Schuette decision

Discussants of these issues have been making a muddle, confusing themselves and others. Let us try to sort things out.

1. The original concept of "affirmative action" was to make efforts to encourage underperforming students to meet common standards, not to lower standards so that more of them could have the appearance of success but not the substance of it. It did not contemplate quotas.

2. But "efforts" can't be measured, so because minorities were not immediately advancing in proportion to their numbers, and because it was presumed that aptitude and motivation were equally distributed among every group, there was a leap to using quotas as a way to measure effort, to remediate the conjectured effects of past unfair discrimination, and to attribute continuing underperformance to further unfair discrimination. These are mistakes that need to be corrected.

3. Each individual is solely responsible for educating himself. The young are not passive vessels into which education can be poured. They have to want to learn, and to have the ability to learn. If they don't, no amount of effort or resource expenditure will educate them to any particular level we might set for them.

4. More talented and industrious people tend to marry similarly talented and industrious people and are more likely to produce more talented and industrious offspring. Over the course of generations, this will tend to result in stratification of society by talent and industriousness. Of course there will always be some from the lower levels who will have what it takes to rise to higher levels, and they should be encouraged and the way cleared for them, but this stratification can be expected even if there is no unfair discrimination against the less fit. Discrimination based on merit is not unfair.

5. Lack of motivation to become educated is not just the result of family or community cultures that don't value educational advancement or that discourage educational achievement, and those things are not just the legacy of past unfair discrimination. Many groups have suffered unfair discrimination throughout history and responded with increased determination to advance. We need to examine how the lack of such determination may be a rational choice based on accurately perceived lack of personal aptitude. The less-talented generally are aware they are less talented and adjust their expectations accordingly. They may also hate themselves for their shortcomings and angrily inflict that hatred on others. We might want them to try harder, but there are limits to how much that desire will increase their motivation, and legal interventions are likely to be counterproductive.

6. We also need to confront the evidence that aptitude is not uniformly distributed among all groups. That is not just the result of flawed measures. Some of the measures might be flawed, but even if we correct for flaws we still have the evidence that does not support the aspirations almost all of us share that there be no such differences. If there are differences we need to deal with that reality, not ignore it or attempt to explain it away. "Nature cannot be fooled."

7. In this case the Supreme Court was being somewhat disingenuous in holding the decision should be left to the voters, because they agreed with this decision by the voters. If the voters had decided to do something unfairly discriminatory, they would have overturned that decision, and properly so.

8. These issues may not have satisfactory solutions until we can genetically engineer our offspring to all be superior by present standards, not only in aptitude but in character. But we also have to anticipate that such engineering will not always be done or have salutary results. For at least the next century things are likely to get rough.

Justice Stevens’ Proposed Six Amendments

Former supreme court justice John Paul Stevens has just published a book, Six Amendments, in which he proposes some very poorly worded reforms, and some that are misguided in their intent. Here are the amendments, with the key changes made in present provisions in bold:

1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) — This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
    
2. Political Gerrymandering — Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
    
3. Campaign Finance — Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
    
4. Sovereign Immunity — Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
    
5. Death Penalty (Amend the 8th Amendment) — Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
    
6. The Second Amendment (Amend the 2nd Amendment) — A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

This demonstrates that even one whose job was to decide constitutional cases does not thereby acquire the knowledge and skills needed to competently draft amendments to the U.S. Constitution. I estimate there are probably less than 200 such persons alive, and none of them are on the federal bench.

Drafting competent constitutional amendments is awesomely difficult. My attempt to do so is at http://constitution.org/reform/us/con_amend.htm and I am still making revisions from comments. I have not seen better ones from people one might expect should be able to do this kind of thing.

There are several things wrong with his proposed amendments.

First, an amendment should not restate what is already in the Constitution, but only refer to what is being added or revised.

