What motivated Roberts in his health care opinion?

Many people are trying to find the motivation of CJ John Roberts in his extraordinary opinion in NFIB v. Sibelius, the health care case.

Perhaps a better explanation is that Roberts was engaging in pushback against people turning to the courts for what they should be trying to get Congress to do, effectively treating the judiciary as a third house of Congress. Several former justices have complained about that, and in reaching so far to defer to Congress he is sending a signal to Congress and the people that they should stop neglecting their duty to get Congress to comply with the Constitution.

It comes down to money. As expensive and uncertain as litigation can be, it still takes a lot less money to take a case to the Supreme Court than it does to get a bill passed by Congress or an amendment adopted to the Constitution. A position can sometimes prevail in court on its merit, but merit carries little clout with Congress, which is buried by countless demands on its attention. On the other hand, the Supreme Court feels it can take only about 80 cases a year of the 8000 cases that seek a decision, whereas Congress can typically pass more than 20,000 separately justiciable legislative provisions a year that are mostly unconstitutional, more than 100 times as many as the courts could decide. For the people to supervise all this would be more than a full-time job for every citizen in the country. That is a crisis in constitutional governance.

Now I don't think that kind of strategic signaling is what judges should do. Their duty is to say what the law is, fiat iustitia ruat cœlum. That means adopting a doctrine that all congressional legislation and other official acts are to be presumed to be unconstitutional unless proved otherwise beyond a reasonable doubt. That means overturning more than 500 precedents beginning with McCulloch that expanded federal power or denied a right of an individual against the exercise of such power.

When the Supreme Court sustains a right they are usually correct, and when they sustain a government power they are usually wrong. Those wrong decisions need to stop.

Let us hope the next president can place some libertarian constitutionalists on the Court. Imagine if only two of the liberals were replaced by someone like Randy Barnett, Richard Epstein, Elizabeth Price Foley, Kurt Lash, Gary Lawson, or Rob Natelson.

See also:

•  Proposed Bills — The way to reform.

List of constitutional rights

A question I often get is to indicate a comprehensive, authoritative list of constitutional rights. Most legal scholars in the past have declined to offer such a list, saying that it would be infinite, so no listing could ever be adequate. Of course, some have provided partial lists, as James Madison did with the Bill of Rights, which included a catch-all, the Ninth Amendment, for all the other rights not made explicit in the other amendments. Essentially, he was referring people to legal history for the details, but too many judges refuse to acknowledge rights that are not spelled out.

I offer two things that try to identify the rights in more detail. The first is a law review article, Presumption of Non-authority and Unenumerated Rights, that goes into the historical background to find what got lumped into the Ninth. The second is a proposed Civil Rights Act to be introduced in Congress. For the convenience of readers, here is the part of that Act that lists the rights:

a. All rights already recognized in the above titles, and in the Constitution as amended.

b. Due process and efficient remediation

1. General

1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.

2. Fair hearing and decision on the legal merits, with redress for just grievances, including damages, property, or injunctive or declaratory relief.

3. Not to have just remedies made inaccessible or excessively difficult or costly.

4. Mandated testimony of witnesses.

5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.

6. Direct presentation of complaints to a grand jury without the presence of any other government actor without the consent of the grand jury.

7. Standing to privately prosecute a public right without having been injured or expecting personal injury.

8. Not to be subject to retaliation.

9. Not to have admitted any plea or testimony induced by a plea bargain.

10. Not to have any property or asset taken or forfeited without civil or criminal judgment in a trial, with possession presumed to establish title unless proved otherwise.

11. Not to have any right, privilege, or immunity disabled by statute unless one is a minor, which by default shall be any individual under the age of 18 unless the disabilities of minority are extended or reduced by court order.

2. Criminal trials:

1. Indictment by twelve members of a randomly selected grand jury of 23 who elect their foreperson, upon a finding that the court has jurisdiction and that there is sufficient evidence for a trial, except for persons subject to military or militia discipline.

2. Service as prosecutor upon receipt of an indictment by a grand jury, subject only to consolidation by the grand jury if more than one person seeks to prosecute the same offense.

3. Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in criminal cases for which the penalty is more than 90 days.

4. No excessive bail when there is little flight risk.

5. No excessive fines imposed.

6. No  cruel and unusual punishments inflicted.

7. Speedy and public trial before an impartial jury of the state and district previously defined by law, wherein the offense shall have been committed, and to have the location of commitment be deemed where there was concurrence of mens rea and actus reus.

8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.

9. To be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence, but not to have counsel or an attorney imposed on him without his consent.

10. Not to be compelled to be a witness against himself.

11. Not be disabled in the exercise, or deprived, of life, liberty, or property, without due process of law, by unanimous verdict of a jury of twelve.

12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.

13. Unimpeded presentation of all legal argument to the jury, up to the final instructions to the jury, except for argument on a motion in limine that cannot be made without disclosing evidence properly excluded.

14. Unimpeded presentation of all pleadings, alternative instructions, and certified copies of applicable laws and constitutions, to the jury.

15. Not to have a sentence that does not separately disable the exercise of the immunity, and order deprivation of it, within the scope of that disablement

3. Civil trials:

Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in which the amount at issue, including costs, exceeds the equivalent of at least 15.46875 troy ounces of pure silver.

4. Appeals

Appeal from a jury verdict on a writ of error or habeas corpus, according to the rules of the common law in the United States as of 1787, unless the Constitution is amended to provide otherwise.

c. Nonauthority

1. Presumption of nonauthority for any claim to authority, to be strictly proved by an unbroken logical chain of derivation from a constitution.

2. Not to have any government actor exercise a power not delegated, regardless of whether one may be personally injured by such exercise.

3. Not to have government actors exercise powers on the pretext of being "necessary and proper" when they are not just to perform his official duties but to get a desired result beyond such duties.

4. To have delegated powers construed as narrowly, and rights, privileges, or immunities construed as broadly, as the language of the Constitution as meant and understood when ratified permits.

5. Priority docketing of all prerogative writs filed by a any person as demandant in the name of the people with a court of competent jurisdiction and served on the respondant, within three sederunt days, unless the respondant requires more, but not more than 20 calendar days, including but not limited to, demurral, quo warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari, and scire facias, and to have default judgment even if no proof is presented or a hearing is not held.

6. Unimpeded and unpunished communications, including speech, press, and education, except such as instigate or direct a felony, misdemeanor, or tort.

7. Unimpeded assembly and exercise of rights in concert with others.

8. Unimpeded assembly as militia for organizing, training, and response to threats to public safety, subject only to direction by state militia officers during a call-up.

