Appropriation must cover debt

Reports on the controversy over continuing resolutions and raising the debt ceiling usually neglect to examine the underlying constitutional problem with the way government obligations are incurred.

From the U.S. Constitution, Art. I Sec. 8, we have that

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; ...

To borrow Money on the credit of the United States;

But in Sec. 9, we have that

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

And from the 14th Amendment, Sec. 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

Some who are in the camp who favor raising the debt ceiling, or even argue it is unconstitutional, say that we are constitutionally bound not to "default" on the "debts" of the United States, but gloss over whether or how such "debt" was "authorized by law".

Missing from the Constitution is a more clear statement that appropriations by Congress must not only limit spending, but the incurring of debt or other obligations requiring future expenditures. In the absence of such language Congress has allowed government agencies to incur debt and other obligations that are not confined to expenditure appropriations and limited only by a general ceiling covering the entire government. Most of the greatest expenditures are not from appropriated funds, and include "entitlements" in which private individuals can write indefinite obligations to themselves merely by "applying" for benefits and having such applications accepted by nameless bureaucrats.

I have proposed a constitutional amendment to correct this defect:

Clarification of appropriation
No expenditure shall be made, or obligation incurred or committed, by or for the government or any activity under its supervision, except within appropriations enacted by Congress, which shall specify the amount and the department or activity it may support, and which shall not exceed six years.

Under this amendment, when Congress adopts an appropriation (which includes the separate "authorization") for expenditure, they must also appropriate limited authority to incur indebtedness, for that same department or activity. It would limit such appropriations, including any 'continuing resolutions", not to exceed six years without a new appropriation.

The effect of it would also be that government could not incur debt, including by accepting applications for benefits, in excess of the appropriation. If during the course of the fiscal year the limit on something like social security or Medicare were reached, the government could approve no more applications for it, and could pay out no more than what was appropriated. It could not only not purchase a tank or a plane for cash if the appropriation were exceeded, but not on credit, either.

This proposal in some form is not new, but until now has not had political traction. It is time for fiscally responsible citizens to demand it, not just in practice, but as an amendment to the Constitution.

See also:

1. A way around the debt ceiling 
2. So you want to raise the debt ceiling?

Biggest Constitution Day Ever!

For many years I celebrated Constitution Day alone, usually holding signs in public places. Here is a report on one such day. But with my work and a growing number of others, the celebration has been growing ever larger in quality and numbers of participants. This year, it seems for the first time, we have events at or near educational institutions in every state and the District of Columbia, announced through websites. Last year many such events were low-profile, involving only members of educational and civic groups, with little outreach to the public. This year the public is everywhere invited and there is media coverage before, during, and after the events.

We have collected as many such events as we could find at http://constitution-day.org/events

In 2004 Senator Robert Byrd (D-WV) got an amendment to the statute that designates September 17 each year as Constitution Day. The Byrd Amendment requires that "each educational institution that receives federal funds for a fiscal year shall hold an educational program on the United States Constitution on Sept. 17 of each year for the students served by the educational institution." It provides that if the day falls on a holiday it may be observed the week preceding or following.

The Department of Education issued an implementing regulation that the amendment "applies to all educational institutions receiving federal funding, not only those receiving funding from the Department." So a grant from the National Institutes of Health or the National Endowment for the Humanities (which also offers grants specifically for Constitution Day celebrations) are at risk of being forfeited if a recipient fails to observe Constitution Day as the amendment provides.

What you might do

Call all the schools in your area that probably receive federal funds and ask them what they are doing to comply with the statute to hold constitution day celebrations. If they are doing nothing, or very little, suggest that they could lose federal funding if they don't comply, and follow up with a letter to the Department of Education, Office of the Inspector General, informing them the school is not in compliance, together with an online complaint, and that the school should be reviewed for whether federal funding should be discontinued. Send a copy to the school. Then follow up to see if an event is being organized.

Some have criticized me for promoting this event by leveraging the federal funds pressure, and even argued that the Byrd requirement for constitution day celebrations is unconstitutional. Others have argued that it does not go far enough.

Schools differ widely in how much they teach the Constitution. In many colleges it is possible to get a bachelor's degree without ever encountering anything on it. In some states, including those that follow the Texas model for non-AP high school students, the last exposure to the Constitution is in the 8th grade, with nothing about it in later years. The AP students do get more on it, but they typically comprise less than 30% of the students, those on a track to college. Sometimes as few as 15%.

Consider how much law students get. Some material on court decisions, but very little if anything on constitutional history and theory. One could get a JD with the impression that the Constitution is nothing but what judges say it is, and with little insight into how little most judges know about it.

Actually there is constitutional authority for requiring such instruction, Art. I. Sec. 8 Cl. 16: "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;" There is not even a need for a nexus to federal funding. The duties of militia include law enforcement, militia is everyone, including schoolchildren, and that therefore militia training properly includes training in law, especially the Constitution.

The legislative history of the Byrd Amendment is that he wanted to be more specific about instructional content, but that was as much as he could get through without debate that would stir opposition.

