What motivates patriot mythmakers?

It is useful to try to understand how some people construct often elaborate but mistaken beliefs about law and government. Almost all of them are desperately seeking to make some sense out of what seems senseless: the obvious departures from compliance with what they think the Constitution requires. They are hoping that if they can find the theory, or rules of the game, of how the usurpers operate, they can somehow beat them, usually in their courts, at their own game. It is like seeking the combination to a safe, or the magic words "Open sesame" that will open the entrance to the cave containing all the treasure. It is a false hope. There is no combination, no magic words.

Part of what is going on is insecure people trying to appear authoritative, by adopting "explanations" that make them seem like they know what they are talking about. Instead of adopting theories that have merit, that they can't understand, they spread theories that lack merit, that they can understand. The result is the spread of patriot myths that just play into the hands of tyranny.

The only theory anyone needs to explain what is happening can be summarized in the following few words:

Agents usurp when we let them.

The only remedy needed or possible can be summarized with fewer words:

Stop enabling usurpation.

That is all anyone needs. The rest is details.

Of course, it is not only laypersons who seize on foolish ideas. The legal profession is full of fools too. They just choose different foolish ideas, like "living Constitution" or "binding precedent".

Their hope is fed by the ways judges rationalize their decisions, including their wrong decisions, basing their rationalizations on the rationalizations of other judges in previous cases, which may also have been wrong. Each departure, or "error", is built on the ones before, in a long chain, until the original meaning of the Constitution is forgotten, and a system erected that bears little resemblance to that the Founders intended.

Along the way a lot of people come to depend on those departures. They invest in them. They build careers on them. They write articles and books on them. They are called the "reliance interests", and over time they can become a strong majority faction within the legal community, and even among the general public and therefore the voters. Ask yourself how many people are planning to rely in part on Social Security or Medicare some day to get a sense of what we are up against if we proposed to go back to strict constitutional compliance.

But no one should support those departures as themselves based on some coherent theory or alternative rules of the game. In almost every case, they represent concessions to power. In other words, they were political decisions, based not on logic or history or the linguistics of original understanding, but on choosing the easiest course, the path that seemed least likely to get the judges in trouble, or make more work for them, or incur more criticism of them, or make it less likely they will get raises or promotions, or that those close to them will get nice jobs.

Once such chains of departures get entrenched, there is generally no alternative but constitutional amendments. Perhaps a lot of them. Not necessarily to change what the Constitution originally meant, but just to get back to that. Clarifying amendments. Remember that the first 14 amendments were largely for clarification rather than to correct original mistakes in the design of the Constitution.

Constitutional amendments are difficult. They were designed to be difficult, so people wouldn't make too many foolish ones. They managed to do that anyway, as Prohibition illustrates. In an age when most people don't understand how the Constitution was supposed to work, or how the departures from it work, it is difficult to get them to understand how to fix it, or to unite enough people behind a sound solution. We don't have James Madison around anymore.

I have made my own effort to compose amendments that might work. You can find them at http://constitution.org/reform/us/con_amend.htm

Example of how a myth gets made: UCC

One of the most persistent family of myths are built on misunderstanding and misuse of the Uniform Commercial Code (UCC). The misuse comes in applying it to areas of business and law to which it does not apply, such as criminal law, finance, real estate, and court transactions.

The UCC is to personal property as mortgages/trust deeds are to real property.  It gets entangled with real estate only when fixtures, minerals, timber, crop or consumer goods are involved. The security agreement behind each UCC loan transaction is the practical equivalent of the mortgage behind each real estate loan. Real estate uses a document recording system, whereas UCC uses a notice filing system. The UCC includes provisions for the sale of goods, commercial paper, bank deposits and collections, bulk transfers, investments securities, secured transactions, and several types of warranties.

The UCC is not the same as the Uniform Consumer Credit Code. The UCCC is designed to provide protection to consumers who buy goods and services on credit.

The UCC also  does not apply to securities, such as stock, bonds, or mortgage-based securities often used by the former investment banks and financial institutions. These are governed by securities statutes. It does not apply to taxes, including real and personal property taxes, rents, fees, commissions, fines, currency, or a host of other debt-like instruments.

Yet mythmakers try to apply the UCC to everything, sometimes even to law itself, as though it were superior to all law. They apply it to trusts, statutes, wills, estates, and many other things that are covered by entirely different laws. The fallacy involved is called reductionism. But real law doesn't work that way.

Malevolent myths

Not all patriot myths are earnest but misguided. Mythcrap is used by evil persons who try to spread it to fools to serve as their cannon fodder in a violent revolution they don't have the guts to start themselves. They are like the evil men who send suicide bombers to their deaths but refrain from going themselves. Their purpose is to send so many fools to their destruction that the judicial system and prisons will be overwhelmed and enough of the fools will become enraged to resort to violence. I have listened to federal agents gloating about this, how they were encouraging it, and expecting it to bring them easy convictions and easy promotions.

Lawyer Brad Henschel reported this about tax protester Irwin Schiff:

I know Irwin Schiff well and he admitted to me that he lied to many people or fudged the truth and his intent was to incite the rabble so the flood of civil disobedience would overwhelm the Government.

In other words he was giving advice he knew would get people prosecuted, in the hope of either filling the prisons with too many people for the government to handle, or get the victims or their friends motivated to engage in political opposition.

Another side of this is those who reject the Constitution altogether as a "failure", and either call for a return to the Articles of Confederation, or some kind of anarchy. They concoct myths of their own to try to discredit constitutional compliance. They seem to be coordinated with the cultivators of cannon fodder.

Using people in this way is immoral and discrediting to the cause they espouse.

What it takes to understand the Constitution

Those who claim a few minutes is “all it takes” to understand the Constitution are sadly unaware of the journey they have taken to get to that point. The Constitution is a document written in the legal English of 1787. That is not the same language used in 2010. If you use the legal English of 2010 to read the legal English of 1787 you won’t understand it. You might think you understand it, but that is the position of an undereducated person.

When you try to understand a passage in the Constitution, or any other document, in any language, the process of understanding did not begin when you opened your view of it. It began when you were born and first heard language spoken around you. Your ability to understand it then developed through childhood, then perhaps 12 years of public school, 4 years of college, 3 years of law school, and then 5-6 years of interning with a law firm before the senior partners think you are ready to take a case on your own. So maybe by the age of 30 people might expect you to be able to read a contract, a court opinion, a statute, or a constitution.

So don’t say it only takes someone a few minutes (perhaps with the help of an old dictionary) to understand the Constitution. It took you at least 30 years, even if it seemed like the first few years were slow, at least for legal English.

But that was the legal English of today, not of 1787. That’s a foreign language to us. It might be superficially similar, or even be substantially the same for large parts of it, but there are a lot of words and phrases whose meaning has changed a great deal in 200 years. For a discussion of them see Originalist Issues.

For someone to learn the legal English of 1787, starting at age 30 or more, it should be approached like learning the San language spoken by the tribal !Kung (yes, the exclamation point is not a typo — it stands for a clicking sound made with the tongue) people of Southwest Africa, lovingly depicted in the hilarious movie The Gods Must Be Crazy. It is not just a difference in coding, but a difference in cultures, something one doesn’t get just by reading or writing (the !Kung don’t have a written language). Outsiders who have learned it say it takes at least 15 years to get most of it, and they are still not sure.

I have been studying the Constitution, trying to understand it the way the Founders did, for more than 50 years, and I’m still discovering new meanings in it. Much of that time has been spent trying to explain it to people who don’t even understand their own language, much less the language of the Founders.

