2011/03/03
"Public concern" in Snyder v. Phelps
The Court may have gotten the decision correct in this case, but not the opinion, and that was because it was not argued as well as it should have been on behalf of Snyder, et al.
First, it is not correct to base the decision on the First Amendment. That only restricts government actors involving legislation, not private actors. It is properly a case of equity over the private rights of the opposing actors in conflict.
The argument could have acknowledged that the position of Phelps, et al., was the expression of a matter of public concern, while demanding that such expression conflicted with the privacy rights of Snyder, et al., and that to resolve the conflict, it was reasonable to put time, place, and manner restrictions on Phelps, et al. In other words, to separate them by a reasonable distance.
There have to be bounds on inflicting emotional distress on a private party as a way to get public attention. If Phelps, et. al., had shouted their message with a megaphone into the ears of Snyder, et. al., that would be a clear violation, as would pointing an unloaded gun at them. So there are ways to inflict emotional distress for an expression of public concern that cross the line. The question is where to draw that line. In my view, the Court, instead of trying to draw that line carefully as a matter of equity, chose instead to make it a binary decision, on an incorrect constitutional ground. The Court is a court of equity as well as a court of law, and not all cases it hears are properly decided on constitutional grounds. If the aim was a prudential one of avoiding future litigation exploring the boundaries of how much emotional distress is too much, then it may have done that, but such issues are not properly avoided by courts. Ultimately, it is juries who should decide where to draw the lines. The court erred in not leaving it to them.
Now it has been argued by Malla Pollack that:
First, it is not correct to base the decision on the First Amendment. That only restricts government actors involving legislation, not private actors. It is properly a case of equity over the private rights of the opposing actors in conflict.
The argument could have acknowledged that the position of Phelps, et al., was the expression of a matter of public concern, while demanding that such expression conflicted with the privacy rights of Snyder, et al., and that to resolve the conflict, it was reasonable to put time, place, and manner restrictions on Phelps, et al. In other words, to separate them by a reasonable distance.
There have to be bounds on inflicting emotional distress on a private party as a way to get public attention. If Phelps, et. al., had shouted their message with a megaphone into the ears of Snyder, et. al., that would be a clear violation, as would pointing an unloaded gun at them. So there are ways to inflict emotional distress for an expression of public concern that cross the line. The question is where to draw that line. In my view, the Court, instead of trying to draw that line carefully as a matter of equity, chose instead to make it a binary decision, on an incorrect constitutional ground. The Court is a court of equity as well as a court of law, and not all cases it hears are properly decided on constitutional grounds. If the aim was a prudential one of avoiding future litigation exploring the boundaries of how much emotional distress is too much, then it may have done that, but such issues are not properly avoided by courts. Ultimately, it is juries who should decide where to draw the lines. The court erred in not leaving it to them.
Now it has been argued by Malla Pollack that:
As for the elements of the torts alleged -- The protesters were not even easily within sight of the funeral procession. They did not intrude on anyone's "seclusion"- even if, arguendo, a funeral of this sort is a "secluded" location. As for government actors, the court imposing civil liability on the protesters counts -- as does the public imposition of legal rules in defining the torts alleged -- NY Times v Sullivan, remember.To which I reply:
Yes, and on those facts the Court could properly draw the line and hold that the separation was sufficient to avoid actionable injury. All rights are subject to constraint or disablement by judicial due process, particularly where there is a conflict of rights. It is legislative restriction that may make the Ninth (not the First, which only restricts Congress) applicable, and that was not involved in this case. If the state had legislated reasonable time, place, and manner restrictions intended to reduce conflicts of rights, as long as the expression was not unduly burdened, that should not be considered a Speech Right violation. A statute creating a judicial jurisdiction for tort claims, and defining standards for such torts, is not per se a restriction of any of the rights involved, as long as it is narrowly and appropriately tailored to the facts of rights conflicts.
Sullivan based the right on the wrong amendment. It should have cited the Ninth, not the First. The Ninth includes all the other rights, and in particular, federally justiciable rights against the action of state actors.
2011/03/02
2011/03/01
Flaws in Balanced Budget Amendment
Sen. Jim Demint and others have introduced S. Joint Res. 38, The Balanced Budget Amendment. Although this would seem to be a good idea on its face, it has several flaws:
1. There is no effective enforcement mechanism. Congress could, and likely would, simply ignore it, and the courts would have neither the will nor a mechanism to enforce it. If someone sued to halt some expenditure, the courts could not decide that expenditure was in violation, and no one would have standing to sue over an entire budget.
2. There is nothing to prevent the government from simply creating more fiat currency out of thin air and calling it "receipts". Nothing is accomplished without eliminating fiat currency. If that is done, the rest takes care of itself. If it is not, then "balancing the budget" is a delusion.
3. It should be a concurrent resolution, not a joint resolution. Constitutional amendments need only be proposed by a 2/3 vote of both houses of Congress. They do not need the signature of the president, as a joint resolution does. A measure adopted by both houses that does not need the signature of the president is a concurrent resolution. This may seem to be a quibble, but members of Congress should know better.
The proper solution is an amendment to do away with fiat currency, such as this one:
Legal tender
Sen. Demint and others are approaching the subject from the wrong direction.
Note the addition of energy to the list of backings for currency. See this for more on that.
Some alternative proposed "balanced budget amendments" introduce other flaws. For example, S.J. 35 has a provision that uses the term "gross domestic product" (GDP), a poorly defined number that has no place in the Constitution.
Report of partial audit of the Fed showing $14 trillion issued to banks.
Budget debt
The main problem with debt is that any agency can add to the national debt, unconstrained by any spending budget. Don't have the money appropriated, just create an account payable with someone. No limit on that. We need to budget the creation of obligations as well as of spending. If it's not in the debt budget, an agency can't create it
1. There is no effective enforcement mechanism. Congress could, and likely would, simply ignore it, and the courts would have neither the will nor a mechanism to enforce it. If someone sued to halt some expenditure, the courts could not decide that expenditure was in violation, and no one would have standing to sue over an entire budget.
2. There is nothing to prevent the government from simply creating more fiat currency out of thin air and calling it "receipts". Nothing is accomplished without eliminating fiat currency. If that is done, the rest takes care of itself. If it is not, then "balancing the budget" is a delusion.
3. It should be a concurrent resolution, not a joint resolution. Constitutional amendments need only be proposed by a 2/3 vote of both houses of Congress. They do not need the signature of the president, as a joint resolution does. A measure adopted by both houses that does not need the signature of the president is a concurrent resolution. This may seem to be a quibble, but members of Congress should know better.
The proper solution is an amendment to do away with fiat currency, such as this one:
Congress shall have the power to define legal tender only on territory for which it has exclusive jurisdiction, and state legislatures only on exclusively state territory. Neither Congress nor the states may make anything legal tender that does not consist of, or is backed by, gold, silver, or energy, nor use anything but legal tender to pay its debts, or accept anything but legal tender for the payment of taxes.
Sen. Demint and others are approaching the subject from the wrong direction.
Note the addition of energy to the list of backings for currency. See this for more on that.
Some alternative proposed "balanced budget amendments" introduce other flaws. For example, S.J. 35 has a provision that uses the term "gross domestic product" (GDP), a poorly defined number that has no place in the Constitution.
Report of partial audit of the Fed showing $14 trillion issued to banks.
Budget debt
The main problem with debt is that any agency can add to the national debt, unconstrained by any spending budget. Don't have the money appropriated, just create an account payable with someone. No limit on that. We need to budget the creation of obligations as well as of spending. If it's not in the debt budget, an agency can't create it
2011/02/24
Flaws in Tennessee nullification bills
Two bills, HB 1705 by Rep. Matthew Hill, and SB 1474 by Senator Stacy Campfield, were recently introduced. Although they have much merit, they also have some serious flaws, and need to be amended before they are adopted.
- It needs to be a constitutional amendment. This kind of reform won't endure unless it is entrenched in the Constitution of the State of Tennessee. The political forces that will array against it will become too great unless any repeal or further amendment has to be submitted to the voters for ratification.
- Original meaning of "Commerce Clause" of U.S. Constitution (Sec. 2.3). The original meaning was trade in tangible commodities, not "products", from a seller outside a state to a buyer inside the state. It did not include finance or financial instruments, and included navigation only to the extent of requiring passage through designated ports of entry and their inspection points. Sec. 2.4 needs a major rewrite. The Commerce Clause was not to "regulate" state laws and courts. "Religious sectarian and foreign law" is irrelevant. Revised language is linked at the end.
- It needs to define "regulate". Reference to original meaning is made but not clearly enough.
- Not all congressional powers in Article I, Section 8. Contrary to Sec. 2.7.
- Sec. 2.8 is irrelevant. There has been no attempt to "bind the states under foreign statutes or case law". That is a myth.
- Sec. 2.9 is simply not correct. There are many provisions of the U.S. Constitution that delegate power to Congress to pre-empt state law.
- Should not use "state" to mean "government". Original meaning is the people in exclusive possession of a territory.
- Commission should not just "recommend" to the State General Assembly. Congress passes about 8,000 pages of new legislation each year, containing at least 20,000 separately justiciable unconstitutional provisions. The General Assembly is unlikely to be able to take up more than four or five a session. There is no way they can keep up with the flood of usurpations. The authority to declare federal usurpations needs to be delegated to the commission, and that finding should be sufficient to trigger statewide non-cooperation.
- Ten members not enough. The commission needs to be able to divide the work of investigating usurpations if it is to be able to consider even a small part of them. The best number is the number of a traditional grand jury: 23.
- Method of appointment subject to undue influence. The speakers of the Senate and House are too likely to be influenced by the desire for federal funds for their pet projects. Most federal usurpations involve such funds, and a commission needs to be independent of such influence. That is why its members need to be selected like members of a grand jury, at random, from a large pool of candidates, weighed toward rural counties. That is why having the candidates chosen by county grand juries makes more sense.
- Commission lacks powers of a grand jury. It needs to be able to subpoena witnesses and require them to testify under oath.
- No procedure for submitting complaints. It needs to be specified that any citizen may bring a complaint, and not just about congressional legislation. Most usurpations are not legislative.
