A right to nonsurveillance?

Public outrage over broad surveillance of all of us by the NSA and other government agencies raises the constitutional issue of just what rights are involved.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For this discussion the key word is "their". In other words, personal property bounding a zone within which one has a reasonable expectation of privacy. That is not necessarily synonymous with a property boundary. We don't have an expectation of privacy on that part of real property that can be easily seen from outside it. We have it for sealed postal mail but not for postcards, although strictly speaking, once posted postal mail belongs to the recipient, not to the sender, except that the sender may retain a copyright to the creative contents of it. That is why a warrant is supposed to be required to open sealed postal mail, although it is less clear that one is required to peer through the envelope with something like a scanner or sniffer, and these are now used regularly to detect dangerous or illegal contents.

New technology

Technology has created new situations that challenge what is included within "their". The first main one was telephone conversations, and the desire of government agents to "tap" them. The course of jurisprudence has been to treat them as private, requiring a warrant to tap, unlike a conversation conducted by air in an open public space. The telephone circuit was deemed to create a kind of "wrapper" like a postal envelope, creating a zone in which privacy is expected.

This has led to further extension of zones of privacy in the form of state anti-eavesdropping or anti-recording statutes forbidding audio and/or video recording of phone or open conversations, either without the consent of all parties, or at least of the party making the recording being disclosed to the others. Such statutes have been invoked to prosecute citizens recording police operations, but courts have held that police and other public officials do not have an expectation of privacy while they are doing their public jobs.

We also get the issue of the privacy of information provided someone for one purpose being used for other purposes to which the person providing the information did not consent. This is especially salient with medical information.

So we get to the question, does anyone have a reasonable expectation of privacy to the kind of information the NSA and other government agencies and contractors have been collecting and storing? Maybe not.

The question comes down to whether one has a property right in the information, which includes not only records of who phoned, texted, or emailed whom and when, but also the contents of the communications. The government is making the argument that the contents are only being read by machines and flagged for suspicious content, and that they get warrants for a human being to read or listen to the records, but does that satisfy the Fourth Amendment? Civil libertarians argue it does not, that gathering and keeping the records is itself a search, and violates the terms of service of the carrier of the communications with the users, and thus is without consent. A machine reading the communications is also a search. The Fourth Amendment makes no requirement that the search has to be done only by a human being.

It should be noted that congress passed a statute making it a federal felony for a private party to violate the terms of service of a computer or electronic communications service without controlled access. The statute is unconstitutional with respect to private persons, but could arguably be applied to remove government employees or contractors from their positions. However, it conveniently exempts the government from penalties, thus allowing it to do what would be a statutory crime if done by a private party. But it does create an arguable property right in the information requiring consent to uses to which the provider of the information did not consent.

On the other hand, if consent is not sought or given, has the user put his information into the public domain, or granted it to someone else? Or is it the equivalent of postcards? We may need to establish that people need to encrypt their communications from end to end to have an expectation of privacy for their contents, and retain a property right in their passwords or passcodes.

Broader surveillance

In George Orwell's 1984 the Party required 2-way video surveillance telescreens in every room of every house of the educated class. It was claimed they were not in every room of the lower classes, the plebs, and that one could escape surveillance outdoors, especially in woods. Today we have cellphones we carry with us that can be used as listening devices and to track our movements, but we also have surveillance cameras, drones, and satellites covering the outdoors. Big Brother is now watching and listening to us, almost all of us, everywhere, almost all the time, all without a warrant, with no effective limit on what information can be gathered, stored, or analyzed, or how it can be used or misused. With technology that can falsify not only audio recordings, but video recordings, in real time, to potentially incriminate anyone for anything, it is no wonder that even senior government officials are alarmed, because they are not exempt from the coverage.

The only thing missing is us being able to watch Big Brother. We have some of that within the private sector and state and local government, but the federal government is asserting state secrets and national security, and threatening to prosecute anyone who reveals things that have been common knowledge for decades.

What expectation of privacy do we have for all the activity the government has been surveilling? We don't have particular property rights in most of it, so it would seem to be beyond the protection of the Fourth Amendment. What we need is a new, broader right.

A right to nonsurveillance

One won't find this one spelled out in the Bill of Rights, unless it is in the Ninth Amendment. It is doubtful that the Framers would have recognized it. It is argued, not implausibly, to be a necessary and proper power to gather, store, and analyze information needed to carry out one's official duties. But it can also be argued, plausibly, that the kind of sweeping surveillance being conducted by the federal government, and other governments, goes far beyond what is necessary and proper to carry their other powers into execution.

Asking the courts to draw the line will probably be necessary along the way, but it is probably expecting too much of the courts to engage in line-drawing that is more properly the subject for legislation.

I have proposed the following amendment:

The people shall be secure against general and pervasive surveillance in private and public places, whether done by government or private actors, that has a chilling effect on their private and civic activities, without specific public court orders pursuant to acts of Congress for national security.

The saga has only just begun.

See Also:

• Is NSA surveillance unconstitutional? Jon Roland at the Austin Constitution Meetup June 18, 2013, discusses the constitutional issues with recently re-revealed activity of the NSA and other government agencies.
• "Bush Lets U.S. Spy on Callers Without Courts", by James Risen and Eric Lichtblau, New York Times, December 16, 2005.
• The Constitution in the National Surveillance State, by Jack M. Balkin, Minnesota Law Review, Jan, 2010, 93:1.
• Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks, Hearing Before The House Of Representatives, Committee On The Judiciary, December 16, 2010.
• The Digital Surveillance State: Vast, Secret, and Dangerous, by Glenn Greenwald, Cato Unbound.

A defect in the Constitution

A defect in the Constitution that allows much of that to which we object arose from the presumption on the part of some Framers, who we can call Tories, that federal courts would have jurisdiction over common law crimes, and the presumption of others, who we can call Whigs, that it would not, without the two groups discussing the point or resolving it. Common law crimes included offenses like murder, manslaughter, mayhem, riot, kidnapping, false imprisonment, arson, theft, assault, trespass, fraud, forgery, perjury, blasphemy, sedition, seditious libel, treason, contumacy, official  misconduct, and various sex crimes. Thus we have language that allows for removal from office for treason, bribery, or high crimes or misdemeanors, but only specific authority to punish for treason, not for bribery or high crimes or misdemeanors. There is also authority to punish for counterfeiting, piracy, felony on the high seas, offenses against the law of nations, and military crimes, but nothing else. I suspect the people who wrote that presumed those offenses could be prosecuted as common law crimes, but when Republicans (appointees of Jefferson) prosecuted Hudson and Goodwin, editors of the Hartford Courant, in 1806, for criminal libel (for incorrectly reporting that Jefferson illegally transferred $2 million to France to purchase Western Florida, then owned by Spain), the defense was that there was no authority for common law crimes under the U.S. Constitution. It took until 1812 for the case to make it to the Supreme Court, by which time the issue was so settled that prosecution counsel didn't even bother to show up in court, and Justice William Johnson, Jefferson's first appointee to the Supreme Court, writing for a unanimous Court, rightly decided that defense arguments were correct, and that there was no authority for common law crimes. The case is discussed on our site at http://constitution.org/ussc/007-032jr.htm

In that case we see the playing out of the longstanding tension between the Whigs and the Tories, then represented by Republicans and Federalists. The case had originally been brought by Republicans, partisans of Jefferson, making Tory arguments against those who had been taking Tory positions, and ultimately decided by a Jefferson appointee, supporting the Whig position. This tension continues to play out into our own time.