Now granted that many of the higher-tier educational institutions are underrepresented in this celebration, which seems to track the dominance of them by ideologically "progressive" academics who are trying to undermine the  Constitution as it was originally meant and understood, still it provides an opportunity to advance the cause of constitutional compliance by vigorously participating and working to make next and succeeding years even greater. We are even seeing the emergence of state constitution day committees in several states that are working to do just that. We need to take advantage of every opportunity for leveraging change that we can.

There are three noteworthy events in Austin, Texas, this year, two on September 17. One is a rally on the south steps of the Capitol at 1:00 PM, and the second is a meetup at the Old Quarry Branch Library at 6:30 PM, for lecture and discussion. The following week, on Sep. 24, is perhaps the most outstanding such event in the nation, sponsored by Austin Community College, in which hundreds of students will discuss and debate a list of constitutional issues in a public forum. Details are to be found through the events link above.

Mark Leibovich's This Town

This Town: Two Parties and a Funeral-Plus, Plenty of Valet Parking!-in America's Gilded Capital, by Mark Leibovich

I spent two years on Capitol Hill 1970-72 and witnessed the same kind of behavior presented in this book. The names have changed, but the pattern has changed only in having more money to play with, and do so in a way that brings far greater risks to our country and civilization if we don't get it right. But then as now there is little sense among the political class of the grave responsibility they all have. The one factor that did sober them then was the risk of global thermonuclear war, which has now receded as a perceived danger, even though it still is. The threats now are more abstract, complicated, and difficult for the mediocrities in the political class to understand.

This book does not provide much analysis and no recommendations. It is mainly written to be entertaining, even if it happens to be enlightening as well. However, it does provide evidence that we can analyze, and that we can use to develop reforms. Liebovich is a reporter, and he reports. The rest is up to us.

So what can we provisionally conclude?

1. With almost no exceptions, our leaders are not intellectually deep persons who value ideas or principles, or get their satisfaction from delivering good governance as an art. They are mainly salesmen, good at making connections and deals, who compartmentalize their thinking so that they can live in a bubble of enablers that is separated from reality and responsibility. No Jeffersons or Madisons among them, and those are the kind of persons that the situation requires. But the system does not allow such persons to ascend to those positions, because they can't be controlled.

2. It is not that our leaders are not representative of the people. They are all too representative. They are not much worse than most of the rest of us. But they need to be much, much better.

3. They behave that way because the structural incentives cause them to do so. Replacing them all would not change the incentives, and even much more talented and virtuous persons would probably mostly succumb to the corrupting influence of those incentives, and purge the system of the few who resist. We need to look at fundamental structural and procedural reforms.

4. The problem depicted is common to most countries that choose their main officials through popular elections. The voters are mostly rationally ignorant and willing to be influenced by the kinds of marketing money can buy, allowing public choice pathologies to prevail. The only alternative to that, other than dictatorship, is sortition, selection at random, like juries, but in a multistage process that alternates with filtering for aptitude and character. The Republic of Venice used such a system from 1268 through 1797 to select their doge, or chief executive. A similar process could be used to select legislators at all levels who would serve for only one term, and have no career path. Staffers could be similarly reassigned at random, preventing them from building empires of influence. There would be a stronger incentive to select persons of greater aptitude during the filtering phase of the sortition process. Without a stable poll of legislators and staffers, the influence of lobbyists would be somewhat
 dispersed.

Remedies

I have a proposed Tax Reform Bill that contains the following provision:

10. The President, each member of Congress, and each federal judge or presidential appointee, shall agree to, and have imposed on him, a 100% tax on any and all of his earnings other than his government salary or pension, or on any funds or property received, after he commences his office, except only earnings on investments made before he takes office, or on investments of his government salary or pension.

Mark Levin's Liberty Amendments

Commentator Mark Levin has come out with a new book, The Liberty Amendments, in which he proposes ten constitutional amendments, and argues for an Article V constitutional convention as the way to get them adopted.

While I can commend an effort to develop remedies to constitutional usurpations, Levin has not thought through what is needed. Some of his proposals would actually make things worse. It is not entirely fair to summarize his proposals in commenting on them, since he does discuss them in some detail in the book, but he is welcome to refute the points made here.

A far better list of proposals can be found at http://amend-it.org and you don't have to buy anything to read them.

His list, my summaries in parentheses, and my comments in a different font, follow:

An Amendment to Establish Term Limits for Members of Congress

By itself this would make the situation worse, for the following reasons:

1. It would shift even more power to staffers and lobbyists, who would remain in place, gathering power and expertise, as members came and went. 
2.  It would prevent members, who typically arrive without even the expertise to decide who the experts are, from acquiring such expertise.
3.  It would prevent members from accumulating the connections and favors that would enable them to be effective.

An Amendment to Restore the Senate (repeal of the 17^th Amendment establishing direct elections, provisions for replacement of senators before the end of their terms, and establishing the right of a state legislature to remove a senator upon a two-thirds vote).

The 17th Amendment was adopted for a good reason, which needs to be understood before attempting to undo it, even with the additional provisions Levin proposes. State legislatures never did control U.S. senators in the way the Framers intended, and repealing the 17th would not significantly change that. See "Don't repeal 17th Amendment".


