Grand jury reform Texas 2015

Statement of

Jon Roland

before the Texas Senate Committee on Criminal Justice

in support to SB 135

March 21, 2015

I am the Founder and President of the Constitution Society, website at http://constitution.org. I urge the Texas Legislature to adopt SB 135, to require all grand juries be selected at random rather than through the “key man” procedure in use in some countries.

This committee may, however, amend this bill, to take it in a more constitutional direction, to provide that grand juries comply with all of the following traditional standards for proper grand juries:

1. Selected at random from the general public, with perhaps some filtering, but without "stacking".
2. Selection by a neutral party (not the judge or prosecutor).
3. Size of 23.
4. Decision by 12.
5. Election of foreperson by the members.
6. Term of service long enough to learn how to do it.
7. Limits on terms of service to avoid entrenchment.
8. Adequate training of grand jurors.
9. Prevention of undue influence by interested parties, especially judge or prosecutors.
10. Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
11. Enough time to examine each case, or enough grand juries.
12. No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
13. Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
14. Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
15. Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
16. Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
17. Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
18. Prevention of misuse during trials of evidence obtained by grand jury.

I urge this committee to amend this bill as outlined above.

See:

SB 135 http://www.legis.state.tx.us/tlodocs/84R/billtext/html/SB00135E.htm

Grand Jury Reform http://www.constitution.org/jury/gj/gj-us.htm

Midland Reporter-Telegram: http://www.mrt.com/news/article_8b11b140-d047-11e4-869d-9f998c2c990d.html

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Here are a few links of interest:

Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings: http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955

New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.

FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force: http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ . They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.

Tennesee v. Garner, 471 U.S. 1 (1985) which held that:

§ This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)

The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor: http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 . As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law. Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.

According to the source of all knowledge (Wikipedia), 29 states still “employ some form of use grand jury.”

According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).

Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required. In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule. The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.

Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries:

http://www.law.cornell.edu/rules/frcrmp/rule_6 . In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23. As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time. That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.

How grand juries are selected at the state level depends on state law which varies widely:

• For example, Texas alone has two different systems for grand jury selection: http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence
• The Missouri process seems to envision construction of a master list http://civilprocedure.uslegal.com/trial/jury-selection/missouri-jury-selection/ from which the jurors in Missouri are chosen by a judge. http://www.thewire.com/business/2014/08/what-to-expect-at-tomorrows-grand-jury-in-the-michael-brown-case/378777/ . The Missouri rules indicate that no juror may be disqualified from serving “because of race, color, religion, sex, national origin, or economic status” which seems to imply that there could be challenges under this legal standard.

The Ferguson grand jury was unusual because the proceedings were made public. Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony. This is one reason why we know so little about how grand juries operate. In virtually all cases, no one is talking.

On DA elections: This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections. Here are some re-election figures:


The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections. The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the incumbent success rate when running for office was 95%.

Darwinian government

A better way to govern ourselves than simple elections might be called a “Darwinian” (or "Darwinoid") process, similar to what is done using genetic (or evolutionary) algorithms. Perhaps the best historical example of that was the Venetian system. It could be implemented in many ways. Consider one design:

1. At the precinct level (using the U.S.model of equipopulous precincts) two equal sized panels are selected by lot, or sortition. Then they select a pool of candidates to the next level (ward) by each panel voting for the best ten percent of the members of the other panel, and together for an equal number of individuals from outside either panel.

2. Candidates from the precinct pool are drawn at random to form two equal sized ward panels. The process is repeated to select two equal sized district panels.

3. The process is repeated to form two equal sized state panels (unless there are political subdivisions in between), and again to form two equal sized national panels.

4. The process is repeated to select a small number, say nine, candidates for the one national pool, from which a single official is selected at random.

A similar multi-step process would be used to select legislators, judges, administrators, etc.

In the judicial track, pairs of grand juries would select members of the next grand or any trial juries, and pose the questions they are to decide, after consulting with witnesses.

