requiring the licensee to accept a license with the Article 9 provision for the giving of property free of cost for navigation, the Government by indirection is taking property without due process of law, resulting in confiscation.

36

This is not true because petitioners are not required to accept the tendered license. Any license rights which petitioners ever had to construct and maintain these project works expired in 1954. See note 3. In applying for a major license effective as of 1955, petitioners seek rights they do not now have. In order to gain those rights they must accept the license upon such terms as Congress has determined should be imposed in the public interest. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 427-428, 61 S.Ct. 291, 85 L.Ed. 243; Fox River Paper Co. v. Railroad Comm. of Wisconsin, 274 U.S. 651, 656-657, 47 S.Ct. 669, 71 L.Ed. 1279. It is not a taking for the Government to withhold a benefit it is not contractually or constitutionally obliged to confer. Nor is it a taking for the Government to impose financial obligations upon the recipient of a benefit if, as here, the benefit may be declined.

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Except, of course, that the "economic activity" being regulated is not getting health care, but running the risk of needing it and getting "insurance" for it, which must be paid regardless or whether one ever needs or seeks health care, or perhaps even be forced to accept health care without one's consent.

And of course every potential health care beneficiary is going to need a national ID card he will need to carry around with him at all times, and which, if the government finds he is critical of government, can, with a few keystrokes, designate him a "terrorist", "unlawful combatant", or perhaps a "fugitive child-molester cop killer", without conviction by a jury in a court of law.

A leading architect of such government by indirection, which he calls "libertarian paternalism" and some call "soft paternalism", is Cass Sunstein, recently appointed Director of the newly created Office of Information and Regulatory Affairs, popularly referred to as the "regulatory czar". His classic book on that is Nudge: Improving Decisions about Health, Wealth, and Happiness, with Richard Thaler (Yale University Press, 2008), in which he advocates "steering" people's decisions, not by direct coercion, but indirectly by coercing others in ways that create incentives to decide differently. The people "steered" can't challenge the constitutionality of the official acts coercing others, and those others will usually not incur sufficient personal injury for them to have standing to challenge those acts. The result is to achieve indirectly what could not be directly done constitutionally.

When one goes to vote and finds he is required to present this national ID card to be allowed to vote, and the balloting computers can track and report who voted and how, even though the votes are supposed to be "secret", then the last best remedy for tyranny will have been lost.

Thus does a constitutional republic get overthrown from within.

Holes in the Health Care Bill

Much of the opposition to the recently adopted Health Care Bill focuses on the alleged "mandate" for people to purchase health insurance or pay a tax collectible by the IRS, with the implication that it is a fine for nonpurchase enforceable by seizure of assets or imprisonment. The attorneys general of several states have sued to get that provision overturned, and several states are debating legislation to forbid the collection of such fines on their territories, among other measures related to it.

The problem with most of these efforts is they haven't read the Bill closely. It is indeed unconstitutional, but mainly for other reasons, reasons that apply equally to Medicare, Medicaid, Social Security, and the "Income Tax" on compensation for labor.

Let's examine what the language of the statute says:

“‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.”

and further--

“(2) SPECIAL RULES.—Notwithstanding any other provision of law—

(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

(B) LIMITATIONS ON LIENS AND LEVIES.— The Secretary shall not—(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or (ii) levy on any such property with respect to such failure.’’

--seems exclude characterizing it as a fine, but only a tax on self-insuring.

Consider those words carefully, and how they could or would be applied, and how the tax might be avoided.

It is a longstanding principle of law that if there is no penalty for noncompliance with a law, it is a nullity, merely aspirational or rhetorical.

The above words essentially mean the only way the IRS could collect would be by withholding money from a refund or benefit. But there is no withholding for true income, as from rents, interest, dividends, or capital gains, and one can reduce the withholding from compensation for labor by adjusting the number of exemptions claimed on one's W-4 form, or checking no withholding, leaving one to pay a "tax" at the end of the year, but leaving the IRS no way to collect the penalty for not purchasing health insurance. Even if the IRS takes one to court and gets a judgment, such judgment will be effectively unenforceable under the above language.

In other words, the proponents of the Bill were so concerned about avoiding grounds for a constitutional challenge that they gutted their own bill, making the entire scheme fiscally untenable, as though it weren't untenable enough already.

I see this leading to many good jokes on the late night talk and comedy shows.