Yes, the Constitution has definite meanings that can be discovered, but don’t underestimate the effort that requires. It is an effort well worth making, but it does take a long time.

What happened with Wickard?

Much discussion of the Wickard v. Filburn line of precedents portrays what happened as a misconstruction of what the term “commerce” means in the Constitution, but that is not what happened. The 1942 Supreme Court did not say Filburn’s corn was “commerce”, but that it had a “substantial effect” on commerce, enough to thwart the attempt by the government to “regulate” it. That is a construction of the “Necessary and Proper” clause, not the Commerce Clause. The decision erred by construing a “power” as “getting a desired outcome” rather than “making a proper effort”. It conveniently overlooks the trailing words “to carry into execution the foregoing powers…” which is about making an effort, not getting a result.

The Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:

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

It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

This misconstruction in Wickard is not something new. It goes all the way back to McCulloch v. Maryland, 17 U.S. 316 (1819), which it cites as authority, and which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.

CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carry into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:

This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.

All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.

It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

Note this contains a logical error. That all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.

Until this misconstruction is understood it is not easy to overcome it. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result and that the power to regulate is the power to do whatever it takes to get a result. See Draft Amendments.

Legislation nightmare

The San Jose Mercury News is running a series of articles, "How our laws are really made", with videos, about how lobbyists participate in the drafting of legislation that the sponsor often knows little about. See Part 1 and Part 2.

These articles resonate with my own experience working as a volunteer lobbyist on Capitol Hill 1970-72. I didn't bring money or votes, but I did bring skills and the willingness to work, beginning with answering mail and proceeding to first reviewing legislation and then drafting it. That earned me access.

In the course of that I learned why professional lobbyists have the undue influence they do. It mainly comes from their greater ability to do research and staffwork. The issues that Congress and state legislatures are confronted with each year exceeds by several orders of magnitude what members and their staffs can even read, must less understand or work on intelligently. They do not have "domain knowledge" of most of the subjects they must legislate on, and they can't get that by just holding hearings for "expert witnesses". That is just a charade. I once stood on the side of a hearing room scribbling notes with questions for the members and answers for the witnesses, neither of whom had a clue about the subject of the hearing. I was the closest thing to an expert in sight.

Much of the staffwork is and must be done by lobbyists, often on subjects in which they are not interested, but as a service to earn access.

Send a rough draft of a bill to the Congressional Research Service to put in final form? Hah! Lots of jokes in that. They couldn't even get the cites right for what would need to be amended. Often their version would do the exact opposite of what the member intended.

I used to go out in the evening to the Hawk and Dove, which is still near the Capitol, and overhear congressional staffers meeting with their handlers to get their orders and envelopes containing legislation. In most of the conversations I overheard, the handlers were not private sector lobbyists, but people from executive branch agencies. If you think the CIA might be controlling Congress, you would be partly correct.

If a new congressman takes office and tries to pursue his own reform agenda, he will soon discover he is frozen out. Eventually, he may complain to a colleague, who will advise him that to get anything done, he needs to hire a professional staffer, and he just happens to know of one who's available. So the no longer quite new member hires the staffer, and suddenly his phone calls get returned and members become willing to talk to him. He might even make some progress on his own agenda items, although probably none will make it to passage. All he will be doing is staffwork for the leadership in his body. That is the origin of the old saying, "If you want to get along, go along."

From what I observed, I became amazed that we don't have catastrophes every week or so. No one in government, or for that matter in the private sector, really know what they are doing. The only reason it works as well as it does is that people have the delusion that everyone else knows what they are doing and are doing it. If the curtain were drawn, the entire thing would fall apart.

If the American people really knew what goes on in legislative bodies (or courts, or administrative agencies), they would have screaming nightmares and look for bunkers or distant islands as places to hide.

McDonald v. City of Chicago

The U.S. Supreme Court announced its decision today in McDonald v. City of Chicago, holding 5-4 in favor of petitioner, and reversed and remanded. This will have the effect of striking down several ordinances against the possession of handguns in the City of Chicago, and likely lead to successful challenges to similar bans in states and municipalities generally. A page of discussion and links is here.

Among the majority, 4, Alito, Roberts, Scalia, and Kennedy, decided only on the basis of the Due Process Clause of the 14th Amendment. Justice Thomas concurred in the judgment but maintained the proper basis for the decision was the Privileges and Immunities Clause of the 14th Amendment.

This is a landmark decision and a victory for gun rights advocates.

This article is to go beyond saying what most other RKBA supporters will say, and examine what "privileges and immunities" are not reasonably covered as "due process", which if presented to the Court would require it to reverse Slaughterhouse. My position, contrary to Sullivan, is that the First Amendment falls into that category. I also argue that the Second Amendment does, although four of the five seem willing to jam the RKBA into the Due Process Clause. I wonder what they are going to do about deciding what regulations of firearms are "reasonable", because that is full of P&I-only issues.

There are several kinds of due process, such as legislative and administrative, but the due process of the Bill of Rights is judicial, about what happens between filing a court case and giving notice to the final disposition of all matters. Although "privileges and immunities" includes everything that is covered by "due process", there are also rights that are not included in "due process", rights not to have things done by government officials outside the judicial context as well.

Consider the First Amendment. It states "Congress shall make no law ... abridging ..." The rights it defines are not just to be treated fairly if there is an abridging statute passed, but to not have the statute passed in the first place. It is not necessary to wait until a statute is applied, or someone is injured in an unlawful enforcement action. It is supposed, by original understanding, to be able to get a statute struck down before it is applied to anyone, as a private prosecution of a public right.

The Second Amendment states "shall not be infringed". That doesn't just mean in court. The people have a right not to have government even attempt to infringe their right to keep and bear arms, before they actually do it to anyone. They also have the right to be organized and trained as militia, and to be kept in a constant state of readiness sufficient to meet any threat, and failing action on the part of public officials to do so, to organize, train, and equip themselves independently of such officials. That is not just about what happens in the judicial process.

The judges on the Supreme Court know all this. Cramming the RKBA into the Due Process Clause is a stretch, and they know it. They are avoiding something, and what they are avoiding is the Ninth Amendment, which, if properly expanded, includes many rights that fairly clearly do not have the character of "due process".

Clues are provided in several passages in the Oral Argument (March 2, 2010):

Ginsburg: What unenumerated rights would we be declaring privileges and immunities ... ?

Scalia: ... what you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it's wrong, I have -- even I have acquiesced in it.

Ginsburg: What other [un]enumerated rights? What does the privileges and immunities of United States citizenship embrace?

Ginsburg: ... then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society ...

The mention of unenumerated rights occurs often enough that it provided a backdrop to everything else said in oral argument. The members of the Court seem inordinately reluctant to open that line of jurisprudence, even though the text of the Constitution and 14th Amendment clearly requires it.

The rights, or more precisely, privileges and immunities, of the Bill of Rights, can be mostly put into two categories:

1. Rights to a presumption of nonauthority -- due process.
2. Rights to the means to effectively supervise public officials -- partly but largely not due process.
   

This is more fully discussed in Presumption of Nonauthority and Unenumerated Rights, a law review article I am writing.

It is (2) above that scares the judges, as well it should. One of the main areas of erosion of our rights has been to make practically inaccessible remedies for abuses by public officials, such as shielding them with layers of official immunity. Legislators may have tried to placate the public with the Freedom of Information Act and various state open records acts, but they have also allowed suppression of writs of quo warranto, and a takeover of grand juries by public prosecutors.