So random selection alternates with fitness election in a way that should enable the best and brightest (who don’t necessarily want the job) to bubble up to the top. Each participant in the process has an incentive to vote for the best rather than just a fellow partisan, because an obvious partisan would be less likely to survive to reach a higher level.

Voting rules within panels would use super majority votes, approval voting, or some other alternative to first-past-the-post.

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A well-designed constitution should be able to combine many processes with many advantages, including both impartiality and prevention of the domination of the political process by factions, and also a statistically-representative microcosm of the entire citizen body, in order to discover what everyone would think under good conditions. There is no fundamental reason why those elected under some “principle of distinction” must be or become unrepresentative, if it is done in the right way. Having two legislative houses, one selected by sortition and the other by election, might be one way to do that, but we also need processes for executive and judicial questions. I have proposed such solutions at http://www.constitution.org/reform/us/con_amend.htm .

Concerning the Republic of Venice see
http://www.rangevoting.org/VenHist.html
http://www.uni-mannheim.de/mateo/camenaref/cmh/cmh108.html#275

This is not arguing there is a uniquely “best” choice, but there are certainly some that are better than others. The most important decisions that a polity must make are not just matters of taste or fair distribution, but of survival, that is , fitness. There can be more than one way to survive, perhaps giving rise to a fork in evolution, into two or more different lines, but most of the possible decisions lead to extinction. To build on the Platonic analogy, a captain may take his ship safely to any of several favorable ports, if more than one exists, but only one may be within range, and unless he is not very, very good at sailing, he may also take it to the bottom of the sea. Navigation is more a matter of skill, not of luck, taste, or fairness.

A reference can be made to the utilitarian rule of “the greatest good for the greatest number”, but that is too simple. It is the greatest good for the greatest number that is not too inequitable and that does not risk survival. (There is always some risk with any choice, but an optimal strategy improves the odds.)

Representivity is a value, for decisions about taste or distribution (justice), but not the uniquely highest values, which are honor, liberty, and aggregate prosperity, which are always at risk, even if it seems only taste or distribution are at stake.


The Universe is not organized for our comfort or convenience. It allows us to survive, sometimes, for a while, but survival is always nmarginal, and most decisions are a course along the edge of survival, trying to hang on as long as we can. We live in a unique period of easy prosperity when it seems good times will go on forever, however foolish our decisions might be. But that time is not forever, and we can easily bring it to an end sooner than necessary.

Most proposals for some kind of diarchy between advocates and judges neglect to consider that if elites control who may advocate what and how, who may judge, and how the deliberations may be structured or conducted, and what procedures are to be used, then those elites may still steer the “judges” to get any outcome they want.

This proposal does not conflate the functions, but divides them into balanced bodies, and allows darwinian-selected bodies to decide not only judgments but also the questions, structure, and procedures, for themselves and other bodies. There is no one single decisionmaking body, but a complex system of bodies that check and balance one another, while moving decisions to a final stage and to implementation.

So, for example, grand juries can supervise the selection of trial juries and successor grand juries, rather than leaving that to professionals like judges or prosecutors. Grand juries would not just decide whether to indict, but appoint the prosecutor (who could be a private citizen). Jurors would hear all the arguments made to the judge in a trial or hearing, so that they could condition their verdict on what they observed.

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Several terms might be used for a system that alternates between random selection and merit screening:

1. darwinition
2. eduction
3. winnowing
4. winition
5. fetura — Latin for breeding

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How it might be realized

Nothing is going to happen unless or until we have a lot of successful exercises of it at the local and private levels. The Morena party in Mexico provides an example of that for nominating candidates. Election itself was not adopted until it had been successfully tried in many exercises over decades or centuries.

A good place to start would be in public and private schools. That is where most of us first learned at least a simplified version of Robert’s Rules of Order, but that started with the election of class officers, so the indoctrination began early. I can imagine that using a kind of Venetian system might be popular among students.


So it might take a generation or two, and we may not have that long, but we do what we can.