An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override

That would only make the process of selecting judges more political than it is, and give Congress more influence over Supreme Court decisions than it should have. What is needed in judges is greater fidelity to the Constitution as originally meant and understood, and the pressures to get re-elected drive Congress away from constitutional fidelity. They now pass legislation with open disregard for its lack of constitutionality, perhaps hoping the Supreme Court will overturn it. The solution, as I propose, would be to appoint them not to a particular court, but to a single pool of federal judges from which they would be drawn at random to serve on particular courts for only a single term.


Two Amendments to Limit Federal Spending and Taxation (limiting the federal government to outlays not exceeding 17.5% of GDP, and limiting total federal tax collections from any source to no more than 15% of a person's income).

This would not work, for the following reasons, among others:

1. Neither GDP nor "income" is well-defined and cannot properly be used as a determinant in a constitutional amendment.
2.  Putting a cap on collections or spending would only make every budget something the Supreme Court would have to decide, and it is not equipped to do that. 
3. If there were an exception for a state of war then Congress would get around it by keeping the country in a perpetual state of war.

The reform needed is to forbid fiat currency to be used as legal tender. This is discussed at "Flaws in Balanced Budget Amendment".



An Amendment to Limit the Federal Bureaucracy (automatic sunset for all departments and agencies if they are not legislatively reauthorized, mandatory congressional authorization of any regulation imposed by bureaucrats if the economic burden exceeds $100 million).

There is some merit in parts of this, but not in making it a constitutional amendment. It is also a mistake to use "dollar" amounts in an amendment (or in a statute) unless the "dollar" is defined in terms of some scarce physical asset, such as gold, silver, or energy. My proposals take a sounder approach, including forbidding the application of administrative regulations to other than government employees or contractors.


An Amendment to Promote Free Enterprise (redefining the Commerce Clause to a specific grant of power limited to preventing states from impeding commerce among the states, and preventing Congress from regulating commerce within a state).

If the Commerce Clause were only a restriction on states then there would be no need to restrict Congress from regulating intrastate commerce. What is needed, and what I propose, is to clarify the meanings of "commerce" and "regulate" and the phrase "necessary and proper for carrying into execution". An amendment that does not do that would accomplish nothing.


An Amendment to Protect Private Property (curbing abuses under the Takings Clause).

Some merit here but not well-written. The main federal-level abuses are regulatory takings, most of which need to be cured by forbidding the regulations, and direct taking of land on state territory through eminent domain without getting the consent of the state legislature or going through state courts. An amendment should specifically overturn Kohl v. United States, 91 U.S. 367, 373 (1876).

Most of the abuses are taking place at the state level, conveying land to private parties, and what is needed there is to clarify what "public use" is and is not, and require that it commence within a year of the taking and continue for some minimum period of years, such as 20 or more. I address this in my proposals.


An Amendment to Grant the States Authority to Directly Amend the Constitution (allowing two thirds of the states, voting for the exact same language, to amend the Constitution, and providing a six year time frame within which the passage must be secured).

This is the one proposal that Levin almost gets right. We need to be able to amend the Constitution without the consent of Congress, which will resist amendments that diminish the powers it claims. But my proposals keep the number of states at 3/4 and also provide a way to independently certify that the amendments are identical and were properly ratified.


An Amendment to Grant States Authority to Check Congress (three fifths of the state legislatures may overturn acts of Congress or larger impact executive orders, within 24 months, with no judicial review permitted).

Some merit here but since many state legislatures only meet once every two years, 24 months would not provide enough time to act. It would also introduce a level of uncertainty to congressional legislation that could be crippling to sound governance in a fast-moving world. There is no need to overturn specific executive orders, but rather clarification that they can only apply to personnel under the executive's supervision, and within the bounds of constitutional statutes.


An Amendment to Protect the Vote (requiring photo ID for voting in person or via mail ballot and prohibiting electronic voting).

Although it is appropriate to require proof of citizenship and residence, there can be no constitutional requirement to present anything one is not required to have, and there is no constitutional requirement that anyone have a name to be eligible to vote. It is also a critical mistake to require government-issued ID, because that gives government too much power to abuse people by withholding identification or corruptly misidentifying them. If you want an Orwellian regime just require government-issued ID. The solution is a modernized notary system that is decentralized and not easily abused by government. See "Most voter ID statutes unconstitutional". 

My main criticism of Levin's proposals is that they ignore most of the more important reforms that are needed. With the few exceptions noted, most of them would be ineffective or counterproductive. Those who would propose constitutional amendments need to think through all the ways they could go wrong and provide precise language that clever lawyers will have difficulty subverting for at least the next 200 years.

See also:

• Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments! by Publius Huldah
   

Metagaming for Constitutional Design

In game theory a metagame is a game about another game, generally with the objective of finding the best rules or design for that other game. For games like chess or go it is clear that the games did not begin with all the rules and design they has today, but as simpler games, the rules and design for which evolved over the centuries. What the players were doing over the centuries was playing a metagame of finding improvements in the game rules and designs to make play more satisfactory.

