Letters of marque and reprisal

Andrew Napolitano wrong about letters of marque and reprisal (LMR)

On Fox Business News this evening former judge Andrew Napolitano stated that letters of marque and reprisal are to be issued by the president to private actors. that is incorrect.

See http://constitution.org/mil/lmr/lmr.htm for more on the subject. They do not have to be issued to private actors, and Congress may not delegate the issuance to the President. It must issue LMR directly, and could appropriately do so to the President and forces under his command.

The several authorizations to use military force (AUMF) are similar to LMR, but are missing key elements, such as greater specificity concerning who may be targeted.

However, there are also two other constitutional powers that apply to such cases: the power to punish piracy and offenses against the law of nations, under which "pirates" are treated as a special case, as "enemies of all humanity" who may be killed wherever they are found. What we call violent "terrorists" are essentially what the Constitution calls "pirates" -- nonstate actors who commit unauthorized warlike acts against targets foreign to themselves. (If against their own it is "treason".) The historical legal precedents are for pirates to be tried in the field by military tribunals, which could be captains of sea vessels and the senior officers, and summarily executed if found to be pirates or closely associated with them.

That legal legacy obviously has problems for due process and is open for abuse, however, that is the legal tradition incorporated into the Constitution.

I have proposed an amendment to clarify the point:

Clarification of "piracy"

"Piracy" shall consist only of warlike acts committed by a foreign nonstate actor, or by a domestic nonstate actor against foreign persons or property. Letters of marque and reprisal make the person to whom they are issued a state actor, and under a declaration of war all citizens are to be regarded as state actors with respect to the foreign state defined in the declaration.

Prosecutorial misconduct

This is to comment on the article, "Head in the sand over prosecutorial misconduct", by Erwin Chemerinsky, in The National Law Journal, April 25, 2011.

The reform needed is suggested by reviewing the history of how we got to this point.

The abusable power of public prosecutors became entrenched when they were made elected officials in the late 19th century, before which criminal prosecutions were largely done by private parties. At that time it was thought the voters would be as concerned for protecting the rights of the accused as they were to "hang 'em all and let God sort 'em out." Alas, the voters came to see the threat as something that only menaced "those" people, not people like them. It has only been recently when "people like us" are threatened by the same abuse that the issue is coming into public discussion.

The obvious solution to to stop electing prosecutors. Have them selected at random, by sortition, from a large pool of qualified candidates, case by case. There would be a budget, and there could be professional staffs, but the first chair would be filled by someone without a career path in the seat.

A companion reform would be open (an increased number of) grand juries to direct citizen complaints, with no undue presence or  influence by professionals, and with the grand jury appointing the prosecutor by handing him an indictment.

We also need to educate the public from whom juries are drawn to be skeptical about everything they hear in the courtroom, whether from the attorneys, the witnesses, or the judge, and to summarily acquit if they sense any of the legal arguments in the case have been withheld from them, except perhaps arguments on motions in limine that cannot be made without disclosing evidence properly excluded. However, there should never be any motion in limine granted to a prosecutor in a criminal case. Only to a defendant.

Finally, any individual needs to be able to bring a complaint about a public official to a grand jury, to decide whether the official was acting within his or her jurisdiction, and if not, and if the evidence is sufficient, to conduct a civil or criminal prosecution against the official, thus stripping him of his official immunity.

See Trial Jury Reform.

"Natural born" eligibility

"Natural born" means born on the soil of the nation, regardless of the citizenship of the parents, unless one of them is a foreign diplomat recognized by treaty as not being subject to the jurisdiction of the United States. That's what jus solis means. Location is the only thing that matters. That has been the case in Anglo-American law since before the U.S. was founded. It was not the 14th Amendment that made it so. That amendment only made all such persons state citizens if they are also residents (for an unspecified period of time). They were already U.S. citizens.