9. Unrestricted keeping and bearing of weapons, equipment, and supplies commonly used by military forces, or suitable for militia, subject only to court order of disablement for being a threat to oneself or others, or to the lawful orders of militia officers during a call-up.

10. Unimpeded and unpunished petition for redress of grievances.

11. Unimpeded devotion or practice of religion, not preferentially supported by public funds, that does not instigate or direct a felony, misdemeanor, or tort.

12. Exclusion of government actors from intrusion into one's real property, body, or use of one's personal property, for search, seizure, or for any other reason, without consent, a declared state of war or emergency threat to public, safety, a warrant supported by an affidavit of probable cause, and just compensation for any losses incurred, for each incident.

d. Supervision of government actors

1. Access to observation and recordation of any government proceeding except trial and grand jury deliberations or their equivalent, or deliberations on matters of security requiring secrecy.

2. Receipt of records of all proceedings, and accounting for all receipts, loans, debts, and expenditures, and reporting thereof, for eventual examination prior to an election in which the issues may be reviewed.

3. Accurate recording, counting, and reporting of all votes cast by eligible voters in any public election with protection from disclosure of how each voted.

4. Access to all information about oneself, and either copies at cost of all documentation or to make one's own copies using one's own equipment.

5. Effective low-cost remedies for getting information about oneself corrected, and use of such information restricted to that for which there is consent by oneself.

f. Not to be subject to meddling without a clear, present, and compelling public need

1. Association and contract to do things not unlawful, including practice of a profession or occupation, marriage, procreation, and acceptance or denial of medical prevention or treatment, except prevention of contagious diseases.

2. Formation, conduct, and revision or dissolution of corporations, partnerships, and other trusts, in which settlor, trustee, and beneficiary are distinct persons who may not be impeded or penalized from directly appearing in any court in such capacities.

3. Not to have some accorded special privileges or protections that favor them over the rest of the people, in ways not essential to the performance of public duties.

4. Travel within, to, and from the United States and any State, territory or locality.

5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.

6. Not to be enslaved or submitted to peonage except as punishment for a crime, but subject to militia, jury, witness, and other public duty.

7. Not to be impeded or punished for voting if one is a citizen and resident on grounds of race, color, creed, previous servitude, gender, age 18 or above, or failure to pay a tax.

8. Custody and care of close relatives who are non sui juris.

9. Not to be neglected or abused while in custody.

10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.

11. Not to be deported without proof that one has not been born or naturalized as a citizen, unless one is born to a person not subject to the allegiance of the United States, such as a foreign diplomat or an invader.

12. Not to be subject to penalty for not doing something, such as not paying a tax, if government agents refuse to allow it to be done, such as not accepting payment of a tax.

13. Not to deny relief from some government action for lack of an appropriation to process the application for relief, or having an official to receive the application, and to fail to recognize the demand for such relief as being granted by default.
14. Not to be required to procreate or to refrain from procreating.
15. Not to have imposed upon one any unwanted belief or expression of devotion or to be pressured into conformity with such.

g. The foregoing list is not exhaustive, and further rights, privileges, and immunities are to be found in the historical record. The rule of expressio unius est exclusio alterius shall not be applied.

Go to the link for the latest version.

  

See also:

• Presumption of Non-authority and Unenumerated Rights
• Civil Rights Act — Proposed bill, ready to be filed.
• Social Contract and Constitutional Republics
• Constitutional Construction
• Constitution Society — Site for research on this topic.
• UN Universal Declaration of Human Rights

Diagram of Necessary and Proper Clause

One of the most controversial clauses of the Constitution is Art. I Sec. 8 Cl. 18, which reads:

[The] Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution [in the Government of the United States, or in any Department or Officer thereof].

To keep the Reed-Kellogg diagram size manageable we have removed the words in square brackets [] that aren't essential to the analysis.

There appears to be no grammatical ambiguity in this clause as there is in the Tax/Spend/Welfare Clause previously diagrammed, so interpretation is mainly a matter of finding the original meanings of the words.

The key is the mandate that the laws authorized by this clause must be "necessary and proper". The conjunction "and" means they must satisfy both conditions, so in any case on whether such a power is legitimate, one would need to prove both "necessary" and "proper", not just one.

However, "necessary and proper" are further restricted by the prepositional phrase beginning with "for" that defines the purpose for which the laws must be "necessary and proper", specifically for "carrying into execution ... Powers", a gerund phrase. Therefore, anyone claiming a power under this clause must not only prove it is both "necessary" and "proper" but that it is also "for carrying into execution" a power otherwise delegated or "vested".

The implied power is only of a delegated or vested power found elsewhere in the Constitution, not of another implied power. This clause is not recursive. Only one level of implication from an explicit power is allowed.

What is "necessary"?

In the 1787 legal idiom "necessary" are not just about logical necessity, but practical necessity.

Consider a chain beginning with power A, for which power B is deemed necessary for carrying A into execution, for which power C is deemed necessary for carrying B into execution, and so forth. To make the discussion more concrete, let power A be the power to regulate some kind of interstate commerce, and power B the power to conduct official inspections of items of commerce at a border checkpoint. Strictly speaking, B is not logically necessary unless one inserts the additional premise, "Something may be regulated only if it is inspected by officials." But it is also possible to regulate by voluntary compliance without inspections, or perhaps by having competitors sue one another for noncompliance. So the necessity is practical rather than just logical.

Now in the next step we find a practical necessity, to carry into execution the power to conduct inspections, the power C to hire inspectors. That is a second level of inference. From that point we can move to a power D to pay inspectors, a power E to train inspectors, and a power F to supervise and discipline inspectors. However, all those steps in the chain are tethered to the original power A to regulate commerce.

The problem arises in that the tether may get broken as the chain grows. Persons may be hired to hire persons to hire persons to hire persons, none of whom actually conduct any inspections and thus carry into execution the power to regulate commerce. One can construct similar chains for things like acquiring land or equipment, initially for inspection stations but eventually for its own sake, or for imposing penalties, or for issuing forms, instructions, reports, etc.

If the practical inference were recursive, it would enable the growth of unlimited power, not tethered to the base power, contrary to original intent. Therefore, it is not recursive, and the phrase "for carrying into execution the foregoing powers ..." is a requirement that the "implied" power must always be practically necessary for carrying into execution the base power.

What is "proper"?

 Some means were not considered proper, even if they might be practically necessary. We can identify some ways means may be improper:

1. They violate a fundamental natural or social right, not just a negative right arising from the non-delegation of a power.
2. They are not reasonable ways to attain the end.
3. They do not serve a legitimate public purpose.
4. They are not done in a way that satisfies due process or public deliberation.
5. They exceed the bounds of public consent.

