Judicial Reforms Needed

In response to requests to summarize the most important judicial reforms needed, here is a list of some of the most important, with links to further discussion.

1. Select judges into a pool of judges by sortition, or at random, not by election or appointment, but with some filtering for knowledge and skills.
2. Assign judges to courts for short terms by sortition. Even members of the Supreme Court would be drawn at random from the general pool of judges.
3. Have multiple judges assigned to each court, and assign them to cases by sortition.
4. Expand supreme and other appellate courts to 28 members, and hear cases initially by randomly selected panels of three, appealable to randomly selected panels of nine, and appealable from there to randomly selected panels of 27 (with one spare).
5. Require that decisions of multi-judge panels be unanimous to sustain a claimed power of government against a claim by a citizen that the government lacks such power.
6. Mandate reversal of any judgment that does not presume nonauthority for any official act and require strict proof of such authority.
   
7. Mandate reversal of any judgment for the prosecution in a trial with mixed issues of law and fact, including all criminal trials, in which parties have been impeded from arguing all issues of law before the jury, except those issues that may not be argued without disclosing evidence properly excluded.
8. Forbid motions in limine to the prosecution in criminal trials.
9. Mandate reversal of the conviction in any criminal trial in which the jury has not been instructed to determine whether the charge is authorized by applicable statutes and constitutions, or they have not been provided with copies of such statutes and constitutions, and of legal pleadings on the arguments in the case.
10. Mandate the suspension, without pay, on the first offense, for one month, of any judge who, having jurisdiction, fails to schedule a hearing on a prerogative writ of quo warranto, habeas corpus, procedendo, mandamus, prohibito, scire facias, or certiorari, within 3 days of it being filed and served on respondant, or to hold a hearing thereon within 20 days, in which the burden of proof shall be on the respondant, failing which judgment shall be rendered in favor of the demandant. The suspension shall be doubled for each subsequent failure.
11. Mandate the convening of a grand jury of 23 by random selection from each jurisdiction having a population of no more than 3000 persons (village).
12. Mandate that no more than half the time of the grand jury be spent hearing bills of indictment, and that they shall have at least 4 hours to consider each bill, unless they shall choose otherwise.
13. Authorize grand juries to issue subpoenas directly rather than only through their courts.
14. Authorize and direct grand juries to decide the jurisdiction, or lack thereof, or the immunity of any official, for any complaint brought before them.
15. Authorize grand juries to order the removal of any impediments to access to them by members of the public.
16. Authorize grand juries to issue to any complainant or his designee, not just to public prosecutors, an indictment authorizing criminal prosecution.
17. Authorize grand juries to investigate any public or private enterprise whose activities may adversely impact the public, and to report their findings.
18. Mandate that trial and grand juries be convened under the supervision of prior grand juries to insure there is no stacking.
19. Mandate the reversal of any court decision which treats a recent precedent as binding, and for constitutional issues does not return to the original text and historical evidence of its meaning.
20. Mandate reversal of any denial of standing of a party to privately prosecute a public right for injunctive or declaratory relief, or on a writ of quo warranto.
21. Mandate reversal of any disablement or deprivation of life, limb, liberty for more than 24 hours, property, or parental rights without a trial by a jury of 12, including for contempt of court.
22. Mandate reversal of any restriction on the practice of law without a jury trial.
23. Mandate reversal of any court decision in which the public was not allowed to record the proceedings, other than to conceal the identities of the jury.
24. Mandate reversal of any court decision in which the judges do not justify and publish their decision, clearly separating it from summary, findings, and dicta.
    

This list is subject to revision, so check back from time to time for the latest.

Many of these reforms would now require a constitutional amendment to overcome long chains of precedent. Such amendments are to be found here.