The point here is that there is missing authority in the Constitution to hold officials accountable. My proposed amendments address this by:

1. Making crimes of violations of the Constitution by officials.
2. Removing obstacles to criminal prosecution by private parties.
3. Authorizing grand juries to remove official immunity from officials, and to decide which court, state or federal, has jurisdiction (thus largely eliminating removal jurisdiction by federal courts of state criminal cases).

Taken together, my amendments carefully re-weave the web of government activities to make it much more difficult to commit the abuses we now suffer. But you have to analyze them carefully to see how the pieces work in combination. 

See also:

1. Excerpt from The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of ..., Bruce Ackerman
2. Thomas Jefferson v. The Courant 
3. Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony Fejfar, 2009.

 

Can amendments save the Constitution?

Discussions of the unconstitutional actions of government officials often lead to the question of whether those usurpations could be remedied by constitutional amendment. Most find that those provisions that are very unambiguous tend to be followed, while almost all the departures have taken advantage of ambiguities, most of which the Framers could not have anticipated. When we examine the amendments that have been made, the most carefully worded ones are usually the few things that brought lasting reform, other than a few court precedents, which usually defer to claims of authority by officials that stretch the limits of ambiguities. The Bill of Rights, except for the twenty dollar rule of the Seventh Amendment, were argues by Madison and others not to have added anything to the original Constitution, but only clarified it. Yet a very large proportion of court cases hang more on those clarifications than on what they were designed to clarify. History indicates that jurisprudence likely would have taken a very different course had they not been added.

Similarly, except for the new enforcement powers granted Congress, the 13th, 14th, and 15th amendments were argued by their proponents to have been clarifications of the original Constitution, not new content. They corrected practices that had become entrenched, but which were not strictly and logically consistent with the original Constitution. The 14th in particular was intended to overturn two key court decisions, Barron v. Baltimore and Dred Scott v. Sandford.

Several reformers, such as Randy Barnett, have proposed one or a few general amendments they hoped would leverage sweeping reforms. But my analysis indicates that won't work. Any amendments will need to overturn specific departures with highly specific, highly unambiguous language that no lawyer can find a way to weasel out of for the next 200 years. Drafting amendments that work is an advanced art. There are probably fewer than 200 people in the world who have anywhere near the skills needed to do that. One has to not only be able to write very clearly, but to anticipate every possible misinterpretation, no matter how outlandish.

That means we will need a large number of very specific, carefully worded amendments, each of which corrects one line of interpretive departure. We can expect to have to increase the overall length of the Constitution by perhaps an order of magnitude. A sense of how this might be done can be found at http://constitution.org/reform/us/con_amend.htm

My proposals are one effort, but so far not one that is gaining much traction. It is often thought that to produce proposed amendments to which enough people would pay attention would take some kind of national conference or convention of prominent people, such as the 1787 Constitutional Convention. Some have called for the constitutional convention described in Article V of the Constitution, but many are highly dubious about that approach, because most ways to convene such a convention do not make it likely that the attendees would have the necessary skills or diligence.

I have proposed a different approach: one or more working conferences of constitutional experts to develop the language of specific amendments to do specific things. When they completed their work, it would be proposed to state legislatures as specific amendments, which the state legislatures could then adopt as identical proposals to Congress for them to adopt and send back to the states for ratification. The idea would be for there to be no changes from the original proposals, only an adoption and ratification process, up or down.

However, when I have proposed this to some of those constitutional experts, there does not seem to be much interest, and less in the way of suggestions for draft language.

This article is intended to arouse action on this. Suggestions are welcome.

See also:

• Randy Barnett proposed constitutional amendments
• The Case for a Federalism Amendment - WSJ
• The Case for a 'Repeal Amendment' | Cato Institute
• Revisiting the Constitution: Amend the Commerce Clause
• A Bill Of Federalism - Forbes

Poletecracy

A political or management system can be characterized by the kind of people it elevates to positions of authority. A number of terms have been proposed by cynics, such as plutocracy, rule by the rich, kleptocracy, rule by thieves, or kakistocracy, rule by the worst. But from this writer's experience with the most influential legislators, bureaucrats, judges, and corporate executives, the finding is that what attribute is most important to the success of most of them is the ability to sell and make connections with other people. In Greek a salesman is a πωλητής, or poletes. This suggests a word, poletecracy.

In a few cases technical skills help enable someone to rise to power, but most people in high positions are not experts in anything but campaigning and dealmaking. Most are politicians (πολιτικοί) first and foremost. If they acquire any expertise, it is usually after being on a job for a while, not while they are climbing. Their personal assets are favors earned and paid, and being able to have other influential people take their phone calls.

Robert G. Kaiser, a reporter for the Washington Post, has a new book reporting the inside story of how the Dodd-Frank Act came to be. Kaiser’s “Act of Congress: How America’s Essential Institution Works, and How it Doesn’t”, uses the long battle over the act and his access to Christopher Dodd, Barney Frank, and their staffs to show how modern congressional legislating really works. He has identified three main things wrong with Congress as it presently operates, and one of the most important of these is the lack of real policy expertise on the part of members. They are only generalists, depending on the expertise of staffers,  lobbyists, and agencies, and often not understanding issues well enough to know who, if anyone, the experts are. It is this dependence on the expertise of others that makes staffers, lobbyists, and agencies more powerful than they should be for Congress to operate as the Framers intended.

Because it takes more time than one term provides to learn enough about how to be effective, and to build the connections they need to get anything done, they are almost compelled to spend much or most of their working hours raising funds for re-election, to protect the investment already made in preparing to be effective, both on the part of the members and of their staffs and contacts.

The problems are more complicated and difficult for Congress and the federal government, as it is for large, multinational business organizations, than it is for local government. States and large cities fall in between. But as the systems to be managed become larger and more complicated, they also become increasingly unmanageable.

The problem was discussed in a 1970 paper by Jay Forrester, "The Counterintuitive Behavior of Social Systems", in which the author used computer simulation models to demonstrate that most people, even experts, are not very good at predicting how any given intervention in a complex system will play out. That leads to the observation that "if a solution is simple, obvious, and appealing, it is probably wrong." Computer  models may not work, either, but without them the policy proposals most people will come up with are more likely than not to be ineffective or counterproductive.

One innovative proposal to remedy this problem is sortition, or random selection of decisionmakers, similar to the system used by the ancient Athenians. That doesn't mean a one-step process of random drawing of names from the rolls of registered voters. The most successful system that used sortition, that of Venice from 1268 to 1797, combined random stages alternating with screening for talent and wisdom. Properly structured and conducted, it might select legislators who both have personal expertise from the day they start work, and who, because they can't be re-elected, don't have to spend any time or resources getting re-elected. The Greek word for such randomly selected legislators is nomothetai (νομοθέται). If a merit-weighted sortition process were extended to their staffs, and to the agencies for which they legislate, then we might expect better performance than we are currently getting.