One can elaborate on those further, but that is sufficient for now.

Latin roots

Thanks to Rob Natelson for finding a passage in a 1724 English book on legal forms in Latin:

... ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna ... .

with the abbreviations spelled out.

The words necessaria and opportuna are the neuter plural forms of necessarius (necessary) and opportunus (proper). In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. From that we get the strict notion of something being logically or practically necessary, but also subordinate.

The legal English of 1787 was largely derived from Latin and Law French, the languages of law until English was made the standard in English courts in the Proceedings in Courts of Justice Act 1730 (4 Geo II. c. 26). Although English had been allowed in courts since 1362, legal English continued to be dominated by the official use of Latin and Law French, to which one needs to refer to get the original meanings of many terms used in the Constitution.

What is "carrying into execution"?

The term of art "carrying into execution" had a fairly restrictive meaning in 1787. It did not extend to getting a desired outcome, such as compliance by the public with a law authorized by a delegated power. It meant only for an official to perform the duty of his office defined by a law, that is, to make a certain kind of effort. It was well understood and expected in 1787 that laws and enforcement efforts were unlikely to ever have full compliance, and might have very little compliance. That did not mean the official had whatever power he might need or find convenient to get such compliance. If he lacked enough power then he either had to have Congress amend the statute, if that was inadequate, within the Constitution, or amend the Constitution, with concurrence of 3/4 of the states.

So essentially, "carrying into execution" meant only administrative powers to acquire and use tools and resources for, and to remove obstacles to, performing duties. Extending powers under this clause to things that might "affect" commerce is a usurpation, because this clause only authorizes Congress to do things that enable the regulators in the performance of their duties. To extend powers any further would be to remove any limiting principle on the exercise of power under the Commerce Clause, and if "Commerce" is redefined to include all "economic activity", and not just trade in tangible commodities, then Congress would have unlimited power to do anything, which was obviously not intended or understood by the Framers. It would make the rest of the Constitution redundant.

To fix the precedent

To attempt to correct the erroneous line of precedents stemming from McCulloch v. Maryland (1819), the following clarifying amendment is proposed:

Article I Section 8 Clause 18 of this Constitution shall be construed to only include enablement of the completion of duties by duly elected or appointed officials, to make a limited, reasonable effort strictly necessary to exercise an express power narrowly construed, and not to go beyond completion of the duty to do whatever might be deemed convenient to get an outcome or result for which the effort might be made.

The diagram

See also:

• What is the limiting principle? — Exploration of question raised by Justice Kennedy in oral arguments.
  
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• Supreme Court decisions on Commerce and the Necessary and Proper Clause — Spreadsheet of cases showing the chain of deviation from original understanding.
• Clarifying Amendments — In the form of a bill.
• U.S. Constitution annotated — We will be adding links to diagrams from this copy.
• Commentaries on the Constitution of the United States, Book III Chapter 24, Joseph Story (1833) — Discusses the clause, but in a way that exhibits the infection from McCulloch v. Maryland.

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Diagram of Tax/Spend/Welfare Clause

A useful exercise is to diagram the clauses of the U.S. Constitution using the Reed-Kellogg method many of us learned in public school. Here is the diagram for a slightly abbreviated version of the Tax/Spend/Welfare Clause,

[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] to pay the Debts and provide for the common Defence and general Welfare of the United States.

The omitted words are in square brackets [], omitted because they don't contribute much to analysis of the sentence structure, and to keep the size of the diagram small enough (990x480).

The key points are that "to pay and provide" don't modify "Power", but "Taxes", and "for Defense and general Welfare" modify "provide". Each modifying phrase restricts the word it modifies.

The tricky part of the analysis is to recognize that there is a phrase "to be spent" omitted after "Taxes". In the legal jargon of 1787 a tax was almost always raised to be spent for something that was typically specified when the tax was authorized.

To reach the interpretation some seek to give to the Clause, "to pay and provide" would have to modify "Power", and the Clause would have to insert the word "and":

[The] Congress shall have Power To lay and collect Taxes, [Duties, Imposts and Excises,] and to pay the Debts and provide for the common Defence and general Welfare of the United States.

The lack of the "and" after "Taxes" is critical, and it shows that "for common Defence and General Welfare" are a restriction on spending, not a delegated power unto themselves.

At the time the Constitution was written, "general" meant "not specific or special", and that "general" is a restriction on "Welfare" makes the Clause a directive that taxes and spending not be done for the benefit of some parts of the country at the expense of others. It was a bar to intentional redistribution.

That interpretation is further emphasized by the second clause in the sentence:

but all Duties, Imposts and Excises shall be uniform throughout the United States;

The diagram

Joseph Story analysis

Supreme Court Justice Justice Joseph Story, Book III, Chapter 14, of his Commentaries on the Constitution of the United States (1833), explains the clause:

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views. The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects, -- the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed. 

Click on the link for the rest.

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What is the limiting principle?

There was a hush in the room during the oral arguments on the Affordable Care Act when Justice Anthony Kennedy asked Solicitor General Donald Verrilli, arguing the individual mandate was authorized by the Commerce and Necessary and Proper clauses, "Can you identify for us some limits on the Commerce Clause?" Verrilli didn't have a satisfactory answer.

The search for a limiting principle on the Commerce and Necessary and Proper clauses goes back to McCulloch v. Maryland. Now the ACA proposed to impose a regulatory penalty, not on doing something, but on not doing something. It is argued elsewhere (see below) that that is unconstitutional.

Five of the justices didn't buy it, and decided that not penalizing inaction was at least one limiting principle on the Commerce and Necessary and Proper clauses, but then Chief Justice John Roberts did something almost no one expected, and against which the litigants had not prepared or presented adequate arguments. He declared that the individual mandate was authorized as the exercise of the tax power, and even gratuitously injected that it was not a direct tax, subject to apportionment.

Is there historical precedent for a tax on not doing something? Can that be a proper taxable object?

Some have argued that a tax on A with deductions for doing B is a tax on not doing B, but that line of analysis doesn't work, grammatically. There is still a taxable object A, assuming it is a proper taxable object. The tax is not on not doing B.

Grammatically the verb to tax is basically transitive, even tritransitive, with the thing taxed, the taxpayer, and the amount all needing to be defined. Thus one can say

The agent taxed the purchase $10 from him.

or

The agent taxed him $10 on the purchase.

But in each case it is the purchase that triggers the tax, and therefore is its primary object, the thing that defines the taxpayer and the tax amount.