Metagaming is everywhere in the world of strategic decision-making, in society, economics, politics, and engineering. In particular it is involved in the evolving designs of constitutions of government and legal institutions. Normative politics is largely a matter of metagaming.

We can carry the process to another level, playing a metagame in which the objective are better rules and designs of the metagame of finding better designs for political constitutions, which are themselves metagames for designing laws and legal institutions. Metagames can even loop back and apply to higher level metagames in a system of them. That is what provisions for amendments in political constitutions do.

Like any games, metagames can be played well or badly, but they can also be analyzed scientifically, or even solved mathematically, perhaps with the help of computer simulation models. Just as chess-playing programs can now regularly beat human opponents, so we can anticipate a day when constitution-writing programs may generate better constitutions than conventions of human beings can design. Constitution-writing software may not be within reach today, but with a concerted, well-funded effort, we can expect to achieve such software in the not too distant future that will outperform human beings.

We can speculate about what such software is likely to yield. During the course of centuries of constitutional design by humans, and the testing of those designs in real-world conditions, certain patterns can be discerned that do not seem to be subject to the vagaries of history or culture. As in the design of buildings, there is some room for taste or even whimsy, but ultimately there do seem to be recurrent and stable principles of design that we might expect to emerge from the evolution and adaptation of such designs for not only human beings of every culture, but even perhaps for other species of similarly capable and semi-autonomous social beings, anywhere in the Universe. The long-held dream of a science of politics may be within reach with the automation of constitutional design. This is one of the results that can be expected from the science of pynthantics.

The most promising approach to developing constitution-writer software is likely to use some form of genetic algorithms, that split and recombine specification components, which are not necessarily words in a natural language, and then tests each combination with simulated societies in which members use it to try to optimize their purposes, and protect their rights. Part of any such simulation is likely to include "clever lawyers" who try to use arguments to get decisions that deviate from "original understanding". An objective of the software would be to design components that are highly resistant to such usurptive efforts, without producing an excessively large document that specifies too many details. If the product is not written in a natural language, then there would need to be a translator function that would do that, so that it could be used by human beings.

So the programmer's ideological preferences do not necessarily affect the design, at least not in a predictable way. It is not likely to be practical or safe to test designs using real societies, so we have to find ways to simulate societies and their members, in which the abstract actors behave enough like human beings to test the design in the way a human society would, but much faster, allowing the selection of better designs to proceed to completion in a reasonable amount of time and at an affordable cost.

See also:

•  Constitutional Design, Jon Roland

Who coined the name "United States of America"?

In another forum a participant took the position that the authoritative version of the Declaration of Independence was not the one signed by the members of the Continental Congress on July 4, 1776, but the versions printed and sent to the states, which changes in capitalization and punctuation of some of the words. That is not correct.

The editorial changes from the original signed document to the copies that were transmitted to the states did not change the meaning. The document is its meaning, not the details of language or style, and an accurate translation into another language would be the same document.

As a hypothetical, suppose the printers had changed the meaning in some substantive way. Would their version then have been the authoritative one, even though it was not confirmed by the Continental Congress? Suppose the printer had inserted the word "not" in some of the copies, sent to some but not all of the states, changing the meaning from declaring independence to not declaring independence. Would the states that got the "not" have remained subject to Britain while the others were independent? Nonsense. The authoritative act was the voice vote to declare independence on July 2, not the signed document, which was evidence of the act, not the act itself.

First use of the name "United States of America" in any style of capitalization appears to be in a series of articles in the Virginia Gazette, published in Williamsburg, beginning in March, 1776:

“What a prodigious sum for the united states of America to give up for the sake of a peace, that, very probably, itself would be one of the greatest misfortunes!” – A PLANTER

So who is A PLANTER?

Likely candidates could be well-known Virginians, like Richard Henry Lee, Patrick Henry, or Thomas Jefferson. But it could have been someone else.

The author was aware of the historical significance of introducing the new name:

“Many to whom this language is new, may, at first, be startled at the name of an independent Republick, [and think that] the expenses of maintaining a long and important war will exceed the disadvantages of submitting to some partial and mutilated accommodation. But let these persons point out to you any other alternative than independence or submission. For it is impossible for us to make any other concessions without yielding to the whole of their demands.”

Perhaps some future historian will discover the author.

Are private "grand juries" legal?

In another forum the question was raised by a lawyer:

Where is the case law providing that a grand jury can be formed and do anything, other than get indicted, without it being summoned by the clerk of court and empaneled by the court?

There is of course no such case law, although state laws differ concerning the procedures. Some provide for summons and empaneling by different officials, such as the sheriff, or authorize the county government to designate who performs those functions. In Texas state law each county has the authority to use one of two methods of selection: key-man or random.

Everything is ultimately based on some kind of public election. In some states, like Texas, it is possible for citizens to conduct a public election to elect an official who does not otherwise have official authority, to an office that is created by the election. Thus, such a public election could elect someone to a new office such as "grand jury administrator" with the authority to summon and impanel grand jurors not necessarily under the supervision of any particular court, but with the authority to pick their own court for the purposes of enforcing summonses and subpoenas, but the court would not be compelled to enforce them. They could appoint prosecutors by issuing indictments to them, but again, the court does not have to allow the prosecutions in its court.