The mistake comes from reading Emmerich de Vattel, who was often cited by the Founders, but Vattel was Swiss. He was describing the legal doctrine of the European Continent, where the rule for citizenship was jus sanguinis, or that citizenship was based on the citizenship of one's parents. That was not the doctrine of Anglo-American law, for which the rule was jus solis, or that citizenship was based on the soil of the nation, the location of one's birth, and not on the citizenship of parents. It is discussed in Blackstone, and particularly in the footnotes of Tucker's edition of Blackstone (1803).

Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States.

"Natural" in that context means "according to natural law", in other words, by the rules of the common law then established, which pretended to divine natural law in the ways court decisions were made.

It is a common mistake to think that "natural-born" is synonymous with "citizen at birth". One can also be naturalized at birth by statute. That was done for John McCain, retroactively by a statute passed after he was born on the soil of the Panama Canal Zone, which was a leasehold, and not U.S. soil. McCain was definitely not "natural-born", no matter what a Senate resolution might say.

So Obama is eligible only if we was born on U.S. soil, which could have been in the airspace above U.S. soil, or in U.S. coastal waters, or on the grounds of a U.S. embassy abroad (U.S. soil by treaty), or perhaps on a U.S. flag vessel at sea in international waters. Not if born in the air over international waters if it was not a U.S. flag aircraft, and not if in the airspace over a foreign country.

All this is actually spelled out with some clarity in U.S. code, which at least on this subject happens to get it mostly right, although it is ambiguous because it doesn't address "natural born" at all. Some people manage to mis-read 8 USC 1401, but that section is not defining "natural born". It is defining "citizen at birth", and it is part of Chapter 12, Subchapter III, Part I, titled Nationality at Birth and Collective Naturalization. Only the first two clauses are about natural birth. The rest are about collective naturalization.

A birth certificate is evidence of location and date of birth, and is usually dispositive. However, a "certificate of live birth", which does not show location and date, is not. That is all we seem to have for Obama, and what has been offered is clearly a forgery. More dispositive would be witnesses to the birth. Unless the mother was alone when it happened, there should be some witness, even if no longer alive, who made a record of the event.

The burden of proof of citizenship for purposes of removing an individual from U.S. soil is on the government. However, the burden of proof for purposes of voting or holding office is on the would-be voter or officeholder. Even if the candidate was actually born on U.S. soil, if he can't prove that he should not be deemed eligible. It doesn't have to be proof beyond a reasonable doubt. Likely few of us could offer that. But there does need to be a preponderance of evidence.

There have been some efforts to exclude Obama from the ballot until he proves his eligibility,  but it is useless to try to exclude Obama from the ballot, because it is not Obama that voters vote for. They vote for electors pledged to vote for him. The ballot might show the person to whom they are pledged, but that pledge has no legal status. The same people could be said to be pledged to vote for Mickey Mouse, when everyone knows that Mickey Mouse is a pseudonym for Obama. Or to some real person. Nothing prevents them from voting for anyone else when the time comes.

The only points at which an ineligible candidate might be blocked is (1) the counting of the elector's votes; (2) the certification of the elector's votes by Congress; and (3) inauguration. None of those points are subject to the orders of a court. For each of them, enforcement depends on the people involved voluntarily following the Constitution. Nothing can make them if they choose not to do so.

Battle of San Jacinto

The Battle of San Jacinto, fought on April 21, 1836, in present-day Harris County, Texas, was the decisive battle of the Texas Revolution. Led by General Sam Houston, the Texas militia engaged and defeated General Antonio López de Santa Anna's Mexican forces in a fight that lasted just eighteen minutes. The Texan militia moved quickly and silently across the high-grass plain, and then, when they were only a few dozen yards away, charged Santa Anna's camp shouting "Remember the Alamo!" and "Remember Goliad!," only stopping a few yards from the Mexicans to open fire. The Texans achieved complete surprise, and achieved one of the historically most decisive and unequal victories of any battle between regular soldiers and volunteer militiamen. About 630 of the Mexican soldiers were killed and 730 captured, while only nine died of the roughly 900 Texans who fought.