- The Legislature doesn't "nullify". It can direct non-cooperation, but nullification is the abandonment of the usurpation effort, not the resistance that brings that abandonment. (Sec. 3.d)
- A bill can't bind a future legislature. 3-1-124 doesn't work.
- Doesn't provide for resistance by state citizens. Most of the non-cooperation that is likely to be effective will be by private citizens, but the state needs to defend them in doing so.
- It doesn't provide a budget. Anything like this is going to require some funding.
2011/02/09
Common law myth, reality, and hope
In the most general sense, "common law" is just the body of court precedents, which changes with each new precedent. The term originated with the judicial system set up by the Norman kings after the conquest in 1066, in which judges appointed by the kings would travel from county to county to hold court, and built a body of precedents that were common to all of England, rather than based on local customs or practices.
An important development for the development of the jury in court process occurred in 1215. Not the Magna Carta, contrary to popular myth, but the withdrawal by the Roman Catholic Church of approval of ordeal as a way to decide cases. Prior to that, something akin to juries were convened to conduct on-site investigations and report their findings to the court, but this resembled more what we would today call police work, than the work now done by grand juries, or the deliberation on evidence done by trial juries. It took another 300 years before grand and trial juries as we have come to know them became established in England. Also contrary to popular myth, the precedents came not so much from the jury verdicts in cases as from the opinions of the judges in those cases, providing the rationale for the decision, which were often no more than guesses about how the jury arrived at its verdict.
Kings had issued occasional edicts, it was not until the emergence of Parliament, especially the House of Commons, as a lawmaking body, that statutes began to codify and displace court precedents as the standard of legal practice, although there was continuing tension between the two kinds of law that endures to this day. The process was driven in part by the sheer volume of court precedents that had amassed over the centuries, more than anyone could hope to master in a career as a lawyer, and which contained so many contradictory precedents that one could find support for almost any position in them.
That development was carried to a critical stage by the adoption of written constitutions of government, first in the American states, then for the United States of America, which incorporated non-conflicting parts of Anglo-American common law, especially the definition of terms and practices like rules of construction. However, courts have continued to build a body of precedents on the basis of those written constitutions, often using the doctrine of stare decisis to deviate from them in important ways. Part of this deviation has included relegating the jury to hearing only evidence and not the legal arguments they originally reviewed in reaching verdicts, and placing many remedies for violations of rights out of reach of most ordinary people.
Growing popular dissatisfaction with the courts has led some to fantasize about a return to an ideal justice system in which the jury dominates and judges are reduced to only presiding over court sessions. The hope is that the people can be trusted to do what the judges won't. Some mistakenly refer to their dream as a return to "common law" where ordinary citizens can convene courts and juries without the machinery of established government. Unfortunately, that ideal was never fully realized in the past, even if parts of it were at various times.
The closest we can get to that ideal was the vision of the Framers of the U.S. Constitution. Not the actual practice in 1787, but the principles to which they aspired, expressed in the language of the Constitution they wrote, which conflicted with much of the legal practice of the day. We still have the task of reconciling their words with prevailing practices, and it may take some clarifying amendments to help do that. In the meantime the only way we may be able to build public support for amendments will be through a process of state-led nullification.
An important development for the development of the jury in court process occurred in 1215. Not the Magna Carta, contrary to popular myth, but the withdrawal by the Roman Catholic Church of approval of ordeal as a way to decide cases. Prior to that, something akin to juries were convened to conduct on-site investigations and report their findings to the court, but this resembled more what we would today call police work, than the work now done by grand juries, or the deliberation on evidence done by trial juries. It took another 300 years before grand and trial juries as we have come to know them became established in England. Also contrary to popular myth, the precedents came not so much from the jury verdicts in cases as from the opinions of the judges in those cases, providing the rationale for the decision, which were often no more than guesses about how the jury arrived at its verdict.
Kings had issued occasional edicts, it was not until the emergence of Parliament, especially the House of Commons, as a lawmaking body, that statutes began to codify and displace court precedents as the standard of legal practice, although there was continuing tension between the two kinds of law that endures to this day. The process was driven in part by the sheer volume of court precedents that had amassed over the centuries, more than anyone could hope to master in a career as a lawyer, and which contained so many contradictory precedents that one could find support for almost any position in them.
That development was carried to a critical stage by the adoption of written constitutions of government, first in the American states, then for the United States of America, which incorporated non-conflicting parts of Anglo-American common law, especially the definition of terms and practices like rules of construction. However, courts have continued to build a body of precedents on the basis of those written constitutions, often using the doctrine of stare decisis to deviate from them in important ways. Part of this deviation has included relegating the jury to hearing only evidence and not the legal arguments they originally reviewed in reaching verdicts, and placing many remedies for violations of rights out of reach of most ordinary people.
Growing popular dissatisfaction with the courts has led some to fantasize about a return to an ideal justice system in which the jury dominates and judges are reduced to only presiding over court sessions. The hope is that the people can be trusted to do what the judges won't. Some mistakenly refer to their dream as a return to "common law" where ordinary citizens can convene courts and juries without the machinery of established government. Unfortunately, that ideal was never fully realized in the past, even if parts of it were at various times.
The closest we can get to that ideal was the vision of the Framers of the U.S. Constitution. Not the actual practice in 1787, but the principles to which they aspired, expressed in the language of the Constitution they wrote, which conflicted with much of the legal practice of the day. We still have the task of reconciling their words with prevailing practices, and it may take some clarifying amendments to help do that. In the meantime the only way we may be able to build public support for amendments will be through a process of state-led nullification.
2011/02/04
Opinion flawed in Comstock
There is a fundamental flaw in the U.S. v. Comstock opinion. While Congress arguably has authority to conduct competency hearings and detain those found dangerous, on territory over which it has exclusive legislative jurisdiction, there is a jurisdictional problem with acquiring jurisdiction over the prisoner by conducting such a hearing while the subject is still in prison custody for a federal crime, the constitutionality of which is itself in doubt. If the prisoner was taken from state territory into federal custody, he should be returned to state custody before any competency hearing is held, and the determination made by a state court. Only if the prisoner was originally taken from exclusive federal territory would the federal courts have jurisdiction.
But it appears these arguments were not made in this case. GIGO.
This controversy stems from one bad precedent: McCulloch, and what was essentially dictum on the Necessary and Proper Clause. See Unnecessary and Improper.
What is missing from this discussion is close examination of the key phrase in the N&P Clause, “carrying into Execution” the delegated powers. Too many people today take that to mean to get the result that the execution seeks, but a closer reading shows that is not the correct interpretation of the original meaning. The “end” of a delegated power, as discussed by Madison above, is not the intended outcome of Congress in invoking the power. “Carrying into execution” is only making an effort, not getting a result.
Delegated powers are to make certain kinds of efforts. If those efforts are not efficacious to getting a desired result, then the meaning of the N&P Clause is not that additional efforts may be made until the result is achieved. It means only doing things that enable the making of the basic effort authorized by the express delegation. No more.
Moreover, “necessary” and “proper” are two constraints. It is not enough that an enabling effort be necessary. It must also be consistent with the legitimate public purposes of such powers. Delegations are not plenary. All delegations are implicitly constrained to be proper, to be rational and just ways of seeking the purposes expressed in the Preamble.
But it appears these arguments were not made in this case. GIGO.
This controversy stems from one bad precedent: McCulloch, and what was essentially dictum on the Necessary and Proper Clause. See Unnecessary and Improper.
What is missing from this discussion is close examination of the key phrase in the N&P Clause, “carrying into Execution” the delegated powers. Too many people today take that to mean to get the result that the execution seeks, but a closer reading shows that is not the correct interpretation of the original meaning. The “end” of a delegated power, as discussed by Madison above, is not the intended outcome of Congress in invoking the power. “Carrying into execution” is only making an effort, not getting a result.
Delegated powers are to make certain kinds of efforts. If those efforts are not efficacious to getting a desired result, then the meaning of the N&P Clause is not that additional efforts may be made until the result is achieved. It means only doing things that enable the making of the basic effort authorized by the express delegation. No more.
Moreover, “necessary” and “proper” are two constraints. It is not enough that an enabling effort be necessary. It must also be consistent with the legitimate public purposes of such powers. Delegations are not plenary. All delegations are implicitly constrained to be proper, to be rational and just ways of seeking the purposes expressed in the Preamble.
2011/02/03
Amend Federal Rules of Evidence
The House of Representatives, Committee on the Judiciary has posted a version with the December 2010 amendments: http://judiciary.house.gov/hearings/printers/111th/evid2010.pdf
The Rules need to be amended as follows:
Rule 401. Definition of ‘‘Relevant Evidence’’, to read as follows:
‘‘Relevant evidence’’ means (1) evidence having any tendency to
make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it
would be without the evidence; or (2) evidence of what is or is not
the law applicable to the case, including the text of constitutional
provisions, statutes, or court precedents; or (3) evidence of official
misconduct that might adversely affect the rights of any parties to
the case.
Rule 1003. Admissibility of Duplicates, to read as follows:
A duplicate is admissible to the same extent as an original un-
less (1) a genuine question is raised as to the authenticity of the
original; or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original; or (3) it is a debt instrument
for which each originally signed document is a separate obligation.
Write your members of Congress asking them to amend the Rules as shown above.
The Rules need to be amended as follows:
Rule 401. Definition of ‘‘Relevant Evidence’’, to read as follows:
‘‘Relevant evidence’’ means (1) evidence having any tendency to
make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it
would be without the evidence; or (2) evidence of what is or is not
the law applicable to the case, including the text of constitutional
provisions, statutes, or court precedents; or (3) evidence of official
misconduct that might adversely affect the rights of any parties to
the case.
Rule 1003. Admissibility of Duplicates, to read as follows:
A duplicate is admissible to the same extent as an original un-
less (1) a genuine question is raised as to the authenticity of the
original; or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original; or (3) it is a debt instrument
for which each originally signed document is a separate obligation.
Write your members of Congress asking them to amend the Rules as shown above.
