Is it a "tax" or not a "tax"?

Rob Natelson wrote an excellent article titled Is it a “tax” or not a “tax”? The original understanding I recommend it. But I have a few comments:


My findings on the question, from my reading of the foundation literature, are as follows:

1. A “tax” is assessment and collection of money or items of value for the purpose of raising revenue to meet the expenses of government. Agreement here.
2. A “regulation” is a restriction on the modalities of something, but not the prohibition of all modalities.
3. A tax and a regulation can have different objects, but their objects can also overlap.
4. A power to tax does not imply a power to regulate and vice versa. The powers are disjoint.
5. A tax can have a regulatory effect, but applying a tax for a regulatory effect does not make it a regulation, and it may only be done if there is a power to regulate the same objects. It is still a tax, though perhaps not a constitutional one. Therefore,
6. A charge that does not to raise revenue but only to have a regulatory effect, but on objects for which there is no power to regulate, is not a “tax”, but it is not a “regulation” either. It is unconstitutional on both points.
7. The key qualifier and purpose of exercising powers “necessary and proper” is only for “carrying into execution”, for making a certain kind of effort, not to accomplish some outcome sought by the sponsors of the act. It is not “carrying into effect”. Therefore,
8. Powers to carry into execution a regulation are only to do things like draft and publish regulatory rules, lease office space, hire workers, inspect, and impose civil penalties on violators. It extends only to tangible commodities and the transfer of title and possession of them for a valuable consideration. It does not extend to the activities of those engaged in trade, only to attributes of the commodities themselves. It also does not extend to criminal penalties.

Roland intervenes in Texas redistricting case

Jon Roland has filed a petition in intervention in Perez v. Perry, the current Texas redistricting case, similar to his intervention in the redistricting case LULAC v. Perry in 2006. The full text can be found at http://constitution.org/reform/us/tx/redistrict/cnpr.htm along with related material.

With this filing Roland appears as the only litigant who does not represent a special interest group using the case in a struggle for power. Rather than argue the merits of particular maps, he argues for a totally new process in which humans are taken out of the map-drawing process and the job is left to a computer set to draw maps at random.

Please spread this message widely.

The core of the proposal follows:

Proposed solution

Intervenor moves the Court adopt the following solution:

(1) Constraints on the maps. The smallest unit of area shall be the voting precinct, as presently established by law, which shall be of equal population within a county and not differ in population from county to county by more than necessary to accommodate counties of low population.

(a) Equipopulous. The population of each district shall not differ from that of any of the other districts by more than a factor of 0.0001 or the margin of error of the census count, whichever is less.

(b) Aligned. Only counties with a population of more than a factor of between 0.1 and 1/3, initially 1/3 unless or until amended by the State Legislature, of the average population of a congressional district, may be split between districts, unless a larger number of counties must be split to meet the specification (a) above, and a smaller number of counties shall be split if specification (a) can be met.

(c) Contiguous. Districts must be contiguous, so that there is always at least one continuous line of points connecting any two points within the district, and no connection between parts consists only of a line or point.

(d) Simply connected. Districts must be simply connected, so that any continuous loop of points within the district may be shrunk to a point within the district without crossing boundary lines. This means no holes in districts, and no surrounding of one district by another.

(e) Compact. Districts shall be maximally compact, resulting from a running time of at least 6 and not to exceed 24 hours, adjusted for improvements in processor speed, with compactness defined by minimizing the value of p²/4πA, where p = perimeter and A = area of the district, with all other values remaining constant or improving. For an area bounded by a circle the value of this expression is 1.

(2) Procedures. District maps shall be generated and finally adopted mechanically with minimal human intervention using a computer program.

(a) The software to be used initially shall be the TARGET software already developed, but may be modified or replaced at the discretion of the State Legislature thereafter. But source code for the production version of any computer redistricting software and the database shall be made accessible for downloading from the web site of the State for public examination and comment, and to be shared with other states and communities, at no cost other than storage media.

(b) The State shall establish and maintain adequate safeguards to insure that no unauthorized alterations are made in the software or interventions made in the running of it that might bias the output. As soon as feasible, a version of the present database containing only information needed to satisfy the public constraints established herein or by act of the State Legislature shall be prepared, and made the only database accessible to the redistricting program during the generation of maps for official selection.

(c) A commission or grand jury, hereinafter called the “Redistricting Commission”, consisting of 23 individuals, either drawn at random from all qualified voters in the State, or from members of the Texas House of Representatives, at the discretion of the Texas Secretary of State, unless or until the State Legislature shall provide otherwise, shall supervise the redistricting process.

(d) Initially, and thereafter after the most recent decennial census results are available, and prior to filing deadlines, the Redistricting Commission shall cause to be randomly generated at least three times as many maps as there are members of the Redistricting Commission.

(e) Each Commission member shall have the right to reject or strike one map from among the maps randomly generated during the current redistricting session.

(f) One map shall be selected at random from among the randomly generated maps that remain after strikes, and that map shall become the district map for the next election without amendment or debate.

Individual mandate goes down in the 11th

The 11th Circuit Court of Appeals issued a 2–1 ruling August 12 striking down the individual mandate, in a suit brought by 26 state governments, the National Federation of Independent Business, and others. This is the first court of appeals decision striking down the mandate, and creates a circuit split with the recent Sixth Circuit decision that went the other way. The opinion is available here. It’s the most important victory for the anti-mandate advocates so far.