Enforcement all comes down to custom. The justice system depends on voluntary cooperation among several components and officials, and if they refuse to cooperate, there is generally no recourse but "self-help", which is likely to lead to violence. It should always be kept in mind that courts exist to give people an alternative to violence, to prevent civil disorder. But if all the courts want to close their doors and let the riots proceed, that is their prerogative.

A comma would have helped

In another forum a participant asked the question:

But isn't the central question ... whether even "law-trained persons" in 1776 shared a specific theory of capitalization, commas, or semicolons?  Perhaps they did.

They didn't. It was a matter of style or taste. Many of the Founders changed the spellings of their own names from one day to the next, and James Madison did not consistently spell the names of the delegates to the Constitutional Convention (an irritation for moderns using search tools to build concordances and indexes).

That is why one has to be careful interpreting texts, not just from the Founding Era, but for any era. Humans are sloppy. Don't look for consistency in minute details.

One example that illustrates the problem is the clause:

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Moderns, or even many of the Founders (like James Wilson), tended to interpret "committed on the high seas" as an adjectival phrase modifying both "Piracies and Felonies", but piracy was not limited to the seas. There was a long history of land piracy, and "piracy" ("attack") should be understood, using more modern words, as "a warlike act by a nonstate actor against a country other than his own", to form a partition of warlike acts into state and nonstate acts, and distinguish warlike acts against one's own country as "treason". The clause should be read as having the phrase restrict only "Felonies" and not "Piracies", with a missing but needed comma following "Piracies" to make this clear.

Ratchet of rot

With few exceptions, bad Supreme Court precedents seem to move government in only one direction — toward greater power over people — despite the lack of authority for that in the Constitution as originally meant and understood. The Founders warned us of the dangers of creeping tyranny and usurpation from a failure of the people to be vigilant and diligent in their duty to supervise their public servants.

There is no better line of precedents to study to understand this process than those concerning the Commerce and Necessary and Proper clauses. They go back all the way to McCulloch v. Maryland in 1819, pivot on Wickard v. Filburn in 1942, and continue through this day. The main ones are gathered into a spreadsheet, Supreme Court decisions on the Commerce and Necessary and Proper clauses. It contains links to each case, indicated by red buttons, our assessments of the merits of the decisions and opinions, and brief comments on what is right or wrong with each. There are 44 decisions in the spreadsheet.

Some of this has been discussed in other articles, listed at the end of this article.

The texts of the opinions are instructive, but for full understanding it would help to have the original briefs in the cases, including those filed in the lower courts. We are working on getting those and will put them online when we do. In the meantime, one can discern some of what happened to produce the result.

Not all of these decisions were wrong. We include some that were right, usually earlier in our history, most of which were eventually overturned or restricted by later wrong court decisions.

The pattern is clear: In each such case there were strong political pressures to decide in favor of more government power, and weaker pressure against it. The Court yielded to the stronger pressure, and rationalized its decision in the ways it wrote its majority opinion. In some cases there were dissenting opinions that have more merit.

The process can be likened to a ratchet that only allows movement in one direction, or to a barrel of apples that are susceptible to rot. The only way to keep all the apples in the barrel from rotting is to remove the rotten ones faster than the rot spreads. Beyond a certain point that effort is futile, and the only solution is to throw out all the apples and sterilize the barrel, and at that point there may not be enough good apples to replace them.

This ratcheting up of power has incurred some political pushback, some of which managed to get correct decisions recognizing rights against the exercise of government powers. Some of the best decisions on rights emerged in that way. But those cases should not have been necessary if government officials and their patrons had not exceeded their constitutional authority in the first place.

Most federal criminal statutes are now based on this line of precedents. Appeals to the Tenth Amendment are futile when officials have the support of court precedents that support everything they want to do as a way to manage things that "have a substantial effect on interstate commerce". That position was reached step by step, each based on the ones before, that gradually moved beyond any reasonable interpretation of the words in the Constitution as originally understood, using the doctrine of stare decisis, discussed in an article below.

At this point the precedents are so entrenched that there is no serious hope of rolling them back through litigation. The only realistic alternative, as difficult as it might be, are constitutional amendments, and those amendments need to be worded to specifically overturn each of the precedents in the chain. Broad, general provisions won't do. They will have to be almost as specific as the court opinions are, and drafting such amendments is not a job for amateurs.

See:

• Video: Ratchet of Rot: Supreme Court on Commerce Clause
• "Commerce", article from the first edition of the Encyclopedia Britannica, 1771.
• Unnecessary and Improper — Analysis of Necessary and Proper Clause.
• The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
• Diagram of Necessary and Proper Clause
• "How stare decisis Subverts the Law", Jon Roland, Jun. 10, 2000.
• "Original Understanding of the Commerce Clause", Jon Roland, 2002
• "The Original Meaning of the Commerce Clause", Randy E. Barnett, 68 U. Chicago Law Review 101.