Now to discuss the flaws in each of his proposals, similarly numbered:

1. The wording is unclear as to whether it makes state actors federal and subject to federal command, or omits to provide such authority, making his amendment a nullity.
2. Void for vagueness. My approach is to eliminate single-member districts and go to a system of proxy voting for the lower house of both Congress and the state legislatures. I also have a non-amendment proposal for using a computer to randomly draw districts using a mathematical algorithm.
3. Interpreted strictly it would enable making campaigning a crime, perhaps selectively enforced, which would not only be ineffective but highly counterproductive of any rational benefit. Horrible idea.
4. His amendment only provides for construction of the U.S. Constitution, but does not address immunity based on state constitutions or judicial doctrine, federal or state, that don't reference any constitution. Stevens lumps sovereign and official immunity and covers only liability for violation of federal statutes or Constitution. My amendment states: "Sovereign immunity of a state or the nation shall not be a bar to suit, only to execution of judgment against assets not provided by an act of Congress or the state legislature for payment of claims." I address official immunity in a separate amendment that provides a procedure for removing it. "No person shall be unreasonably impeded from access to a randomly selected grand jury of 23, who, if they should return an indictment or presentment, may appoint that person or any other to prosecute the case, and shall decide which court, if any, has jurisdiction, and whether any person shall have official immunity from suit." Stevens only provides for states, state agencies, or state officials, and not federal actors, and not private actors acting at the direction or instigation of public actors. I extend these reforms to federal actors and to private actors under government instigation.
5. Surplus language. Could have been simply stated: "The death penalty shall not be imposed."
6. Vaguely tries to suggest that "militia" is only some kind of government-directed activity, while I make it clear it is any defense activity, including solitary unorganized activity or preparation for defense.

Readers are encouraged to submit suggestions for better wording of my amendments.

Article V convention proposals misguided

We have recently seen a flurry of movements to convene an Article V convention to propose amendments to the U.S. Constitution (links at the end). They are driven by the realization that only amendments might reverse wrong directions taken by the federal government, and because many of those amendments would need to reduce the powers claimed by Congress, the development of proposed amendments is not something we can expect Congress to do. They are right about both points, and we have developed our own proposed amendments, but we also offer a far better strategy for getting such amendments adopted and implemented.

Such movements are not new. There have been many in the past. They've all failed, because they've all made the same few mistakes, are making the same mistakes again, and seem unable to learn from those mistakes. Here are the common mistakes:

1. They underestimate the difficulty of composing sound amendments. Except for the first ten, the Bill of Rights, almost all that have been proposed or adopted have been sloppily written and did not work out as intended. Recent proposals by most reform groups are even worse.
2. They imagine an Article V convention will be composed of persons who can and will compose sound amendments. There are probably less than 200 persons alive with the skills to compose sound amendments, they don't agree on any, and  none of them would be delegates at any Article V convention.
3. They ignore the careful preparatory work needed to develop sound amendments by teams of experts meeting to hammer them out with extensive public discussion. We do need conventions, but not a comprehensive Article V convention. We need to assemble as many of those constitutional amendment experts as we can to develop proposals for reversing specific  court precedents, probably separate conventions for each wrong precedent.
4. They seek a few sweeping amendments that will reform everything, when the only thing can can work are amendments narrowly tailored to overturn specific lines of court precedents. Because amendments are so difficult to get ratified, they seek to do too much with too few, generally between one and ten. That won't work. Broad amendments would have to be written in broad language that would have the same kind of ambiguities that have allowed the misinterpretations to which we object. The Constitution needs greater specificity, and if that takes more than 100 amendments, then that is was we need to develop and ratify.

Our proposals avoid all these mistakes, yet the various movement proponents seem unable to grasp why ours is the proper approach.

The standard model for such conventions would be for each state to decide how to appoint its delegates. Voting would be by state, with the vote of each state determined by a majority vote among its delegates. If appointed by state officials we can have some expectation of the composition from the partisan balances in each state. If appointed by governors, there are 30 Republicans, 19 Democrats, and one Independent. If appointed by legislatures, there are 27 Republican-controlled, 18 Democratic-controlled, 4 split, and one nonpartisan. However, if delegates are elected we might expect a breakdown that resembles the last election for the U.S. Senate, now at 54 Democrats to 45 Republicans, or the votes for president, for which 24 states went Republican and 26 went Democratic. None of these methods of selection promises to send delegates who have the skills needed to competently draft amendments to the U.S. Constitution, much less the concerns of the advocates for such amendments. It would more likely resemble a joint meeting of the Republican and Democratic national conventions trying to agree on a platform, and they don't do that very well even when they meet separately and have most of the work done in committees that meet for months before the convention.