Please take our survey on law and the courts:

Originalist issues

Debates among constitutional scholars on what constitutes an "originalist" method or position on questions of constitutional interpretation or construction are too often conducted on a high level of abstraction that might be appropriate for discussion of all constitutions of all polities over all time, but most of the Constitution for the United States is reasonably unambiguous, and for the unambiguous parts most discussants would admit to being originalist, in the sense of holding the language has a fixed meaning as of the time of ratification, and that such meaning is binding on courts today. If we want to find an originalist method of interpretation or construction for that Constitution, we need to examine each term or clause that is disputed, try to discern the original intent, understanding, or public or legal meaning, and analyze what we are doing when we do that.

Interpretation or construction is a kind of forensic investigation, not unlike solving a crime. As history or linguistic detectives we find meaning not by the application of a few simple rules, but by discerning clues that allow us to narrow the range of possibilities until we are reasonably sure we can make a decision about the case before us: Was there a crime, and whodunit?

Summary of some disputed text and a key issue for each, that should cover most of the investigatory methods one might properly apply:

1. Legislative powers ... vested. What are legislative powers and may they be effectively delegated to administrative or judicial agents? May legislative, executive, or judicial powers be used to indirectly induce behavior that Congress does not have the power to legislate directly?

2. Direct taxes. What taxes are direct and what indirect?

3. Regulations. What are the bounds on the power to "regulate". Plenary or only for certain purposes? Are penal powers implied?

4. General welfare. Restriction on power to tax and spend, or a power to promote?

5. Commerce. Tangible commodities traded or all economic activity?

6. Coin money and regulate value. Only gold or silver, or also debt instruments? Is power to make something legal tender on state territory implied?

7. Limited times. Beyond the life of the inventor or author, or only for long enough to recoup investment? Does power to promote imply penal powers?

8. Declare war, marque and reprisal. Does authorization to use force qualify? Is it piracy to act without such authority?

9. Raise ... Armies. Does that authorize conscription, or only hiring?

10. Militia. Is it any defense activity, invoked by anyone aware of a threat, or only state-organized armed groups? May keeping militia ready be optional, or is is a duty, like elections? Is power to regulate plenary, or only in ways that make militia more effective? Is anyone subject to a law if he does not have the right to help enforce it? Does it include duty of independent of constitutional review for any legal issue by any person?

11. Places purchased. What are the limits on legislative authority for federal enclaves, must cessions specify metes and bounds of each parcel, do residents cease to be citizens of ceding states, and is there a federal power of eminent domain, or only a state power?

12. Necessary and proper for carrying into Execution. Only incidental to making an effort, or whatever is convenient to get a desired outcome?

13. Habeas corpus. Are all prerogative writs presumed to be remedies courts must accord oyer and terminer?

14. Bill of attainder, ex post facto. Does prohibition extend to all legislative disablements of rights? Does it forbid prosecution for common law crimes?

15. Title of nobility. Does prohibition extend to prohibit any official immunity or special privileges of government officials and agents?

16. Natural born citizen. Does it mean born on U.S. soil, or can it include naturalized at birth by statute, and only on incorporated territory? What counts as proof of it?

17. Laws be faithfully executed. Does it require unconstitutional statutes or court orders be resisted?

18. Bribery, or other high Crimes and Misdemeanors. As no power to punish these is delegated to Congress, must they be either state charges or committed in federal enclaves, or are they only grounds for removal? Do they include any violations of the oath of office, abuse of authority, dereliction of duty, failure to supervise, or conduct unbecoming?

19. During good behavior. May judges be removed by ordinary trial or hearing on a writ of quo warranto, and not just by impeachment and removal by Congress?

20. Judicial power. What is it and may it be delegated to legislative or executive agents?

21. Cases and controversies. Include all judicial questions for which relief, including declaratory or injunctive, may be granted, or only for those with standing from having or expecting personal injury?

22. Arising under this Constitution. Does that extend the jurisdiction of federal courts to cases involving the rights recognized in the Bill of Rights between a citizen and his state?

23. Trial of all crimes ... by Jury. Is that a mandate, even if the defendant pleads guilty? Must it be a jury of twelve and require a unanimous verdict to convict?