The Supreme Court has built an edifice of "substantive due process", but "due process" was originally only about what happens between the initiation of a judicial case to the conclusion of it. Although one can speak of a legislative or an administrative due process, the notion of privileges and immunities also includes what happens outside those processes, such as the right not only not to have a usurpation applied to oneself, but not to have the usurpation occur in the first place, regardless of whether it is ever applied to anyone in particular. Persons need judicial remedies not only for injuries caused by officials, but also for misconduct generally, including negligence or dereliction, failure to supervise, failure to disclose, and conduct unbecoming.

The great challenge for reformers now is to find and pursue cases involving rights that are clearly not due process, but that fall squarely into the privileges and immunities realm, so that the judges of the Supreme Court will have little choice but to finally overturn Slaughterhouse.

Judicial Reforms Needed

In response to requests to summarize the most important judicial reforms needed, here is a list of some of the most important, with links to further discussion.

1. Select judges into a pool of judges by sortition, or at random, not by election or appointment, but with some filtering for knowledge and skills.
2. Assign judges to courts for short terms by sortition. Even members of the Supreme Court would be drawn at random from the general pool of judges.
3. Have multiple judges assigned to each court, and assign them to cases by sortition.
4. Expand supreme and other appellate courts to 28 members, and hear cases initially by randomly selected panels of three, appealable to randomly selected panels of nine, and appealable from there to randomly selected panels of 27 (with one spare).
5. Require that decisions of multi-judge panels be unanimous to sustain a claimed power of government against a claim by a citizen that the government lacks such power.
6. Mandate reversal of any judgment that does not presume nonauthority for any official act and require strict proof of such authority.
   
7. Mandate reversal of any judgment for the prosecution in a trial with mixed issues of law and fact, including all criminal trials, in which parties have been impeded from arguing all issues of law before the jury, except those issues that may not be argued without disclosing evidence properly excluded.
8. Forbid motions in limine to the prosecution in criminal trials.
9. Mandate reversal of the conviction in any criminal trial in which the jury has not been instructed to determine whether the charge is authorized by applicable statutes and constitutions, or they have not been provided with copies of such statutes and constitutions, and of legal pleadings on the arguments in the case.
10. Mandate the suspension, without pay, on the first offense, for one month, of any judge who, having jurisdiction, fails to schedule a hearing on a prerogative writ of quo warranto, habeas corpus, procedendo, mandamus, prohibito, scire facias, or certiorari, within 3 days of it being filed and served on respondant, or to hold a hearing thereon within 20 days, in which the burden of proof shall be on the respondant, failing which judgment shall be rendered in favor of the demandant. The suspension shall be doubled for each subsequent failure.
11. Mandate the convening of a grand jury of 23 by random selection from each jurisdiction having a population of no more than 3000 persons (village).
12. Mandate that no more than half the time of the grand jury be spent hearing bills of indictment, and that they shall have at least 4 hours to consider each bill, unless they shall choose otherwise.
13. Authorize grand juries to issue subpoenas directly rather than only through their courts.
14. Authorize and direct grand juries to decide the jurisdiction, or lack thereof, or the immunity of any official, for any complaint brought before them.
15. Authorize grand juries to order the removal of any impediments to access to them by members of the public.
16. Authorize grand juries to issue to any complainant or his designee, not just to public prosecutors, an indictment authorizing criminal prosecution.
17. Authorize grand juries to investigate any public or private enterprise whose activities may adversely impact the public, and to report their findings.
18. Mandate that trial and grand juries be convened under the supervision of prior grand juries to insure there is no stacking.
19. Mandate the reversal of any court decision which treats a recent precedent as binding, and for constitutional issues does not return to the original text and historical evidence of its meaning.
20. Mandate reversal of any denial of standing of a party to privately prosecute a public right for injunctive or declaratory relief, or on a writ of quo warranto.
21. Mandate reversal of any disablement or deprivation of life, limb, liberty for more than 24 hours, property, or parental rights without a trial by a jury of 12, including for contempt of court.
22. Mandate reversal of any restriction on the practice of law without a jury trial.
23. Mandate reversal of any court decision in which the public was not allowed to record the proceedings, other than to conceal the identities of the jury.
24. Mandate reversal of any court decision in which the judges do not justify and publish their decision, clearly separating it from summary, findings, and dicta.
    

This list is subject to revision, so check back from time to time for the latest.

Many of these reforms would now require a constitutional amendment to overcome long chains of precedent. Such amendments are to be found here.

Please take our survey on law and the courts:

Originalist issues

Debates among constitutional scholars on what constitutes an "originalist" method or position on questions of constitutional interpretation or construction are too often conducted on a high level of abstraction that might be appropriate for discussion of all constitutions of all polities over all time, but most of the Constitution for the United States is reasonably unambiguous, and for the unambiguous parts most discussants would admit to being originalist, in the sense of holding the language has a fixed meaning as of the time of ratification, and that such meaning is binding on courts today. If we want to find an originalist method of interpretation or construction for that Constitution, we need to examine each term or clause that is disputed, try to discern the original intent, understanding, or public or legal meaning, and analyze what we are doing when we do that.

Interpretation or construction is a kind of forensic investigation, not unlike solving a crime. As history or linguistic detectives we find meaning not by the application of a few simple rules, but by discerning clues that allow us to narrow the range of possibilities until we are reasonably sure we can make a decision about the case before us: Was there a crime, and whodunit?

Summary of some disputed text and a key issue for each, that should cover most of the investigatory methods one might properly apply:

1. Legislative powers ... vested. What are legislative powers and may they be effectively delegated to administrative or judicial agents? May legislative, executive, or judicial powers be used to indirectly induce behavior that Congress does not have the power to legislate directly?

2. Direct taxes. What taxes are direct and what indirect?

3. Regulations. What are the bounds on the power to "regulate". Plenary or only for certain purposes? Are penal powers implied?

4. General welfare. Restriction on power to tax and spend, or a power to promote?

5. Commerce. Tangible commodities traded or all economic activity?

6. Coin money and regulate value. Only gold or silver, or also debt instruments? Is power to make something legal tender on state territory implied?

7. Limited times. Beyond the life of the inventor or author, or only for long enough to recoup investment? Does power to promote imply penal powers?

8. Declare war, marque and reprisal. Does authorization to use force qualify? Is it piracy to act without such authority?

9. Raise ... Armies. Does that authorize conscription, or only hiring?

10. Militia. Is it any defense activity, invoked by anyone aware of a threat, or only state-organized armed groups? May keeping militia ready be optional, or is is a duty, like elections? Is power to regulate plenary, or only in ways that make militia more effective? Is anyone subject to a law if he does not have the right to help enforce it? Does it include duty of independent of constitutional review for any legal issue by any person?

11. Places purchased. What are the limits on legislative authority for federal enclaves, must cessions specify metes and bounds of each parcel, do residents cease to be citizens of ceding states, and is there a federal power of eminent domain, or only a state power?

12. Necessary and proper for carrying into Execution. Only incidental to making an effort, or whatever is convenient to get a desired outcome?

13. Habeas corpus. Are all prerogative writs presumed to be remedies courts must accord oyer and terminer?

14. Bill of attainder, ex post facto. Does prohibition extend to all legislative disablements of rights? Does it forbid prosecution for common law crimes?

15. Title of nobility. Does prohibition extend to prohibit any official immunity or special privileges of government officials and agents?

16. Natural born citizen. Does it mean born on U.S. soil, or can it include naturalized at birth by statute, and only on incorporated territory? What counts as proof of it?

17. Laws be faithfully executed. Does it require unconstitutional statutes or court orders be resisted?

18. Bribery, or other high Crimes and Misdemeanors. As no power to punish these is delegated to Congress, must they be either state charges or committed in federal enclaves, or are they only grounds for removal? Do they include any violations of the oath of office, abuse of authority, dereliction of duty, failure to supervise, or conduct unbecoming?