2011/02/02
Original meaning not in much original practice
Persons who seek original meaning of laws such as the Constitution often confuse themselves by conflating original meaning of the language they chose with contemporary practices of the era. They are not the same. The meanings of the words could be, and often were, in substantial contradiction with prevailing practices of the time. The practices sometimes provide insight into the meaning only by providing contrast. It is a mistake to claim the Founders disagreed more about meaning or understanding than they did, based on inconsistencies between their words and their practices.
I consider such cases as Barron v. Baltimore and Dred Scott v. Sanford to have been wrongly decided, based on the original meaning of the words actually chosen in writing the Constitution. Not on the practices that prevailed at ratification, and which were temporized by avoiding confrontation with the words of the Constitution. Founding era practices are not dispositive of meaning or understanding. Sometimes they are indicative, sometimes not. They do indicate that the Framers sometimes adopted language that aspired to a better future when reality could be brought into compliance with their words. Barron and Dred Scott happened because the contradiction could no longer be sustained or avoided, so the Court copped out and went with original practice instead of actual language. It took a civil war and three amendments to fix those wrong decisions.
Consider a statute, such as the Health Care Act. When it is passed, does it merely describe what people are already doing? Of course not. There would be little need for a statute that changed nothing. Laws, including constitutions, are enacted to change what people do.
So what happens when it is enacted? Does everybody, citizens and officials alike, instantly snap to perfect compliance? Of course not. Probably very few of them do for a while. Maybe more and more as time unfolds. Maybe not, if there is resistance, or misunderstanding, or a lack of a budget for enforcement.
So what can we conclude if we look at what people are actually doing a few years, or perhaps a few decades, after the enactment, and compliance is far from perfect? In particular, what can we conclude about the meaning of the law? Not that it meant only what people were doing at enactment. Not that it meant what people were doing years later. So what if anything can be extracted from practice to reveal what the enactment meant?
The answer is that the enactors probably had in mind some ideal of practice that was rarely if every perfectly realized, although it might be closely approached in a few cases. They might hold up those cases as exemplars, and as such, indications of what was meant. But general practice was probably not what was meant.
In this sense, constitutions are just another kind of enactment. Aspirational, in large measure. For original meaning, one has to look to ideal descriptions, or exemplary cases, not to prevailing practice.
Now it may be argued that while that is certainly true in terms of popular acceptance, it is not true in terms of legal acceptance.
The answer is that of course it is. Officials are people, too, and even today they don't snap to compliance with new statutes or court rulings, either because they don't know, don't care, don't understand, don't expect to be caught, or are reliance interests that will cling to the previous regime until they are dragged into compliance. Compliance was even slower in earlier times, and often never occurred at all. In some alternate timeline law may be some kind of magic. It's not in this timeline.
I consider such cases as Barron v. Baltimore and Dred Scott v. Sanford to have been wrongly decided, based on the original meaning of the words actually chosen in writing the Constitution. Not on the practices that prevailed at ratification, and which were temporized by avoiding confrontation with the words of the Constitution. Founding era practices are not dispositive of meaning or understanding. Sometimes they are indicative, sometimes not. They do indicate that the Framers sometimes adopted language that aspired to a better future when reality could be brought into compliance with their words. Barron and Dred Scott happened because the contradiction could no longer be sustained or avoided, so the Court copped out and went with original practice instead of actual language. It took a civil war and three amendments to fix those wrong decisions.
Consider a statute, such as the Health Care Act. When it is passed, does it merely describe what people are already doing? Of course not. There would be little need for a statute that changed nothing. Laws, including constitutions, are enacted to change what people do.
So what happens when it is enacted? Does everybody, citizens and officials alike, instantly snap to perfect compliance? Of course not. Probably very few of them do for a while. Maybe more and more as time unfolds. Maybe not, if there is resistance, or misunderstanding, or a lack of a budget for enforcement.
So what can we conclude if we look at what people are actually doing a few years, or perhaps a few decades, after the enactment, and compliance is far from perfect? In particular, what can we conclude about the meaning of the law? Not that it meant only what people were doing at enactment. Not that it meant what people were doing years later. So what if anything can be extracted from practice to reveal what the enactment meant?
The answer is that the enactors probably had in mind some ideal of practice that was rarely if every perfectly realized, although it might be closely approached in a few cases. They might hold up those cases as exemplars, and as such, indications of what was meant. But general practice was probably not what was meant.
In this sense, constitutions are just another kind of enactment. Aspirational, in large measure. For original meaning, one has to look to ideal descriptions, or exemplary cases, not to prevailing practice.
Now it may be argued that while that is certainly true in terms of popular acceptance, it is not true in terms of legal acceptance.
The answer is that of course it is. Officials are people, too, and even today they don't snap to compliance with new statutes or court rulings, either because they don't know, don't care, don't understand, don't expect to be caught, or are reliance interests that will cling to the previous regime until they are dragged into compliance. Compliance was even slower in earlier times, and often never occurred at all. In some alternate timeline law may be some kind of magic. It's not in this timeline.
2011/01/24
2011/01/05
Armed and Dangerous
The Fourth Circuit opinion in United States v. Chester, decided Dec. 30, 2010, contains the following conclusion from the two-judge majority:
The case involves the Lautenberg Amendment, which makes it a federal crime to possess a firearm if the defendant meets any of several disqualifying conditions, which are alleged to be indicators that the subject is too "dangerous" to be entrusted with a firearm.
These issues are discussed in the law review article Public Safety or Bills of Attainder?, which raises several questions that need to be addressed:
If someone violates a state order disabling the RKBA, then it is up to the court issuing the order to prosecute for contumacy, not the Union government.
To understand the background for all this, it is important to realize that things like protective orders, parental rights terminations, and juvenile detentions, are all driven by large federal subsidies, divided among prosecutors, medical and social workers, foster caregivers — and judges. Typically as much as $50,000 per case. Judges are not going to turn off their gravy train. The people involved in these legal abuses are raking it in at taxpayers’ expense. That is why there are laws making protective orders so easy or even unavoidable for trivial acts. Until those subsidies are repealed, there will be no hope for justice in such cases.
To verify this for your own state and county (both of which get the money), you need to obtain (which may take an open records act request) the reports of subsidies received (often off-budget) and reports to the federal agencies of expenditures justifying the funds. You can then search through court records, counting the number of instances of things like protective orders, parental rights terminations, and juvenile detentions, and divide the amounts of money by the number of instances (not cases, because there can be multiple instances per case).
Here are a few links, not comprehensive, but just the first few that I spotted in a quick web search:
http://www.justnet.org/TechBeat%20Files/FundingResources.pdf
http://www.ovw.usdoj.gov/ovwgrantprograms.htm
http://www.cops.usdoj.gov/
http://www.ncsconline.org/WC/Publications/KIS_VAWAcourtfundingPub.pdf
http://www.ojp.usdoj.gov/saa/index.htm
http://law.findlaw.com/state-laws/protective-orders/
These programs are also tied to (generally state-level) collection of child support from noncustodial parents, which is also federally subsidized. In Texas, the AG tries to collect, but also obtains additional revenue by getting a lot of parental rights termination orders. Many of these cases are filed in the nearby Williamson County, where rubberstamping is assured.
There are often incomplete records on who gets how much money, but I have unconfirmed reports of judges personally getting as much as $5000 per order, often not directly, but as a kickback from the various local agencies or subsidy recipients. Needless to say, where those judges are elected, they don’t lack for campaign contributions, and woe be it to anyone who dares to run against them, because he will never win another case in that jurisdiction.
Much of the appropriations for such grants are contained in congressional earmarks, so they are not uniform across the country. They represent one of the ways members of Congress buy local supporters.
Have you ever wondered how many judges become millionaires from a judge’s salary? Or why the same few people get all of this kind of work, and retire wealthy?
What led me to investigate all this were reports of child abuse by foster parents in Northern California when I lived there. It seems the International Pedophile Mafia (they actually call themselves that) have infiltrated the judicial system and put themselves first in line to be foster parents of especially attractive children, for whom they place orders, and the “system” then takes them from their parents and delivers them into the clutches of the creeps (sometimes to disappear forever). Even the judges are terrified of those creeps.
No matter how incredible you might find such reports to be, investigate for yourself. But be careful. These people are dangerous.
There is no substitute for doing your own investigation in your local area. I have pointed you in the direction to take. The rest is up to you. I have done some of this kind of research in a few jurisdictions. When I tried to do it in Sacramento in 1999, I found the records were not available in the Clerk’s office, but a staffer let slip they were being held in the office of the presiding judge, along with records on bonds of office, and other such things. If you tried to do an open records request, they would deny all knowledge. That may not be solid proof of corruption, but when combined with the evidence of the ways judicial decisions are made, and that the judges are living in multimillion-dollar homes, the circumstantial case is overwhelming. Then, of course, there are the statements, off the record, of many people who have inside knowledge, but are afraid to step forward. When so much points in the same direction, a reasonable person would have to find what I have. People are convicted of murder on weaker evidence.
We should be able to agree on a few key principles:
1. Due process requires that for the exercise of a right to be disabled and a defendant deprived of it (two steps, often lumped together), there must be a petition in a court of competent jurisdiction to explicitly do that, and that since the right is about life and liberty, the rule of evidence is proof beyond a reasonable doubt and the defendant has a right to a verdict by a unanimous jury of twelve.
2. Legislative disablement of a right, particularly to keep and bear arms, for persons deemed “dangerous”, based on other than a judicial finding at trial for that right for that person according to (1), is a constitutionally prohibited bill of attainder.
3. There is no authority under the original meaning of the Commerce or Necessary and Proper clauses to authorize Congress to make it a crime to possess anything.
The problem in these cases is that disablement of the right to keep and bear arms has not been explicitly petitioned and that relief granted, by unanimous verdict of a jury of twelve. If someone is convicted of violence or negligence, okay, but let the petition also explicitly demand disablement of that right, and the need to disable that right be separately proved beyond a reasonable doubt. That is the standard of due process demanded in the Constitution and Bill of Rights. Nothing less. If the convict later violates the sentencing order containing the disablement, then let the court that issued that sentence prosecute him for contumacy. Federal courts have no constitutional jurisdiction for that.
As is argued in that law review article linked above, it is a bill of attainder (which can include ex post facto, but is broader).