24. Where ... committed. Where the defendant's head was at the moment the act became irreversible, or wherever he might have been before and after, or wherever the effects occurred?

25. Aid and comfort. Does that include undeclared enemies? Disclosing classified information?

26. Full faith and credit. What does this mean? Must a state that prohibits a kind of contract recognize that contract made in another state?

27. Privileges and immunities. What is and is not included in that?

28. Rules and Regulations ... Territory ... Property. Does that imply penal powers legislated directly, or only the power to organize territorial governments with such powers exercised by elected territorial officials?

29. Republican form ... protect ... against invasion. What is a "republican form" and how is it to be guaranteed? Does this require effective border protection?

30. Treaties ... supreme Law. May a treaty require the exercise of powers not delegated to Congress, or be a mandate on exercises of powers of the states?

31. Judicial Officers ... oath. Is binding stare decisis compatible with the written Constitution being supreme law? Are jurors also judicial officers?

32. Religion. What is it? Any belief system, including constitutionalism?

33. Speech. Any emission of a message? Money to pay for it? Does it imply right to anonymity?

34. Press. Any dissemination of a message? Money to pay for it? Does it imply right to anonymity?

35. Assemble. Subject to time, place, and manner regulations, and if so, by what level of government?

36. Petition. Right not to be penalized, or also not to be impeded? Access to grand jury? Implies right to get an answer?

37. Keep and bear arms. May weapons be restricted, and if so, how, or do people have a right to anything they may need to win a war?

37. Quartering. Does the prohibition extend to demanding the use of space for official purposes?

39. Unreasonable searches and seizures ... probable cause. What are the bounds on discretion on these? Must warrants be presented and subjects be allowed to verify them?

40. Grand jury. How many, and serving how many? For what must there be indictment, must it decide jurisdiction, must it be open to complaints by anyone, and may it authorize anyone to prosecute?

41. Twice put in jeopardy. May different jurisdictions prosecute for the same act, or must penal jurisdictions be mutually exclusive?

42. Due process of law. What is it, and what are the bounds on discretion? Does it include minimum standards of protection? What procedures are essential? Does it commence with initial official contact?

43. Taken for public use, without just compensation. What is property? What is public use, and for how long must it continue before being sold to a private party? What is just compensation? When can regulatory restrictions be constructive takings? Does the federal government have power of eminent domain on state territory?

44. Speedy trial. How long may the accused be held without trial?

45. Public trial. Must cameras be allowed?

46. Impartial jury. Does this require the right of parties to argue all issues of law to the jury?

47. Compulsory ... witnesses. May witnesses refuse to testify under oath or affirmation?

48. Assistance of counsel. Only members of the bar, or anyone the defendant may choose? Must it be paid for by the government if defendant is unable to do so?

49. Exceed twenty dollars. What is the definition of "dollar" that applies here? Can we get this enforced?

50. Cruel and unusual punishments. What are they? What are the bounds on discretion?

51. Unenumerated rights. What are they? Do they include a right to a presumption of nonauthority, and a right to the information and means to effectively supervise public officials and agents?

52. Powers not delegated. Are powers to be interpreted as strictly as the text allows, or as broadly?

53. Privileges or immunities. Same meaning in 1868 as in 1787, or different? Extend federal court jurisdiction to state cases involving any or all of the rights recognized in the Bill of Rights, including the Ninth and Tenth Amendments?

54. Equal protection. Equal effort or equal outcomes?

55. Enforce, by appropriate legislation. Extends only to state action, or to private action as well? Does it overturn 11th Amendment and remove sovereign immunity for states or their officials?

56. Incomes. What is income? Does it only include earnings on land or capital, or does it include compensation for labor? Was the income tax amendment ratified?

57. Remedies. What are the remedies if mandates are not done, such as writs of election? Or remedies are impeded by cost, procedure, official immunities, or service monopolies like state bars? What are political questions and what are the remedies if elections are rigged?

The quest for method should begin with the common law rules of construction that prevailed in 1787, one of the most important of which was 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.

