Contingent state of war?

The law of nations actually defines what is "war" with enough precision to cover the present events in Libya. An act of war makes it war. Bombing a country is an act of war, unless it is some kind of training exercise, at the invitation of the government of the country. It is apparent that is not the present case. On the other hand, there is some confusion as to what is the government of Libya, or whether it even has one. Qaddafi asserts no title of office, so by the standards of the law of nations, he is a kind of pirate, not a head of state. No declaration of war is needed to attack pirates, just as we did not need one to attack the Barbary Pirates. However, the attack needs to be, to the extent possible, focused on the pirate personally, not on military assets of the country, no matter whom they are taking orders from. Therefore, it is constitutional to take out the command center from which Qaddafi is operating, even if it kills him, without a congressional declaration of war or letters of marque and reprisal, provided the collateral damage to anyone not associated with Qaddafi is minimal and compensated. There may be a reluctance to make a martyr of Qaddafi, but taking just him out is the appropriate course of action in this situation, if it can be done. However, the attacks already made exceed the bounds of just taking out a pirate and his henchmen, so a state of war exists unless an internationally recognized government of the country consents to the attacks. That is likely if the opponents of Qaddafi prevail, but is not if they don't.

The Constitution did not really contemplate contingent states of war, in which one side consents and the outcome can decide whether there had ever been a state of war.

All the President needs to do to legitimize his action is to recognize the Benghazi regime as the legitimate government of Libya, as France has done, and get them to issue an invitation to conduct exercises on its territory. It's not "war" if it's by invitation of the host government.

Message from Bernard

The following is a message from Bernard von NotHaus, recently convicted of the private minting of bullion coins made of pure silver, which do not "resemble" any U.S. coin, and which are worth more than any silver coin that was minted by the U.S. in the past. The message is posted here for your information.

... I just met with my chief defense attorney, Aaron Michel, who is very concerned with the government’s effort to mislead the people, just as they misled the jury.  He pointed out that the gov is now trying to brand all local non-government currencies as illegal and anybody who expresses opposition to the current US monetary policy as a “unique terrorist” who represents “a clear and present danger to the economic stability of this country.” 

The alarming statement in the Department of Justice press release by U.S. Attorney Anna Tompkins should concern every American.  Tompkins said:  “Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism.  While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country.  We are determined to meet these threats through infiltration, disruption, and dismantling of organizations which seek to challenge the legitimacy of our democratic form of government.”

Seth Lipsky’s article in The New York Sun regarding a “Unique form of Terrorism” confirms that the gov can tailor terrorism to any definition they want or need for any circumstance.  Lipsky’s article should only be the beginning of a much larger public outcry. 

It is clear that the government it trying to grossly expand its power to control the people’s basic rights of freedom of speech, expression and action regarding monetary policy.  For example the Department of Justice press release added this statement, “… and to insure a singular monetary system for all purchases and debts in the United States, public and private” to their quote of Article 1, section 8 clause 5 of the US Constitution, when no such law or even idea, exists outside of the hyperbole of the DOJ. 

We live in a very dangerous time of mounting price inflation, social unrest and expanding wars all based on an undisciplined monetary system run by madmen. 

Please take action.  Write an article, your Congressman, Senator, Attorney General, Letter to the Editor of your local newspaper and encourage your email list to do the same. 

There is an urgent need for a massive outcry and I urge you to speak out and encourage others, who support the principles of a free market, to also speak out.  Silence in the face of tyranny is consent. 

Thank you for your support to return American to value. 

Sincerely,

Bernard von NotHaus
Monetary Architect

Eight Current articles:

Did Bernard von NotHaus Counterfeit Coins?
http://www.lewrockwell.com/blog/lewrw/archives/82406.html

Ron Paul Legislation for Repeal of legal tender laws
Page 1:  http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=7&e=7&r=150
Page 2: http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=42&e=42&r=150

Von NotHaus guilty on all counts
http://www.coinworld.com/News/20110328/Bulletin820110328.aspx

The New Face Of Terror by Chris Duane
http://www.silverbearcafe.com/private/03.11/liberty.html

A ‘Unique’ Form of ‘Terrorism’ by Sun editor Seth Lipsky
http://www.nysun.com/editorials/a-unique-form-of-terrorism/87269/

Press Release by the FBI of Charlotte...
http://charlotte.fbi.gov/dojpressrel/pressrel11/ce031811.htm

Liberty Dollar creator convicted in federal court
http://www.citizen-times.com/article/20110319/NEWS01/110319006/1001/news/Liberty-Dollar-fake-currency-creator-convicted-federal-court?odyssey=nav|head

Liberty Dollar founder convicted on federal charges by David Forbes
http://www.mountainx.com/blogwire/2011/liberty_dollar_founder_convicted_on_federal_charges

**********************************************************************************************

Some background links on the case.