There are several ways sortition could be done in the U.S. without amending the Constitution, although after it was working for a while we might want to amend the Constitution to entrench it:

(1) Selecting the electors of the Electoral College. The method we use now is prescribed by statue in every state. No reason those have to be selected by a popular vote for slates of electors, but might need to begin by changing the law to require electors be elected individually and separately rather than by slate. That might prepare the public for a better way.

(2) Selecting the nominees for U.S. Senate. The 17th amendment now requires a popular election, but says nothing about nomination. Sortition (or more precisely, fetura/eduction/winition — a Venetian-like method) could be used to narrow the alternatives to two, although write-ins would have to be allowed.

(3) Selecting the members, or at least the nominees, for U.S. House of representatives. Even if the statute requiring single-member districts were not repealed, this could be done in each district. Perhaps just for nomination, with election for the last two.

(4) Appointing federal judges not to a particular court, but to a general pool from which they would be randomly assigned to courts for one term, and to cases until the case is decided, including the Supreme Court.

(5) Use eduction for appointing and assigning civil servants, leaving them in one assignment long enough to learn their jobs, but not long enough to “build an empire” there. (This is now done for military personnel.)

(6) Use fetura to appoint and assign most congressional staffers to members, to avoid having them becoming the real power in each house.

(7) Use winition to appoint members of all kinds of boards and commissions.

(8) Require all states to use sortition to select members of grand juries.

(9) Use sortition to select a successor to the president and vice-president in case they both leave office prematurely.


Every one of these appointments is now done according to statute and could be done differently without constitutional amendment.

Adoption of any such reform may be unlikely unless or until we undergo a traumatic event that is blamed on the electoral process. (Although one might think we are already in the midst of such.)

Convention of states?

The question is often asked, what good would new amendments do? Wouldn't the powers that be just ignore them like the original?

Actually, there is substantial compliance with the Constitution for those passages that are totally unambiguous. Most of the departures have taken advantage of ambiguities in about 80 terms or clauses, some that are fairly subtle, and the first section of my proposals would go most of the way to clarifying those ambiguities and overturning wrong court precedents that support the departures. See http://constitution.org/reform/us/con_amend.htm However, as you will find in the introduction to the proposals, simply calling an Article V convention and expecting the delegates to come up with proposals, without a long process of hammering out proposed amendments by experts, on which the convention would just vote up or down without changes, would  at best be a disaster. There are fewer than 200 persons alive today with the skills to competently draft amendments, and none of them would be delegates. 

Imagine a joint meeting of the Republican and Democratic conventions trying to agree on a platform, much less on carefully crafted amendments to the Constitution. Congress, with the help of well-paid lobbyists, couldn't draft a competent health care act, and amendments, especially succinct ones,  are vastly more difficult than ordinary statutes. 

That is in large part due to the inability of people to understand the complex systems they seek to manage, with millions of convoluted feedback loops. Better to clarify the original meaning with modern language and leave it at that, except for a few obvious errors and omissions in the original document.

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:

1. Article V convention proposals misguided
2. Can amendments save the Constitution?
3. 1832 Call for Article V Convention

Making a difference

A number of proposals have been made for reforming government abuses. Here are a few points:

Documentaries

Documentaries have already been done. They have some use in recruiting activists, but almost none for effecting real reforms. If they ever make it to a wider audience, the only result is a downtick in public opinion polls, but no action. Anything less than detailed, step-by-step, daily plans for the coordinated action by tens or hundreds of thousands of dedicated individuals will work, and they need to focus on real changes:

1. Legislation adopted and enforced. (Exact wording provided.)
2. Court decisions made and enforced, after winning on appeal (trial decisions might help parties but don't make real changes). (Exact wording provided.)
3. Removal of officials from office, imprisonment of some, and perhaps replacement by much better ones. (Win elections, remove immunities.)
4. Changes in school curricula and what students are tested on. (Change the teachers and textbook authors.)
5. Changes in the incentives for officials to do the right things, and to open government to intervention by outsiders. (It's the System — structures and procedures.)
6. Get control of the media. (Social media is a start, but that doesn't reach the majority.)