However, it will also be a joke on the above mentioned efforts by state AGs and legislatures, who may offer some political theater but no legal results, and probably look silly in the process. Their efforts are misconceived. What might work is my proposed Nullification Commission in each state. See http://constitution.org/reform/us/tx/nullification/nullcomm.htm . Lawsuits and state legislative resolutions won't work. Indeed, they are likely to make the situation even worse when they fail. This undertaking requires more strategic subtlety than has been exhibited so far.

Is oath to uphold Constitution honorable?

The question has been raised, essentially, "Is it honorable to take an oath to support a constitution, not only in its present state, but however it may be amended according to its amendment clause?" In the case of the U.S. Constitution, Article V textually and logically allows even for amendment of itself, such as to remove the restriction that the Constitution may not be amended to allow for unequal representation in the Senate, which is a continuing source of irritation to majoritarians who think, mistakenly, that the highest political value is to be "democratic" and that contramajoritarian provisions of a constitution are inconsistent with that value.

This is a variant on a well-known problem in mathematical logic, discussed in terms of "recursion", "self-referentiation", and "non-terminating processes". It is discussed by Peter Suber in "The Paradox of Self-Amendment in American Constitutional Law", Stanford Literature Review, 7, 1-2 (Spring-Fall 1990) 53-78.

But to understand it, we first have to ask, "What is a constitution"? One way to approach the answer is to ask, "If a constitution of government is accurately translated into another language, so that a person adhering to it would make the same decisions, is the translation the same constitution, or a different one?"

The most productive way to answer the second question is to say that it is the same constitution. That is, it is the meanings, not the language-bound text, that is the real constitution. The text is only evidence of that constitution, just as a copy of it would be.

If it is meanings, then how might we represent them that is rigorous and not bound to any particular natural language? The answer, with some simplification, is that they translate into a system of deontic statements, in a normative extension of the first order predicate calculus (FOPC), that express a set of constraints on human behavior in the polity for which it is the constitution.

We will establish it as a premise that to be a constitution, it has to constrain human behavior in a way that is nontrivial, and that enables people to cooperate in protecting their fundamental rights.

If there are no constraints on how a constitution may be amended, then a commitment to a constitution in all the ways it could be amended would contradict this premise, because it would be a commitment not to a set of constraints, but to an unconstrained process that could terminate only if the amendment clause were effectively deleted, and that could morph into something that would not be a constitution at all.

Therefore, the amendment process must be constrained, if not by its own terms, then by principles of sound constitutional design that are superior to any written constitution of government. One way to conceive of these constraints is to posit that there are superior constitutions of nature, society, and the state, that form a hierarchy of authority, superior to the written constitution of government. These concepts are discussed in "Social Contract and Constitutional Republics".

This leads to the question, "Is the Constitution for the United States constitutional?" That is, is it compliant with these superior constitutions of nature, society, and the state? The answer is yes, if we examine the language of the document and look for ways it can be reasonably construed that are compliant. Such a construction exists, so an oath to it understood in that way would be an honorable act. We can recognize that the language contains ambiguities that temporized on violations of fundamental constitutional principles for a time after ratification. Tolerating violative practices is not a flaw in the Constitution itself, only in the application of it. We can say that the Constitution used to be unconstitutional as applied, in certain ways, but may no longer be, in those ways. However, it may be in other ways. One takes an oath, however, to the constitution and not to practices.

So to answer the original question, one can only honorably take an oath to a constitution and its amendments that remain constrained by the superior unwritten constitutions of nature, society, and the state, which contain the underlying principles of sound constitutional design.

Interestingly, with the practice of binding stare decisis we have a practice that is fundamentally inconsistent with the Constitution, and any constitution. A commitment to the present Constitution, properly construed, is not dishonorable. But a commitment to binding stare decisis is, in all the ways that have given rise to the initial question.

As for being "democratic", if that is understood as a political order in which majorities can always decide in support of any positive public action, then that is in essential conflict with our constraint that the constitution protect fundamental rights. It is one thing to prevent positive action without majority consent, but quite another thing to enable positive action with only majority support. In a well-designed democratic system, majority support should be necessary, but not sufficient, for positive public action, and structures and procedures that enable minorities or even individuals to block action are not only sound design, but necessary.

Nullification a serious option

Below is an op-ed article in reply to that of Sandy Levinson that appeared Sunday, Feb. 7, in the Austin American-Statesman. Mine, like his, is exactly 1352 words. It is posted online at the Statesman site.