FBI Raid

http://www.newswithviews.com/Ryter/jon201.htm

http://www.courierpress.com/news/2007/nov/15/liberty-dollar-office-raided/

http://www.constitutionpreservation.org/newsletter-items/bernard-von-nothaus-political-prisoner

http://www.dig4coins.com/news/latest-news/fbi-seized-gold-and-silver-qcoinsq-from-the-office-of-liberty-dollar

http://www.freerepublic.com/focus/f-news/1926165/posts

http://www.rumormillnews.com/cgi-bin/archive.cgi?read=114103 (Von Nothaus article)

http://letlibertyring.blogspot.com/2007_11_17_archive.html



Liberty Dollar's request for injunction against feds

http://www.prnewswire.com/news-releases/liberty-dollar-group-seeks-permanent-injunction-against-us-government-51667697.html

http://news.silverseek.com/SilverSeek/1174419765.php

http://www.illuminati-news.com/art-and-mc/Articles/19.html  (class action suit mentioned)

http://www.thepowerhour.com/news2/liberty_dollar.htm



Indictment

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://www.campaignforliberty.com/blog.php?view=19475

http://smithmillcreek.blogspot.com/2009/06/why-crack-down-on-liberty-dollar-now.html

http://adap2k.blogspot.com/2009/06/fbi-arrests-bernard-von-nothaus-and.html



Pre-trial and Trial

http://www.mountainx.com/news/2010/020310give_me_liberty_or_give_me_jail/

http://www.silvermonthly.com/1459/the-strange-case-of-the-liberty-dollar/ (3 July 2010)

http://www.masslpa.org/content/message-bernard-von-nothaus-liberty-dollar

http://statesmansentinel.com/creator-liberty-dollar-jail

http://coinworld.com/News/20110328/Bulletin320110328.aspx  (Von NotHaus takes stand in trial)

http://www.dgcmagazine.com/blog/index.php/2011/03/08/liberty-dollar-trial-begins-bernard-von-nothaus-gets-day-in-court/

http://www.freedomsphoenix.com/Article/085423-2011-03-10-united-states-v-bernard-von-nothaus-bvnh-case-5-09.htm

http://www.coinworld.com/News/20110328/Bulletin620110328.aspx



Conviction

http://www.gata.org/node/9715

http://gata.org/node/9718

http://news.goldseek.com/GATA/1300687500.php

http://www.blacklistednews.com/index.php?news_id=13115

http://www.wtffinance.com/2011/03/founder-von-nothaus-of-liberty-dollar-convicted-for-competing-gold-and-silver-currency/

http://truthiscontagious.com/2011/03/19/bernard-von-nothaus-liberty-dollar-founder-convicted-on-federal-charges

http://www.rense.com/general93/lib.htm

http://avstop.com/march_2011/bernard_von_nothaus_convicted_of_minting_his_own_currency.htm

http://reason.com/blog/2011/03/18/liberty-dollar-founder-reporte

http://deadlinelive.info/2011/03/20/confiscating-liberty-who-are-the-real-criminals/

http://www.citizen-times.com/article/20110320/NEWS/303200037/0/ENT/Liberty-Dollar-creator-guilty?odyssey=mod|lateststories

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://crasch.livejournal.com/1060492.html

http://www.postchronicle.com/news/breakingnews/article_212355162.shtml?ref=rss

http://caps.fool.com/Blogs/fbi-busts-mastermind-criminal/560372

http://www.dgcmagazine.com/blog/index.php/2011/03/20/bernard-von-nothaus-has-been-convicted-liberty-dollars-big-trail-over/    (doj press release)

http://www.godlikeproductions.com/forum1/message1404973/pg1

http://implode-explode.com/viewnews/2011-03-19_LibertyDollarfounderconvictedofcounterfeitingUSattorneycallshima.html

http://timesnews.net/article.php?id=9030654

http://greenlaserreviews.com/2011/03/21/still-worried-about-alternative-currencies-in-the-mid-west/