The Roberts precedent  may turn out to be worse than the Affordable Care Act, which can be repealed, but the precedent can only be overturned by another Supreme Court decision in a case that may not come to them for a century. In the meantime it could give rise to a new kind of tax used to coerce people, not just at the federal level, but at the state and local level as well.

We can examine how federal gun control statutes began as tax statutes.

Initially, a $200 tax was imposed on the purchase of certain kinds of disfavored firearms,  machine guns and saw-off shotguns.

Then it was made a crime (presumably under the N&P Clause applied to the Tax Clause) to possess an item on which a tax had not been paid. I would argue that is not authorized, because it is "necessary and proper for carrying into execution", which is only to perform an official duty, not to get an outcome intended from the exercise of the power.

Then ATF agents were directed to refuse to accept payment of the tax, and to arrest and prosecute anyone who attempted to pay it for possession. That is in conflict with the ancient mandate that government agents must enable persons to comply if they try to. It is also barred by the protection against self-incrimination.

One might ask what happened to the rule of law that refusal of a legal tender payment on a debt discharges the amount of the payment from the debt?  By that rule, it would seem that if the government refuses to let you pay your debt, the debt is forgiven.

That rule of common law from before 1787 was indeed sustained in United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991) , but that correct precedent was overturned by U.S. v. Ross, 9 F.3d 1182 (7th Cir.1993), thereby establishing a precedent that allows the government to make something illegal by first taxing it and then refusing to accept payment of the tax.

Similarly, removal by a court of disabilities of gun ownership are not recognized as exempting someone from prosecution under 18 USC 922 on the grounds that they have no budget for processing applications for exemption (but do have a budget for conducting prosecutions). All they have to do to assert a power is have a budget for exercising it without a budget for not exercising it.

Originally, only profitable transactions or use were considered proper taxable objects for indirect taxes, and a tax on possessing something would be direct and subject to apportionment.

Incidentally, the oft-cited Militia Act of 1792 was not a mandate to purchase firearms, but a mandate under a Militia Clause to show up with firearms at musters, with no requirement for purchase, just possession.

Under the new precedent created by the Roberts opinion, it would now be deemed lawful to impose a tax on not purchasing some drug, in some impossible amount, like $1 million a day, as a way to get everyone to buy it, with perhaps only the government being the vendor at a high price.

The power to tax is not unlimited. Court precedents have already established, correctly, that the exercise of a fundamental right is not a proper taxable object, and may be only incidentally burdened. We can therefore ask whether there is a natural right not to act, and with certain public duty exceptions, there is.

This proposed clarifying amendment sets forth some limiting principles that research indicates were part of original understanding:

1. A tax shall be considered direct if under the totality of circumstances in which it is applied, less than half of it is likely to be passed through to a further individual purchaser of the thing taxed as a higher cost of purchase, and indirect if half or more of it is likely to be thus passed through.
2. An indirect tax may only be imposed on a profitable transaction or use the profit on which is or is readily convertible into a monetary equivalent.
3. A direct tax may be imposed on being or having something without a profitable transaction involved.
4. No tax shall
   
   1. unduly burden the exercise of a natural or social right, or
   2. be imposed on not doing something, or
   3. offer a deduction for doing something there is no power to compel one to do, or
   4. be to regulate something not otherwise subject to a power to regulate, or
   5. be at a rate beyond the point of diminishing return of revenue.
5. When in doubt, a tax shall be considered direct.
6. Taxes on corporate entities or trusts shall be considered indirect.

See also:

• Tax Matters — Portal to the subject of taxes, tax abuses, and tax reform.
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• Individual mandate goes down in the 11th — This is the case that went to the Supreme Court.
• Is it a "tax" or not a "tax"? — Discussion of an article by Rob Natelson.
• What "commerce" meant to the Framers — Evidence of original meaning of the term.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• First day of oral arguments on Affordable Care Act - 2012/03/26 — Video of Constitution meetup.
• Original Understanding of the Commerce Clause, Jon Roland — Historical background.
• Civil Rights Act —Amendment to add explicit rights under the 14th Amendment.

Health Care Act upheld!

The entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read. The deciding vote supporting it was that of C.J. Roberts. The individual mandate survives by being deemed a tax. The only effect of not complying with the mandate is that you pay the tax.  The Court holds that the mandate violates the Commerce Clause, but that doesn't matter because there are five votes for the mandate to be constitutional under the taxing power. The Court holds that the Anti-Injunction Act doesn't apply because the label "tax" is not controlling.

Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn't. Her opinion on Commerce does not control.

On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions. The key comment on salvaging the Medicaid expansion is this (from Roberts): "Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding." (p. 55) In essence, he Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program. Justice Ginsburg would uphold Medicaid just as Congress wrote it. That, too, is not controlling.

The Court does not reach severability issues, having upheld the mandate 5-4.

In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety."

In summary: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.

The opinion in the health care cases: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

The position that the individual mandate is a tax was made by the Administration as a third backup argument, after the Commerce Clause and Necessary and Proper Clause arguments, and those two arguments were rejected by the Court, so that makes a small opening for turning back the line of precedents going back to McCulloch v. Maryland that began the expansion of congressional powers. But it makes the taxing and spending powers the basis for further unlimited expansion.

Holding that the individual mandate is a tax does not resolve all questions, and this holding raises some important issues. Any tax is on something. What is this tax on? It is on not doing something. That is as much of a reach as a "regulation" prohibiting not doing something. But the Roberts opinion does not adequately explain or settle that issue.

Now the doors of binding stare decisis have been opened to all kinds of taxes on not acting. We might consider a few kinds of inaction on which a tax might be imposed:

1. Not smoking. After all, if more people smoked it would kill them off faster and thus reduce medical costs for them.
2. Not driving well. Arguably this is what traffic fines already actually are.
3. Not losing weight. Obvious justification.
4. Not exercising enough. Might present an enforcement problem but could install monitor chips in everyone.
5. Not getting a regular medical checkup.
6. Not doing all your homework.
7. Not brushing your teeth.
8. Not cutting your hair.
9. Not voting in every election.
10. Not having a government-issued ID.

Some argue Congress would never attempt to impose such taxes.  And until now neither were state legislatures like to do so. But this holding is a breakthrough for the concept of what is deemed a proper taxable object, one that is likely to be taken up by state and local governments hungry for revenue or power. That makes it a government-expanding precedent as important as Wickard, and perhaps even more dangerous. If you don't have the power to make people do something, tax them for not doing it, then throw them in jail if they don't pay the tax. And of course there is no limit on taxes on doing nothing, such as 100% of a taxed business transaction. It could be an amount impossible to pay, making it effectively a penal police power.