 The opponents of the individual mandate are still neglecting to make an argument that is critical to their eventual success: that “carrying into execution” only meant to make an effort defined in the delegation of the base power, and not to do whatever it might seem convenient to get an outcome for which the power might be exercised. It is “carrying into execution”, not “carrying into effect”. This point has never been lifted out of the N&P clause for a focused finding, and it is past time to do so. That doing so might unravel a long string of precedents going all the way back to McCulloch notwithstanding.

We have records of the debates in many of the conventions that provide evidence of original understanding. More than that, we have evidence of what legal authorities the framers and ratifiers looked to, and can there find the meanings of the terms of legal English of the time. So if a point of law was not explicitly debated in the ratifying convention, one can look to authorities like Blackstone, Coke, Vattel, and others the framers and ratifiers read and accepted.

From Vattel we get the meaning of “commerce”, which was a term of art, not a common term on the streets of colonial America. It meant only transfer of title and possession (trade) of tangible commodities. Marshall in McCulloch even acknowledged that meaning. He and subsequent judges have based every exercise of power less on the Commerce Clause than on the N&P Clause. Medical care is not “commerce”. Neither is insurance. The only nexus is that they “affect” commerce (tangible commodities), but that is only a correct interpretation if one first accepts the premise that one cannot carry a power into execution unless one can also exercise such power over things that are not “commerce” but “affect” commerce. It interprets “carrying into execution” as meaning “carrying into effect”. That was not its original meaning. “Execution” is a effort, not obtaining a result.

If you read SC opinions carefully, you will find that after all is said and done, the decisions for the last 74 years have not been interpretations of what is “commerce”, but on what “affects” commerce. Yes, there were several pre-1937 decisions that expanded the definition of what is “commerce”, but on closer reading they were reaching for what affects commerce, not commerce itself.

So for example, mining is not commerce. The ore may be commerce when it is sold, but not the extraction, transport, or storage of it. That activity affects commerce without being commerce.

Similarly, agriculture is not commerce. The food and fiber is commerce when traded, but tilling, planting, fertilizing, irrigation, harvesting, storage, and transport are not commerce. They are activities that affect commerce.

Medical care is not commerce. It is is a service, and services are not commerce. It may involve the sale of pharmaceuticals, or use of medical instruments or supplies. Those are commerce, but the surgery is not. It comes in because it affects commerce.

Insurance is not commerce. It is a service. And it doesn’t involve the sale of any tangible commodities, so it does not affect commerce, and is not subject to regulation, by original understanding.

Likewise, debt instruments like federal reserve notes are not commerce. Neither are stocks or bonds.

To understand court decisions people need to understand that economic activity generally is NOT commerce. It is only brought under regulation because it affects commerce.

Now Art. I Sec. 8 Cl. 3 does not delegate power to regulate things that affect commerce, only commerce itself. Therefore, the only place one can find the alleged authority to regulate things that affect commerce is in the N&P Clause.

So how does one get that interpretation? Only by interpreting the power to regulate as the power to do whatever it takes to get a regulated outcome, not just to do things like adopt statutes with civil penalties, hire inspectors, rent office space, publish documents, etc., which are necessary and proper to make the effort authorized by the Constitution.

So everything comes down to the meaning of what is “carrying into execution”.

The way to understand what the Founders meant by a delegation of a power and a supplemental necessary and proper power to carry it into execution is to examine what it meant to sentence someone to hang and issue a death warrant to carry out the execution. There were cases in which the guy hung did not die. Either the rope broke or he had a tough neck. It such situations the courts often held he could not be re-hung to make sure he was dead, because he had already been hung once.

The power was only to make the effort, not to get the result.

This understanding seems strange to modern users of the English language, but it was the understanding in 1787, and that is the meaning to which we are bound, to the extent we can discover it, and we can. The historical evidence is there. It make take a lot of research and reading, but enough such effort will find what was meant.

We are now confronting our slide down a slippery slope that began with McCulloch and has proceeded through Wickard, Raich, and Comstock, until we can see the bottom and realize our mistake in not arresting the slide earlier.

We need to unwind that entire line of precedents. It is not enough to try to distinguish. The action/inaction distinction is likely not to fly, and hanging everything on the meaning of “proper” is a weak argument. The Supreme Court might not be willing to overturn the entire line of precedents in a single decision, but we can offer them a starting point for doing so, and the way to do that is to focus on the meaning of the phrase “carrying into execution”, which was only to make a certain kind of effort, and not to do whatever it might seem convenient to get a desired outcome. It is not “carrying into effect”.

Now if this argument were made the justices would no doubt realize that it would eventually lead to rolling back all the way to McCulloch, but they don’t have to explicitly recognize that. By overturning the individual mandate on the finding that it does not affect the power of Congress to make a regulatory effort, even if it might affect an outcome of such effort, they could leave it to lower courts to begin the unraveling.

However, someone needs to make that argument. The Court can’t be expected to make it themselves.