Tsarnaev not guilty of federal charges

The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.

The following is a summary of the main federal charges:

1. Use of a weapon of mass destruction resulting in death and conspiracy.
2. Bombing of a place of public use resulting in death and conspiracy.
3. Malicious destruction of property resulting in death and conspiracy.
4. Use of a firearm during and in relation to a crime of violence.
5. Use of a firearm during and in relation to a crime of violence causing death.
6. Carjacking resulting in serious bodily injury.
7. Interference with commerce by threats or violence.
8. Aiding and abetting.

Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

Actually, Jefferson and the Kentucky Legislature did overlook one: crimes committed by military personnel, and militia personnel while in federal service, under military law. But that is a kind of private law for the military, and not applicable to the general public, so the omission is understandable.

The only federal crime which might be a fit for the acts committed is treason, the punishment of which is authorized in Article III:

Section. 3.Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The bombing could be treated as "levying war", and there would seem to be more than enough witnesses to the overt act, if not to seeing the Tsarnaev brothers actually planting or triggering a bomb.

But treason is not one of the charges in the indictment. We should ask why not.

Here is what was said in debate in the Tenth Congress, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50:

Conspiracy is an offence no where mentioned in the Constitution. ... The power to punish conspiracy cannot be included with the class of incidental or resulting powers. ... the people of the United States, by declaring that treason should consist only in levying war. &c., intended to proscribe every other species of it; and it may be questioned whether we can with propriety introduce another species of treason into our penal code under the name of conspiracy. ... This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code.

This argument prevailed, as representing original understanding of the Constitution of 1788 and amendments to it adopted in 1791, the Bill of Rights, concerning "conspiracy". The only further source of authority for it would have to come from subsequent amendments. The closest one finds is the 14th Amendment, except that it only authorizes penal legislation applicable to state actors, not to private persons generally, and the offenders in this case were not state actors.

The authority cited for all of these charges is the Commerce Clause, interpreted as authorizing criminal penalties under the Necessary and Proper Clause, mainly based on the Supreme Court precedent in Wickard v. Filburn, 317 U.S. 111 (1942), but that case and others to the same effect were wrongly decided, as I have argued in several articles:

• A defect in the Constitution
• McCulloch Redux
• Diagram of Necessary and Proper Clause
• The original meaning of "carrying into execution"
• What "commerce" meant to the Framers
• Unnecessary and Improper
• What happened with Wickard?
• Original Meaning of the Commerce Clause

If the American people were being properly educated, it would be nearly impossible to impanel a grand jury that would indict on such charges, or a trial jury that would convict. Achieving that level and kind of education is the challenge before us.

Diversity and representivity

Some question has arisen concerning my proposals for selecting public officials using a multi-stage process of alternative sortition (random selection) and merit selection, similar to the Venetian model, whether the process is only suited for selecting an executive, but not conducive to diversity or representivity in a legislative body.

The value of diversity is to bring arguments and facts into the deliberative process that have merit but might otherwise be overlooked. It is a mistake to conflate it with representivity, which is about allowing minority interests to be heard during deliberation, exercise influence proportional to their numbers, and the perceived legitimacy of decisions made. Any reduction in the number of decisionmakers, necessary to enable deliberation to be efficient, is going to reduce diversity and representivity among decisionmakers to a large extent, but if they are selected wisely, and are wise, they will seek out diverse and representative opinion during the course of their deliberation. That is what hearings and letters from constituents are all about, if attention is paid to merit. (Even nomothetai have constituents.)

There are two  main meanings of representativity: (1) Having a distribution of attributes similar to that of the pool from which representatives are drawn; and (2) Being accountable to constituents for their conduct and in the ways they represent their interests. Election, and re-election, are perceived as critical ways to hold representatives accountable, in a way they would not be if they were selected entirely at random and served for only short periods of time. The desire to get re-elected, or to gain higher office, requires building a reputation for competence and trustworthiness, which in turn enables building influence. On the other hand, election, especially when the result depends in large part on expensive campaigns, is susceptible to undue influence by special interests who focus their financial and other support more than does the general public. A design principle, therefore, is to enable selection of the most reputable without also imparting excessive influence to them. This dictates a multistage selection process in which sortition alternates with merit selection based on things like reputation, professional achievement, or perhaps performance on tests. Accountability could be realized in several ways, such as with retention or recall elections. Let trust go to the trustworthy.

The general population may mostly lack domain knowledge of the issues, but they can do a good job, if asked to deliberate about it, of selecting those among themselves who are wiser and more knowledgeable about policy matters. By having successive rounds of sortition and merit selection, it can be expected that, unless they are all caught up in unthinking passion or devotion to charismatic leaders, there will be an emergence of the wisest and most knowledgeable among them to the final decisionmaking positions, and that is the best we can reasonably hope for, given the limitations of human beings. The only way to overcome that is to turn over decisionmaking to machines, and we are not ready for that as a species or as machinemakers.