Never arouse concern without providing specific action plans that can be carried out by individuals using the resources under their control. Otherwise the only result is despair and discouragement. Discouraged people don't make reforms. When individuals do take steps, they need to be commended and supported to keep them going to take the next steps.

Recruiting journalists

1. While most journalists may not want to investigate or write stories, they usually know a lot of stories they can convey to you, and thus can be a good source of information. They are worth cultivating for that reason alone.

2. You need to write the stories for them. Most journalists don't know enough about law to write about it. Most news reports are just someone's press releases, so you need to flood the media with press releases that tell the stories you want told, in effect making you the investigative reporter. There are press release distribution services that can do it for you at a cost you could not afford.

3. It is worth cultivating journalists through regular personal encounters to develop your credibility and perhaps get them to cover your own story sympathetically if you get in trouble doing all this.

4. The most receptive journalists are likely to be found in foreign or foreign-owned media, such as the British Guardian and Telegraph (Ambrose Evans-Pritchard, a friend from 1995 when he investigated wrongdoing in the U.S., is now the editor of the Daily Telegraph.), or Al Jazeera. They are also more likely to follow through on a story over a period of time. Once they pick up on a story, that makes the story news and provides domestic media some cover to pick it up themselves. Fox News has been somewhat receptive, especially since some of their associates and commentators are lawyers.

5. Television media are reluctant to do stories without visual media that can hold the attention of their viewers. Often their decisions to cover are based more on good video footage than on the merits of the story. The problem with coverage in this field is that so much of what would make good visuals is barred from cameras, so you may need to be clever about it. (That is the main reason judges ban cameras from courts.) The good news is that they are increasingly susceptible to using your footage rather than having to shoot their own. But if you give them a copy (always keep the original), do it with a contract that allows them first public use, while you retain the copyright.

6. Some reporters learn about law by serving as courthouse reporters, although they may be most fearful of losing access by reporting the wrong stories or reporting the wrong way. Most reporters, however, will only know enough to understand abuses involving evidence, rather than abuses of due process or other areas of law. For them, you may need to focus on the evidence rather than confusing them with precedents.

7. In jurisdictions where judges are elected, their election campaigns make stories about them more newsworthy, and provides opportunities to insert critical material.

8. Keep in mind that the overwhelming majority of judicial judicial abuse is combined with prosecutorial abuse, because most such cases involve the government as a party, or at least as an interested background party. Indeed, the prosecutorial abuse is likely the leading component of the overall problem. You can't fix one kind of abuse without also fixing the other. And journalists are sometimes more receptive to going after prosecutors than judges.

9. You can become a "stringer" for a media organization, feeding them stories at a lower cost than from their regular journalists. After feeding them with enough good material on general topics, you can then start slipping in material on this more specialized topic.

10. Always keep copies of all the evidence you gather in a safe place that will be disclosed if anything happens to you. Have more than one copy in more than one safe place, because the opposition is likely to always be able to find at least one of them. Don't let your story die with you, as happened with Danny Casolaro or Gary Webb, who were "suicided".

Lay v. legal versions of originalism

There has been a recent debate on the Volokh Conspiracy and the Originalism blog here, here, here, here, and here among Ilya Somin, Michael Ramsey, and Timothy Sandefur, over whether the meanings of the terms used in the U.S. Constitution should be taken from lay English of 1787, or from legal English. My responses are as follows:

The Constitution provides critical guidance on how to strike the balance between ordinary and specialized legal meanings of its terms: It calls for most important legal issues to be adjudicated in jury trials, with juries selected more or less at random from the general community, which hopefully results in a panel of twelve mostly reasonable persons, or who become more reasonable when thus empaneled. But the original meaning of "jury trial" was that all legal issues be made to the jury, not just to the judge, so that in reaching a verdict, the jury is also reviewing the legal argument and the decisions on points of law made by the judge. Many trials will involve subtle legal issues with which the jurors will not be familiar at the outset, but for which they hopefully will become sufficiently knowledgeable by the time they are asked to render a verdict. That essentially defines a standard of interpretation that is accessible to ordinary people during the intense legal education that is a trial, but not necessarily known to them before that process begins.