For more on this see the ACA Litigation Blog and especially the Brief for the NFIB, Ahlburg, and Brown. My criticism is that the brief does not adequately develop and clarify the original meaning of "carrying into execution" as "making an effort", rather than "getting a regulated outcome". Section III of the brief makes a start at that, but needs more clarity and focus. If Congress has a necessary and proper power to regulate things that interfere in the exercise of an effort, that does not extend to things that interfere in commerce itself, and the argument in the brief seems to accept that, severely weakening their position.

So for example, if a state required shippers of commodity X to pass through inspection points A, B, and C, and Congress required them to pass through points B, C, and D, that would not be something that could be properly enjoined. It would just mean that those shippers would have to pass through B or C. If the state required points A, E, or F, then the combined effect would be to forbid shipment of X totally. But that would still not be interference with the regulatory effort of Congress, only with commerce itself, and enjoining it would not be necessary and proper to carry into execution of the regulatory power. To be interference in the regulatory effort, it would have to do something like obstructing federal inspectors from arriving at their inspection stations to do their jobs.

The unavoidable problem is that the correct understanding of "carrying into execution" is in logical conflict with the precedents in McCulloch, Wickard, Raich, and Comstock. One can pretend to accept them and try to distinguish them, but there is no getting around that a correct decision in this case on that understanding will begin the unraveling of those precedents, even if it takes several cases and years for the unraveling to run to completion.

My preference would be to preface every reference to those precedents with "if arguendo, ... was decided correctly", to make it clear what the issue is. To gloss over this isn't likely to fool anyone, least of all the members of the Supreme Court. This is the case that will either finally entrench the overthrow of the Constitution, or overthrow 192 years of wrong precedents. We have to choose. We can't keep balancing on the edge of the knife. We can't keep both. This is the fork in the road.

A way around the debt ceiling

The 14th Amendment misinterpretation, that exercise by Congress of the authority to incur debt implies a power to raise taxes or borrow enough to pay that debt, deserves deeper examination, as so many people are indulging in that misinterpretation. Since only Congress has the power to tax or borrow, then a contradiction between that and the power to incur debt, when the numbers don't match, is simply without remedy. Delegation of discretion in the exercise of powers entails the power to make mistakes, even mistakes that can bring down the entire world economy, which it now seems likely will not be avoided. The remedy, such as it is, is the punishment that will be inflicted by the law of economics on those who try to ignore them.

There are six main ways government may acquire funds:

1. Taxation
2. Fees for services
3. Sales of assets
4. Borrowing
5. Grants from donors
6. Coining or printing "money"

The reality is that the deficit and debt will not be covered by taxation or borrowing. There are simply not enough dollars (federal reserve notes) in circulation that are accessible to either method of acquisition. The only way forward is to create more currency out of thin air, which has now been done twice, through "quantitative easing". The Fed can do more of that without the authority or direction of either Congress or the President, and both can get around the debt ceiling by not selling bonds to the Fed, but by just having the Fed donate the new currency to pay government bills. Unsound as a business practice, but when things that people accept as money can be created out of thin air, it makes little difference whether such currency is lent or donated.

There appears to be no bar to the Fed simply donating the currency it creates, to the government, without accepting bonds in exchange.

It is, of course, unconstitutional, on state territory, but the reason why it is unconstitutional is instructive. The Constitution delegates no power to Congress to make anything legal tender for the payment of debts, except perhaps on the territory of federal enclaves created under Art. I Sec. 8 cl. 17. Only states may make anything legal tender on their respective territories, and only gold or silver. The Union government may accept other things in payment of debts and taxes to it, and require acceptance of other things in payment of its debts, on its exclusive territory, but despite the wrong Legal Tender Cases, it may not do so on state territory. The acceptance of federal reserve notes as legal tender is only a custom, and one that undermines our constitutional order. That custom needs to end, and it appears it will end soon.

Those two rounds, QE1 and QE2, were done because the sovereign lenders wouldn't loan us the money. Indeed, they have already lent us most of the dollars they hold, and are only acquiring new ones at the rate of about $800 billion a year, which is not enough to cover the $1.7 trillion deficit. Nor are domestic lenders going to be willing to buy bonds. First, all they are holding is about $1.5 trillion, which they need to stay in business, and second, it would take interest rates of more than 20% to get them to loan it, especially if they lose confidence that they would get paid back in currency that is still worth anything.

My model indicates the Fed will soon begin inflating the currency at a rate of 20%, rising to 40% by mid-2012, at which point it will go runaway, quickly ascending to rates that rival what happened in Weimar Germany or Zimbabwe. Social Security and Medicare checks might still go out, but the recipients won't be able to buy anything with them. Eventually, the checks will cease because there won't be any more government workers working to issue them.

I try to explain all this in a few animated videos:
So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)
Playlist:
http://www.youtube.com/watch?v=7Fa1cBOhW60&list=PLD58397F3009D2FB7

Has John Marshall been understood?

Rob Natelson, a former law professor and now a constitutional scholar at the Independent Institute, wrote an article titled "The Greatly Misunderstood Chief Justice John Marshall". He argues that although later jurists have misconstrued three of his key opinions, Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden, they were correctly decided by original understanding. I have to disagree in part, and it goes to the larger question of whether the failures to comply with the Constitution are the fault of the Framers, or of ourselves.

The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org. Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.

About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.

The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.org . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sandford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.

I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.

Rob Natelson tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy not to cross the line into eisegesis.

See also Unnecessary and Improper .

Does the Constitution Still Matter?

