After years of study of our situation, I have concluded that there are just two things we can do, and that have to be done in tandem. The first is nullification commissions, discussed at http://constitution.org/reform/us/tx/nullification/nullcomm.htm , and the second are amendments, discussed at http://constitution.org/reform/us/con_amend.htm .
Nullification commissions would mobilize public opposition to current unconstitutional federal practices, but there are limits to what those could do to end most such practices. That would lead to amendments, which would have to be pursued carefully, to avoid opposition at critical stages. The way the 27th Amendment was adopted is instructive. That was mainly the result of the efforts of one person, going from state legislature to state legislature. The key to his success that that he did not arouse any opposition. He proceeded quietly, building support without a lot of public attention.
The key to getting the right amendments is to get state legislators to propose an amendment to Congress, the same language from multiple states, with the demand that Congress adopt and send back that exact wording. There is not likely to be much opposition at the first stage, because all the state legislators are being asked to do is send a letter to Congress. However, if the same amendment was demanded by the legislatures of 2/3 of the states, Congress, fearing a constitutional convention, is likely to adopt the proposed amendment and send it back to the states for approval by the necessary 3/4.
Some confusion seems to persist about my list of proposed amendments. I am only pushing the first two groups, the clarifying and the remedial amendments, because they would be to restore compliance with the Constitution as originally understood. The third group, the substantive amendments, are mainly directed to those who might want the federal government to do things it is doing now that are unconstitutional, and who would oppose the clarifying amendments if they didn’t have amendments of their own to push. I wouldn’t push them, but if they are going to want to do so, then it is better to give them some that are well-written rather than what they would probably write on their own. If we are going there in public discourse then it is better to frame the issues competently.
Finally, to dispose of one fear, about the danger of an Article V convention, or "con-con". There is no way 3/4 of the states are going to approve of a completely new constitution, much less of one that might allow further amendments with less than 3/4 of the states. The larger and more complex the amendments, the more opposition there would develop. The most that can happen is the adoption of one fairly short amendment at a time, on one subject. That is why I drafted my proposed amendments to be adopted one at a time. Each one can stand alone, because it may have to. Of course, to deal with all the usurpations we would eventually need to adopt all of them, and probably some more, but the problem needs to be broken into manageable steps to have a chance at working.
There is only one way a con-con plays into my proposal: as something that would scare enough members of Congress into adopting a proposed amendment demanded by 2/3 of the states. There is no chance whatsoever of Congress ever allowing a con-con to happen.
An Article V convention can’t ratify its own proposal. All it can do is submit a proposal to the states for ratification by 3/4, and there is no way they would approve a constitution that would reduce that. Maybe to increase it, but they are not going to vote to reduce their power.
Now one might more reasonably argue that if the 16th Amendment could be deemed ratified by fraudulent reports of ratification by states that didn’t ratify it, and by a mere report of ratification by a clerk in the office of the Secretary of State, then what could prevent a con-con from having its proposal “ratified” by fraud? The answer is nothing but a public uprising, but hopefully that would happen if they tried that.
After all, if they are going to resort to that kind of fraud, there is also nothing to prevent them from holding a fraudulent con-con and announcing a fraudulent proposal of it. If the American people stand by, the opposition doesn’t need a con-con or anything else. They can just put out a totally rewritten constitution every day without any formalities of proposal or ratification. That is what dictators do.
And it is essentially what they are already doing now. They are just being more subtle about it.
The opposition are not completely ignoring the Constitution. For the most part they are exploiting what to modern readers are ambiguities in the language. The language is not that ambiguous to one who is fluent in the legal English of 1787, but people today aren’t.
I highlight the ambiguities at http://constitution.org/cons/constitu+.htm The prime examples are the meanings of “regulate”, “commerce”, and “necessary and proper”. Most of the usurpations of the federal government are based on misinterpretations of those terms. To understand them as the Framers did, I researched writings from before 1787, many of which are only to be found in old archives. Most people are not going to do that. Therefore, I propose amendments which define the terms to make clear what they meant in 1787, and are supposed to mean today.
This process is much like that you may have experienced in making rules for your children. They will typically be very good at finding loopholes in your rules, so that you keep having to elaborate on them to cover all the cases the kids might come up with. You do that by making simple general rules more and more specific. That is what we have to do with the Constitution. It may become a much longer document, but there may be no good way to avoid that. Brevity is great, but sometimes one just has to use more words to cover all the cases.