The dam against unlimited government has been broken. Repealing the Health Care Act is not enough. The damage to our jurisprudence is far greater than most people yet realize.

This is a black day for the Constitution. If Romney is not elected, it will take 2/3 of both houses of Congress to overcome a veto of a repeal of the act. Even if he is, it will take a 60-vote Republican supermajority in the Senate to overcome a filibuster on those parts of the Act not considered a tax (which may not be filibustered). The main issue of the 2012 federal election campaign is now set. Several things are likely to drive developments:

1. Major moves by large employers to drop health insurance.
2. Either large increases in health insurance premiums or withdrawal of many health insurance companies from the market, especially when they figure out that the amounts raised by the individual mandate won't be nearly enough.
3. A refusal of the House (which can be expected to remain Republican) to fund parts of the ACA that were not funded within it, such as Medicate expansion, rendering the entire program nonviable within a short time.
4. Refusal by many if not most states in the Medicaid expansion, followed by fed exchanges costing so much that it breaks other kinds of spending, such as military, or state spending on other things.
5. Withdrawal of many more physicians from the practice of medicine, or at least from acceptance of fed-funded patients.
6. Further declines in the stock market attributable to increased health care costs, and capital flight off-shore, with resulting increases in unemployment.
7. Collapse of the international monetary system, probably starting in Europe (as happened in 1931), but coming just after the decision on the ACA, leading many people to blame the collapse on the ACA (unfairly, but nevertheless).
   

The ultimate result of all this, if the ACA is not repealed, is likely to be to drive the entire medical field into a single-payer government system.


See also:

• Tax Matters — Portal to the subject of taxes, tax abuses, and tax reform.
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• Individual mandate goes down in the 11th — This is the case that went to the Supreme Court.
• Is it a "tax" or not a "tax"? — Discussion of an article by Rob Natelson.
• What "commerce" meant to the Framers — Evidence of original meaning of the term.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• First day of oral arguments on Affordable Care Act - 2012/03/26 — Video of Constitution meetup.
• Original Understanding of the Commerce Clause, Jon Roland — Historical background.

Debt and Bankruptcy Reform

Several proposals have been offered to deal with such problems as dangerous speculation in derivatives, moral hazard, and "too big to fail", but all of the ones I have seen fall short, and usually wait until insolvency occurs, which is likely to be too late to avoid systemic collapses.

Congress has broad powers under Article I Section 8 Clause 4 of the Constitution for the United States to make "uniform Laws on the subject of Bankruptcies throughout the United States". That clause has been interpreted to apply only to enterprises at the point of actual or imminent insolvency, but the language does not limit it to that, and it is a reasonable interpretation to extend it to cover enterprises or behaviors that are so risky that they pose an unacceptable threat to public safety, so great that if presented by a foreign enemy it would be grounds for war.

One such proposal by Tom Jackson that is being seriously discussed, described in an article by David Rowe, "Chapter 14: using bankruptcy law to solve too-big-to-fail", is to create a new kind of bankruptcy for insolvent financial institutions and brokers that hold or manage assets in excess of $100 billion that would be involuntary, allow a three-day stay on derivatives, and that would be adjudicated by an Article III judge, with a jurisdiction to break up the organization. There is presently a vacancy in the numbers for bankruptcy chapters for a Chapter 14.

I find this a good idea as far as it goes, but waiting for insolvency to occur is waiting too long. Milton Friedman once said in a television interview "I am in favor of free enterprise but not large organizations." The solution to having organizations "too big to fail" is to break them up before they fail, or prevent them from becoming so large in the first place. This is not contrary to having a free market, but necessary to preserve one. A free market is between independent actors, and only works if there are enough actors and new actors can enter the market. When too much of a market is brought under the control of too few actors it ceases to be a market.

The conventional approach to anti-trust is to base it on a theory of "restraint of trade" and regulate or intervene on the alleged authority of the Commerce and Necessary and Proper Clauses, but by original understanding that theory is unconstitutional. Using the Bankruptcy Clause, however, those "too big to fail" can legitimately be broken up to avoid the risk they impose on the rest of us. Restraint of trade should be left to private civil legislation.

My proposal provides for breaking up all very large organizations, not just financial institutions and brokerages, which I define using energy as a measure of value of their holdings or portfolios rather than currency that consists of debt instruments. One exajoule of energy is worth about $23 billion, so four would be $92 billion, close to the proposal of Rowe and others. However, I provide for a period of seven years to conduct the breakups, and extend the process to smaller organizations for the next seven years. Of course those periods may need to be adjusted, but they allow for such organizations to voluntarily divest themselves of holdings in advance of being compelled to do so.

But there is also a threat from herd behavior, where too many can all pursue nearly the same business strategies in ways that cause them to function like large organizations. That can pose as much of a threat, so my proposal provides for intervening to compel them to randomly diversify their business strategies as well. None would be compelled to adopt any particular strategy, only that too many of them not follow the same strategy, and that the diversification be randomized.

"Too big to fail" can, however, also take the form of entire sectors that are overleveraged using debt piled upon debt. For that another solution is needed, so I propose adding a Chapter 16 to the bankruptcy code to periodically retire debts.

The ancient Hebrews had their own constitution, to which ours owes a great deal. One of the provisions of that constitution was the rule of shmita, which required all debts to terminate each sabbath year, called shmita. It also provided for other things, like leaving the land fallow for each shmita year. The practical difficulties of this rule have led to the abandonment of strict observance of it among other than Heredi families within modern Israel, but most of those difficulties could be avoided if it was practiced by everyone, Jews and Gentiles alike.

My proposal does not apply to existing debts, only those going forward. However, it does apply to debt-based instruments like fiat currency. It makes an exception for real estate mortgages, but would require new ones to also be retired every fourth shmita year, or 28 years total.

My proposal is set forth in a proposed bill in Congress, the Debt and Bankruptcy Reform Act. Of course one could not expect Congress to pass it, or the President to sign it. It would likely get anyone who introduced it assassinated. But after global economic collapse it may acquire some legs. Until then we can only prepare what we will need then.

Disprove it!

The hallmark of Enlightenment scientific reasoning is a commitment to diligently seeking refutations to one's favorite propositions. Confirmation bias is the natural tendency of uneducated people, more devoted to finding support for one's position than reasons to doubt it. It is that culture of brutal examination of all sides of every issue, of pursuing the truth to wherever it may lead, even if that is somewhere one doesn't want to go, that has produced the scientific progress and civic virtue that are essential to the rule of law.

There is a reason why student debaters are instructed to prepare to argue both sides of a question, don't know which side they will be asked to defend until they ascend the podium, and are judged on their skill rather than on the appeal of their position to the judges.