The cover of the July 4, 2011 issue of Time magazine depicts a shredded Constitution superimposed with the question: “Does it still matter?”, by Time Managing Editor Richard Stengel. His answer to that question is that it does not, that it is little more than a relic of a different time, of interest perhaps to historians but no longer to be taken seriously as defining our civic duty. He recognizes that it increasingly being ignored and that there does not seem to be the political will to return the nation to compliance with it. His implicit question is, if people are not going to follow it or insist on it, then why bother to pay homage to it? Let's be honest with ourselves, he suggests, and scrap it.

There was a burst of objections to the article in many forums, 538 at the Time website. As I usually do, I added comments. Here they are:

The main cause of deviation from the Constitution is money: there is a lot more money for violating it than for defending it. See http://constitution.org for how you can help.
______
Our challenge is to educate people in a competent understanding of the Constitution as originally meant. There are a lot of myths out there, competing for their acceptance: some from the self-interested elites and some from earnest but misguided laypersons (many of whom may be spreading myths as agents of the elites). The problem is complicated by the fact that the Constitution was not written in the English of today, but in the legal English of 1787, and people in that time disdained things like dictionaries, expecting legal scholars to immerse themselves in the subject for many years to acquire competent use of the language. The effort is worth it, but it is not just a matter of reading the Constitution with a modern (mis)education. See http://constitution.org
______
For more on the subject see
Constitutional Construction http://constitution.org/cons/prin_cons.htm
Kentucky Resolutions & Virginia Report http://constitution.org/rf/vr.htm
Constitutional Convention http://constitution.org/dfc/dfc_0000.htm

While the many objections to this article might seem encouraging, we need to recognize that there were very few, and most not of high quality.

One of the better ones was by Rob Natelson, who wrote a response addressing some of the many illogical or inaccurate claims therein. It led to a discussion by David Kopel on the Volokh Conspiracy, in which I commented:

Sasha is correct about the flexibility of Latin word order. But it is worth while to segue into the general subject of the ways Latin (and Greek) influenced the language of the Constitution, and therefore the meanings that language had for the Founders.

An important example is the term “militia”. In Latin, it does not mean “armed group”. That would be volgus militum. The best translation would be “defense activity”, because soldiers were used not just for war but also for law enforcement and disaster response. The word, like many in English, is a kind of polyseme called an actronym, a word having the primary meaning of an activity that comes to also be used to refer to those engaged in the activity, or the occasion or place of the activity.

So to understand the meaning of “militia” in the Constitution, substitute the phrase “defense activity” wherever it appears.

______
However, that discussion became somewhat pedantic. What was missing from these discussions were plans of action to correct the problem. There is much "viewing with alarm", but almost no one seems to be doing much about it, other than a handful of people like me, and I am not getting much support in my efforts. I do get a lot of favorable comment that I seem to have the only good ideas for action, but when I ask people to commit to taking action, they make excuses or just glaze over.

The old saying is "Power goes to those who show up." Yet a survey of constitutionalist groups across the country finds few and their meetings are not well attended. I have asked some potential participants why, and their vague answers indicate they don't want to get into a situation in which they will be asked to do anything, especially donate money. It is like people who don't go to church because they dread being presented with the collection plate, or being asked to volunteer for some charitable service.

I hope Stengel is wrong, but so far the evidence supports his position. What are you going to do to prove him wrong? If you don't set the example of action, don't expect others to do so.

So you want to raise the debt ceiling?

So you want to raise the debt ceiling?
So you want to create more jobs here? (Part 1)
So you want to create more jobs here? (Part 2)
Playlist:

Sixth Circuit upholds individual mandate

Thomas More Law Center, et al. v. Obama, et al., No. 10-2388

http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

This case is instructive for how to pursue further argument in the issue. The case is the first appellate decision, and is expected to be appealed to the U.S. Supreme Court. This Circuit was considered the most likely to overturn the individual mandate, and thus provide a circuit conflict that the Supreme Court would want to resolve.

It appears the opinion of Judge Sutton is directed toward U.S. Supreme Court Justice Kennedy, expected to be the swing vote on the case. The dissent by Judge Graham provides support for the opposite position.

Judge Sutton provides the key language:  “The Court has upheld other federal laws that involve equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals.  If, as Wickard shows, Congress could regulate the most self-sufficient of individuals – the American farmer – when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it.  And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Further:  "What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Further: “The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.”

See also pp. 47-48, discussing the EMTALA requirement that hospitals provide emergency care even to those who can’t pay. Judge Graham points out that "...Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects." Or because the states do the same, by requiring "emergency" treatment of everyone, and then broadly interpreting "emergency" to include everything needed to extend life indefinitely. The individual mandate to buy insurance rests on the mandate to treat everyone. The way to solve the collective action problem is to repeal the mandates to treat. If any legislative body mandates treatment then it incurs the duty to pay for it, respondeat superior. A mandate to treat cannot create a constitutional authority to do anything. Constitutional authority is not contingent on legislative acts that create some condition.

Note that Judge Sutton does not rule out future as-applied challenges to the mandate but only the current facial challenge. See pp. 37-38, 49-50, and 52-53.

A sentence in the dissent weakened Judge Graham's argument.  It said that the decision to self-insure is noncommercial, to justify its holding.  But this contradicted by Wickard.  If the case for constitutionality turns on this, then there is little chance of prevailing unless it is distinguished from the line of cases from McCulloch through Wickard and Raich.