For more on the historical background see

State Nullification of Federal Action
The Virginia Report, J.W. Randolph, ed. (1850)
A Disquisition on Government, John C. Calhoun (1851 posthumous)

Also see
Texas Essential Knowledge and Skills (TEKS) Review

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Commentary: Nullification a serious option

Proposal by some state legislators could roll back federal overreaching

By Jon Roland

SPECIAL TO THE AMERICAN-STATESMAN



The revival of long-dormant proposals for state legislatures to adopt acts to nullify federal acts that exceed their constitutional authority has gotten the attention of some who try to discredit the proposals by mischaracterizing them. The critics seize on some of the rally rhetoric that necessarily simplifies and may seem to promise too much too soon and too easily, but serious proponents of this path of reform know that the passage of state legislation is only the first step in a long process of organized nonviolent civic disobedience that differs from past movements that have used such methods in that state government is involved in a leading role. It is state-led noncooperation.

In law “nullification” is not repeal or rescission of statutes or executive or judicial actions. It is the result of a sustained, widespread refusal to cooperate with them, until those attempting to enforce the actions are confronted with the unpalatable choice of either backing down or resorting to murderous brutality.

It is similar to what happens when a federal appeals court finds a congressional statute, or an executive action, or the decision of a lower court, to be unconstitutional. It has no power to order the statute struck from the Statutes at Large, or to order executive officials to stop enforcing it, or even to force lower courts from enforcing it. It's only power is to say that if a similar case comes before that court again, it will refuse to cooperate in enforcing the action. But that is likely to be sufficient, because ultimately federal executives need the support of federal courts to enable them to enforce congressional statutes.

State legislatures are in a somewhat weaker position, in that federal enforcers don't need to submit their cases to state bodies to get them enforced. In the early decades of this country federal officials did need the cooperation and support of state and local officials to carry out federal statutes, but they no longer do in the same way or to the same degree. That was why 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, represented such serious challenges to central government authority. Neither Jefferson nor Madison pretended such state resolutions had the legal effect of repeal or rescission, but they understood very well that sustained, widespread noncooperation with federal officials would render them impotent as a practical matter.

This is not a prelude to secession. No one is proposing the governor send the State Guard to surround Fort Hood and begin bombarding it. Now, of course, if federal agents engaged in another murderous assault on innocent Texans the way they did near Waco from February 28 through April 19, 1993, that could be another matter. We can hope that won't happen again.

Now admittedly it is not a good idea to try to adopt state legislation to nullify congressional legislation that hasn't been adopted yet, may never be, or may take an entirely different form by the time it is. A state legislature that only meets 140 days every two years is ill-prepared to respond in a timely manner to a flood of unconstitutional congressional legislation, or to executive or judicial actions that may be similarly unconstitutional. We need to establish an institution that can respond rapidly to a variety of usurpations, most of which may not be foreseeable.

I have proposed to legislators of this and several other states a measure that would address this problem, with the following 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 or agents.

4. Funding. Establish a state fund to pay for legal and 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.



“Official” nullification is already being used, and has a long history of use. For example, Congress passed the RealID Act mandating states issue state identification to federal standards, with centralized management of identification data that would allow nameless bureaucrats to decide who is an American citizen, and who may do business or make a living. Many states, urged by public resistance, have refused to comply or fund the federal act, which has become a dead letter.

An increasing number of states have adopted measures legalizing the sale, possession, and use of marijuana for medical purposes with a physician's prescription, and after threatening physicians with prosecution of the congressional statutes still on the books, the present administration has quietly said it will no longer seek to prosecute such use or the physicians who authorize it. Without actually declaring the federal statutes unconstitutional, this defiance has raised the consciousness of the public so that it is now difficult to empanel a jury in those states that will not contain some jurors who will hold out for acquittal.

Governor Perry engaged in an act of nullification by refusing federal funds for public education that would weaken Texas standards, the model for the entire country, especially in the critical subjects of American History and American Government. The State Board of Education currently has before it proposals to strengthen those subjects even further, which would be disabled by the federal program.

There has also been “unofficial” nullification, mostly by juries refusing to convict for offenses like violations of alcohol prohibition, or to return runaway slaves to their masters. Ultimately it would come down to juries, whose cooperation is critical in federal court cases. It can become nearly impossible to empanel a federal jury without including at least a few who, perhaps inspired by state leaders, refuse to go along with the opinion of the federal judge as to what is the law, and decide for themselves that the charge is unconstitutional and that their duty is to acquit.

Many who took an oath to defend the Constitution despair of getting relief for their complaints in Congress, the Executive Branch, or the federal courts. Perhaps, when state citizens refuse to cooperate, the central government will get the message.