My solution for legislative bodies is a bicameral system using different selection processes. One body, call it the Senate, would use the multi-stage sortition/merit process, and the other would use proxy voting http://constitution.org/voting/proxy_voting.htm . The two houses would combine the advantages of each process, allowing diverse and representative voices to be heard, but also serve as a check on one another, to block a rush to judgment.

I would also apply the sortition/merit process to selection of judges, much the way we are already supposed to do for trial and grand juries. Judges might be appointed for life, not to a particular court, but to a general judicial pool from which they would be drawn at random to serve on courts and hear cases.
It is all set forth at http://constitution.org/reform/us/con_amend.htm

Make a difference!

When I founded the Constitution Society in 1994, and later set up its website, committed defenders of the Constitution, as originally meant and understood, were rare, and dismissed by most decisionmakers and opinion leaders as hopelessly idealistic. We were regarded as holding "fringe views", out of the "mainstream",  that did not enjoy enough support to be worthy of recognition or participation in serious discussion forums.

But we persisted, and more and more joined us. Whereas when we started there was little mention of the Constitution in political debates, now it is everywhere. Most people who claim to support it don't really understand what it requires of us, but at least they are beginning to learn.

Not that there have not been many other organizations in the field claiming to support the Constitution. They have held meetings, and written papers and books, and occasionally testified before Congress. (So would we if we had the money.) Some of these other organizations were moderately fashionable and attracted large donations, but not by embracing controversy or developing specific solutions. They have played it safe, while we have boldly stepped forward and proclaimed things unconstitutional, proposed specific solutions, and defended those positions in forums that matter. (We also offer opposing views an opportunity to be heard.)

Have you never wondered why members of Congress who proclaim they support the right to keep and bear arms don't just introduce bills to repeal all the unconstitutional federal gun control laws? Or even draft legislation for public debate? We have two bills that do that, one for the federal government and one for state governments. Are they sincere, or do they just want the issue to remain alive, bringing them support for re-election, without seriously seeking to finally settle the issue? For how many other constitutional violations are they and other decisionmakers and opinion leaders doing the same thing? Have you seen much legislation to fix the problems? Or many cases filed in court? Or do they seem to be just trying to keep low profiles, hoping the public outrage will subside so they can get back to business as usual?

Now they do introduce a few bills once in a while, but how many of them are really well-conceived and well-written? Examine most of them more carefully and you will find they are unworkable except to get people who don't know better excited. That is not responsible legislating. It is just cheap political entertainment.

We are making a difference. Many decisionmakers and opinion leaders tell us so. They admit they go to our website first when seeking answers to constitutional questions. Everything they need is on one site, and if not, we will add it within minutes.

We have never charged dues, or charged for publications we produce, which we put online for free. We don't  believe in charging for the information people need to defend the Constitution. There are many others who do charge, usually for things of little value, or even for misinformation that can get people into trouble, yet people pay for that because they mistakenly think that if they have to pay for something it must somehow be more valuable. We refuse to play that game.

But we do need money. We can't do everything on volunteer efforts alone. If you click on our Donate Now! button:

You will see how much has been donated through this tool in about the last two years. Yet look at how much we have been able to do with so little money. Now imagine how much more we could do with a lot more. The time is ripe to do the things we know how to do, and that other organizations are not likely to do, even with all the money they are getting.

Surely you can afford $10 a month as a recurring donation. That is only about the cost of dinner or a movie. Is liberty and justice for you and your children and grandchildren not worth more than that? Click on the button and set it up. it's easy, you'll feel better about yourself, and you'll never miss it.

Don't look back after the Constitution has been completely lost, when tyranny rules supreme, and regret that you did not do even that much for the cause of liberty. If everyone who reads this message would help with at least $10 a month, we might avoid that dismal future. But we don't have a lot of time. The window of opportunity is right now. It may not be there a year from now.


Just click on the button. And forward this message to all your friends.

The economics of tyranny

The renewed focus on surveillance by the NSA and other U.S. government agencies has brought criticism of it as evidence of the emergence of "soft" totalitarianism that is not limited to the U.S., its allies, or the other major powers, including large corporations, that play a part in it. People are properly objecting to is as an invasion of privacy, and attributing sinister motives to it, while its proponents protest that they are merely trying to protect public security.

Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters. — Daniel Webster

We can attribute expansion of government powers to the desires of officials to have the means to achieve their ends, whether benign or malevolent, but there is another important factor driving such grasping for more power: It is often cheaper to exercise sweeping powers than targeted powers.

NSA surveillance highlights this explanation. Ask what it would take, and what it would cost, to limit surveillance to those for whom probable cause could be established and a warrant established. The answer, at least in the judgment of those who support the program, is that it would cost much more than just collecting and storing all communications it physically can, having machines flagging suspicious words or patterns, and use the machine scans, among other means, to establish "probable cause" for a warrant for a human investigator to examine the records. The claim is that it is not a Fourth Amendment "search" until a human does it. Never mind that sophisticated AI software may eventually equal or exceed what humans can do.

Even at $1.2 billion, with the capacity to store copies of every electronic communication on Earth for the next several hundred years, the NSA Utah Data Center is thought to be less expensive than targeted investigations of individual threats.