There is also guidance from the way the Constitution was ratified: By conventions in each state, elected by the people, but composed of a high proportion of lawyers, who also dominated the debates.

Finally, we see the process during the Philadelphia Convention, when members unsure of the meaning of some of the proposed language (such as "ex post facto") referred to Blackstone or other legal authorities to settle the question. That is a microcosm of how they expected other constitutional terms to be resolved.

The people who elected the ratifiers mostly did not do so on the basis of subtle understanding of the Constitution. They seldom if ever even debated most of the issues we consider important for deciding cases today. Some had a general support (based on the expectation Washington would be the first president), or opposition (fear of change), but mostly because they liked and trusted the ratifiers as personalities.

And these three points are not about a single resolution, but insights into a more general interpretative regime the Framers and Ratifiers expected to play out, sometimes pulling in one direction, sometimes in another. There is not an algorithm to be found.

But they did expect the Constitution to be interpreted by legal elites, as they expected legal issues generally to be. That's what they had courts and lawyers for. But those courts were open to lay interpretation in one important way: the jury. However, while legal issues were originally supposed to be argued in the presence of the jury (unlike the practice today), the jury, along with the judge and opposing lawyers, expected the trial process to be an intense exploration of the laws involved, in which all participants learned to understand the legal issues, and when in doubt about what legal terms meant, to consult legal authorities. As independent-minded as they might be, respect for expert authority was the prevailing paradigm, and one they not only expected would continue, and could not conceive of doing things otherwise, but comprised an essential part of the meanings of the terms used, not only in the Constitution, but in law generally.

Yes, one of the "populists" was Chief Justice John Marshall, largely self-taught in the law and ignorant of legal history, when he invoked lay meaning of the term "necessary" as "convenient" in McCulloch v. Maryland. Jefferson and Madison didn't agree, and I am disposed to go with their Whig approach to interpretation, as distinct from Tory ("Mansfieldism"), or Monarchist. There were those three schools of common law interpretation, and at the Founding, the prevailing one was Whig, at least during the Jeffersonian Era.

Proper interpretation (or construction) is not a matter of following a rule to be found, but a complex process constrained by structures, procedures, and common law rules of interpretation, represented in part by the legal maxims.

After many decades of research, I have reached the point where I can quickly resolve almost any constitutional question in  a way that seems congruent with the thinking of the Founders, to the extent that can be discerned. But if graphed it would look like an extremely complicated flow chart, that even includes some nondeterministic decision nodes. Imparting that to others, however, is a challenge.

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

The insistence on unlearned use of words in serious fields, over learned usage, is a much later development, mostly among uneducated rural Western and Southern persons in the late 19th century, and largely among recent immigrants, who felt belittled by the educated. That disdain of the uneducated by the educated and resentment by the uneducated was not a cultural divide in the 18th century. There were social distinctions, but everyone respected the educated.

Dick:
The first thing we do, let's kill all the lawyers.

Cade:
Nay, that I mean to do.

Henry The Sixth, Part 2 Act 4, scene 2, 71–78

There has always been tension between laity and the elites, between surrender and defiance, but the opening of the frontier of the New World transformed that tension in an important way. The bargain between laity and elites became not deference, but the lay demand that the elites persuade them by explaining what they propose and asking for their consent. They in turn agree to make the effort to understand well enough to decide wisely. That is not full expertise, but it is just enough expertise, hopefully, for a particular decision, to get through the day.

The same bargain applies to citizens, lawmakers, and law. Lay citizens don't expect to have expert knowledge of all law, just enough to make decisions in their own lives, but that includes consenting to the laws that do affect them, especially the Constitution, which affects everything and everyone.

But for making decisions in legal cases, the lay jury provides the standard. The key element, which has been largely removed from current court practice, is for all legal arguments made to the judge to also be made to the jury, not for them to decide motions of law, but to review those decisions and then either grant or withhold their consent in their verdict. It doesn't work to "protect" them from being "confused" by the legal argument. If they can be confused, then the problem doesn't lie in presentation of the legal argument, but the soundness of it. Current practice, by withholding legal argument from juries, also destroys the fundamental bargain on which constitutional legitimacy rests.