Once again we see the cited cases as those that have the most pernicious impact on jurisprudence, and that the key is to attack the line of precedents that began with McCulloch v. Maryland, as I argue in Unnecessary and Improper. Focusing only on the "action-inaction" distinction is a weak reed on which to hang the issue. The original meaning of "carrying into execution" has never been addressed by the Supreme Court, and we need persuasive argument that the phrase limits powers "necessary and proper" to only making an effort, and does not allow doing anything that might serve an outcome for which the authorized effort might be made.

If we lose this one, it is unlikely that even winning the presidency and both houses of Congress (the Senate by 60 votes) would be able to overcome the momentum of the Health Care Act, the repeal of which ar this point would wreck the health care system as thoroughly, and more abruptly, as enactment of it will. The only way forward is nullification and constitutional amendments.



 

Cigarette labeling and the Commerce Clause

The recent rule laid out by the FDA for the labeling of cigarette packs with scary images of injury caused by smoking on the upper half of each pack has been opposed by the cigarette industry as an infringement on "commercial speech". Once again, even the wealthy industry doesn't seem to be able to find lawyers who know how to make competent constitutional arguments.

Under the Commerce Clause as originally understood, Congress does indeed have authority to regulate the time, manner, and place of items shipped in interstate commerce, and thus the labeling of packages. However, no power is plenary. Any power must be exercised only for a reasonable public purpose. Thus, it would be improper to require items to be shipped in packages with no labels at all, so that an inspector would have to open each package to find out what is inside. At a minimum, it should have a label identifying the sender and receiver and some code that the receiver and inspector knows how to interpret to tell him what is inside. Congress may reasonable also require the label to identify the contents to an inspector, and also show things like the quantity of the contents.

But what about a requirement to put gruesome images on the upper halves of both sides of packs? In my interpretation of the Commerce Clause, that would be authorized only if cigarettes are shipped across state lines as separate packs. That would also mean each pack would have to be labeled with its own sender and receiver. If packs were shipped in opaque cartons or cases, Congress would have authority to require such gruesome images on the cartons or cases, but not on the packs they contain, if those do not become visible until the carton or case is delivered to its recipient within a state and opened there. Once the recipient accepts delivery the item is no longer "commerce" among the states. At that point only the state has jurisdiction.

Could Congress get around this interpretation by requiring cigarettes not be shipped in opaque containers, but only in containers that are transparent and revelatory of the labels on the packs? Yes, but the cigarette companies could get around that by shipping cigarettes in cases without packs, and putting them into packs after they arrive in a state. Congress would have no authority over the labeling of such local packs.

The FDA would argue, of course, that Congress has power under the "substantial effect" doctrine of the Necessary and Proper Clause to regulate items of commerce beyond the delivery to a shipment recipient within a state, but the counterargument is that it is only power of "carrying into execution" an express power, that is, to make a certain kind of effort, not a power of "carrying into effect", that is, to get a desired outcome. The Supreme Court has never ruled on that line of argument. That is the argument the cigarette companies need to make, not an appeal to the First Amendment.

I am not a smoker, don't like smoking near me, and don't like having to help pay the medical bills through my taxes of persons with smoking-caused morbidities, but this is a case of good intent not being enough to overcome the lack of congressional constitutional authority.  The remedy needs to be left with the states.

Case interpreting the Petition Clause

The Supreme Court rendered a decision June 20, 2011, in Borough of Duryea v. Guarnieri

This is probably the most significant case interpreting the Petition Clause of the First Amendment, which states:

Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances.

The particular holding in the case is not very important. It is that in cases involving a government employee suing the government employer for retaliation for filing a grievance, the employee’s claim that such retaliation violates the Petition Clause of the First Amendment is governed  by the same Connick v. Myers/Pickering test which applies when the employee claims that such retaliation violates the Speech Clause of the First Amendment.

But the case is significant in several ways:

(1) It recognizes that lawsuits are “Petitions” under the First Amendment. This is a much-debated academic issue, and one on which Justice Scalia dissented in the opinion;

(2) It explains that the Petition Clause and Speech Clause are not always coextensive, and leaves open the possibility that here may be additional claims under the Petition Clause which plaintiffs may invoke consistent with the purpose of that Clause.

Here is the relevant language from the majority opinion on this point:

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are“not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan Inc., supra, at 896–897.

This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

The question of the Petition Clause’s scope is relevant to constitutional limitations on lobbying laws.  Borough of Duryea suggests that lobbying laws may be subject to both Speech and Petition objections.  It will be interesting to see how the jurisprudence in this area develops given this opening from the Court to develop a broader basis for the Petition Clause claims.

Individual Standing to Enforce the Tenth Amendment

The unanimous opinion in Bond v. United States handed down by the United States Supreme Court June 16, 2011, may open federal courts to individuals to challenge federal statutes, such those against drugs, as unconstitutional infringements on individuals' rights and usurpations of Federal Power in realms reserved to the States under the Tenth Amendment to the Constitution.  This case is a turning point on Tenth Amendment and standing jurisprudence, and offers one of the first glimmers of hope since the Lopez case.