There is a reason why the best lawyers submit briefs that do not just argue one side of a case, but present the best arguments for all sides, and distinguish the arguments that best apply to the facts of the present case. A good brief is not supposed to be a passionate polemic, but a dispassionate inquiry into the truth that respects the role of the judge to weigh all sides and reach a just conclusion.

Today one is more likely to hear "Disprove it!" from a defiant partisan directed to an opponent. We have yielded to a sports culture that demands victory at any cost, rather than truth or justice or honor.

Today we turn out legions of advocates for positions they never honestly examine, or even know how to examine, who seek out the company only of those who agree with them rather than those who might make them think and perhaps become compelled to abandon beliefs in which they are invested. There was a time when such persons would be relegated to the ranks of the uneducated, their opinions considered unworthy of high regard. But now they are too often celebrated, given degrees and book contracts, and invited to appear on talk shows.

That does not mean educated persons deliberate endlessly. At some point the judge, and we are all sometimes judges in matters before us, must make a firm decision, but if he is a good judge he defers judgment until the last moment.

The key discipline is the ability to suspend judgment until it is needed. Mortimer Adler, editor of the Great Books of the Western World, also wrote How to Read a Book, which should be required reading for every public school student. It instructs us to read every prose work three times, the first time for structure, the second time for propositional content, and the third time for evaluation of its propositions. Judgment is suspended until the third reading.

In the method of brainstorming, participants in a group are asked to propose as many ideas as they can think of, good or bad, and instructed to make no judgments of the merits of the ideas until the final evaluation phase. They are to be told that bad ideas Are often more productive of good ideas than good ideas are.

When I was a public school student in the 1950s this Enlightenment tradition was part of the teaching we received. But when I did some substitute teaching in 2001 what I found was students only being asked to express what they "feel" and told that everything is only opinion and that all opinions were equal. Missing was the last step of critical judgment. I hear from other credible observers that this is a widespread problem in public education today, along with a lack of discipline generally.

Our schools are not not turning out enough good citizens. They are mostly turning out barbarians. They may be charming and manipulative barbarians, but they are not prepared to engage in the processes of wise governance that depend so much on subtle judgment by informed electorates. I would not want to be judged by a jury composed of most of these kids. I am also not sure I would want most of them serving alongside me in combat. The problem is not just that most of them can no longer pass the physical exam. The problem is also intellectual and moral. Are we going to have to send our students to boot camp or to war to get them to shape up?

It is often said that "civilization is always only one generation away from barbarism".* Our failure to impart martial and civic virtues to our offspring is the single greatest threat to the survival of our nation and its tradition of constitutional government. It deserves our immediate attention.

* Attributed to Roland H. Bainton, author of Here I Stand, a history of Martin Luther.

1832 Call for Article V Convention

Journal of the House of Representatives

(December, 1832)

    Mr. Wilde presented the following preamble and resolutions, adopted by the General Assembly of the State of Georgia, viz

IN THE HOUSE OF REPRESENTATIVES

    For as much as throughout the United States there exists many controversies growing out of the conflicting interests which have arisen among the people since the adoption of the federal constitution, out of the cases in which Congress claims the right to act under constructive or implied powers, out of the disposition shown by Congress too frequently to act under assumed powers, and out of the rights of jurisdiction either claimed or executed by the Supreme Court, all of which tend directly to diminish the affections of the people for their own Government, to produce discontent, to repress patriotism, to excite jealousies, to engender discord, and, finally, to bring about the event of all others most deeply to be deplored, and most anxiously to be guarded against, viz. a dissolution of our happy Union and a severance of these States into hostile communities, each regarding and acting towards each other with the bitterest enmity.

    And the experience of the past having clearly proved that the constitution of the United States needs amendment in the following particulars:

1. That the powers delegated to the General Government, and the rights reserved to the States or to the people, may be more clearly defined.
2. That the power of coercion by the General Government over the States, and the right of the State to resist an unconstitutional act by Congress, may be determined.
3. That the principle involved in a tariff for the direct protection of domestic industry may be settled.
4. That a system of federal taxation may be established, which shall be equal in its operation upon the whole people, and in all sections of the country.
5. That the jurisdiction and process of the Supreme Court may be clearly and unequivocally settled.
6. That a tribunal of last resort may be organized to settle disputes between the General Government and the States.
7. That the power of chartering a bank, and of granting corporations, may be expressly given to, or withheld from Congress.
8. That the practice of appropriating money for works of internal improvement may be either sanctioned by an express delegation of power, or restrained by express inhibition.
9. That it may be prescribed what disposition shall be made of the surplus revenue, when such revenue is found to be on hand.
10. That the right to, and the mode of disposition of public lands of the United States, may be settled.
11. That the election of the President and Vice President may be secured, in all cases, to the people.
12. That their tenure of office may be limited to one term.
13. That the rights of the Indians may be definitely settled.

    Be it therefore resolved by the Senate and House of Representatives of the State of Georgia, in General Assembly met, and acting for the people thereof, that the State of Georgia, in conformity with the fifth article of the federal constitution, hereby makes application to the Congress of the United States for the call of a Convention of the people to amend the constitution aforesaid in the particulars herein enumerated, and in such others as the people of the other States may deem needful of amendment.

    Resolved, further, that his excellency the Governor be, and he is hereby, requested to transmit copies of this document to the other States of the Union, and to our Senators and Representatives in Congress.

    Agreed to December 12, 1832

Teleconference with Governor Rick Perry

At noon of March 27, 2012, Texas Governor Rick Perry held a telephone conference with several prominent Texas bloggers, among them Jon Roland, whose most noted blog is Constitution. Seventeen bloggers were invited, although not that many attended. The teleconference was organized by Eliza S. Vielma, Legislative Affairs & New Media Coordinator,  Americans for Prosperity – Texas. The topic of the meeting was the Texas Women's Health Program, which was recently shut down by the Obama Administration, for failure to meet its requirements to receive federal funding.

Roland asked the Governor if he and Attorney General Greg Abbott would support litigation challenging the constitutionality of unfunded mandates and of making federal funds conditional on taking actions Congress does not have the constitutional authority to mandate. Perry said he liked the idea and would discuss it with Abbott when he returns from Washington, DC, where he is a party to litigation challenging the Affordable Care Act, on which oral arguments are being held.

A constitutional amendment that addresses the abuses of unfunded mandates and the spending power of Congress is to be found here and here. It states:

Unfunded mandates, abuse of spending power

Congress may not require any state or local official, or private person, of the United States of America, to expend any resources without providing such resources, or make the provision of resources conditional on performing actions Congress does not have the power to command, except for militia organization, training, and operations, or for specific performance on a voluntary contract.