Santa Anna, the President of Mexico, was captured the following day and held as a prisoner of war. Three weeks later, he signed the peace treaty that dictated that the Mexican army leave the region, paving the way for the Republic of Texas to become an independent country.

One of the key lessons of this critical battle is the way Houston held back his troops until just the right moment. After the massacres at the Alamo and Goliad his men were clamoring to engage the Mexican troops immediately and without tactical planning. Houston knew that if he had yielded to their demands, they would have been wiped out just like the defenders at the Alamo and Goliad had been. So he led them in a tactical retreat, while keeping track of the movements of the Mexicans. When Santa Ana camped without posting sentries or otherwise preparing for an attack, Houston seized the opportunity for a decisive victory.

Although the Texas troops are often referred to as an "army", they were not enlisted for fixed terms for pay, and thus were militia, rather than army, forces. Only a few of the men were appointed to have military rank, or had formal backgrounds as soldiers in any regular army.

For more on the Battle of San Jacinto:

Wikipedia
Battle of San Jacinto, Wallace L. McKeehan
Texas State Library and Archives
San Jacinto Museum of History
Texas State Historical Association
The Battle of San Jacinto, YouTube, from the movie The Alamo)

Waco: The Massacre at Mount Carmel

Waco: The Massacre at Mount Carmel

These are the complete movies that shocked a nation and spawned the modern constitutional militia movement.
Waco: The Rules of Engagement
WACO- A New Revelation

Easy YouTube Video Downloader for Firefox.



Our situation does require courage, but it also requires wisdom, preparation, planning, and widespread organized public support. We must reject foolish rhetoric that does not contribute to the solution. Wise persons do not posture or threaten. They quietly organize and prepare.

The Davidians provide an instructive model for us. They did not sally forth from their compound seeking government agents to fight. They exercised their rights nonviolently, resorting to violence only when it was initiated against them. They lost, but they lost in a way that inspired others to tell their story, and still others to organize the modern militia movement that has done more than almost any other effort to prevent similar abuses, just by existing, without a shot being fired.

Those who feel the urge to indulge in violent rhetoric would better serve their cause by organizing and training. The time may come for initiation of force, but that point is far down the path. There are many things that need to be done before that.

We can also learn from the model of the way Sam Houston led the Texas Militia against the Mexican Army. Many of his troops were spoiling for a fight before they were ready, which would only have gotten them killed and defeated their cause. Houston wisely held them back, waiting for the right moment. Finally it came, at San Jacinto, April 21, 1836, in one of the most amazingly unequal battles in military history. Never before had so few militia defeated so many regular soldiers, and inflicted so many casualties while suffering so few. After the battle, many of the Texians wanted to kill the captured Santa Anna, but once again, Houston wisely held them back, and instead exacted a treaty from Santa Anna that effectively granted Texas independence. Houston is reported to have said to his men, "You want blood. I want Texas."

Debt-based currency

Anything, including debt certificates, may be used as currency if it is accepted as such by most players in the market. The key to that acceptance is that the supply of it track the growth in economic production. Not the GDP, which calls it growth if two people who produced for themselves start trading the same products with one another without increasing the net amount produced. Arguably, it should also not include services, such as entertainment, that do not contribute to production. In other words, production of capital rather than consumption.

The problem with debt certificates is that there is no natural mechanism to hold down their supply, other than periodic market collapses. On the contrary, there are strong incentives on the part of both the public and private sector to magnify the supply of debt certificates. See what happened with securitization, which is still going on.

Note that congress has no constitutional authority to make anything legal tender on state territory. Only the states have that authority, and only to make gold or silver coin legal tender there. Congress may make federal reserve notes legal tender on federal territory, like the District of Columbia or various military bases and port facilities, under Art. I Sec. 8 Cl. 17, but nowhere else. It can also accept FRNs for payment of debt to the federal government. What it may not do, contrary to the Legal Tender Cases, is compel anyone outside exclusive federal enclaves to accept FRNs or anything else in payment for debts. Every state that accepts FRNs as legal tender is violating the Constitution.