19. During good behavior. May judges be removed by ordinary trial or hearing on a writ of quo warranto, and not just by impeachment and removal by Congress?

20. Judicial power. What is it and may it be delegated to legislative or executive agents?

21. Cases and controversies. Include all judicial questions for which relief, including declaratory or injunctive, may be granted, or only for those with standing from having or expecting personal injury?

22. Arising under this Constitution. Does that extend the jurisdiction of federal courts to cases involving the rights recognized in the Bill of Rights between a citizen and his state?

23. Trial of all crimes ... by Jury. Is that a mandate, even if the defendant pleads guilty? Must it be a jury of twelve and require a unanimous verdict to convict?

24. Where ... committed. Where the defendant's head was at the moment the act became irreversible, or wherever he might have been before and after, or wherever the effects occurred?

25. Aid and comfort. Does that include undeclared enemies? Disclosing classified information?

26. Full faith and credit. What does this mean? Must a state that prohibits a kind of contract recognize that contract made in another state?

27. Privileges and immunities. What is and is not included in that?

28. Rules and Regulations ... Territory ... Property. Does that imply penal powers legislated directly, or only the power to organize territorial governments with such powers exercised by elected territorial officials?

29. Republican form ... protect ... against invasion. What is a "republican form" and how is it to be guaranteed? Does this require effective border protection?

30. Treaties ... supreme Law. May a treaty require the exercise of powers not delegated to Congress, or be a mandate on exercises of powers of the states?

31. Judicial Officers ... oath. Is binding stare decisis compatible with the written Constitution being supreme law? Are jurors also judicial officers?

32. Religion. What is it? Any belief system, including constitutionalism?

33. Speech. Any emission of a message? Money to pay for it? Does it imply right to anonymity?

34. Press. Any dissemination of a message? Money to pay for it? Does it imply right to anonymity?

35. Assemble. Subject to time, place, and manner regulations, and if so, by what level of government?

36. Petition. Right not to be penalized, or also not to be impeded? Access to grand jury? Implies right to get an answer?

37. Keep and bear arms. May weapons be restricted, and if so, how, or do people have a right to anything they may need to win a war?

37. Quartering. Does the prohibition extend to demanding the use of space for official purposes?

39. Unreasonable searches and seizures ... probable cause. What are the bounds on discretion on these? Must warrants be presented and subjects be allowed to verify them?

40. Grand jury. How many, and serving how many? For what must there be indictment, must it decide jurisdiction, must it be open to complaints by anyone, and may it authorize anyone to prosecute?

41. Twice put in jeopardy. May different jurisdictions prosecute for the same act, or must penal jurisdictions be mutually exclusive?

42. Due process of law. What is it, and what are the bounds on discretion? Does it include minimum standards of protection? What procedures are essential? Does it commence with initial official contact?

43. Taken for public use, without just compensation. What is property? What is public use, and for how long must it continue before being sold to a private party? What is just compensation? When can regulatory restrictions be constructive takings? Does the federal government have power of eminent domain on state territory?

44. Speedy trial. How long may the accused be held without trial?

45. Public trial. Must cameras be allowed?

46. Impartial jury. Does this require the right of parties to argue all issues of law to the jury?

47. Compulsory ... witnesses. May witnesses refuse to testify under oath or affirmation?

48. Assistance of counsel. Only members of the bar, or anyone the defendant may choose? Must it be paid for by the government if defendant is unable to do so?

49. Exceed twenty dollars. What is the definition of "dollar" that applies here? Can we get this enforced?

50. Cruel and unusual punishments. What are they? What are the bounds on discretion?

51. Unenumerated rights. What are they? Do they include a right to a presumption of nonauthority, and a right to the information and means to effectively supervise public officials and agents?

52. Powers not delegated. Are powers to be interpreted as strictly as the text allows, or as broadly?

53. Privileges or immunities. Same meaning in 1868 as in 1787, or different? Extend federal court jurisdiction to state cases involving any or all of the rights recognized in the Bill of Rights, including the Ninth and Tenth Amendments?

54. Equal protection. Equal effort or equal outcomes?

55. Enforce, by appropriate legislation. Extends only to state action, or to private action as well? Does it overturn 11th Amendment and remove sovereign immunity for states or their officials?

56. Incomes. What is income? Does it only include earnings on land or capital, or does it include compensation for labor? Was the income tax amendment ratified?

57. Remedies. What are the remedies if mandates are not done, such as writs of election? Or remedies are impeded by cost, procedure, official immunities, or service monopolies like state bars? What are political questions and what are the remedies if elections are rigged?

The quest for method should begin with the common law rules of construction that prevailed in 1787, one of the most important of which was expressed in the maxims:

Potestas stricte interpretatur. A power is strictly interpreted.

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

If those are granted, much of the rest is straightforward.

Militia foiled NY bomb plot

News that the bomb plot was foiled by vigilant street vendors has neglected to put the correct label on what that was: militia.

The street vendors are mostly veterans who are given a preference for getting street vendor licenses, especially in the Times Square area of New York City. They are not just competitors for the business of the public. They form a loosely organized militia to protect the public safety, and that role was demonstrated on Saturday, May 1, 2010, when some of them spotted a suspicious SUV that had been laden with explosives and fertilizer that the perpetrator mistakenly thought would explode like a bomb.

It is possible the veterans do not self-identify as "militia", but that is what they are, in the best tradition going back to before the United States was even a nation. They join the heroes of Flight 93 as ordinary but not unprepared Americans who, when confronted with a threat, call up one another to meet it.

Government agents can't be everywhere or see everything. We must never lose sight of the fact that the first line of defense against most threats are vigilant civilians, and in that capacity they are militia, the original meaning of which is defense service.

These men, like most militia, are veterans, and thus have training most civilians don't have. What is needed to meet the threats of the future is to extend that kind of training to the entire population, starting in early childhood. Nothing can fully protect us from every threat, but our best chance is to make militia an integral part of the life of every citizen.

Don't repeal 17th Amendment

But do something else.

There are many calls being heard to repeal the 17th Amendment that provided for the direct popular election of members of the U.S. Senate, instead of election by state legislatures. Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

What we find today, of course, is that direct popular election is not a remedy for political corruption, either.

The solution is to do something completely different, as I propose in one of my Draft Amendments:

Selection of members of legislative bodies not elected by population

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

This proposed amendment does not eliminate direct popular election, as the final stage. It only establishes a different nomination process, but an amendment is needed because Congress has no power to regulate nomination processes. The method for nomination is called sortition, or random selection. It removes the corrupting influence of big money, except in the final stage of the direct election.

If it was desired to eliminate the undue influence of big money altogether, the last stage of direct election could be eliminated and sortition used to select the U.S. senator as the final stage.

Flaws in other nullification legislation

On jbs.org and other sites there is a so-called "model" nullification legislation that is similar to many measures that have already been introduced in state legislatures. It, like the lawsuit of several state attorney-generals on the subject, is severely flawed.

Consider a few of its provisions:

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ________ that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years, or by a fine not exceeding one thousand dollars ($1,000), or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

Here are a few of the flaws:

1. The bill contemplates provisions that are not in the Health Care Bill, which specifically forbids criminal prosecution or levies or liens to collect the "penalties" for failing to purchase insurance, but leaves it to the discretion of IRS agents to withhold them from federal government payments to the person, or take them out of tax payments first, with a remainder owing that they can claim is not the penalty but unpaid taxes.