This article is subject to further additions, so please check back from time to time, and spread widely.

Judicial issues for busy people

Tour 4

Judicial Overview

For busy people who want to quickly acquire insight into judicial problems and reforms, we recommend the following daily regimen:

• Day 1 — Click on each of the list of linked pages below, lingering just long enough to get a sense of what it is about.
• Day 2 — Click on each of the list of linked pages below, but read one or two paragraphs of each, before going on to the next item, and try to come up with questions you jot down that may be answered with further reading.
• Day 3-7 — Click on each of the list of linked pages below, reading more paragraphs in each, looking for answers to previous questions, and coming up with more questions.
• Day 8-18 — Click on each of the list of linked pages below, reading one or two complete articles.
• Day 19-29 — Click on each of the list of linked pages below, writing one or two articles that summarize the points made in some of these articles, but in your own words.
• Day 30 — Click on each of the list of linked pages below, picking up on any remaining unanswered questions, and comparing your restatements with the originals.

1. Let's Revive Private Prosecutions.
2. Private Prosecutions Brief.
3. State Bar Reform.
4. Trial Jury Reform.
5. Grand Jury Reform.
6. Social Contract.
7. Rule of Law.
8. Constitutional Design.
9. Constitutional Construction.
10. Constitutionalism.
11. Constitutional Action.
12. Stare Decisis.
13. Presumption of Nonauthority.
14. Quo Warranto.
15. Jurisdiction over Federal Areas within the States.
16. Federalist #78.
17. Federalist #80.
18. Federalist #81.
19. Federalist #82.
20. Federalist #83.
21. U.S. Constitution.
22. Bill of Rights.
23. Additional Amendments.
24. Constitutional Convention.
25. Ratifying Conventions.

Sorry about all the ads but we depend on people clicking on them to pay our bills.

Please spread this message widely.

Eleven-state Solution

It should be clear that neither a one-state nor a two-state solution can work for the Israeli-Palestinian dispute. The Palestinians are divided, and lack the capacity to effectively govern their areas of responsibility. However, they do show some capacity to govern at the city level.

Perhaps the best option is an eleven-state solution: Israel would be one. The others would be Gaza, Nablus, Hebron, Jenin, Jericho, Ramallah, East Jerusalem, Tulkarm, Qalqilya, and Bethlehem.  Cities with divided populations would be split between the two peoples.

Israel would formally declare war on each, and separately negotiate peace treaties with each, establishing their boundaries and governments. The Palestinians would get the territories occupied by those cities together with a surrounding buffer area around each, suitable for building, to allow for expansion. Israel would get all the territory in between, which would include all their settlements, and a strip along the border with Jordan.

The Palestinian city-states would be encouraged to unite in a federal union which could represent it in the United Nations, but it would initially not have much power at the local level. Over time that might change, and boundaries might be adjusted.

This will not satisfy Palestinian aspirations, but it reflects the reality on the ground, which is the only thing that can be the basis for a lasting solution.

Obstacles to holding federal agents accountable

To understand what we face in trying to hold federal agents accountable for their misconduct, we need to examine the legal foundations.

Citizenship is not defined in the 14th Amendment. That is a common misunderstanding, and we need to dispel it. The definition of citizenship goes back 2000 years to Roman law. In countries with a feudal system the word "subject" was often substituted for "citizen" without changing its essential meaning. (There were countries with republican forms of government throughout the Middle Ages where the word continued to be used.) The term was further clarified by English legal scholars, particularly Edward Coke and William Blackstone, who were the main authorities cited by the Framers when they wrote the Constitution and Bill of Rights.

Prior to the Supreme Court Dred Scott decision that departed from original understanding of citizenship, it was generally understood that a citizen was any individual born or residing anywhere on U.S. national soil who did not owe allegiance to either a foreign nation, or to a "domestic nation" that did not accept U.S. law (unassimilated Native Americans). One did not have to be a citizen of a state. One could be a citizen of a U.S. territory, which were initially the Northwest and Southwest territories, before we added the Louisiana Territory, Texas, and then the territories ceded by Mexico and Britain, and the territory sold to us by Russia (Alaska).

The problem created by the Dred Scott decision was that it tried to deny rights to blacks by holding that, while they were persons, the rights recognized in the Constitution and Bill of Rights attached only to citizens, not persons, and that they were not citizens. Textually, that is emphatically wrong. The Constitution is quite clear that the rights attach to persons, and not just citizens. But now there was that precedent, and courts, especially in the South, began to reinforce it with their own decisions based on it.

So the 14th Amendment was adopted to correct the mistake made in the Dred Scott decision. It was also adopted to correct another decision considered erroneous, that of Barron v. Baltimore, which denied that federal courts had jurisdiction to decide cases between a citizen and his state over infringement by the state of any of his rights recognized by the Constitution or Bill of Rights. The intent of the 14th Amendment was to extend the jurisdiction of federal courts to such cases, although it was not as clear in its wording on this point as we might wish. Because it was not clear enough, the Supreme Court in the Slaughterhouse Cases refused to recognize that broad extension and began selectively extending it one right per case, which has come to be called "selective incorporation". The break came in the case of Hurtado v. California, where the court refused to extend it to include the right to a grand jury. That began a long line of cases where federal court jurisdiction was extended for some rights and not for others, creating the doctrinal mess we have today.

This led to the mistaken notion that rights are not incorporated unless the Supreme Court decides they are in a case. That is mistaken because it treats the Court as a lawmaker rather than as a law discoverer. A less incorrect notion might be that a right is incorporated unless the Court finds it is not, but the correct position is that they all are whether the Court so finds or not.

The most recent such finding was McDonald v. Chicago, which found that the jurisdiction of federal courts extends to infringements of the Second Amendment by a state, and held the Chicago ordinance prohibiting possession of firearms to be unconstitutional. However, they did so by citing the due process clause of the 14th Amendment, not the privileges or immunities clause, which would have had the effect of incorporating all rights, not just that one. Justice Thomas dissented on that point, arguing it should have been based on the privileges or immunities clause.

One can argue that one of the ways the 14th Amendment was unclear or incomplete was that it only authorized civil or criminal prosecution of state agents, not federal. This omission goes back to the original Constitution, where it provides that federal officials can be removed from office for "treason, bribery, or high crimes or misdemeanors", but only explicitly delegates to Congress the power to legislate the punishment of treason among these offenses by a federal official. The omission seems to have arisen from an unstated assumption that it would be within federal jurisdiction to prosecute these as "common law crimes" without an explicit delegation of legislative authority. But the Supreme Court in U.S. v. Hudson correctly held that there can be no prosecution of common law crimes, and that there must always be a criminal statute authorized by the Constitution. That means no prosecution for many kinds of crime that would be prosecutable in state courts, such as perjury, fraud, theft, or murder, as well as bribery or high crimes or misdemeanors.