When the Federal Reserve creates "money" out of thin air and uses it to buy Treasury bonds to finance government expenditures, as it did in QE1 and QE2, it is doing several things. One is to use focused inflation to prop up prices of various investment vehicles, such as housing, bonds, stock, and securitized debt, which would otherwise fall. Contrary to popular belief, rising prices of oil and food are not the result of it, not yet. That will come, but those price rises are due to reduction in supply of oil and food, not an increase in the supply of currency.

There is a close relation between this kind of government financing with debt certificates and unemployment. Opponents of deficit reduction by reduced government spending fear the unemployment of government workers, and that would indeed happen. However, a debt-finance deficit also involves the creation of the money that goes to foreign governments ("sovereign wealth funds") that loan the money back to us, but also accumulate FRNs that drives currency exchange rates that favor the sale of their products to us, and the offshoring of U.S. jobs to them. For every government job maintained by continuing the deficit, there is a destruction or non-creation of at least five jobs in the private sector, about two off-shored and the rest layoffs or never created.

The entire federal deficit comes from only a few key programs: Social Security, Medicare, Medicaid, unfunded government pensions, farm subsidies, and military spending. In trying to sustain the elderly, the ill, farmers, and our policing of the world, we are now at the brink of bringing down Western Civilization. This is not just a U.S. problem. The entire world has been following our lead and will fall with us. Within a year of the collapse, we may see unemployment of 90% everywhere, riots, looting, destruction of productive facilities, and hundreds of wars everywhere, some of them nuclear.

That outcome is not worth sustaining the elderly or the ill. If we have to choose, it is better to let them all die. Better them than most of the rest of the people on Earth. Those are our choices. Too many people are in denial that those are our choices. We will soon see, because at this point it is probably too late to prevent it.

It all rests on consent

Two questions were asked in a forum on the history of law by Daniel R. Mandell:

First, would the Supreme Court need the approval of the President (or the Executive Branch) to enforce its decision [in the Cherokee cases, when the U.S. Supreme Court decided in favor of the Cherokee, and President Jackson defied the court order and drove the Cherokee out of Georgia]? Second, has the Supreme Court ever actually tried to enforce a decision opposed or resisted by the President?

The short answers to each question are yes, consent of executive officials is needed, and no, not in any important way. But the questions are important, and deserve more discussion.

First, this is not just an issue for the U.S. Supreme Court. In the United States, courts in general do not have direct line authority over armed enforcement agents. Federal courts once did, for U.S. marshals, under the Judiciary Act of 1789, but that authority was steadily eroded, and formally ended in 1969. Judges or court administrators might hire, fire, promote, or reassign clerks and bailiffs, but no longer most of the armed agents they might need to enforce their orders. However, that does not mean that as a matter of custom, policy, and practice individual agents seek the consent of their superiors before carrying out any court order, or that they might not defy their superiors to carry out such orders if there were a conflict.

Ultimately, all decisions by government officials depend for their enforcement on the voluntary assent of enforcement agents, from clerks to military personnel, or of the people generally. When conflicts develop between the will of line or judicial superiors, and the law, as perceived by each agent or individual, then each agent or individual has to decide for himself which to support.

In theory, every government agent takes an oath to follow the law, not the will of officials in conflict with the law. That requires that every agent, or for that matter, every individual, make an independent determination of what is the law, resolve any conflict of laws, and help enforce the law, regardless of what a judge, a superior, or a legal adviser might say. The argument in Marbury v. Madison applies not just to judges, but to everyone, in any legal issue in which one might become involved. Ultimately, having a written constitution of government means we are all on our own, required to each become an expert on constitutional and legal construction.