The purpose of an Article V convention is to provide a way to develop proposals, especially if Congress is reluctant or unable to do so, but as we have seen from all the proposals developed at conventions of all kinds, they are simply not forums that are competent to do the difficult work of developing sound proposals. The appropriate forums are gatherings of experts on particular departures from constitutional compliance by courts, that can specialize on developing one or a few specific proposals. Those would not be official Article V conventions, but privately convened special conventions, perhaps a series of several on each issue, conducted over a period of years, with public comment between sessions. Only after the proposals are thoroughly worked out, and perhaps tested at the state level, should a movement seek to get each of several state conventions to support the exact private proposals, with no changes, and demand Congress adopt them, again with no changes, as proposals to be submitted back to the states for final ratification.

There is no role in this process for an Article V convention. If private gatherings can develop the language of proposals, there would be no need for one. All the work for one would already be done. That is the way we need to seek amendments.

How an Article V convention might go terribly wrong

Can such a convention be instructed or controlled once it convenes? No. There is no enforcement process for any controls. Consider the following scenario:

1. Convention meets in secret
2. It proposes entire new constitution which contains no rights or restrictions on governmental powers
3. The proposal promises large benefits to every citizen or resident of the country, such as a minimum income of $100,000 a year (which would be impossible, but most people won't know that).
4. It declares it will go into effect when ratified by a national referendum of citizens (or perhaps even non-citizens)
5. A majority votes for it (and if they do how will anyone overcome that?)
6. Ruling class use the new government to solidify their control, make everyone dependent on them, suppress all dissent as "terrorism"

See further:

• Mark Levin's Liberty Amendments
• Can amendments save the Constitution?
• List of constitutional rights
• 1832 Call for Article V Convention
• So what about a balanced budget amendment?
• Flaws in Balanced Budget Amendment
• Convention of States Project
• Convention Of The States: Wrong On History, Nullification
• Tea Party Patriot’s Article V Symposium

Preamble meaning and purpose

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Preamble of the U.S. Constitution can best be understood and explained as a statement of purpose for the document that follows. Its functional meaning, by the common law rules of construction, is to restrict what follows to the purposes it expresses. Thus, a delegation of power that might seem to be plenary is to be interpreted as constrained to those purposes. As such, no delegations of power in the Constitution are plenary.

For example, consider the Elections Clause. Congress is granted pre-emptive powers over state laws to prescribe the time, manner, and place of congressional elections, except the place of senatorial elections. On a plain understanding of the words, that would seem to empower Congress to require congressional elections to be conducted within a one-nanosecond timeframe, while balancing on one's fingertip, at a polling place on the moon. Obviously absurd? Of course, but if you seek a textual basis for excluding that, it can be found in the Preamble.

"Dead hand" problem for originalists?

In a recent post to his blog, "A simple (and serious) puzzle for originalists",
Eric Posner states "All originalists acknowledge the “dead hand” problem, and so all agree that the normative case for originalism depends on the amendment procedure being adequate for keeping the constitution up to date."

First, this originalist does not acknowledge the "dead hand" problem, as a general proposition. If a constitution is sufficiently well-written at the outset there is not necessarily any need to amend it to keep it "up to date". A constitution is written for human nature that has not changed much in 40,000 years and won't change much until we genetically engineer ourselves into having quite another nature.

Most of the demands to "update" the Constitution are demands to enable redistribution of wealth, or to enable arrogant people who delude themselves that they are capable of managing complicated systems if only they are given powers to "make us better". Lots of luck with that. Better not to let them try.

That is not to say that the U.S. Constitution could not use some amendments. I have proposed several. They fall into three categories. The clarifying amendments are to overturn wrong court precedents. They add no new powers or offices, and change no procedures. They would merely return us to what was originally understood. The remedial amendments are to correct some errors and omissions made by the Framers that they should have made shortly after ratification, but didn't. The substantive amendments would make structural and procedural changes, but mostly not to redistribute wealth. Mainly to provide additional protections for rights against the actions of officials.