The term of legal art, "high crime or misdemeanor", can include ordinary crimes, but also includes offenses peculiar to officials, like perjury of oath, dereliction of duty, failure to supervise, abuse of authority, or conduct unbecoming. You may recognize them as offenses under the Uniform Code of Military Justice, which preserves that legal legacy in ways that civilian law often does not.

So we have a gaping hole in constitutional authority, not just created by the precedent of In re Neagle, that does not include authority to criminally prosecute federal agents for things they might do. That precedent denies the authority to the states under state laws while the offender remains in federal service. Congress has passed statutes making some acts by federal agents crimes, and the courts have enforced them, but if the constitutional issue were ever decided strictly on constitutional grounds, all those prosecutions would have to be dismissed. All that might be done would be to remove the federal agent from his position, and then prosecute him under state law, if he committed the offense in a state, or under the laws of a territory, such as the District of Columbia, if it occurred there, but not while he still remains a federal agent.

There is one precedent, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), in which abused citizens finally won money damages against federal agents for violating their rights, after a long struggle to get to the Supreme Court. It might offer a ray of hope, but the damages would be paid, if one ever managed to collect, from the government and not from the agents individually, and it is only a civil tort claim, not a criminal prosecution that might correct or deter individual misconduct. A federal judge can just reduce the money damages to a point where it is not worth the cost to collect it.

Needless to say, this is an intolerable situation, and I have addressed it in a proposed amendment.

No state prosecutions of fed agents

Why state officials can't arrest, prosecute, or otherwise impede federal agents who violate the Constitution

In response to a request from a county sheriff to South Carolina Attorney General Alan Wilson, the AG issued the opinion that if federal law enforcement officers attempt to enforce unconstitutional gun laws or even confiscate existing weapons, then neither state law nor state law enforcement officials can stand in the way. Going further, Wilson suggests that, if state or local law enforcement officials do attempt to impede federal assaults on the rights of South Carolinians, these state law enforcement officials would themselves be subject to criminal prosecution.

Yet Wilson’s opinion goes even further than stating that state and local law enforcement are unable to actually protect the rights of their citizens from federal assaults, it claims that federal agents are granted a type of immunity from state prosecution even if they are clearly violating Constitutional rights.The opinion states that “federal agents are immune from state prosecution even when their conduct violated internal agency regulations or exceeded their express authority.”


AG Alan Wilson is correct as a matter of how we can expect any resistance by state agents to be decided in federal court, to which it would be removed by the removal jurisdiction. However, the time has long since passed when we can expect federal courts to comply with the Constitution as originally understood. Our choices are limited to elections, to armed resistance, in which we will lose unless it grows into a nationwide revolution, or to passive non-cooperation, as I set forth at http://nullifynow.net/ which is more likely to prevail in the long run if we keep the pressure steady.

The case that is usually cited for that is In re Neagle, 135 U.S. 1 (1890), which held, among other things, that a federal officer cannot be prosecuted in a state court for acts done in the performance of his duties. It also suggested that the President has inherent powers not limited by the powers delegated to him under the Constitution, which was discussed in the dissent in the case. The line of precedents built on this case have established not only official immunity for federal agents from both state and federal laws, but alleged authority to criminally prosecute anyone who attempts to interfere with them, even when they are acting without lawful authority. See this commentary by Walker Lewis.

However, the Court has held that the feds may not commandeer the cooperation of state agents, in Mack and Printz v. United States, 521 U.S. 898 (1997). That means that a refusal to cooperate may not be considered interference subject to prosecution, and that in those situations in which the feds need the cooperation of state agents, a refusal to cooperate might raise their costs and risks enough to discourage continued enforcement. Since the feds often need no cooperation from state agents, in such situations resistance falls to non-cooperation by individuals, including those who may serve on a jury, provided that a case ever gets before a jury. Overcharging, plea bargaining, fabricated evidence, testilying, and inadequate defense counsel combine to prevent that in most cases.

Three needed voting reforms

While most of the attention has been on issues like campaign finance and voter identification, there are three reforms that have been somewhat neglected, which can be easily made, and which would be highly beneficial in many ways: allowing fusion candidacies, ending primaries, and ending straight-ticket voting.

Allowing fusion candidacies

Presently most states forbid two or more parties from nominating the same person for the same office in the same election. Such a candidate would be what is called a fusion candidate. Presently, fusion candidacies are allowed in only eight states: Connecticut, Delaware, Idaho, Mississippi, New York, Oregon, South Carolina, and Vermont. New Hampshire also allows it if a primary is won by a write-in candidate.

The main purpose and effect of not allowing fusion candidacies is to suppress minor parties and entrench a two-party duopoly. It has been argued that people have a First Amendment right to associate in political parties and to nominate any person eligible to hold the office,  but the U.S. Supreme Court decided by 6-3 in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), that fusion is not a constitutionally protected civil right.

The argument often made against fusion candidacies is that it is unfair for the same candidate to appear on the same ballot for the same office more than once, and that no one is deprived of the opportunity to vote for the candidate if his name appears at least once. The counterargument is that fusion candidacy allows a minor party to unite in supporting a candidate of another party and thus avoid dividing support by nominating someone else, and perhaps throwing the election to third least desirable candidate from their standpoint. It also allows the voters to signal their policy preferences by voting for the candidate under one party label instead of another.

Ending primaries

Party election primaries were originally sold as a reform measure, to prevent the undue influence of party bosses on the nomination of candidates by throwing the selection open to all the voters who care to vote in them even if they are not regularly active in the party. The problem with doing that is that it leaves the decision to people who don't know the candidates as well as party leaders do, and who cannot be reached by those party leaders at an affordable cost to inform them. It opens the nomination to candidates who may disagree with party leaders on issues but who have the support of monied backers who can afford to market them to voters who don't take the time to carefully inform themselves on their choices. This leads to a division between the party rank-and-file on one side and the well-funded candidates and their supporters on the other. Those holding one set of policy preferences who hold most of the party offices may nevertheless get candidates who do not represent their views, but the views of wealthy special interests and rent-seekers.

The main alternative is party nominating conventions, probably beginning with local precinct conventions, which elect delegates to county conventions, district conventions, and finally to a state convention. Some states combine a primary with a convention process, using the primary to select the delegates from the precinct convention. Primary elections are expensive, so if all or part of the costs are paid from public funds, that is a subsidy to the parties that receive those funds, and arguably an equal protection violation if some parties are given a preference for receiving such funds. While conventions may be open to voters who are not regularly involved in party activities, it at least allows the personal contact and deliberation that is not supported by the non-deliberative process of merely casting votes on election day.

An interesting alternative is the nonpartisan blanket primary, or "top-two" system, adopted, most recently and prominently, by California, and although called a "primary", is really a non-partisan general election with what was the general election being converted into a run-off election. Although sold as a reform to reduce two-party gridlock, it effectively causes every candidate to have to form his own party and get enough financial support to get on the ballot. It affords no way for the parties to advance through a convention process a meritorious candidate who is not wealthy or does not initially draw much financial support, and thus excludes candidates who are not supported by rent-seekers, including minor party candidates. That was undoubtedly the intention of the proponents, and they have effectively excluded any candidates who are not beholden to their donors or organized special interest groups.