There is already a U.S. Supreme Court precedent declaring an unfunded mandate unconstitutional, Printz v. United States, 521 U.S. 898 (1997). However, there has never been a comprehensive facial challenge to the abuses of the spending power of Congress used to induce behavior it does not otherwise have power to command. A suit to do that, if successful, would make the amendment unnecessary, and if not, would build public support for its adoption.

First day of oral arguments on Affordable Care Act - 2012/03/26

Austin Constitution Meetup, March 26, 2012. Following listening to the first day of oral arguments on the Health Care Act before the U.S. Supreme Court, Jon Roland leads discussion of it.





ACA Litigation Blog

Audio and transcript for hearings for Monday, March 26, 2012.
Teleforum of Federalist Society, commentary led by Randy Barnett.

Audio and transcript for hearings for Tuesday, March 27, 2012.
Teleforum of Federalist Society, commentary led by Randy Barnett.


Audio and transcript for hearings for Wednesday morning, March 28, 2012.
Audio and transcript for hearings for Wednesday afternoon, March 28, 2012.
Teleforum of Federalist Society, commentary led by Randy Barnett.

How can text enable governance?

How can beings with diverse ways of understanding use symbols to communicate and cooperate with one another, and give us laws that we might understand the way they meant them, when they did not always understand them the same way among themselves? It is an ancient question. After all, no two of us understand things quite the same way, and most of us don't even understand things the same way from one day to the next. Spouses sometimes don't learn to understand one another after decades together.

If you choose to dwell on the differences you would conclude that it is impossible for people to ever reach agreement on anything.

But they do.

You don't have to dwell on the differences. You can choose to focus on the commonalities, on the underlying principles that unite them, even if none of them deeply understand or can explain those principles themselves.

The answer is that while some of the differences may be important, and indeed, may be fatal, people who want to work together can usually find a way to reach common understandings, at least common enough to get by. Spouses who don't understand one another can still learn to finish one another's sentences, and to live together in some kind of harmony, or at least an armed truce.

Constitutions, statutes, contracts, customs, traditions, symbiotic relations among social species -- all of these rest on achieving a common understanding. But it can take some work to bring out those underlying principles. It is easy, in doing so, to pick apart their words as though they chose them with more care than they did, but that is often a mistake. Text must be read with due regard to the circumstances of its composition, the pressures to make haste and get through the moment. Lawgivers themselves sometimes get it wrong, leaving us to discern their functional, if not their motivational, intent.

After all, the alga and fungus that make a lichen would be hard pressed to deliver a learned exposition on the principles that unite them. It is up to the biologist to articulate the articles of their social contract.

See New Year's Greeting.

The original meaning of "carrying into execution"

Much of the argument on the ACA should turn on the original meaning of the qualifying phrase in the Necessary and Proper Clause. Here is an outline.

THE ORIGINAL MEANING OF "CARRYING INTO EXECUTION"

1. DELEGATION OF POWER IS AUTHORIZATION TO EXECUTE AN OFFICIAL ACT
   1. Lawmaking power has two parts.
      1. To enact a statute and publish it.
      2. To authorize an executive agent to enforce the statute.
         1. Only application to oneself or discharge of official duties can be continual.
            1. For most enforcers, “execution” occurs only during specific acts of enforcement.
            2. To be continual the enforcer must be able to enforce even when asleep.
         2. Application to subordinates or private parties is discrete, with a beginning and an end, although it may be an overlapping series.
2. COMPLIANCE BY NON-GOVERNMENT ACTORS AND OUTCOMES ARE NOT PART OF EXECUTION
   1. Established usage in 1787 did not call compliance by non-officials “execution” of a law.
   2. Established usage in 1787 did not call outcomes beyond the duties of an official “execution”.
3. “NECESSARY” MEANS WHAT MUST BE DONE FOR SOMETHING ELSE TO BE DONE
4. “PROPER” MEANS FOR A LEGITIMATE PUBLIC PURPOSE, REASONABLE, AND JUST
5. “CARRYING” MEANS MAKING AN EFFORT
6. “EXECUTION” MEANS AN ENFORCEMENT EFFORT
   1. It is performance of an official enforcement act.
   2. Only interference with an enforcement act would bring private action within the scope of what is necessary and proper.
   3. Private action outside of official enforcement action is not within the scope.
7. “POWERS” ONLY THOSE VESTED IN U.S. GOVERNMENT ACTORS, NOT PRIVATE PERSONS
   1. Compliance with statutes by private persons is not “execution”.
   2. The results of compliance by private persons is not “execution”.
   3. Private persons cannot be made government actors other than through militia call-up, without their consent.
   4. A power to command private persons to enforce statutes is found only in the Militia Clauses, and that is only when called up as militia, not between emergencies.
   5. Purchase of health insurance is not defense activity, or militia, and therefore cannot be commanded by statute or officials enforcing statutes.
8. THE RESTRICTIVE PHRASE “CARRYING INTO EXECUTION” HAS NEVER BEEN RESOLVED BY THIS COURT
   1. The phrase was not argued or decided in the cases beginning with McCulloch v. Maryland.
   2. Without such argument, the Court presumed “necessary and proper” was for the purposes of the lawmakers, whatever those might be.
   3. But U.S. Const. Art. I Sec. 8 Cl. 18 does not state “for the purposes of Congress”, but the much more restrictive phrase “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
9. THERE IS NO VESTED POWER FOR WHICH THE INDIVIDUAL MANDATE CAN BE NECESSARY AND PROPER
   1. Medical insurance is not “commerce” subject to federal regulation.
   2. The individual mandate cannot be necessary and proper to performance of an official enforcement act.
10. INDIVIDUAL MANDATE MAY BE CONSTITUTIONAL FOR SOME
    1. For United States officials, agents, employees, and contractors.
    2. For persons residing in federal enclaves created under U.S. Const. Art. I Sec. 8 Cl. 17, but only if they are represented in Congress, if it is deemed a “tax”.
    3. It is not constitutional for all others, and the Court should so hold.

How did sovereign immunity emerge?

One of the key problems today is sovereign and official immunity and its abuses. I can only hit a few highlights here.

First, people should be aware, if they are not already, that legal writers of the era before 1787, and after, were not as systematic as philosophers who seek comprehensive exposition and rigor would like. Many of them were just stringing together lecture notes and case opinions, and their analytic skills were often not very good. That does not mean there are not principles of law that they were trying to elucidate, even if they were not always attentive to some of the elements and details they should have been, from our viewpoint. But to get at those foundations one has to drill down to the principles they themselves often only dimly understood or poorly expressed, and build a logical structure on what we can discern.