Now we turn to the absurd arguments about voting rules. They are absurd because the votes of human beings are not independent random events. If they were law and government would be impossible. They are the result of an equilibrium among competing diffusion processes. A position in favor of some change initially develops among a few people, then spreads to others, while a position in opposition to that change develops in others and similarly spreads. Through public deliberation a stable balance is eventually reached, perhaps after decades, and if those favoring the change are sufficient in number, the change is adopted.

Of course, even this model is somewhat oversimplified, because for constitutional amendment to occur the balances must develop in each of several states and in the Congress. The main obstacle is not, however, the states, but Congress, if the amendment demanded would reduce their claimed (but often unconstitutional) powers, as many of my proposals would do. The main reason it seems so difficult to amend the Constitution is that most of the impulses to do so would be attempts by Congress to expand its power, generally at the expense of the states, and the states not being willing to let that happen. That is not a defect in Article V, but precisely the way it was supposed to work. The defect, which I address in one of my amendments, is allowing Congress to block amendments that would reduce its claimed powers. Since that is what most of my proposed amendments do, it is highly unlikely Congress would ever propose any of them to the states for ratification. From my originalist standpoint, it is Congress that is the problem, not the amendment process once the states get the proposed amendments.

Bill of Rights Day 2013

How the Bill of Rights came to be

The original Constitution proposed by the Philadelphia Convention on September 17, 1787, did not contain a bill of rights. The omission was not an oversight. Most of the Framers, led by James Madison, argued:

1. A bill of rights was unnecessary, because no powers had been delegated that might infringe on them.
2. Declared rights are mere "parchment barriers" that can only be protected by constitutional structures that divide power among contending forces.
3. Listing all rights was impossible, and it would be dangerous to provide a partial list because any omissions could be interpreted as those rights not existing, under the rule of expressio unius est exclusio alterius.

But many of the Framers, led by George Mason, the author of the Virginia Bill of Rights, opposed ratification of the Constitution without a bill of rights. To win their support, proponents of ratification agreed to adopt a bill of rights and other amendments immediately after adopting the Constitution, and almost every state ratifying convention proposed a list of amendments, most of them about rights. After the Constitution was ratified June 21, 1788, and Madison was elected to the House of Representatives from Virginia, he gathered all the proposed amendments and some others and tried to boil most of them down into a short list he thought could be ratified, which he proposed to Congress, which proceeded to further condense them into ten rights amendments and two others concerning compensation of members of Congress and representation in the U.S. House.

Madison originally proposed to avoid the expressio unius est exclusio alterius problem with a catch-all amendment that declared protection of "unenumerated" rights, which were to be found in legal history and right reason according to the principles of natural law. Congress divided his proposal into two amendments that became the Ninth and Tenth amendments.
 
Those ten rights amendments were ratified by December 15, 1791, and came to be called the Bill of Rights, even though that is not their official title in the Constitution of the time.

Utility of Bill of Rights soon proven

As the anti-federalists feared, it did not take long for clever lawyers to find excuses in the imprecise language of the Constitution to expand federal power beyond what the Framers originally intended. The provisions of the Bill of Rights have become the main battleground for cases over rights. Time and again it has only been the more specific language of the first eight of the Bill of Rights that has stood in the way of having rights infringed.

As Madison and some others feared, the Ninth and Tenth Amendments have, in their lack of specificity, proven to offer little protection for rights. Even judges who proclaim themselves "originalists" are loath to find any rights in the Ninth Amendment by researching the historical background, and the Tenth Amendment has proven to be no barrier to interpreting the Commerce and Necessary and Proper clauses to give the federal government almost unlimited power to do whatever it wants.

But the other articles of the Bill of Rights are under attack, in practice if not in court. Every one of them have been violated, and it has only been the somewhat more specific language they contain that has prevented complete loss of their protections. They have provided "a standard to which the wise and the honest can repair", in the words of George Washington on the last day of the Constitutional Convention. Having that standard has enabled defenders of freedom to unite their efforts to push back, in a way they would lack in the absence of those somewhat specific words.

But if we are to prevail we must do more than conduct a fighting retreat. We must rediscover those rights referenced in the Ninth Amendment, and cut back on the expansions of power that threaten to make the Tenth Amendment meaningless.