Consider what is going on in somewhat different terms. In essence the Lautenberg Amendment 18 USC 922 is saying the equivalent of “It is a federal crime to possess a firearm if one once parted his hair on the left.” Now someone who is now parting his hair on the right is prosecuted under this section. What is the basis for the charge? That he once copped a plea to parting his hair on the left, in a different jurisdiction, a state, for a penalty of 30 days, or maybe just a temporary restraining order? But the present federal prosecutor argues, we have jurisdiction because he could have gotten 1 year, or the restraining order was issued, albeit ex parte and without an opportunity to challenge it. The problem is, he didn’t get one year, and almost no one in that state jurisdiction ever does, or the restraining order has been lifted. Nor did that state jurisdiction order suspension of his right to keep and bear arms, even during the restraining order. It could have done so, but it didn’t. Nor was there a state statute doing so, except for when he was actually incarcerated.
In effect, the federal statute is legislatively disabling a fundamental right for a class of persons, and leaving it to an administrative determination that a person is in that class. There is a partial due process involved in prosecution for possession, but without any way to challenge that administrative determination or the original case that established the predicate, which is now beyond appeal.
That is simply not due process. It is a prohibited bill of attainder.
A federal court does not have jurisdiction to enforce an order of a state court, which is what has jurisdiction to issue orders disabling the right to keep and bear arms in the kinds of cases being discussed.
As an aside, I would argue that there is no constitutional power for federal courts to punish for contempt (contumacy). The Supreme Court “granted” them such power as “inherent” in the judicial power (it is not), in United States v. Hudson, 7 Cranch 32 (1812), but I do not find such power to be authorized as “Necessary and Proper”.
The "regulation", with criminal penalties, applies to persons who it is claimed, satisfy certain criteria, most but not all of which are predicated on some kind of (state) court order: a protective order, sentencing for a crime that could have been punished by a year or more in prison, commitment for mental evaluation or drug or alcohol treatment, etc. None of those explicitly disables the right to keep and bear arms.
The key point is that for someone to be prosecuted for a crime, the right to commit the act must first be disabled. A person may be charged with murder (in state court) because that right is first disabled, for everyone. So how did the RKBA get disabled for the persons to be prosecuted under 18 USC 922? It wasn’t disabled for everyone. If it is to be considered disabled, it is disabled only for a subset of persons that satisfy certain criteria, none of which is a federal court order following a due process proceeding. That makes it a bill of attainder. It may also be ex post facto, but it is still constitutionally prohibited even if it is not retroactive.
To constitutionally prosecute someone for a crime of possessing something, the same court system, federal or state, must have first criminally tried him, with him having a right to a unanimous jury verdict of twelve, and ordered the disablement of the right to possess that thing in the final sentencing order. Anything less is a violation of due process, as required by the Fifth Amendment.
The only constitutional federal crimes on state territory are:
Despite the (wrongly decided) Wickard v. Filburn, the Commerce and Necessary and Proper clauses do not confer penal powers.
A state court of competent jurisdiction may disable the exercise of any right, including life, liberty, and property, through a proper trial, either for a crime, or on a petition to declare the defendant incompetent. I argue that for either, the process and protections need to be that of a criminal trial for disablement of life or liberty, and of a civil trial for property.
It has been argued by some that the Lautenberg Amendment is a ex post facto law. That is not correct. It would be ex post facto if the state did it, but when the feds do it, that is something completely different. Two different legal systems. Despite the intermingling, state and federal (Union) are different legislative jurisdictions, each deriving its authority from a different constitution.
The federal courts have no basis for applying its own statutes to people differently, depending on what a state court may have done, except that property rights are defined under state law, not federal, so a federal claim against someone’s property may get involved in state court decisions on that basis.
The two jurisdictions are completely separate for life and liberty issues, which means criminal cases. Each may prosecute the same person for the same act under its own statutes, without there being double jeopardy (although the Framers did not anticipate there could ever be overlapping jurisdictions).
The problem is that what the feds are doing is not conducting a due process proceeding to determine whether the RKBA for a person should be disabled. They wouldn’t have the subject matter jurisdiction to do that anyway. They are just saying, “We think some of these guys are too dangerous to possess firearms”, based on nothing that has ever taken place in our courts, but only as an administrative finding. That is equivalent to saying, “It is a felony to possess a firearm if one of our administrators thinks one is dangerous”. And if you ask what is the basis for considering anyone “dangerous”, you get “We use these clues, and we’ll even tell you what they are. That is public notice, so those of you who are disqualified had better not keep your guns.”
Obviously, that is making uit a crime to be “dangerous” and have a firearm, but leaving it to some clerk to identify who is “dangerous”, even retroactively, without anyone having positive notice of his disablement, or the opportunity to challenge it in court. He has to accept the disablement, and if prosecuted, the only issue is whether he possessed a firearm, not whether the federal prosecutor had jurisdiction to prosecute him in the first place.
To the argument that in the 21st century it is no longer necessary for officers enforcing a warrant to carry one with an original signature, I answer that we may be in the 21st century, but the Constitution is an 18th century Supreme Law, and the purpose of a warrant is not to prove authority to law enforcement insiders, who may be satisfied with computer entries. It is to prove authority to any person on the scene who challenges the authority, and for that it not only has to be in writing, but have an original signature, and anyone challenging needs to have an opportunity to verify it independently. The official on the scene may be satisfied he has authority, but it cannot be assumed that anyone else knows who he is or that he has authority. He could be an imposter, or a officer working for the mob, on a hit contract. He might just have the wrong address. It has to be verifiable by anyone, because anyone has arrest authority, as part of militia duty, which predates constitutions, and the duty to protect others from those who act without authority.
We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.One judge concurred in the judgment, concluding that “[i]t is ... quite clear that § 922(g)(9) is substantially related to the government’s important interests, as the statute directly prohibits the possession of firearms by those with a demonstrated history of actual or attempted violence,” but agreeing with the remand because he was “content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.”
The case involves the Lautenberg Amendment, which makes it a federal crime to possess a firearm if the defendant meets any of several disqualifying conditions, which are alleged to be indicators that the subject is too "dangerous" to be entrusted with a firearm.
These issues are discussed in the law review article Public Safety or Bills of Attainder?, which raises several questions that need to be addressed:
- Is it constitutional to prosecute as a crime the possession of anything?
- Is it constitutional to base a criminal prosecution on being a person for which there was only
- A judicial proceeding in the courts of a different sovereign that did not argue or decide to disable the right to keep and bear arms?
- An administrative determination on an issue not related to firearms?
- Is it due process to disable the right to keep and bear arms when an order doing that is not contained in the final sentencing order, and the disablement was never argued in trial or sentencing?
If someone violates a state order disabling the RKBA, then it is up to the court issuing the order to prosecute for contumacy, not the Union government.
To understand the background for all this, it is important to realize that things like protective orders, parental rights terminations, and juvenile detentions, are all driven by large federal subsidies, divided among prosecutors, medical and social workers, foster caregivers — and judges. Typically as much as $50,000 per case. Judges are not going to turn off their gravy train. The people involved in these legal abuses are raking it in at taxpayers’ expense. That is why there are laws making protective orders so easy or even unavoidable for trivial acts. Until those subsidies are repealed, there will be no hope for justice in such cases.
To verify this for your own state and county (both of which get the money), you need to obtain (which may take an open records act request) the reports of subsidies received (often off-budget) and reports to the federal agencies of expenditures justifying the funds. You can then search through court records, counting the number of instances of things like protective orders, parental rights terminations, and juvenile detentions, and divide the amounts of money by the number of instances (not cases, because there can be multiple instances per case).
Here are a few links, not comprehensive, but just the first few that I spotted in a quick web search:
http://www.justnet.org/TechBeat%20Files/FundingResources.pdf
http://www.ovw.usdoj.gov/ovwgrantprograms.htm
http://www.cops.usdoj.gov/
http://www.ncsconline.org/WC/Publications/KIS_VAWAcourtfundingPub.pdf
http://www.ojp.usdoj.gov/saa/index.htm
http://law.findlaw.com/state-laws/protective-orders/
These programs are also tied to (generally state-level) collection of child support from noncustodial parents, which is also federally subsidized. In Texas, the AG tries to collect, but also obtains additional revenue by getting a lot of parental rights termination orders. Many of these cases are filed in the nearby Williamson County, where rubberstamping is assured.
There are often incomplete records on who gets how much money, but I have unconfirmed reports of judges personally getting as much as $5000 per order, often not directly, but as a kickback from the various local agencies or subsidy recipients. Needless to say, where those judges are elected, they don’t lack for campaign contributions, and woe be it to anyone who dares to run against them, because he will never win another case in that jurisdiction.
Much of the appropriations for such grants are contained in congressional earmarks, so they are not uniform across the country. They represent one of the ways members of Congress buy local supporters.
Have you ever wondered how many judges become millionaires from a judge’s salary? Or why the same few people get all of this kind of work, and retire wealthy?
What led me to investigate all this were reports of child abuse by foster parents in Northern California when I lived there. It seems the International Pedophile Mafia (they actually call themselves that) have infiltrated the judicial system and put themselves first in line to be foster parents of especially attractive children, for whom they place orders, and the “system” then takes them from their parents and delivers them into the clutches of the creeps (sometimes to disappear forever). Even the judges are terrified of those creeps.
No matter how incredible you might find such reports to be, investigate for yourself. But be careful. These people are dangerous.
There is no substitute for doing your own investigation in your local area. I have pointed you in the direction to take. The rest is up to you. I have done some of this kind of research in a few jurisdictions. When I tried to do it in Sacramento in 1999, I found the records were not available in the Clerk’s office, but a staffer let slip they were being held in the office of the presiding judge, along with records on bonds of office, and other such things. If you tried to do an open records request, they would deny all knowledge. That may not be solid proof of corruption, but when combined with the evidence of the ways judicial decisions are made, and that the judges are living in multimillion-dollar homes, the circumstantial case is overwhelming. Then, of course, there are the statements, off the record, of many people who have inside knowledge, but are afraid to step forward. When so much points in the same direction, a reasonable person would have to find what I have. People are convicted of murder on weaker evidence.