The sovereign is the supreme lawmaker in any situation, especially on some land. There is no law without a sovereign. Originally, it was a victorious warlord who asserted dominion over a country. By the Magna Carta in 1215, especially Article 61, the concept had evolved into the distinction between the person of the crown, an office, and the individual actor who might fill that office.

The maxim that "the king can do no wrong" was just a polysemous way to say "the crown is not accountable", because it is the sovereign, and a court created  by the sovereign can't command the sovereign. It can in principle command the individual who wears it, as Charles I was judged. And of course it can command the ministers of the crown, although not all judges are superior to all ministers. That is why the jury was established, to provide a way for the sovereign to intervene.

But of course, that made the people sovereign, if they tried to pursue the institution of the jury to its logical conclusion. For a long time the only person to both wear the crown and recognize its authority rested on the consent of the people was Elizabeth, England's first, and it would seem last, deep thinker to play that role. She surrounded herself with other deep thinkers, most notably Bacon and Coke, who laid the foundations for further progress.

American independence made the recognition that the people are sovereign explicit, and did more: It provided a structured process through which the people could express their sovereignty, through constitutional ratifying conventions, which freed them to hold the individuals who might office accountable because they had an orderly and legitimate way to replace them without impairing the office itself. That was done not by the people as sovereign, but by the people in the office of electors, an office that is as much subject to the constitution of government as other officials are.

Originally, immunity was a privilege granted by the sovereign to establish a legal claim against the actions of officials who also represent the sovereign, although perhaps not perfectly. That evolved into the concept that even the sovereign did not have unlimited power. He or it was limited by the superior constitutions of nature, society, and the state, and none of its agents could legitimately infringe on immunities that ultimately stem from those prior constitutions. The Framers called those immunities "rights" in the Constitution of 1787 and the Bill of Rights.

Strictly speaking, sovereign immunity is the immunity of the sovereign against itself. The erosion about which many justly complain has been the tendency for officials to claim a share of the sovereignty that properly belongs only to the people as a whole, and to seek the protection of the immunity of the sovereign. To the extent the agents are in fact acting within their lawful jurisdiction and discretion, they may legitimately claim that immunity. The problem is when they exceed that jurisdiction and discretion, and are their own judges concerning whether their actions are within or outside.

The traditional remedy for this was to subject all such decisions to a jury, but officials have removed many such decisions from the jury, where it properly belongs. That means the jury must review decisions of law, and reverse judges in favor of defendants. And it means private parties must be able to bring actions, including criminal actions, without being blocked by gatekeepers that do things like stack grand juries or prevent access to them for private criminal prosecutions.

One of the confusing parts of discourse on this has been a tendency for too many legal scholars to treat all judicial remedies as being for damages or property, and overlooking equitable remedies and the prerogative writs. The Eleventh Amendment was written with only damage claims in mind, and should have specifically excepted other kinds of remedies. The concern for that was that if states could be sued without their consent, plaintiffs could dismantle the states. But the framers of that amendment missed the point that what they wanted to do was provide immunity from execution of money or properly judgments, not from suit. Actions at law serve many purposes than commanding the loser to pay up, such as bringing out the truth.

Official immunity was restricted and tolerable as long as officials did not band together as a tribe dedicated to protecting one another from the public, but year by year they have done just that, and gone from official immunity for momentary acts within their legitimate authority, to immunity for anything they do while they hold the office. That makes their title of office a title of nobility.

All the conceptual tools we need are to be found in the Constitution, but not without some analysis of its historical and conceptual roots.

Court Administration Reform Act

The following is my proposed Court Administration Reform Act of 2013, to be introduced shortly after taking my seat in the U.S. Senate. The title is linked to the web page where the latest version can be found. Constructive comments are welcome.

---

Court Administration Reform Act

---

113th Congress
1st Session
S. ____
To amend certain statutes concerning the assignment and rules of procedure of United States judges and other judicial officers.

IN THE UNITED STATES SENATE
January 25, 2013
Mr. ROLAND of Texas introduced the following bill; which was referred to the Judiciary Committee.

---

A BILL

To amend certain statutes coded in 28 USC Part I.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Court Administration Reform Act of 2013'.

SEC. 2. FINDINGS AND AUTHORITY.

1. Congress finds the United States Constitution, Article III, does not provide that judges must be appointed to particular courts.
2. The authority for this act is the United States Constitution, Article I, Section 1, and Article III.

SEC. 3. ENACTMENT AND REPEALS.

1. Public laws and amendments thereto coded in 28 USC Part I, concerning Article III courts, are amended, effective immediately, as follows:

a. Henceforth judges shall not be appointed to specific courts at confirmation, but shall be assigned to a pool from which vacancies shall be filled by drawing from the pool at random.

b. No vacancy shall be filled until there are at least 20 judges in the selection pool.

c. While in the selection pool, judges shall enjoy the same salaries and benefits of assigned judges, but may be assigned temporary duties as magistrates, clerks, administrators, researchers, writers, or teachers.

d. Judges assigned from the selection pool shall serve for two years, beginning October 1 of the first odd-numbered year after their assignment, after which they shall return to the pool, and may not be assigned to the same court twice in succession.

e. Magistrates and clerks shall be similarly appointed to pools, one for magistrates and one for clerks, and shall be randomly assigned to courts from such pools, there to serve for four years, but not to succeed themselves on the same court, and no vacancy shall be filled until the pool for that kind of position shall contain at least twenty candidates.

f. Judges, magistrates, and clerks shall receive a reasonable compensation for the costs of relocations to their assignments.

2. Beginning October 1, 2017, and each odd year thereafter, the number of judges on each appellate court, including the Supreme Court, shall be increased by two, until the number shall reach twenty-seven.

a. All appellate cases shall be initially heard by a randomly selected panel of three, from which appeal may thereafter be made to a randomly selected panel of nine, unless the court shall not then have nine, in which case all of them, and if the court shall have at least fifteen judges, appeal may then be made to the entire court sitting en banc.

b. A vote of two judges shall be sufficient to accept an appeal for review.

3. In any case tried or heard on appeal by a panel of more than one judge, the judges must be unanimous to sustain a claimed power of a government actor against a claim by a private party that the government actor lacks authority to exercise such power.

SEC. 4. TRANSITION.

1. Additional magistrates and clerks shall be appointed sufficient to handle the workload of the judges, subject to appropriations by Congress.
2. Courtrooms and offices shall be expanded in number and size as required to accommodate all court personnel, subject to appropriations by Congress.
END.