Why we celebrate Bill of Rights Day

Although defenders of liberty must celebrate the Bill of Rights, including the Ninth and Tenth amendments, every day, December 15 of each year provides an anniversary to give it common focus. We have created a website to facilitate this:

bill-of-rights-day.org

You are also invited to study the following documents:

1. U.S. Bill of Rights
2. Documentary History of the Bill of Rights
3. List of constitutional rights  — Expanded list, derived from legal history
4. Presumption of Non-authority and Unenumerated Rights  — Analysis of Ninth Amendment
5. Civil Rights Act — Legislation to protect expanded list of rights
6. Social Contract and Constitutional Republics
7. Constitutional Construction

"Proper", "Plenary", and Preamble

It was not until NFIB v. Sibelius, 132 S.Ct. 2566 (2012), that the Supreme Court began to address the meaning of "proper" in the Necessary and Proper Clause, on which most of the powers of government have been erected since the breakthrough case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), in which CJ John Marshall interpreted "necessary" to mean "convenient", and said nothing about "proper". It and Sibelius also did not address the meaning of "carrying into execution", discussed elsewhere (see links at the end).

Ilya Somin has an article on this, The Individual Mandate and the Proper Meaning of “Proper” at SSRN. He explains that five of the justices agreed that "proper" does not allow "plenary" (unlimited) power, but they did not offer clear guidance on where the boundaries are.

CJ Marshall also introduced the term "plenary" into Supreme Court jurisprudence in Gibbons v. Ogden, 22 U.S. 1 (1824), in which he found that delegations of power were "plenary" within their sphere (subject matter). Ever since government lawyers have been building power on that opinion.

It requires only a little research into the historical background of legal delegation of power, and usage of the term "plenary", to find that no delegations of constitutional power can ever be literally unlimited, that is, "plenary". There is always an implicit constraint that a power only be exercised for a legitimate public purpose, and that is what the Framers meant by "proper", not just for incidental "necessary and proper" powers, but all powers.

So where can we find authoritative guidance for what is proper? We can go back to Edward Coke, William Blackstone, and other legal authorities on whom the Founders relied, but we can also find a large part of it in the Constitution itself, indeed at the very beginning of it, the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Now the conventional view that that the Preamble adds no real content to the Constitution. It is merely what lawyers call "aspirational". It delegates no powers, defines no rights or duties, creates no structures or procedures. But it is not without constitutional meaning, because it defines six constraints on what are legitimate exercises of power, and therefore on delegations of power. Those are not the only constraints, but it is a good start.

Let us consider some delegations of power in the Constitution, and consider what it would mean if the delegations were "plenary":

Art. I Sec. 4 Cl. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

If the pre-emptive power of Congress over the time, place, and manner of congressional elections (except the place of senatorial elections) were plenary, they could require the elections be held within a 1-second timeframe, at a polling place on the moon, while standing on one's head. Ridiculous? Of course. The power may only properly be exercised to make elections more accurate, convenient, and representative. That is an implied restriction on the delegation, which is not made explicit in the Preamble, but may be expressed as being for a "legitimate public purpose".

Or consider this:

Art. I Sec. 8 Cl. "The Congress shall have power ... 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;

If that congressional power were plenary, it would seem to allow Congress to forbid militia training and assembly or action. But that would be in conflict with the preamble of the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Which clearly implies the intent that militia be kept in a high state of readiness. A proper exercise of the power would be to enhance the effectiveness of militia, not impair it. It may be regulated, but only in one direction.

Here is another that some lawyers have been arguing is plenary:

Art. IV Sec. 3 Cl. 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; ...

They actually argue this clause confers plenary, unlimited, power to dispose of any property in any way Congress may choose, even to drain the treasury to give all public funds to themselves or their cronies (which seems to be what they are doing), or to give any or all of the land of the country to a foreign enemy to be used to attack us. That obviously can't be correct. In fact the power is that of a fiduciary, with government officials acting as trustees of the trust defined by the Constitution, having the duty to manage public trust assets for the general benefit of the people as a whole, not for the special benefit of a part of the people.

We also see this indicated in

Art. I Sec. 8 Cl. 1. 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; 

In this clause, "common defense and general welfare" are not distinct delegations of power, but restrictions on the purposes of taxing and spending, that they be for the general benefit of all and not for the special benefit of a few.