We should be able to agree on a few key principles:
1. Due process requires that for the exercise of a right to be disabled and a defendant deprived of it (two steps, often lumped together), there must be a petition in a court of competent jurisdiction to explicitly do that, and that since the right is about life and liberty, the rule of evidence is proof beyond a reasonable doubt and the defendant has a right to a verdict by a unanimous jury of twelve.
2. Legislative disablement of a right, particularly to keep and bear arms, for persons deemed “dangerous”, based on other than a judicial finding at trial for that right for that person according to (1), is a constitutionally prohibited bill of attainder.
3. There is no authority under the original meaning of the Commerce or Necessary and Proper clauses to authorize Congress to make it a crime to possess anything.
The problem in these cases is that disablement of the right to keep and bear arms has not been explicitly petitioned and that relief granted, by unanimous verdict of a jury of twelve. If someone is convicted of violence or negligence, okay, but let the petition also explicitly demand disablement of that right, and the need to disable that right be separately proved beyond a reasonable doubt. That is the standard of due process demanded in the Constitution and Bill of Rights. Nothing less. If the convict later violates the sentencing order containing the disablement, then let the court that issued that sentence prosecute him for contumacy. Federal courts have no constitutional jurisdiction for that.
As is argued in that law review article linked above, it is a bill of attainder (which can include ex post facto, but is broader).
Consider what is going on in somewhat different terms. In essence the Lautenberg Amendment 18 USC 922 is saying the equivalent of “It is a federal crime to possess a firearm if one once parted his hair on the left.” Now someone who is now parting his hair on the right is prosecuted under this section. What is the basis for the charge? That he once copped a plea to parting his hair on the left, in a different jurisdiction, a state, for a penalty of 30 days, or maybe just a temporary restraining order? But the present federal prosecutor argues, we have jurisdiction because he could have gotten 1 year, or the restraining order was issued, albeit ex parte and without an opportunity to challenge it. The problem is, he didn’t get one year, and almost no one in that state jurisdiction ever does, or the restraining order has been lifted. Nor did that state jurisdiction order suspension of his right to keep and bear arms, even during the restraining order. It could have done so, but it didn’t. Nor was there a state statute doing so, except for when he was actually incarcerated.
In effect, the federal statute is legislatively disabling a fundamental right for a class of persons, and leaving it to an administrative determination that a person is in that class. There is a partial due process involved in prosecution for possession, but without any way to challenge that administrative determination or the original case that established the predicate, which is now beyond appeal.
That is simply not due process. It is a prohibited bill of attainder.
A federal court does not have jurisdiction to enforce an order of a state court, which is what has jurisdiction to issue orders disabling the right to keep and bear arms in the kinds of cases being discussed.
As an aside, I would argue that there is no constitutional power for federal courts to punish for contempt (contumacy). The Supreme Court “granted” them such power as “inherent” in the judicial power (it is not), in United States v. Hudson, 7 Cranch 32 (1812), but I do not find such power to be authorized as “Necessary and Proper”.
The "regulation", with criminal penalties, applies to persons who it is claimed, satisfy certain criteria, most but not all of which are predicated on some kind of (state) court order: a protective order, sentencing for a crime that could have been punished by a year or more in prison, commitment for mental evaluation or drug or alcohol treatment, etc. None of those explicitly disables the right to keep and bear arms.
The key point is that for someone to be prosecuted for a crime, the right to commit the act must first be disabled. A person may be charged with murder (in state court) because that right is first disabled, for everyone. So how did the RKBA get disabled for the persons to be prosecuted under 18 USC 922? It wasn’t disabled for everyone. If it is to be considered disabled, it is disabled only for a subset of persons that satisfy certain criteria, none of which is a federal court order following a due process proceeding. That makes it a bill of attainder. It may also be ex post facto, but it is still constitutionally prohibited even if it is not retroactive.
To constitutionally prosecute someone for a crime of possessing something, the same court system, federal or state, must have first criminally tried him, with him having a right to a unanimous jury verdict of twelve, and ordered the disablement of the right to possess that thing in the final sentencing order. Anything less is a violation of due process, as required by the Fifth Amendment.
The only constitutional federal crimes on state territory are:
- Treason.
- Counterfeiting.
- Piracy and felony on the high seas.
- Offenses against the law of nations.
- Enslavement.
- Deprivation of rights by a state agent.
- Denial of voting on certain grounds, such as race, gender, age 18 or above, failure to pay a tax, etc.
Despite the (wrongly decided) Wickard v. Filburn, the Commerce and Necessary and Proper clauses do not confer penal powers.
A state court of competent jurisdiction may disable the exercise of any right, including life, liberty, and property, through a proper trial, either for a crime, or on a petition to declare the defendant incompetent. I argue that for either, the process and protections need to be that of a criminal trial for disablement of life or liberty, and of a civil trial for property.
It has been argued by some that the Lautenberg Amendment is a ex post facto law. That is not correct. It would be ex post facto if the state did it, but when the feds do it, that is something completely different. Two different legal systems. Despite the intermingling, state and federal (Union) are different legislative jurisdictions, each deriving its authority from a different constitution.
The federal courts have no basis for applying its own statutes to people differently, depending on what a state court may have done, except that property rights are defined under state law, not federal, so a federal claim against someone’s property may get involved in state court decisions on that basis.
The two jurisdictions are completely separate for life and liberty issues, which means criminal cases. Each may prosecute the same person for the same act under its own statutes, without there being double jeopardy (although the Framers did not anticipate there could ever be overlapping jurisdictions).
The problem is that what the feds are doing is not conducting a due process proceeding to determine whether the RKBA for a person should be disabled. They wouldn’t have the subject matter jurisdiction to do that anyway. They are just saying, “We think some of these guys are too dangerous to possess firearms”, based on nothing that has ever taken place in our courts, but only as an administrative finding. That is equivalent to saying, “It is a felony to possess a firearm if one of our administrators thinks one is dangerous”. And if you ask what is the basis for considering anyone “dangerous”, you get “We use these clues, and we’ll even tell you what they are. That is public notice, so those of you who are disqualified had better not keep your guns.”
Obviously, that is making uit a crime to be “dangerous” and have a firearm, but leaving it to some clerk to identify who is “dangerous”, even retroactively, without anyone having positive notice of his disablement, or the opportunity to challenge it in court. He has to accept the disablement, and if prosecuted, the only issue is whether he possessed a firearm, not whether the federal prosecutor had jurisdiction to prosecute him in the first place.
To the argument that in the 21st century it is no longer necessary for officers enforcing a warrant to carry one with an original signature, I answer that we may be in the 21st century, but the Constitution is an 18th century Supreme Law, and the purpose of a warrant is not to prove authority to law enforcement insiders, who may be satisfied with computer entries. It is to prove authority to any person on the scene who challenges the authority, and for that it not only has to be in writing, but have an original signature, and anyone challenging needs to have an opportunity to verify it independently. The official on the scene may be satisfied he has authority, but it cannot be assumed that anyone else knows who he is or that he has authority. He could be an imposter, or a officer working for the mob, on a hit contract. He might just have the wrong address. It has to be verifiable by anyone, because anyone has arrest authority, as part of militia duty, which predates constitutions, and the duty to protect others from those who act without authority.
What is happening is that the predicates for "armed" and "dangerous" are being separated, the first accorded due process, but not the second.
2011/01/02
2010/12/22
2010/12/19
2010/12/18
2010/12/14
Unnecessary and Improper
What are the origins of constitutional infidelity? Some go back to the Alien and Sedition Acts of 1798, but that was turned back by the Election of 1800. Although there are still proponents of similar measures today, for the most part the departures that still plague us began with some opinions by Chief Justice John Marshall, in which he included some dicta on the Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:
The first case in 1819
The first case was McCulloch v. Maryland, 17 U.S. 316 (1819), which contains the following passages:
In a letter to Spencer Roane, Sep. 2, 1819, an opponent of the opinion in McCulloch, James Madison condemned the opinion, saying
Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
Original meaning of "commerce"
As a matter of historical fact, the word "commerce" was almost never used in common parlance in the colonies or newly independent states prior to 1787. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
However, we have this from an article from the first edition of the Encyclopedia Britannica, 1771:
Many have demanded a rollback of this line of precedents, but most of the proposals are inadequate. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result beyond making an effort, and that the power to regulate is the power to do whatever it takes to get a desired outcome. See Draft Amendments.
What is the meaning of "necessary and proper"?
It is useful to examine early usages of the terms "necessary" and "proper" using the Google Books Ngram Viewer for these terms.
These opinions did not go unchallenged in their own time. Lawyer and Jeffersonian civic leader Robert James Turnbull, in a series of articles collected into a book titled The Crisis, said:
What is often overlooked is that the phrase "necessary and proper" is only for "carrying into execution", not "carrying into effect", the express powers. "Execution" is clearly only to make an effort, not to get an outcome, which would have been indicated by "effect" if that word had been chosen. That distinction can be found in the long pre-1787 tradition of legal word usage. If a delegated power were to do whatever it might take to get an outcome, then there would be no limit on the means, and the enumeration of limited delegated powers would make no sense. Once it is understood only to enable an effort, then it is clear that no enablement can lawfully extend an express power into another kind of express power. The power to regulate does not, therefore, imply the power to prohibit, or impose criminal penalties, or tax, or promote, or to do any of the other kinds of efforts enumerated.
Jurisprudence over the Necessary and Proper Clause has never really examined in depth the meaning of its key phrase, “carrying into execution”, that specifies the purpose for which powers be “necessary and proper”. In McCulloch Marshall just glossed over the phrase and inserted his own specification that it be for whatever purpose Congress might have, that it be for carrying into “effect” that purpose rather than “execution” of the effort authorized. However, examination of the historical background of the term “execution” finds it meant only to make a certain kind of effort, not to get a result for which that effort might be made. That distinction is the key to getting to original understanding of the clause.
There is a long line of cases that reads the clause as though the word “execution” meant “effect”, but I find no case in which that distinction was effectively argued. Therefore, the way remains open to making that argument for the first time and to have current cases decided on the basis of it.
The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".