In practice very few individuals have the will or the skill to fulfill that awesome responsibility, and therein may lie the flaw in the very concept of constitutional government, that it requires more of most human beings than they can bear. But for those of us who have taken the oath to "preserve, protect, and defend the Constitution", and who take that duty and our honor seriously, the duty is ours, whether we can bear it or not, and we must do the best we can.

So, what would have happened if the Supreme Court had ordered U.S. marshals to enforce its orders in the Cherokee cases, in conflict with President Jackson and local officials in Georgia? They would have been outnumbered and outgunned, which is probably why that option was not pursued. The array of forces on the ground did not make it feasible.

However, historically and originally it was less paid law enforcement agents to which courts looked to carry out their orders, than to militia. Courts could and did call up militia for that purpose, and the people, as militia, if they respected the authority of the courts, as they usually did, would enforce the court orders. In the early republic, government was mostly local, and mostly carried out by juries and militia. See "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, at http://constitution.org/jury/pj/nelson.htm . But that was for local courts and local judges. Had the U.S. Supreme Court tried to command local militia in Georgia to carry out its orders, it would likely have been ignored.

And that brings us to the key point: If people ignore the decisions of courts or other officials, those decisions become empty gestures. It all rests on voluntary consent, from one decision to another. We can speak of the consent that is expressed in constitutional conventions or elections, but the real consent that matters most is the habit and custom of obedience, and if that fails, governance itself fails.

If current government policies bring the collapse of the world economy, we may see this point manifested in ways most people can barely imagine.

Notice of silver claim

The following was sent to the  U.S. agent for holding the silver seized from the Liberty Dollar organization:

---

I hereby certify that I am the bearer of Liberty Dollar warehouse receipts and an interested party in any forfeiture action regarding my property. I demand the return of my property in a timely manner and to be informed with sufficient time to reply to any and all actions until my property is returned.

It has been suggested that that I offer to accept "fair market" value of the silver in lieu of the silver itself. That is not acceptable, for the following reasons:

1. The silver was purchased and the warehouse receipts received on the territory of the State of Texas, and not within a federal enclave established under U.S. Const. Art. I Sec. 8 Cl. 17. Therefore, they are subject only to the legal tender laws of the State of Texas.

2. The State of Texas has not established gold or silver as legal tender within the State, which are the only things it may make legal tender under the U.S. Const. Art. I Sec. 10 Cl. 1. Texas statutes only reference legal tender of the United States, but the United States Congress has no constitutional authority to make anything legal tender within state territory. Therefore, there is no legal tender defined in the State of Texas.

3. With no legal tender defined, there can be no substitution of anything of equivalent "fair market value" for the items purchased, not even of equivalent amounts of silver from a different repository. It has to be from that repository unlawfully seized by the U.S. government.

4. Furthermore, the silver must be delivered to me at no charge for delivery. That was the terms of the original purchase and by seizing the silver the U.S. government has assumed liability under those same terms.

Under no circumstances will I accept federal reserve notes in payment for any debt by the U.S. government. The "full faith and credit of the United States" no longer has any value, if it ever did. The U.S. government may accept them for payment of debts to it, but it has no constitutional authority to prescribe what others are to accept in payment from it to them, except on non-state U.S. territories, which are the only places on which the U.S. Supreme Court decisions in the Legal Tender Cases constitutionally apply.

Militia deterrence

The main role of militia, as of firearms, is deterrence. It works best when it never has to be used. But its effectiveness as a deterrent depends on widespread use and support by the public. If they fail to recognize they are all militia, or are supposed to be, freedom dies.

It is highly likely that the United States would have long since fallen into fascism but for so many citizens being so well armed. Sometimes it is what doesn't happen that matters most.