Note however, that it is only a reversal on the single issue of standing to challenge the statute, and thus a partial reversal of the precedent on standing in Frothingham v. Mellon, not on the merits of whether that statute is indeed unconstitutional. That finding remains to be made. Spread the word on this precedent. It needs to be cited often in other cases and in law review articles.

When I cite Frothingham I am referring not so much to that case alone as to the line of precedents built on it, including many misapplications and conflations, such as that between "failure to state a claim" ("frivolous"), and standing/justiciability. Justice Kennedy in this opinion tries to draw a line between those, although he also points out they are entangled.

But I don't think the reasoning in this case turns on whether the appellant was the defendant or the plaintiff, or whether it is a criminal or a civil case. Judicial doctrine recognizes that justiciability does not rest only on past injury, but also to the expectation of imminent injury. If not, then what is injunctive relief for?

So this case does seem to confer standing on individuals with either past or expected injury from the exercise of an undelegated power. The question then turns to whether the power has been delegated, and that takes us in most cases to the Commerce and Necessary and Proper clauses.

Reid v. Covert stands on the proposition that the government cannot acquire new powers, at least on U.S. soil, from a treaty. Agent B cannot acquire new powers from principal A by an agreement he might make with treaty partner C. He can only get powers from C, if C has the powers itself, and they must not conflict with his duties to A. That case did not overturn Missouri v. Holland, it appears, because the Court presumed the powers being exercised under that treaty were powers ("Commerce", N&P) that it had to exercise, which was not an issue before the Court. On remand in the Bond case it will be an issue, whether the lawyers know it or not.

I would argue that the power claimed in 18 USC 229 is not a power which Congress has authority to exercise on state soil, and therefore is not a power it may exercise under any treaty. As I have argued previously, the power "necessary and proper" cannot be determined without examining the qualifying phrase, "for carrying into execution", something that has apparently never been carefully done in any Supreme Court case, going back to McCulloch v. Maryland, which just took it as whatever was convenient to get a desired outcome. But from the common law rules of construction of delegated powers, the original understanding was not that a delegated power was to do whatever it might take to get a desired outcome. It was always only to make a certain kind of effort, which, if it did not avail, did not imply or authorize any larger power, or any new kind of power, especially a penal power.

And, to bring things down to common sense, the kind of stuff one could paint on a doorknob to harass someone is hardly a "chemical weapon" contemplated by the Treaty. Think overcompliance and void for vagueness.

So, for example, suppose Congress passed a statute regulating the shipment of flour. Under the Commerce Clause as originally understood, it could require that to be done in containers that would keep the contents dry, not be easily broken, labeled with the amount of flour it contains, and handled in a way that would avoid dispersing the contents (which can explode).

Under the Necessary and Proper clause Congress could authorize the leasing or erection of offices and inspection stations, the hiring of inspection agents and accountants, the publication of notices, forms, and reports, and various other incidentals of carrying the regulation into execution, that is, or making the effort.

Now suppose the inspectors needed some tool to conduct their inspections, perhaps some kind of scanner. Would that give Congress the authority to fund the development of such a tool for the private benefit of someone? The correct answer is no. It could develop the tool using its own personnel, or government contractors, but its only power to promote an art among private parties is to grant a monopoly for a limited time (originally only long enough to recover a reasonable profit), or to purchase it. If the government pays for its development, then it is not patentable. Similarly, if the private sector had already invented such a device, the government could promote it only by a patent or by purchasing it, not by doing something like spending money on marketing it to other buyers.

Now could the power to regulate imply the power to prohibit all modalities of some commodity? No. "The power to regulate is not the power to prohibit." It is only the power to "make regular". Restriction on modality is a kind of prohibition on some modalities, but there must always be some modalities permitted.

So does Congress have the power to prohibit all modalities of some substance that might be used to cause harm? No. It could restrict some modalities of things that are especially dangerous, which could be very restrictive indeed, but subject to safe transport, not restrict the possession or even use of such commodities when not actually being transported or traded from outside a state to a buyer inside it.

Now suppose someone tried to interfere with the inspectors in the conduct of their duties. Could Congress make that a crime? Not by original understanding, on state soil, using any but penal powers delegated by other clauses. It could on the soil of federal enclaves, nonstate territory, where Congress has broader powers, and on foreign soil over which we acquired power through treaty (such as the grounds of U.S. embassies abroad). But on state soil the interference could only be prosecuted criminally as either a state crime or as some form of treason, counterfeiting, piracy or felony on the high seas, or offenses against the law of nations.

The meaning of the "law of nations" clause was frozen in its state as of 1788. To allow future treaties or conventions to expand on that would be to allow them to amend the Constitution. In 1788 the law of nations did not include domestic penal powers, except for things like attacks on diplomats, on shipwrecked passengers and crew, or for piracy conducted from U.S. soil.

So if people tried to interfere with federal inspectors on state soil, those inspectors could shove them aside, or physically defend themselves from assault, or get a court, which on state soil would be a state court, to enjoin the interference, but not to criminally prosecute them (and the Framers neglected to delegate a power to make contumacy a crime). If the interference rose to the level of "making war" then they could be prosecuted for treason, but most of the other penal powers would be unlikely to provide authority for most such situations.

And don't argue that the First Congress made it a crime to rob the mail. The first few congresses were dominated by a lot of people who didn't fully understand or think through the limitations of the new Constitution they had adopted. Many thought Congress had power to authorize prosecution of common law crimes. It didn't.