Improper exercises of power are also what give rise to complaints of "abuse of discretion", which are in principle justiciable. If the powers of officials were plenary there could be no abuse of discretion.

Proposed amendment

No plenary powers
All powers delegated in this Constitution are constrained to be exercised only for a proper, or reasonable, rational, and legitimate, public purpose, as a fiduciary trust for the general benefit of all the people and not for the special benefit of any part of them, partially but not completely stated in the Preamble. No power is plenary or without limits, and no power may be extended to accomplish a purpose without amendment.

See also:

1. Ratchet of rot
2. Unnecessary and Improper — Analysis of Necessary and Proper Clause.
3. The original meaning of "carrying into execution" — The restrictive phrase has never been properly adjudicated.
4. Diagram of Necessary and Proper Clause

Government shutdown and debt ceiling FAQ

There have been a number of Frequently Asked Questions pages posted on the Net concerning the government "shutdown" and debt ceiling, which provide commonly conceived "answers", but it seems fitting to provide some more constitutionally enlightened answers to some of those questions:

1. If there is no congressional appropriation, how can the government keep spending money on "essential" operations? Constitutionally, it can't. There is no constitutional exception for "essential" operations. If government complied with the Constitution, it would have to shut down all spending and proceed entirely using unpaid volunteers, as it did in the beginning.
2. How can some spending be outside the appropriation process? Constitutionally it can't. It is done on the rationalization that the Constitution does not explicitly forbid setting up "independent" agencies that may be "self-funded" from their own taxes or fees, or forbid multi-year appropriations for other than the Army, but the Constitution doesn't authorize those things, either, and one cannot logically infer a power from the omission of a prohibition on its exercise. The design established by the Constitution requires all revenues go into the Treasury, and all disbursements to be made under appropriations that may not extend beyond the terms of Congress, which are two year periods.
3. Why can't government workers volunteer? Constitutionally, there is no authority to stop them from doing so, although there is a 19th century criminal statute that forbids it. The statute could constitutionally forbid volunteers to use government-owned assets, but the only authority to forbid voluntary action would be to fire them, and they could then volunteer as non-employees using their own resources. Of course, if government prosecutors are "furloughed" there would be no one to enforce the statute. Somehow, one suspects it is a dead letter.
4. So who is to blame for the shutdown? The Constitution requires agreement by both houses of Congress and the President to authorize spending, from one year to the next, and does not authorize "permanent" appropriation for anything, so the default is to not spend and the fault belongs to those who insist on spending over the objections of one of the other components, in this case the House of Representatives, which has superior authority as the only house that may initiate spending bills. The compromise position would be to cut all spending not agreed to by all the components.
5. Why would the government "default" if the debt ceiling is not raised? Depends on what you mean by "default". The way most economists use that term, it would only be failure to pay interest on lawful bond debt, and principal on such debt when it comes due, and there is more than enough revenue from taxes, about $200 billion/month,  to pay bond debt coming due at about $20 billion/month, so from that viewpoint, there is no risk of "default" if the debt ceiling is not raised, although there could be delays in payment of a few days. However, the way the Administration and its supporters in Congress are using the term, it is any and all obligations or expectations of payment, from payment of medical claims on Medicare to vendors of goods and services to subsidies and grants to key constituents. That is a matter of not wanting to incur the political costs of ending patronage.
6. What would happen if the debt ceiling were not raised? The government would have to immediately stop all spending in excess of revenues, which would be a reduction of about 30%. That would mean ending almost all entitlement spending, on things like Medicare, Medicaid, farm subsidies, food stamps, housing subsidies, education subsidies, and payments to government-funded pension funds. Arguably Social Security benefits could continue as long as enough FICA taxes were collected, but if those taxes are not keeping up with benefits, those benefits would have to be reduced to stay within receipts, or further applications not accepted. Advocates of more spending and borrowing make the Keynesian argument that a sudden cutoff would be disastrous to the economy. There would almost certainly be a shock from any sudden change in government spending, and many enterprises that have grown to depend on it might go bankrupt, but reduced government borrowing would also make more investment funds available to other things, like expanding businesses, creating jobs, and investing in new technologies, so after a period of adjustment, the net effect is likely to be beneficial to the economy.