For more on this topic see

Constitutional Defense
19 April 1775 vs. the DC Gun Case, by Edwin Vieira
Armed citizens: the deterrent factor, by Massad Ayoob
Credible Deterrence & the Logistics of Liberty, by Mike Vanderboegh
An Armed Community: The Origins andMeaning of the Right to Bear Arms, by Lawrence Delbert Cress
A Dissenter's Fate in Fascist America, by Kevin Ellul Bonici

Immunity creep

It is a long-established doctrine of law that officials should not be subject to civil or criminal prosecution for acting within their jurisdiction, and constitutions and laws sometimes make that official immunity explicit. However, over time judges have been extending that immunity from momentary actions to everything done "on duty" or perhaps even "while in office". The practical effect of this is to convert official titles into "titles of nobility", putting officials beyond the law or accountability for their misconduct. Removal from office can be a remedy, but too much misconduct needs other remedies, and we are headed for a clash in which the public will demand them.

For more on this see

Immunity - Official Immunity
Qualified immunity — Wikipedia
Defenses: Official Immunity
Supreme Court Case Establishes Official Immunity for Police Officers and Police Departments in New Hampshire, by Charles P. Bauer
Defenses: Qualified official immunity
Private-Law Models for Official Immunity, by Richard Epstein
Tort - Defamation - Elected Official Immunity, by Edward Wesoloski
The Case Against Official Immunity, by Jesse Walker
Absolute Immunity on Trial, by Radley Balko
Supreme Court rules witnesses cannot be sued under 1983 for the content of their testimony - Briscoe v. LaHue, 460 U.S. 325 (1983)

The original standard was that while officials might have immunity from judgment, they did not have immunity from prosecution, and that it was for a trial to determine what immunity, if any, the defendant should have.

Is punishing interference necessary?

The question has been raised whether 18 USC 111 is authorized by the Necessary and Proper Clause. In the words of one correspondent,

Protecting officers and employees doing their actual authorized constitutional tasks seems like a paradigm case for the application of a "necessary and proper" clause, whether in a constitution, statute, corporate board resolution, or similar grant of authority.  If punishing violators/interferors is reasonably necessary to keep the tasks being performed, which it seems likely, then why not?

That argument is sometimes made, but all the delegated powers to which the Necessary and Proper Clause might be applied are only to make an effort, not to get a result. That principle was subverted by Justice Marshal in McCulloch v. Maryland, who made a similar argument, but he was wrong. The power to punish or prevent interference with the exercise of authority is not logically necessary, because it is still possible to make the effort even if it doesn't succeed in its object. Punishing or preventing that interference was left to state law, and federal officials were just expected to have and use whatever force they needed to overcome interference. If interference is effective it is not because it is not subject to punishment, but because the effort is not supported by enough force or resources. Because the exercise may always be made effective with enough support, punishment of those who interfere is not strictly necessary.

Ergo, to punish or prevent interference is a distinct power that, to be exercised, must be separately delegated, which would require an amendment. The Framers didn't think of everything. They omitted much that we might now want to add, but the way to do that is by amendment, not usurpation.

To understand the distinction one has to get into the heads of the Founders, and understand their legal English, which is not the legal English of today. In that context, to delegate a power was only to authorize a certain effort for a reasonable purpose of the polity. That authority was accompanied by an appropriation of resources to be used in making the effort. If that appropriation was not sufficient, it would not be within the jurisdiction of the delegated power to use more resources than were appropriated. Similarly, while the effort might involve shoving aside anyone who attempted to interfere, punishing the interference after the fact, perhaps to discourage future interference, is not an effort that the original delegation implied, but a new kind of effort that requires a separate delegation of authority.

To make this more clear, suppose the official is delegated power by a corporation, church, university, or other private institution to do something, such as conduct some event at a location and time specified. Perhaps that power even comes from a delegation from the local government. That is a certain effort. Now suppose someone interferes with that effort, such as by shouting or other disturbance. Does the official have the implied authority to punish the offender? He may, if the offender is a member bound by contract with the private organization and its by-laws so provide, but they probably only provide for expulsion from the organization, perhaps if a fine is imposed and not paid, but not for imprisonment or death. That would require a separate delegation of authority, and to the surrounding government, not to the private organization. The private official could file a criminal charge of disturbing the peace or trespass, and have a public official prosecute, but he would be at most a complaining witness, not the prosecutor under the authority of the private organization. He could be delegated authority to prosecute as a public official by a grand jury, but that is a separate delegation.