If the aim is to reduce the public choice problem of special interests dominating the election process then unless one goes to some radical alternative like sortition, a convention system at least offers an opportunity to nominate meritorious candidates who are not owned by some rent-seeker group.

Ending straight-ticket voting

Leaders of the top two political parties like straight-ticket voting without a mixed-ticket option, so that their most popular candidate in the election, usually at the top office on the ballot, such as president, can cause lazy voters to cast a straight-ticket vote that includes him and all the other members of his party. That enables them to pack lower offices with less competent or honest candidates, more likely to serve special interests than the people. In many electoral jurisdictions 30-70% of voters will habitually vote straight-ticket, and without a mixed-ticket option for overriding the straight-ticket choice for particular offices, if there is no candidate of the preferred party who is a candidate, the vote for that office is lost, and a minor party candidate who may be the only alternative doesn't get the votes that might otherwise have come to him. Straight-ticket voting, whether offered as a ballot option or merely a habit of individually choosing only candidates of one party, is perhaps the main reason minor party candidates generally don't break out of single digits. If the option of straight-ticket voting were at least not offered as a ballot choice, it is possible that minor party or less-finally supported candidates might gain more stature or even win some elections and thus build a record for governance.

For more on this see:

Video of debate between Kathie Glass, former Libertarian candidate for Texas governor, and Dave Nalle, National Chairman of the Republican Liberty Caucus, on September 30, 2012, who discuss these three reforms:

Debt is a bet

For as long as men have sought profit from investment there have been speculative bubbles. Every one of those investments are bets that the investment will become worth more than what was invested. The bet is based on expectation of growth in value, but that expectation is not always wise, and may be unduly influenced by the enthusiasm and greed of others. Some of those expectations are not fulfilled, and the investment becomes a loss.

As long as it is many investors making small investments in many different things, without imitating others or playing similar strategies based on the same information, the losses may be spread over time among the investors, but most of them may come out ahead, at least for a long while.

However, when too many play a similar strategy, or capital becomes excessively concentrated in the control of a few investors playing a similar strategy, we get a speculative bubble, a bet on growth that cannot be sustained, and which must end in a crash.

A crash of a bubble backed by commodities that cannot be replicated without limit will at least be contained in its severity and duration by the supply of the backing commodities. No so if the bubble is of investments in debt instruments backed only by other debt instruments and an expectation that the supply of the ultimate debt instruments will not grow faster than the gross product of the economy. If the speculative vehicles become untethered from commodities, the inevitable positive feedback loop will drive expansion of a bubble whose burst cannot be indefinitely postponed. Every effort to postpone the crash will make the crash worse. In an interconnected world economy, the cascade of business failures that a crash brings will bring extreme misery to almost everyone. The last time that happened it cost perhaps 100 million deaths, and that was before so many nations had nuclear weapons ready to launch against one another.

The coming crash is perhaps the most anticipated of all time. So many now expect that that the expectation is self-fulfilling. Yet it seems no one in a position of power is willing to admit it is coming, or to tell the people the truth that nothing can be done to avoid it at this late date. They make lying promises that they can at least stave off catastrophe by government spending to create jobs and stimulate demand, or by reducing taxes and regulations to encourage investment in jobs and growth, or that entitlement benefits can continue, or that government can borrow enough to pay for all of that.

These are all lies and in this campaign season we need to call the candidates out on it. We are not going to grow ourselves out of this one. Most of the growth that seemed able to do that over the last 60 years has been a series of speculative bubbles, some of which have already collapsed, and the rest of which are overdue to do so.

The main issue in the upcoming election is who will appoint which judges. It is essential that those appointments be of strict constructionists who will roll back 200 years of wrong decisions that have enabled departure from compliance with the Constitution as originally meant and understood. Those who rely on those departures will protest, but none of the apparent benefits they think the departures have brought are sustainable. They are all losing bets, and it will soon be time to count the money because the dealing's done.

No president or legislature or government can do anything but prepare for recovery after the crash has run its course. Of course, no candidate who is honest about our prospects can get elected, but if they are worthy of an office they need to abandon their effort to win and instead prepare the people for what lies ahead. Twenty years after the crash people may remember who told them the truth and tried to get them ready.

The solution, if we had acted sooner

The coming crash could have been avoided if we had taken the right steps at least 50 years ago, or even as late as 30 years ago, although that would have been much more difficult. The solutions begin with the realization that no government fiscal or monetary policy adjustments can manage the business cycle as long as currency is fiat and there are no mechanisms in place to prick bubbles while they are still small. But it is politically impossible to have a regime picking and choosing which bubbles to prick and when. Investors are going to speculate, and there is nothing government can or should try to do to manage how they do that. However, it can impose constraints that will schedule the pricking in a predictable way.

The solution is not new. It goes back to the ancient Hebrews, who called it shmita. It was a law that every seventh year the fields be left fallow (Exodus 23:11) and all debts be cancelled (Nehemiah 10:31). Some version of this law is what the nations of the Earth need today, not because it is Biblical law, but because it is a very good idea, for many reasons.

The idea is related to the experience of agrarian societies with cycles of abundant and lean harvests. We have evidence of this in the story of Joseph in Egypt who prescribed storing enough food during seven good years to sustain the people during seven years of bad harvests (Genesis 41:34). Of course, we have tried to have similar food bank programs in recent times, but those are currently unsupported.

Agrarian societies who depend on a single annual harvest have had to develop the technology, infrastructure, and governance to preserve and ration food consumption until the next harvest. Since not all harvests are good, they need to go further and preserve enough for perhaps another one or two years or more. Combined with the depletion of soil from unbroken annual cultivation, farmers have discovered through hard experience the need to allow fields to remain fallow for a year or more at regular intervals.

However, stored good is an asset that can become a speculative investment. It can be borrowed and repaid in an amount greater than the amount borrowed, even without a medium of exchange. That is debt, and by cancelling all debts on the same cycle as the suspension of production, speculative bubbles are never allowed to grow into a crash. They are all pricked at the same time whether they need to be or not. That takes any political heat off anyone who might otherwise attempt to prick the right bubbles at the right time and perhaps missing some.

To apply the solution of shmita to latter-day economies we need to suspend more than just agricultural production. We need to suspend all commodity production. The suspension need not be for an entire year, but it needs to be long enough to compel everyone do a minimal amount of storage and saving and not rely on just-in-time (JIT) deliveries of supplies. Competition now discourages the costs of storage, so a constraint is needed to offset that.

The U.S. Constitution presently does not provide authority for a shmita regime, and even if it did, for the U.S. or any one country to impose it on itself if other nations did not would put it at an unacceptable competitive disadvantage. There would need to be a treaty among the leading producing nations to impose nearly the same shmita rule on all of them, and it would need to be effectively enforced.