http://jenkinsear.com/2011/03/19/counterfeiting-is-not-terrorism-resume-buildin/

http://www.reuters.com/article/2011/03/20/us-crime-currency-idUSTRE72J46L20110320?feedType=RSS

http://www.thelibertypapers.org/2011/03/18/liberty-dollar-founder-reportedly-convicted/

http://www.gsnmagazine.com/article/22734/%E2%80%98unique%E2%80%99_domestic_terrorism_undermined_us_currency


http://www.ticklethewire.com/2011/03/21/man-convicted-of-producing-7-million-in-counterfeit-liberty-head-dollars/

http://www.roguegovernment.com/Liberty_Dollar_creator_Bernard_Von_NotHaus_convicted_of_domestic_terrorism/25123/0/8/8/Y/M.html

"Liberty dollar" coinage defended

The arguments made against Bernard von NotHaus and the "liberty dollar" coinage are incorrect, for several reasons.

The U.S. constitution, Art. I Sec. 8, provides in part:

The Congress shall have Power ...

[5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

[6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

And in Art. 1 Sec. 10, it provides in part:

No State shall ... coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

Which leaves it open for private parties to coin money, and does not provide authority for Congress to make anything legal tender, except perhaps on territory over which it has exclusive legislative jurisdiction, which excludes state territory.

However, in the Seventh Amendment, it also states in part:

In Suits at common law, where the value in controversy shall exceed twenty dollars ...

Thereby fixing the meaning of "dollar" to be what it was as of 1791, which was 371.25 grains of silver, alloyed into a coin of 416 grains.

The question for the court was whether the "liberty dollar" in any of its forms was in conflict with any of the above, or subject to criminal prosecution. I find none of the coins produced by Norfed, many of which I have in my possession, were in conflict.

First, the only penal power of Congress was to punish "counterfeiting" of "Securities and current Coin of the United States". None of the liberty dollar coins in any way resemble "current Coin of the United States" closely enough. The closest coins minted by the U.S. were silver dollars from the early 20th century, which contained less silver than the liberty dollars did. It can't be "counterfeit" if the quantity or value of the precious metal content is greater than that of the coin "counterfeited".

However, the prosecution was not really for "counterfeiting", but for making coins "resembling and similar to United States coins". Putting things like "dollar, USA, Liberty, Trust in God (instead of In God We Trust); and other features associated with legitimate U.S. coinage", as the DoJ press release proclaimed, does not constitute resemblance close enough to any actual U.S. coins to be "counterfeiting".

One might argue that the charge was really for fraud. Allegedly because the coins were marked with estimates of the bullion price of the coins denominated in federal reserve notes. I cautioned Bernard von NotHaus that that was a bad idea, because bullion price was changing too much, and it served to validate federal reserve notes, which Congress has no authority to make legal tender on state territory. I recommended he just mint "constitutional dollars" containing 371.25 grains of silver, and alloy it to 416 grains to make the coins more durable, as was the original practice. Persons using them in trade would then have to explain about bullion prices and the markup on them to make them available in the form of coins, but most people would get that. Of course it is always possible for ignorant people to deceive themselves, but I find nothing fraudulent about any of the representations or practices of Norfed or its principals.

Moreover, Congress has no authority to prosecute anyone for fraud on state territory, and Norfed was not operating on non-state U.S. territory. Some of his dealers might have been, but not Norfed or its principals directly, and they are not responsible for what their independent dealers might do. Congress also does not have authority to prosecute anyone for conspiracy or complicity, in connection with any crime. That was debated in the Tenth Congress and decided there. The Necessary and Proper Clause, as originally understood, does not support that.

Contrary to the DoJ press release, Congress has no "concurrent power to restrain the circulation of money which is not issued under its own authority...." Proclaiming that is a flat-out lie. It is also a lie that "It is a violation of federal law for individuals, such as von NotHaus, or organizations, such as NORFED, to create private coin or currency systems to compete with the official coinage and currency of the United States." The statute charged, 18 USC 486, states:

§ 486. Uttering coins of gold, silver or other metal

Whoever, except as authorized by law, makes or utters or passes, or attempts to utter or pass, any coins of gold or silver or other metal, or alloys of metals, intended for use as current money, whether in the resemblance of coins of the United States or of foreign countries, or of original design, shall be fined under this title or imprisoned not more than five years, or both.

But that is unconstitutional as to "original design". The resemblance needs to be so close that only close examination can tell the difference, and the value needs to be less than the coin "resembled", not greater. To allow for broader construction makes the statute void for vagueness.