Is Law Based on Logical Fallacy?

A friend of mine, John Wolfgram, posed this interesting question:

It is true that argument ad verecundiam (from authority) is a logical fallacy and it is also true that argument from and to legal authority is the basic modus operandi of the law. Does that therefore mean that the basic method of operation of the law based in a logical fallacy?

The answer is not a simple "yes", because there is more involved than argument ad verecundiam. Legal practice is mostly about deciding what actions to take on behalf of the public, which involves what are called deontic propositions. During the course of that process, there is a tendency to indulge in making declarative propositions, assertions about what is or is not, and that is where such fallacies can be a special problem.

A court is a deliberative assembly of individuals with various duties and the authority to decide certain kinds of legal issues presented to it, called its jurisdiction. One of those duties is to preside over the court, and that presiding officer is typically called the bench or the "judge" (although it may be a panel of several, one is normally the chief).

One of the things courts are typically asked to do is "find" declarative propositions: that the defendant is or is not guilty, or at fault, or whatever. Obviously, the court can err, and declaring something true doesn't make it true. What the court is really doing is deciding "we will act as though it were true". They may have the authority to do that.

So when in law someone argues from authority one is really saying, "we don't know if what he is saying is valid, but we have to make a decision, and he seems more credible than the alternatives, so we will act as though what he is saying is valid." No ad verecundiam fallacy in that.

The fallacy comes when one transitions from "we will act as though what he is saying is valid" to "what he is saying is valid".

Let's examine what Court Y in Case B is doing when it cites a Court X in Case A as precedent. It is saying:

1. The evidence and arguments in Case A are similar to those in our Case B.

2. Court X in Case A decided to act as though the arguments for their decision were more valid than the arguments against.

3. We have confidence in the integrity and competence of Court X.

4. We don't have time to re-examine all the arguments in our Case B going back to first principles.

5. Therefore, in the interests of clearing our docket so we can take other cases, we will act as though the decision of Court X in Case A was valid, and act as though it is similar enough to our case B to make a decision to act in a similar way.

Now all of the above seems sensible, and indeed, given crowded dockets and limited cognitive capacity of judges, it would seem that "justice" could hardly be done otherwise if we are to have any finality in cases. However, as a matter of logic, every one of the five points above involves at least one logical fallacy, not only ad verecundiam.

So are we doomed to a judicial process that is logically infirm? Not quite. Game theory provides some useful insights.

Considered as a game, skillful play involves what are called heuristics -- decision strategies that do not guarantee always finding the best move, but which are highly likely to find an acceptably good move most of the time, and which are computationally tractable given constraints on time, cognitive capacity, and completeness and reliability of information about the state of the game.

Deontic logic, which is an extension of the first order predicate calculus, is designed to help us manage this kind of game playing, to optimize outcomes in general and over the long term. No guarantees of just decisions in every particular case, but a high likelihood of reasonably just decisions in most cases. The above five points represent attempts to use heuristics, whether with great skill and integrity or not.

Our job, in trying to decide and guide public policy, is therefore not to seek to impose strict first order logic on all of the decisionmaking of judges, but to improve the quality of such decisionmaking without excessively consuming scarce resources of dockets or personnel, and that involves reducing the susceptibility to error in each of the above five points. ("Error" being the euphemism for everything from incompetence to corruption.) By thus disaggregating the processes involved, we can better discern what might be done to improve them.

Now of course an important way is to improve the competence and integrity of judges. There is no substitute for that. But we also indeed to adjust our expectations of them.

Consider the recent case of Citizens United v. FEC. For me, with my background in constitutional study, it is an easy case. If I were to write the majority opinion in it, it would be very short:

1. The statute was passed by Congress.

2. The statute abridges freedom of speech and press.

3. The First Amendment says "Congress shall make no law .. abridging freedom of speech or press".

4. There are no later amendments to the Constitution that would supersede the First Amendment.

5. Therefore, the statute is unconstitutional.

6. Judgment for plaintiff.

It took me less than three minutes to write that. No need for extensive written or oral arguments (although I read the written arguments in about an hour). I can generally do the same with almost any case that turns on constitutional issues. (Statutory or regulatory construction can take longer.)

If we had nine justices on the Supreme Court with my background and skills, we could decide all 8000 cases submitted each year and the Supreme Court at least would not be a bottleneck. Now of course it would only be a handful of libertarian constitutionalists that would applaud those decisions. Most others would probably be very upset, if only because so many opinions would likely consist of only a few lines like the above. Not much for them to chew over, and their professional standing depends on having lengthy court opinions to chew over.