The following constitutional amendment, or one like it, might provide the solution:

Power to cancel or suspend economic activity

Congress shall have, and with a treaty with other nations collectively producing more than half of the world's tangible goods, shall exercise, power to do the following for each year evenly divisible by seven, for a shmita period at least three and not more than nine months:

1. Cancel all debts, securities, fiat currencies, and derivatives thereof;
2. Liquidate or break up all for-profit corporate entities and activities into organizations comprised of not more than 300 individuals and investors;
3. Regulate emergent behavior that might act in concert like a corporate entity;
4. Suspend all extraction, including mining planting, harvesting, and fishing, all manufacturing, and all transport beyond 100 kilometers of durable goods, other than those essential for defense, justice and law enforcement, water, power, or medical services;
5. Promote storage systems to enable persons to endure the shmita period;
6. Forbid the importation of goods subject to the shmita during the shmita period;
7. Call out militia to enforce the shmita.

Note that the cancellation would include government debt and debt instruments like fiat currencies. It would encourage everyone to convert all their assets denominated in fiat currencies into tangible commodities every seven years. Any currency that remained would have to be backed by commodities, and not bear interest or pay profits or dividends. No more 30-year mortgages. People would have less than seven years to pay off a house or lose it, and if the lender failed to repossess on a defaulted loan before the shmita period kicked in, the borrower would have the debt cancelled and get to keep the collateral free and clear.

Compensation for labor also represents a debt, so everyone would be laid off during the shmita period. This would actually result in nearly full employment, which can only be attained by periodically making everyone unemployed except as volunteers, which would hopefully provide critical services.

For-profit corporate entities also represent a kind of debt, and this plan would disperse them into small units that might re-assemble after the shmita period, but perhaps in quite different configurations, with different strategies than were played by the parent organization.

The business cycle has become a national security threat. The collapse of the financial sector would cause damage that if done by a foreign power would be grounds for going to war. The administrative methods of the Dodd-Frank Act are totally inadequate. Something much more effective is needed, and that is what is proposed.

Politically impossible? Of course. Today. After the Crash, maybe not, if those of us who are still alive learn the right lessons from it. It will be a hard lesson, and there may not be enough to bury all the dead. The author of this piece does not expect to be one of the survivors, but perhaps one will remember these words.

Chaos and Constitutions

One of the most important insights from chaos theory is that complex systems of interacting actors can exhibit patterns of behavior that seem designed but are not, the details of which are the result of self-organization, and which are not predictable in principle. Patterns like the spots on a leopard, the stripes on a zebra, human fingerprints, a beating heart or intelligent brain, the movements of flocks of birds, schools of fish, or termites building a castle of mud, are all broadly constrained in general by genes, but genes without sufficient information, by typically 11 or more orders of magnitude, to specify the details of swarm or herd behavior by elementary actors of limited intelligence, each responding to its local environment using fairly simple rules.

These insights have implications for public policy and constitutional design. Too often public discourse makes a presumption of determinacy, as though society, the economic system, and our system of government and laws, are fundamentally mechanical, and can be modeled and managed in principle using sufficiently complicated simulations. That is the systems dynamics approach that produced the classic paper, The Counterintuitive Behavior of Social Systems, by Jay Forrester (1970). However, it is not just that human mental models are inadequate. Our computer models, while they might improve our odds of making wise decisions a little, they cannot in principle guarantee desired outcomes. The underlying systems are chaotic, subject like the weather to butterfly effects, and a policy intervention that might have no appreciable result if applied today, can yield mass extinction if applied the day after, and heaven on Earth if applied the day after that.

Electoral candidates and lawmakers win support with appeals to "support me and everything will get better". It is an open question how many people are fooled by such appeals, but it only takes a few to swing an election or a vote on the floor of a legislative body. Most such decisions are made emotionally, not rationally, and we could probably get results as good through a lottery. We must bear in mind that humans evolved for making decisions in a paleolithic hunter-gatherer society grouped into small tribes or villages, not a modern, global, technological civilization. We are barely adequate to live together in a ward republic, much less a global urban world-state.

This has implications for constitutional design. Just as undifferentiated human stem cells might form a heart if they find themselves in a local environment that provokes them to "form a heart here", and the same cells would form a liver or a lung if placed somewhere else, so human individuals can be organized into structures that constrain them to function in a way that serves the health of the system as a whole. Constitutions and laws are attempts to provide such structure, but there are limits to the adequacy of human intelligence, even at its best, to design political and economic systems with an expectation of intended behavior. Nature shows us that such structural designs are generally the result of evolutionary trial-and-error, not intelligent design. When we find a design that works fairly well, it is best to avoid large departures from it, and to stick to small, incremental changes, with some time to observe the consequences.

One of the things we can conclude with some confidence is that humans cannot manage large organizations, even in principle. The best they can do is organize themselves into many small organizations that can then interact in what might be called a marketplace, for which occasional disasters may be unavoidable, but which have enough resiliency to allow some to survive.

The foundations of indeterminacy

The Newtonian view of the physical Universe was as a clockwork, perhaps complex but fundamentally deterministic, in the sense that if one had complete information about the behavior of its components, and sufficient computational power, one could in principle predict its behavior in detail as far into the future as one might wish.

That view was shattered by the emergence in the 20th century of quantum mechanics, which fit observation well but consisted of wave functions that could only be interpreted as probabilities, not as deterministic causation, and were not local but spread over the entire Universe. Some, like Einstein, could not accept this view. He said "God does not play dice with the Universe." They sought "hidden variables" that while they might be forever beyond reach of measurement, would at least explain the Universe as a deterministic system. Further work on this question, however, seems to establish that an underlying determinacy is not consistent with empirical observation. The Universe really is fundamentally probabilistic and indeterminate. If you could run it multiple times from the same initial conditions, it would turn out differently every time.

Yet many large-scale phenomena, like the movement of astronomical objects, seems deterministic to a high degree of precision. How can such phenomena be so predictable when their basic constituents are not? It was the attempt to model astronomical phenomena that led Newton to his physics, by examining the behavior of pairs of masses interacting gravitationally, called 2-body mechanics. Such pairs can be sufficiently replicative in their behavior to make reasonably precise prediction practical, but that only goes so far until the perturbative influences of other bodies becomes significant, and we encounter the n-body problem. There is no general solution to that problem possible, we are left with only approximation methods that may work well enough in restricted situations, by avoiding "singularities" that would defeat computational predictions, but even in those situations are fraught with uncertainties and may require more computing power than can stay ahead of real-time trajectories.

For chaotic systems small perturbations can be significant. It has been estimated that perturbation from the gravitational influence of the dwarf companion of the star Sirius can affect the outcome of a game of billiards, where small changes can have large effects. No matter how skillful the players, there will always be an element of randomness in the course of the game. And while the orbits of planets of the Solar System may have been fairly stable for the last 4 billion years, we can computationally predict that the system is also chaotic over a longer time span, and that eventually the Earth or other planets may be flung out of their current orbits, perhaps out of the Solar System or into the Sun.