The first case in 1819
The first case was McCulloch v. Maryland, 17 U.S. 316 (1819), which contains the following passages:
The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carrying into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.
In a letter to Spencer Roane, Sep. 2, 1819, an opponent of the opinion in McCulloch, James Madison condemned the opinion, saying
... what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.Thomas Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” That is a restatement of the ancient Latin maxims:
...
But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.
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.Next case
Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.Note this contains a logical error. From the proposition that all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.
All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.Marshall goes on to say:
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.This departure was only in dicta, which may be why Jeffersonians did not react by proposing amendments to overturn them. For a long time, further decisions were not based on the dicta, but eventually, pressure from statists to expand the power of government tempted them to seize on the dicta as authority. This led to the key decision of Wickard v. Filburn, 317 U.S. 111 (1942), and more recently, U.S. v. Comstock, No. 08-1224 (May 17, 2010).
Original meaning of "commerce"
As a matter of historical fact, the word "commerce" was almost never used in common parlance in the colonies or newly independent states prior to 1787. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
... commerce consists in mutually buying and selling all sorts of commodities.Vattel was well-known to, and often cited by, the legally trained Founders, but not by ordinary citizens.
However, we have this from an article from the first edition of the Encyclopedia Britannica, 1771:
COMMERCE is an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged, by a set of men called merchants, for an equivalent, proper for supplying every want, without any interruption to industry, or any check upon consumption.The rest of the article discusses as articles of commerce only tangible commodities, not services, debt instruments, or the activities of producers, merchants, or consumers.
Many have demanded a rollback of this line of precedents, but most of the proposals are inadequate. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result beyond making an effort, and that the power to regulate is the power to do whatever it takes to get a desired outcome. See Draft Amendments.
What is the meaning of "necessary and proper"?
It is useful to examine early usages of the terms "necessary" and "proper" using the Google Books Ngram Viewer for these terms.
These opinions did not go unchallenged in their own time. Lawyer and Jeffersonian civic leader Robert James Turnbull, in a series of articles collected into a book titled The Crisis, said:
[The Constitutional Convention] judiciously restricted the National Legislature to the enacting of such laws as were necessary and proper, for the execution of the delegated powers. The words necessary and proper, in the Constitution, have a peculiar force. Ingenious men may amuse us with their nice and their subtle distinctions — Philologists may puzzle us with their varied criticisms — but there is no need of skilful critics or refined reasoning, in a matter of this kind. The words necessary and proper, are in constant use among men. They have a plain and obvious import, and a popular signification. They are no sooner pronounced, than they strike us like a sensation, and that sensation instantly excludes from the mind, the idea of an unlimited choice of means. The means to be adopted by Congress, must not be simply appropriate, or fit, or adapted to the end, but they must be necessary, as well as proper. The words are not necessary or proper, but necessary and proper. Had it been the intention of the Convention to have given Congress unlimited discretion to have selected from the vast mass of incidental powers, any and whatever means it might decide to be proper, such an intention to confer a choice, might have been better expressed, and would have been expressed in other words. — They would have said, and "to use and exercise all other powers incidental to the foregoing powers." But the clause as it stands, is clearly a limitation on the implied powers of Congress. The Chief Justice, however, thinks not. He decides, that the clause is sufficiently explicit, and gives the National Legislature the most ample powers to accomplish the ends of the government, by any means which have a relation to the objects entrusted to its management. In fact, he is of opinion, that this power, "to make all laws, which shall be necessary and proper, to carry into execution" their other powers, was designed to enlarge, and not to abridge, the discretion of the Legislature.What is the meaning of "carrying into execution"?
What is often overlooked is that the phrase "necessary and proper" is only for "carrying into execution", not "carrying into effect", the express powers. "Execution" is clearly only to make an effort, not to get an outcome, which would have been indicated by "effect" if that word had been chosen. That distinction can be found in the long pre-1787 tradition of legal word usage. If a delegated power were to do whatever it might take to get an outcome, then there would be no limit on the means, and the enumeration of limited delegated powers would make no sense. Once it is understood only to enable an effort, then it is clear that no enablement can lawfully extend an express power into another kind of express power. The power to regulate does not, therefore, imply the power to prohibit, or impose criminal penalties, or tax, or promote, or to do any of the other kinds of efforts enumerated.
Jurisprudence over the Necessary and Proper Clause has never really examined in depth the meaning of its key phrase, “carrying into execution”, that specifies the purpose for which powers be “necessary and proper”. In McCulloch Marshall just glossed over the phrase and inserted his own specification that it be for whatever purpose Congress might have, that it be for carrying into “effect” that purpose rather than “execution” of the effort authorized. However, examination of the historical background of the term “execution” finds it meant only to make a certain kind of effort, not to get a result for which that effort might be made. That distinction is the key to getting to original understanding of the clause.
There is a long line of cases that reads the clause as though the word “execution” meant “effect”, but I find no case in which that distinction was effectively argued. Therefore, the way remains open to making that argument for the first time and to have current cases decided on the basis of it.
2010/12/11
Varieties of jurisdiction
Jurisdiction is authority to act, generally in some official capacity. It presumes constraints on such authority, so that some acts may be lawful, while others are not.
The traditional breakdown for judicial jurisdictions is into three:
But a more complete analysis of the concept needs to expand on these.
First, different constitutions have their own jurisdictions. in Social Contract and Constitutional Republics I discuss the constitutions of nature, society, the state, and government. One does not usually think of at least the first two having "jurisdictions" because they don't have decisionmaking officials, but individuals and social groups make decisions, albeit informally, and the general concept needs to cover such situations.
Since each constitution of government has its own jurisdiction, then in a federal republic like the United States, we have political jurisdictions for the Union, for each state, and for each local polity, such as county, legislative district, school district, utility district, town, et.
Since each political jurisdiction generally divides into legislative, executive, and judicial branches, we have legislative, executive, and judicial jurisdictions. These may be tied together by our original breakdown into subject, location, and personal. Thus, a legislative body may have subject jurisdiction to adopt laws that are within the executive subject jurisdiction of some executives and not others, and within the judicial subject jurisdiction of some courts and not others. Similarly for territorial or personal jurisdiction.
But that three-part division doesn't really cover the concept. We need to extend it, and the obvious way to do that is to a seven-part scheme based on the basic interrogatives: who, what, where, when, how, why, and whither:
The temporal, procedural, causative, and consequential jurisdictions may seem unfamiliar to many readers, but a little reflection should show they are familiar, just not as "jurisdictions". This breakdown can help us understand the bounds on what is and is not constitutional.
For example, the Constitution delegates to Congress a pre-emptive power to regulate the time, manner, and place of congressional elections (except the place of senatorial elections). That is the temporal, procedural, and locational jurisdictions, but also the subject, congressional elections. It is not the power to regulate who may vote or conduct an election. It is unclear, but may include the power to call an election, which is causative. There is an implied consequential jurisdiction to regulate such elections in a way that serves a legitimate and reasonable public purpose, such as to make elections more convenient, fair, and accurate. A statute that required voting to take place within a 1 nanosecond timeframe, while standing on one's head, at a polling place on the moon, would obviously be an abuse of discretion on the part of Congress, but more than that, it would exceed its consequential jurisdiction. No power delegated is "plenary" within its "sphere", despite the opinion of Justice Marshall in Gibbons v. Ogden. Part of original understanding is that all delegations of power are constrained to be to make efforts in a reasonable manner for a legitimate purpose. To do otherwise is not just bad policy. It is unconstitutional.
One kind of jurisdiction often cited is in rem jurisdiction, used in asset forfeiture cases. However, the underlying principle is that only legal persons may be parties to a judicial action, so a case with an inanimate object as a "defendant" should be styled as "John Doe, unknown owner of [object]". In such a case there should always be due diligence to identify the owner, and the party in possession should be presumed to be the owner unless it can be proved otherwise.
One point sometimes overlooked is that not all collections of human beings may be treated as legal persons. In general, a deliberative assembly of an otherwise unincorporated group is not a legal person. That would include a court, a legislative assembly, a constitutional convention, a political campaign, a militia muster, or the whole people of a community. The use of the style "The People" or "The State" is really just a shorthand way of referring to the government officials representing those things. "The People" cannot appear as a legal person, except through their agents.
The traditional breakdown for judicial jurisdictions is into three:
- Subject matter. In Latin, subjectam. The kinds of issues one is authorized to decide.
- Location, or locum. Confined to a geographic territory.
- Personal, or personam. The individuals or legal roles subject to the decisions.
But a more complete analysis of the concept needs to expand on these.
First, different constitutions have their own jurisdictions. in Social Contract and Constitutional Republics I discuss the constitutions of nature, society, the state, and government. One does not usually think of at least the first two having "jurisdictions" because they don't have decisionmaking officials, but individuals and social groups make decisions, albeit informally, and the general concept needs to cover such situations.
Since each constitution of government has its own jurisdiction, then in a federal republic like the United States, we have political jurisdictions for the Union, for each state, and for each local polity, such as county, legislative district, school district, utility district, town, et.
Since each political jurisdiction generally divides into legislative, executive, and judicial branches, we have legislative, executive, and judicial jurisdictions. These may be tied together by our original breakdown into subject, location, and personal. Thus, a legislative body may have subject jurisdiction to adopt laws that are within the executive subject jurisdiction of some executives and not others, and within the judicial subject jurisdiction of some courts and not others. Similarly for territorial or personal jurisdiction.
But that three-part division doesn't really cover the concept. We need to extend it, and the obvious way to do that is to a seven-part scheme based on the basic interrogatives: who, what, where, when, how, why, and whither:
- Who. This further breaks down into two:
- Personal, or personam, jurisdiction.Who is subject to the decisions made.
- Official. Who may make the decisions.
- What. This is subject matter.
- Where. This is territorial or locational.
- When. This is temporal jurisdiction. Authority may be constrained to certain periods of time, or certain conditions, such as during a declared state of war or emergency, during a certain fiscal period, or during certain hours or days of the week.
- How. This is procedural jurisdiction. Sometimes called due process. A power not exercised in the correct manner is not "due", and therefore the act is unlawful.
- Why. This is causative jurisdiction. It is a constraint on how action or decisionmaking may be motivated or initiated. It is sometimes combined with due process, but should be broken out for clarity.