Summarizing:

(1) The power of Congress to coin money is not exclusive. The power is denied to the states, but not to private parties, and in fact from the beginning most coins were minted either by foreign or domestic private mints, although the foreign ones did so under charter of their governments.
(2) The power to regulate the value of coin is also not exclusive to Congress, but that power is only to prescribe that coins contain at least the weight of precious metal they indicate on their face. States may exercise that power so long as it does not conflict with the power of Congress. It is not the power to regulate the exchange rate with other things, such as FRNs.
(3) Congress has no power to make anything legal tender for the payment of debts on state territory, only on territory under its exclusive legislative jurisdiction, such as federal enclaves (Art. I Sec. 8 Cl. 17) or incorporated territories (Art. IV Sec. 3 Cl. 2). The Legal Tender Act making FRNs legal tender is unconstitutional if applied to state territory.
(4) Most states (e.g., Texas) have not defined anything to be legal tender, implicitly yielding to the federal definition, but that means, constitutionally, that there is no legal tender on their territories.
(5) The power to make something legal tender, even if it exists, is not the power to forbid anything else from being used as money. Money is whatever anyone will accept in exchange for goods and services, and there is no power to regulate what that might be.
(6) Prosecution of the Norfed defendants was not based on resemblance of their coins to Silver Eagles, but to quarters, which they do not resemble in size or engraving. An essential element of resemblance under the authority to punish counterfeiting is that they indicate a weight of precious metal greater than they contain. It is not counterfeiting if they contain as much or more, no matter what else is imprinted on them. § 486 was written at a time when coins did not indicate the quantity of precious metal explicitly, but only by denomination, and it is unconstitutional if applied to coins containing more. It is also unconstitutional on the point of "intended for use as current money", because Congress has no power to punish for intentions, especially when the intentions are on the part of persons other than those who did the minting.

Clearly, this was a political show trial, not a valid enforcement of constitutional statutes. It needs to be reversed on appeal.

There is a good discussion of the case here.

Flawed Texas HB 1937

The bill by Texas Reps. Simpson, Eddie Rodriguez, Menendez, Kolkhorst, and Chisum, HB 1937, http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=82R&Bill=HB1937 , to make it a state crime for federal Transportation Security Agents to use certain methods of scanning or inspecting passengers boarding aircraft, might get applause from the unknowing and unthinking, but it is poorly thought through, and can only serve to undermine its own proper purpose.

People need to develop detailed and knowledgeable scenarios for how any legislation would actually work out.

What happens if an attempt were made to enforce the criminal penalties? There is a reason why state and local governments do not attempt to prosecute federal agents for state crimes committed while the federal agents are on duty. Any such attempts will be immediately removed to federal court, where they will be summarily dismissed, on the grounds that a federal agent has official immunity for anything he does while on duty. http://en.wikipedia.org/wiki/Removal_jurisdiction

However, any state agent attempting to enforce such a state criminal statute would likely face criminal prosecution himself, under 18 USC 111, which provides:

§ 111. Assaulting, resisting, or impeding certain officers or employees

(a) In General.— Whoever—

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or
(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person’s term of service,

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced Penalty.— Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

Now there is no constitutional authority for 18 USC 111 on state territory. Perhaps there should be, but it would require a amendment to the U.S. Constitution to provide it. However, that won't stop federal agents or courts from enforcing it. The odds are not good for a judicial challenge to it, and since the decision in Massachusetts v. Mellon, the federal courts refuse standing for a state to appear in federal court to protect the rights of its citizens. A state may pay the legal costs of a citizen, but not represent him.

We also need to be clear on the constitutional issues involved in the practices of the TSA agents. The U.S. government does have constitutional authority to operate inspection stations and require travelers to pass through them, as a way to enforce its lawful taxes and regulations. Travelers do not have a reasonable expectation of privacy for their baggage or cargo in such a situation. They do have for intrusive physical inspection of their bodies, and for such physical bodily inspection a warrant is needed, supported by an affidavit of probable cause. However, there is a gray area for scanners, depending on what technology is used. Backscatter x-rays inflict a hazard on bodies that passive terahertz scanners do not, since they detect only natural emissions from the body. Inspection by pattern-recognizing machines may be acceptable, whereas visual inspection by human agents would not be. The boundaries can be subtle.

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.