2. It won't work to prosecute IRS agents for tax enforcement. The cases would just be removed to federal court and dismissed. But it could trigger federal prosecution of anyone attempting to enforce such a state statute for interfering with a federal agent.

3. IRS agents can do everything from outside the state and thus outside state jurisdiction, through private intermediaries like banks.

4. It does not provide for legal or financial support for persons engaged in civil disobedience in response to the provisions of the state statute.

A sound approach to nullification is discussed here.

There seems to be a naive faith that this is a simple game involving only a few pieces on a small board and only a couple of moves to victory. It is not. It is vastly more complex than games like chess or go, involving thousands of pieces on millions of squares against thousands of opponents, with largely unknown rules and without being able to see most of the board. For every move you have to anticipate every countermove and plan your next move after each. If you are going to play best learn to play well, because if you make a single wrong move it can ruin everything for the cause of freedom.

Law professor Randy Barnett makes the case as to why the health care reform legislation signed by the president is unconstitutional. But law professor Ilya Somin doesn’t see legal action succeeding against health care reform. However, he shows how it might succeed, and is worth reading on this matter. The litigation needs to be thoroughly rethought before it makes the situation even worse by giving the opposition a new precedent.

Hutaree indictment

Let's examine the indictment in detail from a constitutional standpoint.

1. The "general allegations" are inflammatory rhetoric that does not belong in an indictment. It is an attempt to make mere organization and training seem to be a crime, but it is not, even for the unconstitutional provisions of the U.S.C.

2. Count 1. "Seditious Conspiracy". The key statement is:

... acting as a militia group know as the HUTAREE, did knowingly conspire, confederate, and agree with each other and other persons known and unknown to the Grand Jury, to levy war against the United States, to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law.

The only provision of the Constitution for the United States that might provide authority for any part of this is the Treason Clause, Art. III Sec. 3 Cl. 1:

Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

In the 10th Congress, First Session, Senate, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50, a proposal was moved, debated, and rejected on constitutional grounds, to make conspiracy to commit treason a crime:

Conspiracy is an offence no where mentioned in the Constitution. ... This Constitution being a special grant of power, those acting under its authority cannot claim the exercise of any power not delegated or vested in them, except such incidental powers as may be requisite to carry the specified powers into effect or result from the exercise of them. The power to punish conspiracy cannot be included with the class of incidental or resulting powers. ... 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. Conspirators, when their guilt is well ascertained, will generally be punished with sufficient severity by that great censor, public opinion. It does not appear to be entirely congenial with either the genius or practice of the American Government to punish a man for his wicked intentions, until they have eventuated in the perpetration of some unlawful act.

So by this original understanding, the Constitution really does require the crime of treason actually be carried out, and not just be planned or directed. One may argue this is impractical, that it would make the Constitution a "suicide pact", but the Constitution says what it says and until it is amended we are bound to its limits, no matter what apparent necessities might emerge.

Similar arguments can be made against the charges in the indictment, "to oppose by force the authority of the Government of the United States, and to prevent, hinder, and delay by force the execution of any United States law." There is no constitutional authority to make those things a crime, or any authority to make anything a crime under the Necessary and Proper Clause. For further discussion of why sedition is not a crime under the Constitution see the original draft and adopted version of the Kentucky Resolution of 1798:

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 law of nations, and no other crimes whatsoever

The indictment cites a "general concept of operations" but a concept is not a crime, even under state laws that make conspiracy a crime, but require there be a near-term timetable and a commitment to that timetable. A plan that is contingent on some future event that may never happen, or for a contingency in a distant future, does not qualify under even state precedents.

In the indictment "a. Conspirators acquired ..." a lot of things that are not criminal to acquire or possess, with the possible exception of "explosive devices" for which there is a provision in the U.S.C., that provision is based on the Commerce and Necessary clauses and is unconstitutional. It does not belong in an indictment.

In the indictment "b. Conspirators engaged in military-style training ..." is an improper attempt to portray a legal activity as something sinister or unlawful. It does not belong in an indictment.

In the indictment "c. ... planned the killing ..." could provide a basis for a proper charge of conspiracy in state court under a state law, if the plan was a commitment to a timetable and not just a fantasy, but absent a plan to do so on federal territory, there is no federal jurisdiction, and the Grand Jury erred in finding such jurisdiction by their indictment.

In the indictment "d. ... covert reconnaissance exercise... could be killed" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "would" not "could", and "could" only puts it in the realm of fantasy.

In the indictment "e. ... solicited a person he believed capable of manufacturing destructive devices ..." makes the charge void for vagueness. Anyone with hands and of normal intelligence is capable of that. " ... identified law enforcement officers ... as potential targets of attack" refutes the position of the government that it was a conspiracy even under state law, because for that the word to be proved is "targets" without the "potential" qualifier.

In the indictment "f. ... engaged in training devoted to preparing for the planned covert reconnaissance exercise" refutes the position of the government that it was a conspiracy even under state law, because for that it would have to be a planned killing and not just a planned "reconnaissance exercise". "Each of the conspirators in attendance carried and used at least one firearm" is intended to provide a premise for an enhancement to the crime, but there has to be a crime, and the indictment itself does not establish the premise for that.

As thus explained, 18 U.S.C. 2384 is unconstitutional in every part, if applied to actions committed on state territory. See this brief.

3. Count 2. 18 U.S.C. 2332a(a)(2) -- Attempt to use weapons of mass destruction. The same arguments that refute a power to make conspiracy a crime also apply to make "attempt" a crime. Perhaps the federal government should have such power, but it is not provided in the Constitution, even under the Commerce and Necessary and Proper clauses. See this article.

4. Count 3. 18 U.S.C. 842(p)(2) -- Teaching/demonstrating use of explosive materials. Obviously unconstitutional. If if were, then every publicly available military manual, and many movies and TV programs, would be in violation, as would instructions for holiday fireworks.

5. Count 4 and 5. 18 U.S.C. 924(c)(1) -- Carrying, using, and possessing a firearm during and in relation to a crime of violence. This could be constitutionally applied as an enhancement to the sentence for a crime for which there is federal jurisdiction, but not as an offense by itself, where a constitutional federal crime is not proved, and it is unconstitutionally vague as to the definition of "violent".

Based on the indictment alone, without examining the evidence in the case, the charges are facially without merit, and the indictment defective. The matter should be turned over to state authorities to let them pursue it if they think it has merit.

The DoJ is also at fault for publicizing this case as an obvious propaganda campaign to increase its budget and get further legislation enacted. This is an improper and probably unauthorized use of public funds.

The mainstream media should be criticized for referring to the Hutaree as "militia" in connection with these charges. They do not refer to themselves as militia, although they have some links to militia unites on their website. If the charges are valid, they are not militia, by definition. The original correct meaning of "militia" is defense service. It is not militia to incite violence, or even to threaten to do so.

Taxability and apportionment

There is some confusion about what "apportionment" means or originally meant. To be apportioned any tax would have to be adjusted so that the amount collected in any political jurisdiction would be proportional to the number of people who live in that jurisdiction, such as a "head" tax of an equal amount on every individual, collected and paid directly to the IRS, not to the states or other political subdivisions. It should be clear that such a tax on merely being alive is unfair to the poor, so a way was sought to collect more from those better able to pay to offset what would otherwise be a burden on the poor, but still keep the total collected proportionate to the populations of states and other subdivisions. That is not easy to do, because the calculation of the tax can't be done at the level of the individual taxpayer until it is done for all taxpayers in the subdivision. It would have to be done in two phases: first to generate an estimate of the now unequal assessment on each and every individual, and second to adjust all assessments so that the total for the subdivision comes out proportional to population for that subdivision.