- Whither. This is consequential jurisdiction. it is authority arising from the results or impacts expected from an exercise of authority. It is not a power to do whatever might produce a desired result, but a further constraint that the power encourage or discourage certain results.
The temporal, procedural, causative, and consequential jurisdictions may seem unfamiliar to many readers, but a little reflection should show they are familiar, just not as "jurisdictions". This breakdown can help us understand the bounds on what is and is not constitutional.
For example, the Constitution delegates to Congress a pre-emptive power to regulate the time, manner, and place of congressional elections (except the place of senatorial elections). That is the temporal, procedural, and locational jurisdictions, but also the subject, congressional elections. It is not the power to regulate who may vote or conduct an election. It is unclear, but may include the power to call an election, which is causative. There is an implied consequential jurisdiction to regulate such elections in a way that serves a legitimate and reasonable public purpose, such as to make elections more convenient, fair, and accurate. A statute that required voting to take place within a 1 nanosecond timeframe, while standing on one's head, at a polling place on the moon, would obviously be an abuse of discretion on the part of Congress, but more than that, it would exceed its consequential jurisdiction. No power delegated is "plenary" within its "sphere", despite the opinion of Justice Marshall in Gibbons v. Ogden. Part of original understanding is that all delegations of power are constrained to be to make efforts in a reasonable manner for a legitimate purpose. To do otherwise is not just bad policy. It is unconstitutional.
One kind of jurisdiction often cited is in rem jurisdiction, used in asset forfeiture cases. However, the underlying principle is that only legal persons may be parties to a judicial action, so a case with an inanimate object as a "defendant" should be styled as "John Doe, unknown owner of [object]". In such a case there should always be due diligence to identify the owner, and the party in possession should be presumed to be the owner unless it can be proved otherwise.
One point sometimes overlooked is that not all collections of human beings may be treated as legal persons. In general, a deliberative assembly of an otherwise unincorporated group is not a legal person. That would include a court, a legislative assembly, a constitutional convention, a political campaign, a militia muster, or the whole people of a community. The use of the style "The People" or "The State" is really just a shorthand way of referring to the government officials representing those things. "The People" cannot appear as a legal person, except through their agents.
2010/12/08
Wikileaks constitutional issues
The Wikileaks saga raises a number of constitutional issues, which deserve to be discussed on this forum. Here are a few:
1. By original understanding and the law of nations as of 1787, an offense is "committed" at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson's Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be "high seas" for constitutional purposes.
2. The 20th century saw the advent of "jurisdiction creep" and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.
3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.
4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, "arrest" for "questioning" on a alleged "rape by surprise". It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.
1. By original understanding and the law of nations as of 1787, an offense is "committed" at the point in space and time of concurrence of mens rea with actus reus, not where the causation and harm may occur. See Introduction to Edward S. Stimson's Conflict of Criminal Laws. Penal jurisdiction is limited to U.S. soil for all offenses based on where they are committed, except for piracy and felonies on the high seas, or treason by a U.S. citizen. Such extraterritorial jurisdiction does not extend into the territories of foreign states, although we might reasonably deem international commons like Antarctica, or the territory of failed states, to be "high seas" for constitutional purposes.
2. The 20th century saw the advent of "jurisdiction creep" and the doctrine of extraterritorial reach. However, I am unaware that other nations have authorized the United States Congress to make laws for their citizens and their territories. Absent the emergence of the government of the United States as the de facto or de jure world government, it would seem that the reach of U.S. laws to an Australian citizen operating entirely outside the United States is dubious.
3. The Constitution defines treason, but not lesser included offenses. It is either treason, for U.S. citizens, or piracy, for foreign nationals offending U.S. targets, or U.S. nationals offending foreign targets. There would seem not to be any other alternatives. Espionage only arises from the law of war, and for it to apply, there must be a declared state of war. Last I checked, the U.S. Congress had not declared war on Sweden.
4. Contrary to any alleged damage that might have resulted from the publication of information provided by parties unknown, which Wikileaks staff have apparently been diligent in redacting to protect innocent lives, we have some very heavy-handed responses, obviously instigated by the U.S. government, that raise serious civil libertarian concerns: freezing of bank accounts, deletion of the domain name, "arrest" for "questioning" on a alleged "rape by surprise". It would seem that not only do we need to improve information security, but we need to cut off the ability to make such interventions, without legal authority. That is a far greater scandal than anything Wikileaks may have done.
2010/12/07
Majority voting not in Constitution
Does the U.S. Constitution prescribe majority votes in Congress?
This question came up in the Volokh Conspiracy forum.
The answer is no. Here is my comment:
The Constitution nowhere provides that a simple majority, either of the body or those present, is sufficient to pass a bill. What it does provide:
This question came up in the Volokh Conspiracy forum.
The answer is no. Here is my comment:
The Constitution nowhere provides that a simple majority, either of the body or those present, is sufficient to pass a bill. What it does provide:
- That the House have “Power of Impeachment”, but nothing on a voting rule.
- That that state legislatures “chuse” U.S. senators. No mention of by what vote.
- That the Vice President shall have a vote if the Senate is “equally divided”, but not when if ever they might be equally divided.
- That each house shall “chuse” their officers, but no mention of by what vote.
- Senate requires 2/3 of members present to remove on an impeachment.
- Majority of members of each House to be a quorum, but nothing about voting rules for business, except as provided for specific kinds of issue.
- Submajority may adjourn or compel attendance.
- Each House may determine its own rules of procedure, but does not specify by what vote rules are to be adopted, amended, etc.
- 2/3 of members of a House required to expel a member.
- 1/5 of members present may require a record vote in either House.
- 2/3 of members of each House required to pass bill over a veto.
- 2/3 of Senate members present required to consent to treaties.
- 2/3 of members of each House required to propose amendments.
- 2/3 of state legislatures required to propose amendments or call constitutional convention.
- 3/4 of state legislatures or conventions required to adopt amendments.
2010/12/02
2010/11/21
Not all powers of Congress in Art. I Sec. 8
Judge Andrew Napolitano (and others) continues to repeat the error of saying all the powers delegated to Congress are contained in Art. I Sec. 8. He needs to correct his misstatements. Here are some additional powers not in that section:
Art. I Sec. 4:
"the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
"appoint a different Day."
Art. I Sec. 9:
Power to suspend habeas corpus "in Cases of Rebellion or Invasion".
Art. I Sec. 10:
Power to consent to exercise certain powers by states.
Art. II Sec 1:
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
Power to compensate President.
Art. III Sec. 2:
"Exceptions, and under such Regulations as the Congress shall make."
Sec. 3:
Power to punish for treason.
Art. IV Sec. 1:
"prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Sec. 3:
Admit states into Union.
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
Sec. 4:
Power to "guarantee to every State in this Union a Republican Form of Government ... and protect them".
Art. V:
Power to propose amendments, call convention, or prescribe "Mode of Ratification".
The Constitution itself, in Art. I Sec. 8 Cl. 18, refers to powers outside Sec. 8:
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Art. I Sec. 4:
"the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
"appoint a different Day."
Art. I Sec. 9:
Power to suspend habeas corpus "in Cases of Rebellion or Invasion".
Art. I Sec. 10:
Power to consent to exercise certain powers by states.
Art. II Sec 1:
"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."
Power to compensate President.
Art. III Sec. 2:
"Exceptions, and under such Regulations as the Congress shall make."
Sec. 3:
Power to punish for treason.
Art. IV Sec. 1:
"prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Sec. 3:
Admit states into Union.
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"
Sec. 4:
Power to "guarantee to every State in this Union a Republican Form of Government ... and protect them".
Art. V:
Power to propose amendments, call convention, or prescribe "Mode of Ratification".
The Constitution itself, in Art. I Sec. 8 Cl. 18, refers to powers outside Sec. 8:
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Flawed Texas HB 297
The bill by Texas Rep. Leo Berman (R-Tyler), HB 297, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB297 , might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine any competent nullification effort.
People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out. Bold statements that are toothless only hurt the cause, even if they are enacted.
First, the Patient Protection and Affordable Health Care Act (PPACA) requires almost no cooperation from state agents or contractors that is limited to it. Since IRS agents are not allowed to levy or lien to collect the "mandates" -- insurance premiums -- it has to rely on employer tax withholding, and the mandate will be buried among other taxes, such as FICA, so there is no way state employers can refuse to withhold only the amounts going to the mandates.
As for the criminal penalties against IRS or other federal agents, since they will only be going after other taxes instead of the mandates, which at that point will have already been collected, the penalties would have to be imposed against collection of other taxes. That might seem like a good thing to do, but does this bill really intend to challenge all withholding? If it does perhaps it should spell that out.
Now what happens if an attempt were made to enforce the criminal sanctions? Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, through the banks, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be summarily dismissed, on the grounds that an agent has immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction
Sue state agents for withholding? Even if the Texas AG chooses not to defend the state agents, which he is legally required to do, all that state agent has to do is remove the case to federal court where it will be dismissed, likely within hours.
We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.
To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.
But this argument misses the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.
An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .
People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out. Bold statements that are toothless only hurt the cause, even if they are enacted.
First, the Patient Protection and Affordable Health Care Act (PPACA) requires almost no cooperation from state agents or contractors that is limited to it. Since IRS agents are not allowed to levy or lien to collect the "mandates" -- insurance premiums -- it has to rely on employer tax withholding, and the mandate will be buried among other taxes, such as FICA, so there is no way state employers can refuse to withhold only the amounts going to the mandates.
As for the criminal penalties against IRS or other federal agents, since they will only be going after other taxes instead of the mandates, which at that point will have already been collected, the penalties would have to be imposed against collection of other taxes. That might seem like a good thing to do, but does this bill really intend to challenge all withholding? If it does perhaps it should spell that out.
Now what happens if an attempt were made to enforce the criminal sanctions? Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, through the banks, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be summarily dismissed, on the grounds that an agent has immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction
Sue state agents for withholding? Even if the Texas AG chooses not to defend the state agents, which he is legally required to do, all that state agent has to do is remove the case to federal court where it will be dismissed, likely within hours.