If those are granted, much of the rest is straightforward.

Militia foiled NY bomb plot

News that the bomb plot was foiled by vigilant street vendors has neglected to put the correct label on what that was: militia.

The street vendors are mostly veterans who are given a preference for getting street vendor licenses, especially in the Times Square area of New York City. They are not just competitors for the business of the public. They form a loosely organized militia to protect the public safety, and that role was demonstrated on Saturday, May 1, 2010, when some of them spotted a suspicious SUV that had been laden with explosives and fertilizer that the perpetrator mistakenly thought would explode like a bomb.

It is possible the veterans do not self-identify as "militia", but that is what they are, in the best tradition going back to before the United States was even a nation. They join the heroes of Flight 93 as ordinary but not unprepared Americans who, when confronted with a threat, call up one another to meet it.

Government agents can't be everywhere or see everything. We must never lose sight of the fact that the first line of defense against most threats are vigilant civilians, and in that capacity they are militia, the original meaning of which is defense service.

These men, like most militia, are veterans, and thus have training most civilians don't have. What is needed to meet the threats of the future is to extend that kind of training to the entire population, starting in early childhood. Nothing can fully protect us from every threat, but our best chance is to make militia an integral part of the life of every citizen.

Don't repeal 17th Amendment

But do something else.

There are many calls being heard to repeal the 17th Amendment that provided for the direct popular election of members of the U.S. Senate, instead of election by state legislatures. Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

What we find today, of course, is that direct popular election is not a remedy for political corruption, either.

The solution is to do something completely different, as I propose in one of my Draft Amendments:

Selection of members of legislative bodies not elected by population

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

This proposed amendment does not eliminate direct popular election, as the final stage. It only establishes a different nomination process, but an amendment is needed because Congress has no power to regulate nomination processes. The method for nomination is called sortition, or random selection. It removes the corrupting influence of big money, except in the final stage of the direct election.

If it was desired to eliminate the undue influence of big money altogether, the last stage of direct election could be eliminated and sortition used to select the U.S. senator as the final stage.

Flaws in other nullification legislation

On jbs.org and other sites there is a so-called "model" nullification legislation that is similar to many measures that have already been introduced in state legislatures. It, like the lawsuit of several state attorney-generals on the subject, is severely flawed.

Consider a few of its provisions:

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ________ that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years, or by a fine not exceeding one thousand dollars ($1,000), or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

Here are a few of the flaws:

1. The bill contemplates provisions that are not in the Health Care Bill, which specifically forbids criminal prosecution or levies or liens to collect the "penalties" for failing to purchase insurance, but leaves it to the discretion of IRS agents to withhold them from federal government payments to the person, or take them out of tax payments first, with a remainder owing that they can claim is not the penalty but unpaid taxes.

2. It won't work to prosecute IRS agents for tax enforcement. The cases would just be removed to federal court and dismissed. But it could trigger federal prosecution of anyone attempting to enforce such a state statute for interfering with a federal agent.

3. IRS agents can do everything from outside the state and thus outside state jurisdiction, through private intermediaries like banks.

4. It does not provide for legal or financial support for persons engaged in civil disobedience in response to the provisions of the state statute.

A sound approach to nullification is discussed here.

There seems to be a naive faith that this is a simple game involving only a few pieces on a small board and only a couple of moves to victory. It is not. It is vastly more complex than games like chess or go, involving thousands of pieces on millions of squares against thousands of opponents, with largely unknown rules and without being able to see most of the board. For every move you have to anticipate every countermove and plan your next move after each. If you are going to play best learn to play well, because if you make a single wrong move it can ruin everything for the cause of freedom.

Law professor Randy Barnett makes the case as to why the health care reform legislation signed by the president is unconstitutional. But law professor Ilya Somin doesn’t see legal action succeeding against health care reform. However, he shows how it might succeed, and is worth reading on this matter. The litigation needs to be thoroughly rethought before it makes the situation even worse by giving the opposition a new precedent.

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.

---

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.