The power to tax in Art. I Sec. 8 Cl. 1 does not define what are and what are not proper objects of taxation, and it is a mistake to interpret that to mean that any conceivable object is taxable. The Framers presumed an understanding of what objects are and are not taxable, but left the boundaries to be found by historical investigation.

Generally speaking, the exercise of fundamental rights were not deemed properly taxable, except in an incidental way that did not impose an undue burden. Constitutionally, it would not be permissible to tax people for merely breathing, which calls into question anything like a head tax unless it were extremely small. That would also exclude taxes on things like speaking, publishing, religious devotion, petition, assembly, etc. This principle was recognized in the Militia Act of 1792 when it exempted the tools of militia from being taxed or claimed for debts, not as a change in their taxability but as a recognition they were already untaxable under the common law understanding of taxability.

So what were taxable objects? Generally, they were only money-making activities such as sales or purchases for money or earnings on investments in land or capital. Taxes were payable in money so there had to be some money in the transaction from which taxes could be taken. Equal exchanges were generally excluded, which would include barter, with no monetary consideration.

The term "income" is not used in the Constitution, and not defined in the income tax amendment, so as Brushaber points out, by implication it could only mean "income" as of 1787. In 1787 "income" would not have included wages or other compensation for labor. Only earnings on land or capital, such as crop sales, rents, interest, dividends, or capital gains. Compensation for labor would have been considered an equal exchange, like barter. If an employer doesn't pay an employee right away, but lends himself the money for a time, then later pays with interest added, the interest would be "income" on the labor, but not the wages that are the principal on which the interest is calculated.

The usurpation involved here is the redefinition of "income" to include revenues generally, rather than just earnings on land or capital. That meaning is now so familiar to most people that they have trouble understanding it didn't always mean that.

The appropriate common law rule of construction for legal terms is expressed in the maxims:

Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

They mean that if there is any doubt whether a power has been delegated, it must be presumed not to have been delegated. If there is any doubt about whether something is "income", it must be presumed not to be "income".

Government by indirection

Many people naively believe that if government officials exceed their authority, there is always a judicial remedy that might be sought in court, to find that usurpation has occurred and refuse to support it. However, officials in general, and legislators in particular, have learned ways to use government power to achieve their ends without providing victims with points of legal attack. We may call this, for lack of a better term, government by indirection.

This technique may perhaps have been inspired by Henry II, who got rid of Thomas Becket by remarking to aides, "Will no one rid me of this turbulent priest?" (some accounts say "meddlesome" instead of "turbulent"), who took it as an order to kill Becket, but leaving Henry with deniability that he had intended that result. History tells us Henry wore sackcloth as penance for his negligence, but that he did not prosecute the assassins, who escaped with little consequence.

The technique is essentially to issue only vague guidance to underlings, expecting them to go further than the actual words written or spoken, providing deniability and avoiding legal attack to the issuer of the words, yet also failing to act against the underlings, allowing their usurpations to stand. When the victim seeks redress, he finds the underlings shielded by official immunity and no laws or directives on which a legal challenge in court might be based.

This was done for the government killers in the incidents at Ruby Ridge and Waco.

The recently discussed "holes in the health care bill" are examples of this. This kind of thing has also been done with the rest of the tax code: Write it with holes that avoid judicial attack, but then encourage logic-challenged IRS agents to use the code, holes and all, to browbeat citizens with their own interpretations, knowing the courts won't stop them. Now the other holes in the tax code (26 USC and CFR) are just omissions, such as omissions of any definition of "income" or "taxpayer" on which a legal challenge might be pinned, but that has not prevented IRS agents from writing their own rules in the instruction booklets or making their "assessments" that have little or no connection to law or the Constitution.

We have an interesting example of a case in which "government by indirection" was pled:

328 F.2d 165
PORTLAND GENERAL ELECTRIC COMPANY and Publishers' Paper Company, Petitioners,
v.
FEDERAL POWER COMMISSION, Respondent.
CROWN ZELLERBACH CORPORATION, Petitioner,
v.
FEDERAL POWER COMMISSION, Respondent.
No. 18427.
No. 18432.
United States Court of Appeals Ninth Circuit.

February 7, 1964.

Petitioners argue that, by requiring the licensee to accept a license with the Article 9 provision for the giving of property free of cost for navigation, the Government by indirection is taking property without due process of law, resulting in confiscation.

36

This is not true because petitioners are not required to accept the tendered license. Any license rights which petitioners ever had to construct and maintain these project works expired in 1954. See note 3. In applying for a major license effective as of 1955, petitioners seek rights they do not now have. In order to gain those rights they must accept the license upon such terms as Congress has determined should be imposed in the public interest. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 427-428, 61 S.Ct. 291, 85 L.Ed. 243; Fox River Paper Co. v. Railroad Comm. of Wisconsin, 274 U.S. 651, 656-657, 47 S.Ct. 669, 71 L.Ed. 1279. It is not a taking for the Government to withhold a benefit it is not contractually or constitutionally obliged to confer. Nor is it a taking for the Government to impose financial obligations upon the recipient of a benefit if, as here, the benefit may be declined.

---

Except, of course, that the "economic activity" being regulated is not getting health care, but running the risk of needing it and getting "insurance" for it, which must be paid regardless or whether one ever needs or seeks health care, or perhaps even be forced to accept health care without one's consent.

And of course every potential health care beneficiary is going to need a national ID card he will need to carry around with him at all times, and which, if the government finds he is critical of government, can, with a few keystrokes, designate him a "terrorist", "unlawful combatant", or perhaps a "fugitive child-molester cop killer", without conviction by a jury in a court of law.

A leading architect of such government by indirection, which he calls "libertarian paternalism" and some call "soft paternalism", is Cass Sunstein, recently appointed Director of the newly created Office of Information and Regulatory Affairs, popularly referred to as the "regulatory czar". His classic book on that is Nudge: Improving Decisions about Health, Wealth, and Happiness, with Richard Thaler (Yale University Press, 2008), in which he advocates "steering" people's decisions, not by direct coercion, but indirectly by coercing others in ways that create incentives to decide differently. The people "steered" can't challenge the constitutionality of the official acts coercing others, and those others will usually not incur sufficient personal injury for them to have standing to challenge those acts. The result is to achieve indirectly what could not be directly done constitutionally.

When one goes to vote and finds he is required to present this national ID card to be allowed to vote, and the balloting computers can track and report who voted and how, even though the votes are supposed to be "secret", then the last best remedy for tyranny will have been lost.

Thus does a constitutional republic get overthrown from within.

Holes in the Health Care Bill

Much of the opposition to the recently adopted Health Care Bill focuses on the alleged "mandate" for people to purchase health insurance or pay a tax collectible by the IRS, with the implication that it is a fine for nonpurchase enforceable by seizure of assets or imprisonment. The attorneys general of several states have sued to get that provision overturned, and several states are debating legislation to forbid the collection of such fines on their territories, among other measures related to it.

The problem with most of these efforts is they haven't read the Bill closely. It is indeed unconstitutional, but mainly for other reasons, reasons that apply equally to Medicare, Medicaid, Social Security, and the "Income Tax" on compensation for labor.

Let's examine what the language of the statute says:

“‘(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.”

and further--

“(2) SPECIAL RULES.—Notwithstanding any other provision of law—

(A) WAIVER OF CRIMINAL PENALTIES.—In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

(B) LIMITATIONS ON LIENS AND LEVIES.— The Secretary shall not—(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or (ii) levy on any such property with respect to such failure.’’

--seems exclude characterizing it as a fine, but only a tax on self-insuring.

Consider those words carefully, and how they could or would be applied, and how the tax might be avoided.