The problem, of course, is that it is not just the NSA doing the collecting and storing. Other governments and private organizations are doing it as well. Too many with the means to collect and store the information are reluctant to allow it to be lost, especially when it might be saved by someone else and used against one. We are entering the era in which nothing we say, write, or perhaps even think, ever disappears.

Be careful what you wish for, because your wishes are likely soon to be a matter of public record.

In law and war

The protections of rights in constitutions are designed for situations in which threats to those rights, and to the processes of government, are sparse, and amenable to particular treatment. In the early Republic crime was rare, and the ordinary processes of law and government adequate to manage it. But we also have the example of the 1861-65 War of Secession, when those protections broke down, overwhelmed by violations and the urgent demands for violations.

Inter arma enim silent leges is a Latin phrase, a variant of words by Cicero, meaning "Among arms, the laws fall mute," more popularly rendered as "In war, the law is silent." It was written during a time when violent mobs were common. But it carries the notion that the orderly processes of law are luxuries for peaceful times and mostly virtuous people. When people become violent or vicious law becomes too costly to administer.

We saw the economics play out in the War in Viet Nam, where U.S. troops initially entered villages to identify, remove, and detain the enemy combatants mingled with the other villagers, but abandoned that kind of effort when they incurred too many casualties by doing so.

"It became necessary to destroy the village in order to save it." — An American major after the destruction of the Vietnamese Village Ben Tre.

 "My Lai ... was the result of an ordered, planned and well-conducted campaign conceived at high command levels ... as the 'pacification' of Vietnamese villagers." — Richard Boyle, Flower of the Dragon, 1972.

"Caedite eos. Novit enim Dominus qui sunt eius." (Kill them all. Let God sort them out) — Arnaud Amalric, to a soldier in the Albigensian Crusade, Sack of Béziers, July 22, 1209. Revived as a saying in the Viet Nam War.

We find a similar calculation being made in police policies and training, carried over from military training,  that put "force protection" ahead of "public safety", and train police to shoot, and shoot to kill, at the first hint that a suspect might be armed and dangerous, even if it makes it more likely that the person killed will be an innocent civilian or perhaps even a depressed person trying to commit "suicide by cop".

We also find a similar approach taken by police and public prosecutors who engage in fabrication of evidence to get the "bad guys off the streets" on the supposition they are guilty of something even if not the offense for which they are actually prosecuted. Many criminal statutes have been passed for no other reason than to define "crimes" that are easy to prove, as a substitute for incurring the expense of investigating real crimes, or to get perjured testimony from "confidential informants" induced by plea bargains.

A partial remedy for this, besides forbidding plea bargains, would be to separate the office of public prosecutor into an office of public procurator, who would play a ministerial, quasi-judicial function, and public or private prosecutors, appointed by the grand jury, who would actually prosecute cases in court. It would be important for procurators to be impartial, but prosecutors would not need to be. It has been a historical mistake to combine the two functions into the same official.

Taxation and regulation on the cheap

The IRS is loathed by almost everyone, tolerated because it is thought to enable government to afford the services most of us want, but if we examine what is happening economically, we find that it is trying to administer a tax collection system without laws that are clear (or that even exist), left to make up its own rules from one case and day to the next, at a cost that is less than the money it collects. Even if there were clear laws, taxing "income" (however defined) fairly would require auditing and assessing each taxpayer individually, a process that could not be less expensive than the taxes collected for any but those on the high tip of the income spectrum. The only economically viable collection method involves terrorizing everyone and treating almost no one fairly by any standard. Leaving aside constitutionality, that is the very essence of totalitarian tyranny.

We see a similar pattern for much government regulation. By imposing regulations that cannot be fairly or particularly applied at an affordable cost, government inevitably becomes oppressive and tyrannical, in the original sense of acting without lawful authority.

In one examines the language of the U.S. Constitution closely, one can discern that the original intent of taxation and regulation was that it was mainly to be applied at inspection points through which merchants would be required to pass, not by armies of regulators or tax collectors harassing people in their homes or places of business. Excise taxes on transactions that did not travel through inspection stations was contemplated, but not to such as extent as has emerged.

Insights from physics

A dynamic system can be described by a function called the Lagrangian, introduced by Joseph Louis Lagrange in 1788. The value of the Lagrangian over a time interval forms a curve, the area under which is called its action, and nature constrains the system to behave in a way that minimizes its action, in what is called the Principle of Least Action. By analogy a human political, economic, and legal system can be thought of as being described by a kind of Lagrangian which predicts totalitarian behavior unless the system is structured in a way that causes the action to be minimized without taking a totalitarian trajectory. The objective of a properly designed and enforced constitution of government is to do just that, but this analytic approach also shows that without strict compliance with such a constitution, totalitarian tyranny is the inevitable result. Tolerating a little noncompliance is intrinsically unstable. Anything less than strict compliance is disturbing a house of cards.

See also:

• A right to nonsurveillance?
• A defect in the Constitution
• 100 obstacles to constitutional compliance
• Selected Works on Tyranny

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.

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