The problem, of course, is that the initial adoption of a constitution and the knowledge required to do that wisely, may not be sustained for the followthrough needed to maintain compliance indefinitely. In many ways, that requires more knowledge and talent than founding did, because there are far more competing forces to deviate from it. Our species may not be up to the challenge.

Anwar al Awlaki

The issue with Anwar al Awlaki is not whether he was a citizen, or even where he was. If we examine the legal history of the right of due process, we find that it was not confined to citizens (or "subjects" in the English context), or to the soil of the nation. However, it was confined to those over whom personal jurisdiction is established, as by holding one in custody. That means it excepts, until they are made prisoners:

1. Foreign military personnel engaged in hostilities against us or our allies.
2. Pirates, engaged in warlike acts against assets of nations other than their own.
3. Traitors, U.S. citizens engaged in warlike acts against assets of their own nation.
4. Violent felons, while actively engaged in crime.

It is that personal jurisdiction and custody that defines the boundary between whether it is permissible to apply deadly force without due process, or whether it is not. Citizenship and location are irrelevant, except as to whether one is a traitor or a pirate.

Presuming the premise that Anwar al Awlaki was actively engaged in hostilities (warlike acts) against the U.S., as a U.S. citizen, that makes his activity treason. If he were not a U.S. citizen, and since he was a nonstate actor, it would be piracy.

But he was not in custody, and it is a well-established principle of law that while we should always try, if it can be done safely, to secure custody of an offender, when it cannot the offender stands as an "outlaw" — someone outside the protections of law.

The same principles apply to a self-defense situation: While the offender is threatening injury or death one may kill him. but once he surrenders one may not.

So the only questions are, (1) whether he was engaged in warlike acts against the U.S. or its allies, and (2) whether it was safe to capture him. If the answers were yes and no, respectively, then it was permissible to kill him. And, yes, the president, and other officials, do have the power to make that determination, subject to review. If after a review it is found the determinations were incorrect, then the officials may be held liable.

Magna Carta

Much has been written, and miswritten, on the Magna Carta. It expressed several key principles of law that were incorporated into the U.S. Constitution, and most other national and state constitutions. Of course, most of it is no longer applicable. It was written for the legal situation in feudal England in 1215, covering issues that just don't arise in modern republics.

The key point that remains controversial today is in two parts:

a. Officials, including the chief executive (the king) is subject to the same laws as everyone else.
b. Those officials are personally liable for the injuries they do, contrary to law.

What is presumed is that officials only have limited powers. The king is not the sovereign, because he is subject to higher laws — the laws of nature — which honest men can discover and apply, in principle. (In practice they tend to "find" that the law favors them, but that is a separate question.)

That's why it was deemed so outrageous for Nixon to say, "It's legal if the president does it."

But Nixon's comment is revealing, because while these principles are accepted by almost all officials, at least in public, the problem comes when they or their appointees decide whether what they are doing is lawful. If it is lawful, they can't be held liable for injuries, but if a suit for damages is not even allowed to be heard on its merits, there is no way for an independent forum (a jury) to decide whether it was lawful. The problem with "qualified immunity", as currently practiced, is that the injured party can't get a trial on the merits.

"Sovereign immunity" is not the same as official immunity. That is about the state being liable, rather than the official. Again, it makes some sense to restrict how one who might get a judgment against the state may collect, generally from a fund established by the legislature to pay such claims. If judgment creditors could seize any state property they can find, the courts that grant such judgments would have the power to destroy the state. However, that does not mean a claimant should be prevented from getting a trial on the merits, by requiring that he must get the consent of the state to even get a trial.

The right to redress (which is in the Ninth Amendment, not the First) requires that one be able to get a trial on the merits, even if the options for collecting a judgment, or to get injunctive relief, are limited. It should certainly always be possible to get a declaratory judgment on any legal question, even if that brings no other relief than the support of public opinion.