In biology we have come to the realization that the amount of information carried in the coding of our genes falls short of being enough to specify the details of our bodies or our minds. We are all randomly self-organized systems, for which genes and environmental influences may have had some impact, but which are fundamentally indeterminate, even in principle. Our genes may make it likely that we will have fingerprints, but they do not specify the patterns in detail. Genes may make it likely that a leopard will have spots, or a zebra will have strips, but identical twins will not have the same fingerprints, the same spots, the same stripes.

Within our bodies, our hearts are chaotic systems. Our genes may constrain the self-organizing of stem cells into a heart that beats, albeit somewhat irregularly, and can respond to increased demand for it to pump faster, but without a master control mechanism like the pacemakers we install when the function begins to falter. We have brains, but evolution has not attempted to enable our brains to command every detail of our bodily functions. Social insects function using simple rules for each member of the colony with no command structure. Evolution has produced designs that allow for leadership but not command, and there is a deep reason for that. It is not just that command management of complex systems is unnecessary or inefficient. It is that such command management is impossible in principle. We will never be able to redesign our genomes by computationally predicting the effects of genetic changes on the chaotic structures and behaviors that unfold. We can borrow genes with known effects and apply them elsewhere, but we are doomed to having to rely on trial and error for real innovations. We can redesign ourselves as a species, but we must accept there will be many bad outcomes.

Some unsettling insights

The Universe is rational only to first approximation.
— Roland's First Corollary to Finagle's Law.

From all this one can come to understand that all large scale phenomena are chaotic systems. They may seem predictable under certain circumstances, which we may call islands of stability, and we may even be able to so structure complex phenomena that they self-organize into replicative patterns, but we must expect the unexpected when we push the boundaries of those islands of stability, and we can never be certain how any design change will work out as the self-organizing system emerges.

But it is not just large scale phenomena. How does it seem that some quantum systems are "entangled" and some are not, when theory suggests the entire Universe is entangled? The answer that now seems apparent is that those subsystems that seem more entangled are actually islands of stability in chaotic processes, that, like beating hearts, self-organize into predictable patterns for a while, until they are perturbed and the patterns dissipate.

For constitutional design, what does not work, except for a few things like going to war, is command management. The impulse to resort to hierarchical command systems arises from the mental tools we evolved for leading men into combat, but as Helmuth von Moltke said, "no plan survives contact with the enemy", and the outcomes of combat depend less on command management than on the ability of troops to self-organize in real time. Yet the instinctive impulse persists and leads to authoritarian attempts to do things like manage human behavior and the economy in ways that are fundamentally beyond the possibility of such control, even if it were desirable. We will never become able to prevent all human depravities or ward off all economic collapses, any more than we can do so for storms, earthquakes, or volcanic eruptions (although we might for asteroid impacts). All we can do is to try to prepare ourselves for surviving the calamities and emerging in some order after they have subsided.

However, we don't have to wait for authoritarian methods to fail before we abandon them. That is the wisdom of the libertarian impulse, understood by our constitutional founders. A constitution can and must structure how we self-organize, even if we cannot be sure what clauses will work or how, or how to change them to produce better outcomes. the same design change that has no effect if applied today might cause mass extinction of the human race if applied tomorrow, and heaven on Earth if applied the day after.

So the wisest rule is likely to be a conservative one: Avoid changes that are simple, direct, obvious, and large, because they are almost certainly a bad idea. That cannot be avoided for a new constitution, but sound design of further changes should proceed carefully, and make no move toward micromanaging society and the economy. The best that can work is structuring self-organization, and for that we can learn from experience to make some outcomes more likely, while swimming in a sea of intrinsic unpredictability.


Notes


See also

• Chaos theory. Wikipedia article.
• Quantum mechanics. Wikipedia article.
• Quantum entanglement. Wikipedia article.
• Hidden variable theory. Wikipedia article.
• N-body problem. Wikipedia article.
• Perturbation theory. Wikipedia article.
• Complex system. Wikipedia article.
• Self-organization. Wikipedia article.
• Complexity strategy. Wikipedia article.
• Information theory in complex systems.
• The butterfly effect gets entangled. How entangled systems may be chaotic.
• Chaos Hypertextbook, Glenn Elert.
• Chaos and Constitutions. Copy of this article.

McCulloch Redux

Much has been written about the decision in McCulloch v. Maryland, as though it was a given, not subject to question, but there is a problem analyzing a decision and opinion that were wrongly argued, wrongly decided, and wrongly opined. Trying to do that is just an exercise in rearranging the garbage. The first step should be to present the way it should have been argued, decided, and opined, and then draw comparisons with that to the actual case.

First, it is not unconstitutional for the U.S. government to recognize a corporation created by private parties within the District of Columbia, where it has the legislative jurisdiction of a state, as a variety of common law trust, and even to grant it a monopoly on the use of its name. That is not "creation" unless the government is one of the incorporators..

Second, it is not unconstitutional for the U.S. government to enter into a contract with a private bank to receive, hold, and disburse public funds. There is a problem if the contract is not the result of competitive bidding. There is also a potential problem if bank officials exercise governmental functions that are not under a chain of command leading up to an elected official. Executive powers  may be delegated but not without supervision of their exercise by the executive branch and the courts.

Third, it would be unconstitutional to forbid a corporation incorporated in one state or territory from conducting business operations in another state or territory, subject only to reasonable regulations or taxes that do not discriminate against out-of-state entities. So the National Bank was certainly within its rights to conduct business in Maryland, and be treated there like a Maryland bank.

Fourth, it would be unconstitutional for Maryland to tax that part of the National Bank that involves the handling of public funds, but not the part that is entirely private. Maryland could reasonably require the Bank to keep accurate books that keep the two sides of its business separated and separately subject to taxation or regulation.

The decision should have been that Maryland may tax the National Bank on its private business on the same basis as it would a Maryland bank, but not on its public business.

All the dictum about "necessary" being merely "convenient" and everything else not needed to reach the above decision should have been omitted.

Read James Madison's notes regarding his objections to Marshall's opinion in McCulloch:

 . . . reasoning of Supreme Ct — founded on erroneous views & — 1. as to the ratification of Const: by people if meant people collectively & not by States. 2. imputing concurrence of those formerly opposed to change of opinion, instead of precedents superseding opinion. 3. endeavoring to retain right of Court to pronounce on the consty of law after making Legisl omnipotent as to the expediency of means. 4. expounding power of Congs — as if no other Sovereignty existed in the States supplemental to the enumerated powers of Congs — 5. making the Jud'y — exclusive expositor of the Constitutionality of laws: the co-ordinate authorities Legisl — & Execut — being equally expositors within the scope of their functions.

James Madison, Detached Memoranda, reprinted in Writings at 756.


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.
• Diagram of the Necessary and Proper Clause — Parsing helps understanding.

Most voter ID statutes unconstitutional

Most proposed or enacted voter ID statutes include a requirement to prove eligibility to vote by presenting proof of identity, and require that proof to be some kind of government issued ID. Such requirements are unconstitutional. Voters may constitutionally be asked to prove eligibility, but not identity. The two are not the same.  Eligibility can be proved without revealing identity. It is unconstitutional to deny a right or privilege for failure to present something one is not constitutionally required to possess, and there is no constitutional authority that requires anyone to even have a name.