7. How many federal workers would have to be laid off?  The number is unclear, but it could be less than 800,000 (about as many as were recently furloughed as "nonessential"), and if civil service and union protections were reduced, that could be of unproductive workers, so that there would be no impact on work actually done. If many salaries were reduced instead of just terminating workers, the savings could be even greater. That might conflict with some union contracts, but those could be legislatively abrogated. In the demobilization following WWII the number of service personnel was reduced from more than 12 million to about 1.56 million in less than a year, and the economy was able to absorb them, despite cutbacks in wartime production. Of course we have a different economy now, less able to absorb many kinds of government workers, but most of the loss would be borne by benefits recipients and vendors of services to them. Medical facilities and some large farming operations might be hard hit, but they could be helped to restructure. Critical patients would still receive care if such care would prolong life for years, but their quality of life and life expectancy might diminish. More people might need to share housing. Many people would have less money to spend, and thus demand would be reduced, but they would also work for less. Many homeowners might be reduced to renters.
8. Has this country ever defaulted? There have actually been at least three major defaults in our history: Following the War for Independence about 1790, during the Civil War about 1862, and during the Depression in 1933. Arguably the "Nixon shock" of 1971, abrogating the Bretton Woods accords, was a fourth default. All resulted in payment in paper "money" instead of gold or silver, and was tolerated only on the implied understanding that the growth of the supply of fiat currency would be limited to match economic growth. By constitutional standards, we are already in default, and have been for some decades. Printing debt-based currency to pay debt that was expected to be paid with something else, is default, and we are likely to continue to do that, even if the result is hyperinflation. 
9. So would such a sharp reduction in federal spending cause a recession, or worse?  Not if it is planned and managed well. World financial markets don't care if we reduce subsidies to nonproductive people, only if we don't pay interest and principal on the government bonds that are used to back their own investments and currencies. Of course they have their own sovereign and derivatives debt problems, and the only way to avoid a catastrophic global collapse is to manage an orderly write-down of financial assets, perhaps down to only a few cents on the dollar. The only alternative to having almost all investors wiped out completely is to have them all wiped out mostly. That would mean things like insurance and pension funds only paying a fraction of claims, and stock companies not paying dividends. But fractions are better than nothing. However, such a general write-down has never been managed on a global scale, and it is not clear how it could be managed without too many trying to evade the losses as free-riders.
10. How fast could the national debt be paid off completely? We are paying about $240 billion/year on bond debt, which, because of current low interest rates, is largely going to reduce principal on the debt, so if we did no more borrowing, we could reduce the debt ceiling about $200 billion a year for the next several years, then increase the rate to about $500 billion a year until all of it is paid off. That would also inject that amount into the financial and productive markets, which would be likely to result in economic growth and more tax revenues. Other obligations are another matter. Support for consumption by the elderly and ill by a shrinking population of young producers cannot go on, so we are going to have to reduce the subsidies to the aged and ill and therefore their consumption of public resources. The only thing we can do about that is to invest in research and development of more effective and efficient ways to help those people, doing more with less. That means less for treatment and more for science.

See also:

1. Proposed amendments, especially on appropriation and borrowing:
   1. 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.
   2. Clarification of Article I Section 7
      The word "bills" shall include proposals within bills, and any proposal for raising or receiving revenues or disbursing funds, including for borrowing or lending, shall originate in the House of Representatives, and shall specify rates, amounts, objects, and purposes.
   3. Challenges to debt
      No debt by the United States or any department thereof shall be incurred or held valid that funds consumption by other than military personnel and militia personnel in federal service, or funds payment of principal or interest on existing debt; and any person may challenge the validity of any debt, whereupon the government shall have 20 days to prove it is authorized by law and not for consumption except as provided above, failing which the debt shall be deemed null and void.
2. Appropriation must cover debt
3. Debt is a bet
4. A way around the debt ceiling
5. So you want to raise the debt ceiling?
6. Debt-based currency
7. So what about a balanced budget amendment?
8. Flaws in the Balanced Budget Amendment
9. Don't Believe The Debt Ceiling Hype: The Federal Government Can Survive Without An Increase, Jeffrey Dorfman

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.