As I have often said, the problem is not that we have "lost" our rights, or that, since every right must have at least one remedy, we have "lost" our remedies. The problem is that access to our remedies has been put out of the reach of most people, at an affordable cost. That is a problem of custom, policy, practice and procedure, not the law per se.

Any real reforms need to open the legal system to intervention by outsiders who are not controlled by it. That means both structural and procedural reforms, not just aspirational laws.

Some write about the Magna Carta as though it was some unprecedented breakthrough in legal affairs, if not in Europe, then at least in England. Not really. Almost all monarchs in Europe of that time, even if some claimed rule by "divine right", were subject to being deposed by a class of aristocrats, and to having a new one elected by them. The barons at Runnymede were just pushing back against monarchical overreach, but they did codify their position in terms that, while it was initially intended only to protect them, also came to be understood to protect common people as well.

One precedent was actually in Spain, the 1020 Fuero de León, followed by the Cortes de León in 1188, which set up one of the first parliaments since ancient times. Another precedent was the Holy Roman Empire, which despite its name, was ruled by an elected "emperor" with limited powers. The "electors" — princes of the "states" of that confederation — did not meet together as a parliament regularly, but did have to consent to any laws the emperor might make. Emperor Frederick II did establish the Liber Augustalis, or, Constitutions of Melfi (1231), an early model for constitutions.

It did not take long for King John to start ignoring the Magna Carta, and his successors further ignored it. Finally, Simon de Montfort, Earl of Leicester, revolted against King Henry III, established the first English parliament with the Provisions of Oxford, but those reforms died with him at the Battle of Evesham. (Had he lived political and legal history might have been advanced by 600 years.) However, although the Provisions were suppressed, the idea could not be completely, and that led to the Confirmatio Cartarum (1297), which united Magna Carta to the common law by declaring that the Magna Carta could be pled in court. Once court precedents began to be built on it, the line of legal rights it began slowly gained ground over the centuries that followed.




It is sometimes, mistakenly, argued that the Magna Carta laid the basis for grand juries or trial by jury. But the council of barons was a precursor of a parliament, particularly of a House of Lords, not of a grand jury, and at that time the customary method of deciding cases was combat or compurgation (getting twelve people to swear you were telling the truth). No, the grand jury for indictment, and the trial jury for a verdict, has its roots in the juries of ancient Greece, Israel, and Rome. The size of the jury comes from Hebrew law, the sanhedrin, which got its name from the Greek synedrion, and developed under Greek rule.

The struggle for legal rights and republican government has had a long, complicated history, with advances and retreats all across Europe and other parts of the world. We document much of that history on our site. So don't get discouraged. Our battles are just the latest episode in a long saga.

Indictments of Chinese for spying

The AG is just grandstanding in this case, and while it might play well domestically, on the international stage it is a mistake.

First, the grand jury had no business returning an indictment, which must find sufficient evidence that:
1. A crime was committed.
2. The accused did it.
3. The court has jurisdiction.

It fails on predicates (1) and (3). To have criminal jurisdiction the act would have to either be committed on U.S. soil, or committed by a non-state actor, as an act of piracy. Clearly, the perpetrators were state actors, and committed the acts outside U.S. soil, so the alleged act was perhaps an act of war, but not a crime over which any U.S. court would have criminal jurisdiction.

Contrary to current practice, the locum jurisdiction of a criminal act is the location of the actor when he acted irreversibly ("committed"), not the location where any harm might have occurred.

Even if committed on U.S. soil, unless it was on the territory of a federal enclave, the Constitution confers no authority to make the alleged act a crime, unless it can be considered piracy, and that only if done by nonstate actors.

Last I checked, China does not elect members to the U.S. Congress to make laws for Chinese territory. The government of the U.S. is not the government of the world.

This indictment only makes the U.S. look silly in the eyes of the world, and to anyone with even a rudimentary knowledge of the law of nations as of 1787. From contacts with members of the DoJ, it would seem that no one there has a clue on that subject.

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