Eligibility can be proved in various ways that do not disclose identity. The traditional way was for a notary or other official who knows the person to testify that he is eligible. His testimony, such as an affidavit, would be the proof. The individual's identity would be disclosed to the notary, but need not be disclosed to anyone else. Now of course the witness has to be trustworthy, but that is no different from trusting the clerk who prepares and issues an ID card.

Some go so far as to propose a national ID system. Proponents of such a system suffer from a naive faith that government is benign, with only rare exceptions, and can be trusted with the power that would come with control of personal identification in their hands. But such an ID would immediately become a national ID card for all other purposes as well, as the convenience of it would drive the emergent behavior of people everywhere.

Suppose such a proponent says something critical about some government official. Suppose some anonymous clerk then amends his record in the central identification database. Now he is a "fugitive, child-molesting cop-killer terrorist, armed and dangerous". Suppose he goes in to vote, and, just as he is raising his pen to sign the register, a swarm of cops pours in and guns him down, pointing to the pen and saying, "He was holding a weapon!" Cops who shot him are put on paid administrative leave pending the investigation, which finds the shooting justified, and the cops return to duty without even a negative comment on their records.

The elevation of personal identity to the importance accorded it today is an innovation in our legal tradition. Historically it has had much less importance, usually where ownership of property was involved.

Be careful what you ask for. What I described is not some paranoid rant. All of the elements of it are things that are happening to real people right now.

You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered. — Attributed to Lyndon B. Johnson or Hubert Humphrey, but unconfirmed.

See also:

• No government-issued ID to vote
• List of constitutional rights
• The Net, 1995 movie starring Sandra Bullock.

Construing "strict construction"

It is a common mistake of modern readers to presume that a term used in many instances in a document such as the Constitution has the same meaning in each of those instances, but the 1787 users of English, and particularly legal English, were not that precise or rigid. For that matter, neither are people today. The meanings of terms can and do differ from one context to the next, within the same instrument, and not just because it was the work product of multiple authors.

Legal and constitutional exegesis is an advanced art that must regard words as evidence of meaning but recognize that the evidence is "holographically" distributed over the entire document and beyond. Our problem can be seen in illusions such as this one in which a pattern of light and dark patches is not recognized while still but becomes apparent when animated. When the Framers drafted the Constitution, they were imagining how the words would play out in use, and we must try to do the same when we try to construe them.

A literalist approach to interpretation doesn't work. Justice Antonin Scalia rejects it in his new book (with Bryan A. Garner), Reading Law: The Interpretation of Legal Texts, p. 355, where he calls it "strict construction". That is the meaning that term might have for some of its critics, but is generally not the meaning it has for its proponents, which has its roots in law Latin:

Ex tota materia emergat resolutio. The construction or resolution should arise out of the whole subject matter.

Quae communi legi derogant stricte interpretantur. Laws which derogate from the common law ought to be strictly construed. Jenk. Cent. 231.

Quod factum est, cum in obscuro sit, ex affectione cujusque capit interpretationem. Doubtful and ambiguous clauses ought to be construed according to the intentions of the parties. Dig. 50, 17, 168, 1.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

Potestas stricte interpretatur. A power is strictly interpreted.

Since a right is a restriction on delegated powers, and a delegated power a restriction on rights, from this last maxim we can conclude that a right against government action must be broadly interpreted, and the presumption must be in favor of such a right. See Presumption of Nonauthority and Unenumerated Rights.

Potestates stricte interpretantur, iura late. Powers are to be interpreted strictly, rights broadly.

Potestates enumerantur; multis iura non enumerata. Powers are enumerated; many rights are not enumerated.

So from our Latin heritage we can construe "strict construction" (stricte interpretantur) not as literalistic but as strict for delegated powers and broad for rights against such powers. The implication is that the courts must never defer to Congress in its claim to exercise a power, and always require strict proof of its authority for such power, lacking which the presumption must be that it does not have the power.

That only leaves the ambiguity of powers delegated to protect rights. Is such a power to be construed strictly, or does it borrow some of the broadness of the rights it is to protect? It depends on which rights with respect to what, and the cost and risk of abuse. Generally, a power to protect rights against government should be construed broadly, and against natural threats or private acts should be construed narrowly. Otherwise every government would have general police powers, and the federal government does not. But that is a matter for future discussion.

Exerceatur constitutio, ruat caelum. Let the Constitution be enforced, [though] the heavens fall.

Also see

• Constitutional Construction
• Social Contract and Constitutional Republics
• List of Constitutional Rights
• How can text enable governance? 
• The original meaning of "carrying into execution" 
• What "commerce" meant to the Framers 
• Binding precedent is unconstitutional

Rule of Law - 1

In his excellent book, Design for Liberty: Private Property, Public Administration, and the Rule of law, Richard Epstein begins his discussion with a cite to Lon Fuller, The Morality of Law, in which he lists some components he does not not call components of the rule of law, but which is widely regarded as such:

Eight Routes of Failure for any Legal System

1. The lack of rules of law, which leads to ad hoc and inconsistent adjudication.
2. Failure to publicize or make known the rules of law.
3. Unclear or obscure legislation that is impossible to understand. [Or difficult for most people to agree on the meaning of.]
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of the subjects and the ruled.
7. Unstable legislation (ex. daily revision of laws).
8. Divergence between adjudication/administration and legislation.

These are a good start, but we can identify more, and better organize them, in this first part of a discourse on the topic.


Fuller's formulation addresses the need for internal consistency and predictability, but omits the critical component, that it provide for the reasonable protection, and accessible remedies for violations, of the natural and social rights of the people, whether individuals, minorities, or majorities. With that in mind, we can begin to prepare our own list.

Specifications for a Rule of Law

1. Laws that apply uniformly to everyone, including lawmakers, administrators, and adjudicators, except as individuals may earn different treatment, consistent with the general good.
2. A written constitution of government that is consistent with the superior constitutions of nature, society, and the state (understood as society with dominion over a well-defined territory), from which all other laws must be derived, and with which such derivative laws, administration, and adjudication must be consistent.
3. Institutional structures and procedures that allow orderly and competent notice, deliberation, and decision of legal issues, both for the society as a whole and political subdivisions of it, and for individual cases, in which all stakeholders are represented.
4. Affordable access to remedies for anyone whose rights have been violated or are threatened, and for anyone seeking to protect the rights of others.
5. Establishment of the right to a presumption of nonauthority.
6. Establishment of the right to the means to supervise public agents and hold them accountable.
7. No contradictions among laws or the administration or adjudication of them or of cases involving private matters.
8. Reasonable and impartial discretion consistent with general principles of law, not used abusively or to redistribute.

These will be further discussed in subsequent installments of this series.


See also:

• Social Contract and Constitutional Republics
• Presumption of Nonauthority and Unenumerated Rights
• List of Constitutional Rights