We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.
To those who might argue that the feds would need the cooperation of state agents to remove federal agents from state custody, because it would be unwilling to use force, they are underestimating the feds. The federal government would use force, not perhaps initially to make state agents comply with its orders, but just to remove any federal agents from state custody. This kind of thing has been done, and the feds are fully prepared to overwhelm state and local agents with superior forces. All the President has to do is call out the National Guard, which is part of the military and subject to his orders, and if that weren't enough he would use the rest of the military. This scenario has been wargamed many times and they are well-prepared.
But this argument misses the point. Which federal agents would be in jail? The PPACA prevents just PPACA enforcement actions from being singled out, so the state would have to jail all IRS agents for all their actions. Sounds appealing, but if it were attempted the political blowback would kill the nullification movement for a generation or more. We have to proceed incrementally. Take on too much too soon and the result will be worse than if we had done nothing at all.
An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .
2010/11/19
Flawed Texas Health Freedom Act
The following was sent to Representative Ken Paxton, a leading contender for election as Speaker of the Texas House.
-------- Original Message --------
I have several questions about your Texas Health Freedom Act, which are interleaved in your message below.
On 11/19/2010 06:07 PM, Representative Ken Paxton wrote:
Remember, the Health Care Act (PPACA) specifically forbids the IRS to collect such penalties or taxes by levy or lien. That means all they can do is collect the money by other means, such as through employer withholding, and then refuse to refund the money, and perhaps go after the "taxpayer" for a deficiency, not for the insurance penalty, which would already have been paid at that point, but for the unpaid taxes. They can levy or lien for the deficiency. That is sufficient for them to collect from most. This can all be done by IRS agents from outside the reach of Texas law, through the banks. Does your plan contemplate defending Texans from having to pay those remaining tax claims, including paying for the lawyers, paying the IRS claims directly, or compensating the citizen for time served in prison?
Some have proposed the absurd remedy of making it a crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty.
Or does your bill contemplate doing things like cutting off the utilities of federal offices until they leave the state, and do everything to Texas citizens from outside with little reduction in their efficiency?
We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.
An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .
-------- Original Message --------
I have several questions about your Texas Health Freedom Act, which are interleaved in your message below.
On 11/19/2010 06:07 PM, Representative Ken Paxton wrote:
How can any such legislation effectively guarantee such protection? Does the bill commit the State of Texas to paying all such penalties for Texans if it cannot prevent them from being imposed? If not, how, specifically, step by step, would the process of protection actually work in practice, under a full range of possible scenarios?Protecting Patients in Texas with theTexas Health Freedom Act
Last March, when Congress passed the Patient Protection and Affordable Care Act, also known as "ObamaCare," I committed to work on passing a bill in Texas to reject this over-reaching federal legislation. And so last week (the first week we were able to file bills for the upcoming legislative session, I filed the Texas Health Freedom Act as my first bill for the 82nd Legislative Session.The power of the federal government to require an individual to purchase health insurance coverage is not found in the United States Constitution. Additionally, the federal government should refrain from imposing unjustified conditions and federal requirements that should be decided by state legislatures, rather than the United State Congress.My legislation, (House Bill 97 and House Joint Resolution 24) would accomplish the following:· Guarantees that individuals in Texas have the right to choose or decline to choose health insurance coverage without penalties or sanctions or threats of penalties or sanctions;
Remember, the Health Care Act (PPACA) specifically forbids the IRS to collect such penalties or taxes by levy or lien. That means all they can do is collect the money by other means, such as through employer withholding, and then refuse to refund the money, and perhaps go after the "taxpayer" for a deficiency, not for the insurance penalty, which would already have been paid at that point, but for the unpaid taxes. They can levy or lien for the deficiency. That is sufficient for them to collect from most. This can all be done by IRS agents from outside the reach of Texas law, through the banks. Does your plan contemplate defending Texans from having to pay those remaining tax claims, including paying for the lawyers, paying the IRS claims directly, or compensating the citizen for time served in prison?
Some have proposed the absurd remedy of making it a crime for federal agents to try to collect the insurance premium. Leaving aside the fact that IRS agents could do everything from outside the territorial jurisdiction of the State, there is a reason why no state or local government attempts to prosecute federal agents for crimes. Any attempt will be immediately removed to federal court, where it will be immediately dismissed, on the grounds that an agent has immunity for anything he does while on duty.
There is nothing in the PPACA that involves the State in any of this, or offers any point at which it could prevent collection by some kind of non-cooperation, except perhaps by refusing to withhold taxes from the wages of state or local employees, and the PPACA does not provide for separating out health insurance premiums from other amounts to be withheld, such as FICA. The IRS would just publish their tax tables, which would combine everything into a lump amount, and the separation would not be made until the "taxpayer" files his return and claims a refund. There would be no way state or local government employers could separate out the insurance premiums for non-withholding.· Limits the power of the state agencies, public officials, employees, or political subdivisions from imposing, collecting, or enforcing a penalty or sanction intended to punish or discourage the right of the individual to choose their own private health insurance coverage; and
Or does your bill contemplate doing things like cutting off the utilities of federal offices until they leave the state, and do everything to Texas citizens from outside with little reduction in their efficiency?
The State, like everyone else, is forbidden from seeking an injunction by the Anti-Injunction Act, 28 USC 2283, a statute that dates back to the Judiciary Act of 1793. The AG needs no special legislative authority to defend the State in court, but the PPACA would not be about suing the State, and the need is to be able to defend the ordinary "taxpayer". Two conjoined 1923 U.S. Supreme Court decisions block that. The first is Frothingham v. Mellon, 262 U.S. 447, which denies standing in court to anyone who does not face actual personal injury, and the second is Massachusetts v. Mellon, (also 262 U.S. 447) which denies standing to a state to represent the rights of one of its citizens in federal court, which had previously been an available remedy under the doctrine of parens patriae.· Givers the Attorney General the authority to seek injunctive relief against the federal government and defend the state of Texas in court to uphold our state sovereignty.
The AG is already one of the co-plaintiffs on litigation that has so far been stripped of all but two of its claims for relief in Florida by Federal Judge Roger Vinson, and most legal scholars expect the remaining two to be dismissed as well. The case is discussed here. There is a line of legal argument that would have merit, that would challenge federal withholding itself, but neither it nor this case, drafted by David Rifkin, has any real chance. Nothing short of a constitutional amendment can overcome the mountain of entrenched precedents, going back more than a century, that no Supreme Court is going to be willing to unravel.The U.S. Constitution sets forth the framework of government that limits the power, authority, and ability of the federal government. When the government steps beyond the boundaries of their constitutional limits to require individuals to purchase private products under threat of penalty, then the freedoms of individuals are threatened. The Health Freedom Act, which has been passed by a resounding margin in other states throughout the year, gives Attorney General Abbott the ability to defend our state sovereignty while allowing Texas to determine an appropriate course of action to develop health care delivery methods that maximize the rights of individuals.
We need more than gestures or protests on this and other federal usurpations. Legislation that pleases some constituents on first impression, but which has no chance to actually work, is not the way to spend scarce legislative or activist resources.
An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .
2010/10/31
Lawgiver anticipations
One of the things I find misleading about discussions of constitutional interpretation in the Founding Era, particularly by "federalists" and "anti-federalists", is the tendency to depict the differences as differences in the ways they understood the terms of the Constitution, and therefore as grounds for arguing that there was no common understanding that can provide a basis for interpretation of original meaning today. However, in reading the ratification debates I find a high level of common understanding, but disagreement about how the terms of the Constitution would be construed by future generations. Most of the fears of misconstruction were not directed at others in their own generation, but at those who would succeed them. Whatever else may be said about the Founders, they did take a long-term view, and they did not use the term "posterity" lightly. They knew that the crucible of revolution that united them in understanding would not continue to unite their children or future immigrants. They were very aware of how clever lawyers can twist language to serve their cases. The example of the ancient sophists loomed large in their expectations.
This can be most clearly seen in the demands for amendments in the ratification conventions, that let to the Bill of Rights. Except for the "Twenty Dollar Rule" they added no positive content that was not implicit in the original Constitution. They were only clarifications. Except for the enforcement clauses, even the Reconstruction Amendments may be considered no more than clarifications of the original Constitution, or at least of the clear implications of its language, but made necessary by misinterpretations of that language by a series of court decisions. They thus recognized that amendments might become the only practical means to return to original understanding after court precedents departed from it.
The principles of constitutional design, like the principles of statutory or contractual design, are largely a matter of trying to anticipate future contingencies and future misunderstandings, within the constraints of trying to maintain clarity and brevity in the writing. To understand lawgivers one must seek their anticipations.
This can be most clearly seen in the demands for amendments in the ratification conventions, that let to the Bill of Rights. Except for the "Twenty Dollar Rule" they added no positive content that was not implicit in the original Constitution. They were only clarifications. Except for the enforcement clauses, even the Reconstruction Amendments may be considered no more than clarifications of the original Constitution, or at least of the clear implications of its language, but made necessary by misinterpretations of that language by a series of court decisions. They thus recognized that amendments might become the only practical means to return to original understanding after court precedents departed from it.
The principles of constitutional design, like the principles of statutory or contractual design, are largely a matter of trying to anticipate future contingencies and future misunderstandings, within the constraints of trying to maintain clarity and brevity in the writing. To understand lawgivers one must seek their anticipations.
2010/10/28
Two things to do
After years of study of our situation, I have concluded that there are just two things we can do, and that have to be done in tandem. The first is nullification commissions, discussed at http://constitution.org/reform/us/tx/nullification/nullcomm.htm , and the second are amendments, discussed at http://constitution.org/reform/us/con_amend.htm .
Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.
The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.
Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.
Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.
There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.
An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.
Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.
After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.
And it is essentially what they are already doing now. They are just being more subtle about it.
The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.
I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.
This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.
Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.
If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm
The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.
I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.
It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.
We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.
Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.
Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.
The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.
Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.
Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.
There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.
An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.
Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.
After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.
And it is essentially what they are already doing now. They are just being more subtle about it.
The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.
I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.
This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.
Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.
If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm
The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.
I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.
It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.
We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.
Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.
Subscribe to:
Posts (Atom)