I am not unique. I'm sure we could find enough others like me to fill all the judicial positions. Of course, reliance interests, especially prosecutors, would go nuts.

But we can identify a large part of the problem. Judges want to avoid criticism, so they might overdo their deliberation and opinion writing. Now, most of the ones we have presently need to take even more time deliberating, because their subject matter knowledge and reasoning ability is weak. But that could be solved by requiring them to be much better educated. They should also be socially, as well as financially, isolated from the many interests and their lawyers that might appear before them, without lacking practical experience of many kinds.

Revelations in Citizens United Decision

Much is revealed in this quote of J. Roberts in the decision announced Jan. 20, 2010, in Citizens United (joined by Alito).

"To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."

I have highlighted the references to "past mistakes", which is an acknowledgment that the Court has made mistakes in its decisions, and may have maintained it is more important to continue those past mistakes than to correct them. That is logically incompatible with the oath judges take to uphold the Constitution, and grounds for impeachment and removal.

Although Roberts is indicating that there are other mistakes that previous courts have been following contrary to original understanding of the Constitution, he is unwilling to throw open that door widely. He is as least backing off on stare decisis a little, by suggesting in essence that precedents be treated as persuasive rather than binding. That is a position that previously only Justice Thomas has been willing to put forward. That Roberts and a majority are now willing to deprecate binding stare decisis is a huge milestone, but it only points the way to a lot of unfinished business as other precedents are re-examined. That door is now open a crack, for the first time in modern judicial history.

One of the fundamental principles of the Constitution is the right to a presumption of nonauthority. Authority must always be proved from the Constitution and its historical background, not just from the most recent precedent. Generally, precedents supporting a right are correct, and most of those that support a power are not.

See this spreadsheet containing wrong precedents that remain to be corrected.

Links on Legal Theory Blog:
http://lsolum.typepad.com/legaltheory/2010/01/citizens-united-decided-major-changes-in-campaign-finace-laws.html

This decision essentially means campaigns can now accept donations from corporations.

See How Stare Decisis Subverts the Law.

See my Draft Amendments that include an amendment to forbid such use of stare decisis.

Napolitano not quite accurate

The videos of Andrew Napolitano contain several errors of constitutional construction and of history. Here are a few that stood out:

1. It is inaccurate to characterize Alexander Hamilton and John Adams as not believing that rights recognized in the Constitution derived from nature or God. They may have disagreed with Jefferson, Madison and others of their school of thought concerning how to interpret the powers delegated to Congress, but not on the fundamentals of natural or social rights.

2. Contrary to Napolitano, the powers delegated to Congress are not limited to the 17 in Article I Section 8. There are other powers scattered throughout the Constitution.

3. It is not accurate to say that the President must enforce all the laws and must spend all the money Congress votes. First, it is his duty not to do so for statutes or appropriations that are unconstitutional. Second, he has some discretion concerning enforcement, because it is generally not possible to strictly enforce everything, and it is generally necessary to prioritize enforcement actions.

4. It is also not quite accurate to say that any federal court may order the President to do something. As it was pointed out in Marbury v. Madison, the principle of the separation of powers does not permit federal courts to direct the actions of constitutionally elected officials, in that they have no power to enforce such orders. They do, however, have authority to issue enforceable orders to employees and contractors under the supervision of those constitutional officers. Their power over the president is limited to power over those who work under his supervision.

5. Napolitano incorrectly accepts that the "cases and controversies" clause is a limitation of the jurisdiction of the courts to cases in which a party has particular injury to himself. That is the doctrine of "standing" first put forth in Frothingham v. Mellon, 262 U.S. 447 (1923), which removed a key remedy, presumed by the Framers when they wrote the Constitution, by a judiciary trying to evade its duty to decide constitutional issues. This is discussed in The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

6. Napolitano is incorrect that the federal government was created by the states. It was created by the people voting by state. They were not representing the state as a state when they did so, and were also virtually representing the people of the non-state territories. It is a subtle but important distinction that needs to be understood and maintained.

Although I generally commend Napolitano for speaking out on constitutional violations, his understanding of constitutional principles is somewhat distorted by his training as a lawyer. He has written some good books which bring out some of the problems, but which are sadly lacking in the kinds of structural and procedural reforms that are needed to solve them. Most of his suggestions are for officials to behave better. That won't work. Those officials misbehave because of the incentive system within which they operate, and to change the incentive system we have to make structural and procedural changes.

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.