It is a longstanding principle of law that if there is no penalty for noncompliance with a law, it is a nullity, merely aspirational or rhetorical.

The above words essentially mean the only way the IRS could collect would be by withholding money from a refund or benefit. But there is no withholding for true income, as from rents, interest, dividends, or capital gains, and one can reduce the withholding from compensation for labor by adjusting the number of exemptions claimed on one's W-4 form, or checking no withholding, leaving one to pay a "tax" at the end of the year, but leaving the IRS no way to collect the penalty for not purchasing health insurance. Even if the IRS takes one to court and gets a judgment, such judgment will be effectively unenforceable under the above language.

In other words, the proponents of the Bill were so concerned about avoiding grounds for a constitutional challenge that they gutted their own bill, making the entire scheme fiscally untenable, as though it weren't untenable enough already.

I see this leading to many good jokes on the late night talk and comedy shows.

However, it will also be a joke on the above mentioned efforts by state AGs and legislatures, who may offer some political theater but no legal results, and probably look silly in the process. Their efforts are misconceived. What might work is my proposed Nullification Commission in each state. See http://constitution.org/reform/us/tx/nullification/nullcomm.htm . Lawsuits and state legislative resolutions won't work. Indeed, they are likely to make the situation even worse when they fail. This undertaking requires more strategic subtlety than has been exhibited so far.

Is oath to uphold Constitution honorable?

The question has been raised, essentially, "Is it honorable to take an oath to support a constitution, not only in its present state, but however it may be amended according to its amendment clause?" In the case of the U.S. Constitution, Article V textually and logically allows even for amendment of itself, such as to remove the restriction that the Constitution may not be amended to allow for unequal representation in the Senate, which is a continuing source of irritation to majoritarians who think, mistakenly, that the highest political value is to be "democratic" and that contramajoritarian provisions of a constitution are inconsistent with that value.

This is a variant on a well-known problem in mathematical logic, discussed in terms of "recursion", "self-referentiation", and "non-terminating processes". It is discussed by Peter Suber in "The Paradox of Self-Amendment in American Constitutional Law", Stanford Literature Review, 7, 1-2 (Spring-Fall 1990) 53-78.

But to understand it, we first have to ask, "What is a constitution"? One way to approach the answer is to ask, "If a constitution of government is accurately translated into another language, so that a person adhering to it would make the same decisions, is the translation the same constitution, or a different one?"

The most productive way to answer the second question is to say that it is the same constitution. That is, it is the meanings, not the language-bound text, that is the real constitution. The text is only evidence of that constitution, just as a copy of it would be.

If it is meanings, then how might we represent them that is rigorous and not bound to any particular natural language? The answer, with some simplification, is that they translate into a system of deontic statements, in a normative extension of the first order predicate calculus (FOPC), that express a set of constraints on human behavior in the polity for which it is the constitution.

We will establish it as a premise that to be a constitution, it has to constrain human behavior in a way that is nontrivial, and that enables people to cooperate in protecting their fundamental rights.

If there are no constraints on how a constitution may be amended, then a commitment to a constitution in all the ways it could be amended would contradict this premise, because it would be a commitment not to a set of constraints, but to an unconstrained process that could terminate only if the amendment clause were effectively deleted, and that could morph into something that would not be a constitution at all.

Therefore, the amendment process must be constrained, if not by its own terms, then by principles of sound constitutional design that are superior to any written constitution of government. One way to conceive of these constraints is to posit that there are superior constitutions of nature, society, and the state, that form a hierarchy of authority, superior to the written constitution of government. These concepts are discussed in "Social Contract and Constitutional Republics".

This leads to the question, "Is the Constitution for the United States constitutional?" That is, is it compliant with these superior constitutions of nature, society, and the state? The answer is yes, if we examine the language of the document and look for ways it can be reasonably construed that are compliant. Such a construction exists, so an oath to it understood in that way would be an honorable act. We can recognize that the language contains ambiguities that temporized on violations of fundamental constitutional principles for a time after ratification. Tolerating violative practices is not a flaw in the Constitution itself, only in the application of it. We can say that the Constitution used to be unconstitutional as applied, in certain ways, but may no longer be, in those ways. However, it may be in other ways. One takes an oath, however, to the constitution and not to practices.

So to answer the original question, one can only honorably take an oath to a constitution and its amendments that remain constrained by the superior unwritten constitutions of nature, society, and the state, which contain the underlying principles of sound constitutional design.

Interestingly, with the practice of binding stare decisis we have a practice that is fundamentally inconsistent with the Constitution, and any constitution. A commitment to the present Constitution, properly construed, is not dishonorable. But a commitment to binding stare decisis is, in all the ways that have given rise to the initial question.

As for being "democratic", if that is understood as a political order in which majorities can always decide in support of any positive public action, then that is in essential conflict with our constraint that the constitution protect fundamental rights. It is one thing to prevent positive action without majority consent, but quite another thing to enable positive action with only majority support. In a well-designed democratic system, majority support should be necessary, but not sufficient, for positive public action, and structures and procedures that enable minorities or even individuals to block action are not only sound design, but necessary.

Nullification a serious option

Below is an op-ed article in reply to that of Sandy Levinson that appeared Sunday, Feb. 7, in the Austin American-Statesman. Mine, like his, is exactly 1352 words. It is posted online at the Statesman site.

For more on the historical background see

State Nullification of Federal Action
The Virginia Report, J.W. Randolph, ed. (1850)
A Disquisition on Government, John C. Calhoun (1851 posthumous)

Also see
Texas Essential Knowledge and Skills (TEKS) Review

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Commentary: Nullification a serious option

Proposal by some state legislators could roll back federal overreaching

By Jon Roland

SPECIAL TO THE AMERICAN-STATESMAN



The revival of long-dormant proposals for state legislatures to adopt acts to nullify federal acts that exceed their constitutional authority has gotten the attention of some who try to discredit the proposals by mischaracterizing them. The critics seize on some of the rally rhetoric that necessarily simplifies and may seem to promise too much too soon and too easily, but serious proponents of this path of reform know that the passage of state legislation is only the first step in a long process of organized nonviolent civic disobedience that differs from past movements that have used such methods in that state government is involved in a leading role. It is state-led noncooperation.

In law “nullification” is not repeal or rescission of statutes or executive or judicial actions. It is the result of a sustained, widespread refusal to cooperate with them, until those attempting to enforce the actions are confronted with the unpalatable choice of either backing down or resorting to murderous brutality.

It is similar to what happens when a federal appeals court finds a congressional statute, or an executive action, or the decision of a lower court, to be unconstitutional. It has no power to order the statute struck from the Statutes at Large, or to order executive officials to stop enforcing it, or even to force lower courts from enforcing it. It's only power is to say that if a similar case comes before that court again, it will refuse to cooperate in enforcing the action. But that is likely to be sufficient, because ultimately federal executives need the support of federal courts to enable them to enforce congressional statutes.

State legislatures are in a somewhat weaker position, in that federal enforcers don't need to submit their cases to state bodies to get them enforced. In the early decades of this country federal officials did need the cooperation and support of state and local officials to carry out federal statutes, but they no longer do in the same way or to the same degree. That was why the Kentucky Resolutions of 1798 and 1799, authored by Thomas Jefferson, and the Virginia Resolutions of 1798, and the Virginia Report of 1800, authored by James Madison, represented such serious challenges to central government authority. Neither Jefferson nor Madison pretended such state resolutions had the legal effect of repeal or rescission, but they understood very well that sustained, widespread noncooperation with federal officials would render them impotent as a practical matter.