Needless to say, legal practice has deviated a long way from this understanding, without amendment to the Constitution. Some may be willing to abide that. I am not one of them. Amend it or stop violating it.

With the few exceptions of things like state consent needed to divide states, state governments do not really have "rights". That is an abbreviated way to refer to rights of the people of states. (Which is what the Framers seemed to have meant by the term, using "state legislature" when they wanted to refer to the government of a state.) It is useful to recognize that prior to the 1923 Frothingham case, with its newly restrictive doctrine of "cases and controversies" that denied "standing" to parties without particularized injury (past or expected), the doctrine was that people had standing to privately prosecute a public right, on the doctrine that we all have the justiciable right not to have government anywhere exercise undelegated powers, and that any such exercise is a justiciable injury even if not particularized. The opinion in the Bond case recognizes this doctrine as prudential, not interpretative of the Constitution. It is for the convenience of the Court, to filter and hold down the number of cases it is asked to decide, not something the Constitution requires. (The same could be said of binding stare decisis generally.) It is worth re-reading The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

Approaches to reading the Constitution

This is a response to Saul Cornell, "Why the Right-Wing's Approach to Reading the Constitution Is Destroying This Country" -- That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country's founding.

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The article uses a broad brush to make its point, but it is an exercise in tergiversation (look it up). Many people claim to be originalists, but only a few leading scholars can be properly so labeled, including Randy Barnett, Roger Pilon, Gary Lawson, Kurt Lash, Lawrence Solum, and a few others, including some but not most legal historians. Social conservatives are indeed prone to cherrypick the Constitution to support their policy agendas, but they do not deserve to be called "originalists".

At least some are supporting originalism rhetorically, even if they don't initially get it right. That's a start.

The Constitution does not support the policy preferences of most people, anywhere on the political spectrum. Most people who set out to discover what the Constitution originally meant have to abandon their own policy preferences, or else propose amendments. I have certainly had to abandon many of mine. But what I soon discovered was that those policy preferences were misguided or ill-conceived, and that the Constitution as originally meant actually represents better solutions, to the extent there are any solutions. What one often discovers that that those proposals discovered to be unconstitutional either would not work or would make the situation worse. There are many problems beyond the competence of government, no matter what its constitution might authorize.

See http://constitution.orghttp://constitution.org to find out what real originalism is all about.

Social Security is not an insurance program

For those who have deluded themselves into thinking their payments into Social Security have earned them benefits, there is the Supreme Court case Flemming v. Nestor, 363 U.S. 603 (1960), in which we find these excerpts:

... eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes ...
...
To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.
...
Congress included in the original Act, and has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act.
...
We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment.

So contributors to Social Security may have a political claim, but not a legal claim, to benefits. Paying in to Social Security earns no one anything.

See "Private Alternatives to Social Security: The Experience of Other Countries", John C. Goodman, Cato Journal, vol. 3, no. 2 (Fall, 1983), especially the section on the system adopted in Chile.

You would be better off donating to an effort that is doing something about problems like this. Pass it on.

Is TSA "Groping" Bill Junk Legislation?

I testified against HB 1937 before the Committee for reasons discussed here.  It is a poorly conceived effort to solve this and other problems of unconstitutional federal action, given the existing state of judicial support for such unconstitutional action. The present legal reality is that "federal agent" is now a title of nobility, and federal agents may murder, rape, steal, or do anything they want, protected by the judicial doctrine of official immunity. If federal courts were still devoted to the Constitution, a bill like HB 1837 would be okay, but they are not. What is needed is a more subtle, comprehensive approach, and I have proposed one that might work: the establishment by amendment to the Texas Constitution of a Federal Action Review Commission, a grand jury empowered to hear citizen complaints of federal usurpations, and if it found them unconstitutional, that finding would trigger a requirement for all state officials, agents, and contractors to refuse to cooperate in any way with such usurpations, and encourage private citizens to do the same. Since the state is not allowed to represent citizens in court who might do so, it would provide a fund to pay the legal and other expenses of those who thus resisted. This would engage the entire state in concerted non-violent civil disobedience, which is about the only way left to us to get the central government to abandon its unconstitutional practices.

However, now that the U.S. Attorney has foolishly threatened the State if it merely passes the bill, we have no choice but to go ahead and pass it, and I urge the Legislature to do so. My proposal would be a far better solution, but we must not yield to such pressure.

University of Texas law professor Robert Chesney makes the common mistake of treating all enactments, statutes, regulations, or administrative policies as "law". Other than constitutions, only statutes are law and only if they are constitutional. Most federal statutes are unconstitutional. Not just some provisions of a few of them. Most of them. It is long past time to proclaim the emperor has no clothes. We need to stop pretending the central government is clothed by the Constitution when it is not.

The U.S. Congress passes about 20,000 unconstitutional provisions a year that could be challenged in court as separate issues. That is far too many to be addressed one at a time by state legislation like HB 1937. We need a more comprehensive approach that can tackle them all.

As for the Ninth Amendment, there are plenty of people who are defending it, especially law professor Randy Barnett. More can be found here.  We are still a minority, but you can help spread our message.

The gravy train is at the end of the line.