Now one may argue that this separation for an official of a private organization within a polity does not apply to a situation in which it is a public official, but it does. I just used that to show the powers are distinct. A public official may have both kinds of power delegated to him, but the first power does not imply the second.

So, yes, the Necessary and Proper Clause does authorize things like buying the bricks to build a post office, if funds for that are appropriated. But if all the funded bricks have been bought and delivered to the site, all the official may do is lay them, unless he also has funds to hire workers to do that. Now suppose that the source of the funding is the U.S. Treasury, and that someone interferes by throwing rocks at the workers laying the bricks. Does that alone provide constitutional authority for Congress to pass a law to make rock-throwing at federally-funded workers a crime? No. The federal official would be expected to file a state criminal charge under state law. He could prosecute the charge. Under original standards, anyone, including a federal official, may prosecute in a state court under state law (and a state official prosecute in a federal court under federal law). But on state territory the activities of federal officials have very much like the same position as those of a private organization, except when they have specific delegated powers to go beyond that.

Federal officials have authority on state territory to prosecute for treason, counterfeiting, piracy and felony on the high seas, or offenses against the law of nations, but not for murder, assault, vandalism, theft, fraud, perjury, or anything else not specifically delegated. Penal jurisdiction is defined by what is done (subjectam), where it was done (locum), or who did it (personam), but not on to whom or to what it was done. On state territory federal officials outside their jurisdictions are not privileged to receive more favorable treatment or protection than any other person would be. That includes conferring more privilege or protection to themselves than to others, beyond what is explicitly delegated.

"Federal agent" is not a title of nobility. Or at least it is not supposed to be.

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"You can't save the world if you can't pay the rent." — David Bossie

Democracy and Liberty

We should try to make some of these broad concepts more precise.

There are two main rights associated with liberty:
1. The right to a presumption of non-authority. Our public agents may only do what we formally authorize them to do.
2. The right to effective means to supervise public agents. We have to be able to find out what they are doing and hold them accountable for their action or inaction. That includes the powers to remove and to penalize.

Self-determination does not just mean voting in referenda and elections of officials, nor does it mean majority rule. Support of a majority is necessary but not sufficient, and for some more important issues other decision rules, such as supermajorities or structuring decisions into deliberative assemblies, or random selection of deciders (sortition) rather than election or appointment of them, may be required to protect the rights of individuals and minorities, especially from undue influence by rent-seekers.

Citizenship is inseparable from civic virtue. That means not just the opportunity to vote or hold public office, but diligence in doing so knowledgeably and wisely, and willingness to help defend the community (militia) and enforce constitutional laws. It also means resisting the tendency to hire public servants to do things the public should be doing, or to trust public servants to do the right thing without actively supervising the details of their work. It means restricting the numbers and activities of public servants to a level that makes effective supervision manageable without it becoming a full-time job for everyone.

The U.S. Constitution and imitations thereof remains the exemplar for how to balance conflicting values for real people in a real world. Nations have now experimented with enough variants to find that there are certain principles of sound constitutional design that are not mere expressions of cultural relativity. Some designs work better than others, and it is important that we discover which work and support them.

As for what the peoples of other countries want, I find most aspire to the same ideals we do (or used to do). The problem is that most, even in our own country, don't always understand what that requires of us, or accept doing what it requires of us. It is indeed hard, for everyone. Part of what makes it hard is that the institutions of liberty are vulnerable to brutal determined men, whether from outside or from within. Every child begins life as a barbarian and if not inducted into civilization becomes a threat to it. We are "never more than one generation from barbarism" (Arnold Toynbee, A Study of History). A few brutes can dominate the meek majority if the meek do not organize and hold firm against them.

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.