This is not a prelude to secession. No one is proposing the governor send the State Guard to surround Fort Hood and begin bombarding it. Now, of course, if federal agents engaged in another murderous assault on innocent Texans the way they did near Waco from February 28 through April 19, 1993, that could be another matter. We can hope that won't happen again.

Now admittedly it is not a good idea to try to adopt state legislation to nullify congressional legislation that hasn't been adopted yet, may never be, or may take an entirely different form by the time it is. A state legislature that only meets 140 days every two years is ill-prepared to respond in a timely manner to a flood of unconstitutional congressional legislation, or to executive or judicial actions that may be similarly unconstitutional. We need to establish an institution that can respond rapidly to a variety of usurpations, most of which may not be foreseeable.

I have proposed to legislators of this and several other states a measure that would address this problem, with the following components:


1. Commission. Establish a "Federal Action Review Commission" ─ a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials or agents.

4. Funding. Establish a state fund to pay for legal and financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.



“Official” nullification is already being used, and has a long history of use. For example, Congress passed the RealID Act mandating states issue state identification to federal standards, with centralized management of identification data that would allow nameless bureaucrats to decide who is an American citizen, and who may do business or make a living. Many states, urged by public resistance, have refused to comply or fund the federal act, which has become a dead letter.

An increasing number of states have adopted measures legalizing the sale, possession, and use of marijuana for medical purposes with a physician's prescription, and after threatening physicians with prosecution of the congressional statutes still on the books, the present administration has quietly said it will no longer seek to prosecute such use or the physicians who authorize it. Without actually declaring the federal statutes unconstitutional, this defiance has raised the consciousness of the public so that it is now difficult to empanel a jury in those states that will not contain some jurors who will hold out for acquittal.

Governor Perry engaged in an act of nullification by refusing federal funds for public education that would weaken Texas standards, the model for the entire country, especially in the critical subjects of American History and American Government. The State Board of Education currently has before it proposals to strengthen those subjects even further, which would be disabled by the federal program.

There has also been “unofficial” nullification, mostly by juries refusing to convict for offenses like violations of alcohol prohibition, or to return runaway slaves to their masters. Ultimately it would come down to juries, whose cooperation is critical in federal court cases. It can become nearly impossible to empanel a federal jury without including at least a few who, perhaps inspired by state leaders, refuse to go along with the opinion of the federal judge as to what is the law, and decide for themselves that the charge is unconstitutional and that their duty is to acquit.

Many who took an oath to defend the Constitution despair of getting relief for their complaints in Congress, the Executive Branch, or the federal courts. Perhaps, when state citizens refuse to cooperate, the central government will get the message.

Is Law Based on Logical Fallacy?

A friend of mine, John Wolfgram, posed this interesting question:

It is true that argument ad verecundiam (from authority) is a logical fallacy and it is also true that argument from and to legal authority is the basic modus operandi of the law. Does that therefore mean that the basic method of operation of the law based in a logical fallacy?

The answer is not a simple "yes", because there is more involved than argument ad verecundiam. Legal practice is mostly about deciding what actions to take on behalf of the public, which involves what are called deontic propositions. During the course of that process, there is a tendency to indulge in making declarative propositions, assertions about what is or is not, and that is where such fallacies can be a special problem.

A court is a deliberative assembly of individuals with various duties and the authority to decide certain kinds of legal issues presented to it, called its jurisdiction. One of those duties is to preside over the court, and that presiding officer is typically called the bench or the "judge" (although it may be a panel of several, one is normally the chief).

One of the things courts are typically asked to do is "find" declarative propositions: that the defendant is or is not guilty, or at fault, or whatever. Obviously, the court can err, and declaring something true doesn't make it true. What the court is really doing is deciding "we will act as though it were true". They may have the authority to do that.

So when in law someone argues from authority one is really saying, "we don't know if what he is saying is valid, but we have to make a decision, and he seems more credible than the alternatives, so we will act as though what he is saying is valid." No ad verecundiam fallacy in that.

The fallacy comes when one transitions from "we will act as though what he is saying is valid" to "what he is saying is valid".

Let's examine what Court Y in Case B is doing when it cites a Court X in Case A as precedent. It is saying:

1. The evidence and arguments in Case A are similar to those in our Case B.

2. Court X in Case A decided to act as though the arguments for their decision were more valid than the arguments against.

3. We have confidence in the integrity and competence of Court X.

4. We don't have time to re-examine all the arguments in our Case B going back to first principles.

5. Therefore, in the interests of clearing our docket so we can take other cases, we will act as though the decision of Court X in Case A was valid, and act as though it is similar enough to our case B to make a decision to act in a similar way.

Now all of the above seems sensible, and indeed, given crowded dockets and limited cognitive capacity of judges, it would seem that "justice" could hardly be done otherwise if we are to have any finality in cases. However, as a matter of logic, every one of the five points above involves at least one logical fallacy, not only ad verecundiam.

So are we doomed to a judicial process that is logically infirm? Not quite. Game theory provides some useful insights.

Considered as a game, skillful play involves what are called heuristics -- decision strategies that do not guarantee always finding the best move, but which are highly likely to find an acceptably good move most of the time, and which are computationally tractable given constraints on time, cognitive capacity, and completeness and reliability of information about the state of the game.

Deontic logic, which is an extension of the first order predicate calculus, is designed to help us manage this kind of game playing, to optimize outcomes in general and over the long term. No guarantees of just decisions in every particular case, but a high likelihood of reasonably just decisions in most cases. The above five points represent attempts to use heuristics, whether with great skill and integrity or not.

Our job, in trying to decide and guide public policy, is therefore not to seek to impose strict first order logic on all of the decisionmaking of judges, but to improve the quality of such decisionmaking without excessively consuming scarce resources of dockets or personnel, and that involves reducing the susceptibility to error in each of the above five points. ("Error" being the euphemism for everything from incompetence to corruption.) By thus disaggregating the processes involved, we can better discern what might be done to improve them.

Now of course an important way is to improve the competence and integrity of judges. There is no substitute for that. But we also indeed to adjust our expectations of them.

Consider the recent case of Citizens United v. FEC. For me, with my background in constitutional study, it is an easy case. If I were to write the majority opinion in it, it would be very short:

1. The statute was passed by Congress.

2. The statute abridges freedom of speech and press.

3. The First Amendment says "Congress shall make no law .. abridging freedom of speech or press".

4. There are no later amendments to the Constitution that would supersede the First Amendment.

5. Therefore, the statute is unconstitutional.

6. Judgment for plaintiff.

It took me less than three minutes to write that. No need for extensive written or oral arguments (although I read the written arguments in about an hour). I can generally do the same with almost any case that turns on constitutional issues. (Statutory or regulatory construction can take longer.)

If we had nine justices on the Supreme Court with my background and skills, we could decide all 8000 cases submitted each year and the Supreme Court at least would not be a bottleneck. Now of course it would only be a handful of libertarian constitutionalists that would applaud those decisions. Most others would probably be very upset, if only because so many opinions would likely consist of only a few lines like the above. Not much for them to chew over, and their professional standing depends on having lengthy court opinions to chew over.

I am not unique. I'm sure we could find enough others like me to fill all the judicial positions. Of course, reliance interests, especially prosecutors, would go nuts.

But we can identify a large part of the problem. Judges want to avoid criticism, so they might overdo their deliberation and opinion writing. Now, most of the ones we have presently need to take even more time deliberating, because their subject matter knowledge and reasoning ability is weak. But that could be solved by requiring them to be much better educated. They should also be socially, as well as financially, isolated from the many interests and their lawyers that might appear before them, without lacking practical experience of many kinds.