Social Security is not and never was any kind of insurance program. Your payments into it are not and never were premium payments for a retirement pension. There is no "social security" account with your name on it. The government has never claimed otherwise, and indeed, has explicitly denied it. The notion to the contrary that too many people seem to have is a delusion they invented and prefer to believe, but which has no basis in either law or reality. Social security, and the other entitlements, are no more than transfers of wealth from one group of people to another, and there is no legal obligation to make such transfers in the future to those who have had their wealth taken from them for that purpose, in the past.

Better make friends with your children and grandchildren, because it won't be long before you will have to depend on them to support you in poor health or old age. If the government sends you money, it will be money that will be nearly worthless. You will need to wheel a shopping cart full of $1 billion-dollar bills to the store (if any remain open) to buy a slice of bread.

The gravy train is at the end of the line. Get off and work, or die. Those are your only choices.

No government-issued ID to vote

Kansas SOS Kris Kobach has written this oped for the WSJ. But his reasoning is flawed. Here are my comments:

There is a critical difference between presenting identification to cash a check, and doing so to vote. The first is a transaction between private parties. The second is the exercise of a public duty by a public official, the elector, for whom the only qualification is being a citizen and resident of the voting jurisdiction. There is no constitutional requirement to have or present any kind of government-issued identification document. There is no constitutional authority to require anyone to present what one is not required to have, and no constitutional authority to require anyone to have such identification, or even to have a name.

No one owns his name. A name is what others call us, and is under their control. No one can be required to accept or disclose what others call us.

It is not improper to require confirmation that one is qualified to vote, but the traditional way to do that is by a jurat of a notary public who knows the individual. That jurat does not need to cite a name or other identification. In this digital age, we have the alternative of digital notaries who certify the connection between an individual and his public encryption key. Such circles of trust are the constitutional solution to identification. Government identification puts too much power in the hands of government, a power they can be relied upon to abuse.

None of the government-issued identification documents now available actually prove one is a citizen. They may be evidence of many things, but the closest thing to proof of citizenship is a birth certificate, and that can easily be faked, as we have recently seen with the bogus "certificate of live birth" the White House foolishly put on their website without first removing the image layers that disclose the sequence of alterations to the image, which show clearly it is fraudulent. A passport is also not proof of citizenship. They are issued to non-citizens, and are only as reliable as the information provided to the Passport Office. Garbage in garbage out.

The closest thing we have to reliable identification is a jurat from a notary public who knows the individual personally. Government-issued ID is just a way for government to control people.

Mistakes made regarding "sovereign citizens"

CBS News had a segment, Who are "sovereign citizens"? My comment follows:

Each side in this dispute is making its own mistakes about the law.

The "sovereign citizens" are correct in their position that being subject to the law rests on their consent. Where they get it wrong is in failing to recognize they give that consent by remaining on the territory of the polity, be it nation, state, county, or whatever. Jurisdiction is primarily territorial (in Latin, ad locum). To expatriate, people have to leave the country. If they don't, they are subject to the law of the country.*

However, they, and their opponents, also err in accepting the rules that are being enforced as "the law". To be law, official acts must be constitutional. If unconstitutional, it is not law, even if people think it is law. Much of what is being enforced is not law, and no one is bound to obey or help enforce it. Further, no one may rely on judges, supervisors, or legal advisers. Every person has the absolute duty to make an independent determination of what is and is not law.

Instead of arguing they are not subject to the law, the protesters need to be arguing that what some are attempting to enforce is not law, but a usurpation. That is the proper frame for discourse.

The people are collectively sovereign when they elect delegates to constitutional ratifying conventions or legislatures sitting as constitutional ratifying conventions, but not as individuals. To be individually sovereign one would have to be the monarch of his own independent country somewhere, and there is nowhere left on Earth where anyone can do that.

There is a sense in which we are each "sovereign" in the interpretation and application of the law to cases before us, but that power comes with a duty to get it right, by basing decision on the best evidence of what the lawgivers meant in the laws they gave us. However, none of us is individually sovereign in the making of law, or free to exempt ourselves from subjection to it. That is a subtle but critical distinction too many dissidents, and their critics, fail to make.

The proper frame for debate is not over whether we are subject to law, but over whether what is being enforced really is the law.

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* There are three kinds of jurisdiction: territorial (locum), personal (personam), and subject (subjectam). A court must have all three to hear a case. "Venue" is not the same as locum jurisdiction. The term means the location of a forum, normally within a jurisdiction territory. For more on this see A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824).

"Venue" is the location of a forum, of a particular court. "Locum" is a territory, such as a nation, state, county, town, or whatever, which is defined by geographic boundaries and may contain multiple courts or venues. However, a particular court may convene at different locations. Wherever it convenes is its "venue".

The term "political" jurisdiction is a misuse of terminology. A foreign diplomat is immune due to his status as a foreign diplomat, which is a kind of office with respect to U.S. law. However, he is subject to the laws of a different nation. The court lacks personam jurisdiction over such a person.

We have been speaking here only of judicial jurisdictions. There are also legislative and executive jurisdictions, each divided into locum, personam, and subjectam. For a court it defines the bounds on what cases it may lawfully hear. For a legislative body, the kind of statutes it may lawfully adopt. For an executive the kind of enforcement actions he may take.

It is all very orderly and systematic, but it is surprising how much of this never gets across to students in law schools.

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

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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."