This approach is fundamentally flawed. The only approach that can work within our existing legal framework is statewide passive non-cooperation and civil disobedience. It may not work to directly act against federal agents, but withholding cooperation in other areas can raise the costs of the U.S. government so much that it may decide to back off rather than incur them.

An alternative approach that might actually work is presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm .

To regain control of our agents

There is a widespread and growing perception that our agents, mainly organized into large public and private institutions, have gotten out of control. There is less understanding of what we need to do about it.

Some turn to litigation, usually without much effect. Others try legislation, only to find it tends to produce armies of bureaucrat administrators that try to apply simplistic rules developed in response to previous crises, and who get co-opted by the objects of their regulation. It hires a lot of government workers who then tend to vote for more power and larger budgets, and for the party that got them their jobs. Others try to terminate or reduce the funding of programs, only to encounter organized pushback from reliance interests.

Most such regulatory legislation is also unconstitutional.

Some call for more regulation, and some for deregulation. They are both wrong.

The traditional, constitutional, and still best, remedial response is grand juries. We need swarms of them, investigating every official and every institution, governmental, business, eleemosynary, financial. Impanel randomly selected teams of 23 citizens and direct them to probe into every institution and official department that might pose a risk to the public, with no established rules to be applied, with the power to subpoena testimony, issue indictments that appoint prosecutors, and report on their findings to anyone who needs to know about risky or illegal practices they may find. Give them a budget and allow them to hire staff, but with a mandate not to let staff run them.

To do the job right would be a monumental undertaking. Given the number, size, and power of public and private institutions, even if every one of the 250 million adult Americans were to serve on a panel for four hours a week, it might still not be enough to investigate and find all of the pathological practices that deserve attention and correction. Needless to say, most of those people would not want to serve, or would not have the needed skills, but the situation we face is not going to fit itself to our preferences or limitations.

This is the way forward, like it or not. We cannot depend on our agents to police themselves or each other. We have to do it.

So what have you learned as a legal intern?

"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:

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.

So what about a balanced budget amendment?

YouTube - So why do we face economic collapse?

YouTube - So why do we face economic collapse?

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

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

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.

1. 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.
2. 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.
3. It needs to define "regulate". Reference to original meaning is made but not clearly enough.
   
4. Not all congressional powers in Article I, Section 8. Contrary to Sec. 2.7.
5. Sec. 2.8 is irrelevant. There has been no attempt to "bind the states under foreign statutes or case law". That is a myth.
6. 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.
7. Should not use "state" to mean "government". Original meaning is the people in exclusive possession of a territory.
8. 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.
9. 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.
10. 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.
11. Commission lacks powers of a grand jury. It needs to be able to subpoena witnesses and require them to testify under oath.
12. 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.
13. 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)
14. A bill can't bind a future legislature. 3-1-124 doesn't work.
15. 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.
16. It doesn't provide a budget. Anything like this is going to require some funding.

See Revised Tennessee Nullification Bills and State Nullification of Federal Action.

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.

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.

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.

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.

So what is pynthantics?

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:

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:

1. Is it constitutional to prosecute as a crime the possession of anything?
2. Is it constitutional to base a criminal prosecution on being a person for which there was only
   
   1. 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?
   2. An administrative determination on an issue not related to firearms?
3. 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?

Being “dangerous” is not a crime. The only lawful basis for disabling rights is conviction of a crime, or of mental incapacity, in a trial in which that disablement is argued and the need for it proved. Tacking it on as some afterthought is a violation of the Fifth Amendment Due Process Clause.

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:

1. Treason.
2. Counterfeiting.
3. Piracy and felony on the high seas.
4. Offenses against the law of nations.
5. Enslavement.
6. Deprivation of rights by a state agent.
7. Denial of voting on certain grounds, such as race, gender, age 18 or above, failure to pay a tax, etc.

Arguably, Congress has the powers of a state on the territory of federal enclaves created under Art. I Sec. 8 Cl. 17, and indirectly for other territories under Art. IV Sec. 3 Cl. 2.

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.

YouTube - So you want to replace fiat currencies

YouTube - So you want to replace fiat currencies

YouTube - So you want to nullify violations of the Constitution

YouTube - So you want to nullify violations of the Constitution

YouTube - So you just got back from jury duty 2

YouTube - So you just got back from jury duty 2

YouTube - Quantitative Easing and Inflation

YouTube - Quantitative Easing and Inflation

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 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.
...
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.

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:

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.