Unfortunately, when one is up against people trying to wiggle around simple language, sometimes the only way is to get more specific. If you were to argue that some action of the feds is barred by the Tenth Amendment, he would just come back by arguing that he is not violating it, because it is authorized by the Commerce and Necessary and Proper clauses. Then the argument gets into what those clauses mean, and to find out what they mean, it takes more historical research than most people are going to be willing to do.
If you were to argue that some right is in the Ninth Amendment, the opposition is likely to respond, “Where is it in the Ninth Amendment?” Then you are back to historical research on what the unenumerated rights were. I’ve done that research. It is not easy. Took me many years. We need to lift many of those unenumerated rights out of the Ninth and enumerate them. I have proposed how to do that at http://constitution.org/9ll/schol/pnur.htm
The meaning of the Constitution is not so clear to lazy lawyers or the undereducated general public today. Most of those are easily confused. Making it clear to them is a daily challenge for me, and I can only reach a few of them. As for our rights, it is easy to assert we have them, but if you try to argue that in court the opposition will ask you to prove you have that particular right, and argue that the Commerce or other clause provides the authority to infringe it.
I am currently embroiled in an argument in another forum consisting mostly of lawyers over whether we have a right to a presumption of nonauthority. I argue that authority has to be proved, and if not proved, the official doesn’t have it. That seems rather basic, and I am old enough to remember when no one would dare to argue to the contrary, but now I am having to do so, because even educated people today (at least in having academic credentials) don’t start from the same basic foundations of understanding of the principles of law.
It has been said that barbarism is never more than one generation away from overcoming civilization. The truth of that is something I confront every day. Things that were taken for granted fifty years ago are not being recognized as valid today. Far from having a common language of discourse, it seems more like we have the “confusion of tongues” from Genesis.
We are not going to be able to regain control over officials by a straightforward electoral process as long as tax-getters outnumber tax-payers and the tax-getters are better organized. We are not going to get majorities to make the reforms needed. The best we can hope to do is to leverage structural and procedural reforms that undermine the opposition until we can overcome them. That is not a simple, straightforward process. I have outlined how to do it. The rest is up to people like you.
Forget the con-con bogeyman. It is just being used to subvert real reform efforts. Again, I set forth all that in my proposals. Read them very, very carefully.
2010/10/28
2010/10/27
Lingering Citizens United controversy
Lingering controversy on the Citizens United decision is getting arguments for what the law, in this case the Constitution, should be, but not enough about what the Constitution actually says. Some are desperately seeking some power of government to restrict the undue influence of money on election campaigns, citing all kinds of dire consequences if this is not done. I keep waiting for someone to make the argument that "the Constitution is not a suicide pact".
I suggest this forum should focus on what the law "is", rather than on what it "should be". However, there are two legitimate concepts of what the law is. The first is what was originally meant, intended, or understood. The second is what is current custom, policy, practice, or doctrine, even if it conflicts with the first. As a legal historian I favor the first, but it is to be expected that legal realists, focused on winning cases, might favor the second. The problem comes when people seek the exercise of governmental powers that don't fall within the first or second, not by formally amending the Constitution, but by pushing changes in current practice as an alternative to formal amendment.
First, let us dispose of one argument: there is no such thing as a "natural right" to not have private parties spend their money to influence voters. The right is not to have government restrict how anyone may spend his money to do so. That is the right of free press (miscast as "speech"). "Congress shall make no law" means Congress shall make no law. What part of "no law" is unclear?
A more useful discussion would be on the question, "How might we amend the Constitution to delegate the power to restrict the undue influence of money in election campaigns?" Assuming we had any agreement on what constitutes "undue", which we don't, we would need to examine what government agents could do that would be effective in that regard. Imagine an ideal world in which there is no undue influence, and then try to find the actions by agents that could make that so.
I have yet to find any proponents of such restriction that can describe how that could be made to work, short of just picking the winners or abandoning elections altogether and going to some kind of sortition process. As long as voters can be influenced by others and those others can be paid to influence them, money will find a way to influence voters. Overcoming that would take godlike powers and government agents don't have godlike powers (although some might think they do). The system simply does not have leverage points at which interventions can be applied that would not make things even worse.
There are limits not only to what government is authorized to do, but to what it can do even if authorized, and people do not act wisely to try to exceed those limits.
Official power does not come from need. It comes from a delegation of authority from someone having the power to do so. The Universe may end without the exercise of a power, but that does not confer the slightest iota of authority, unless there is a prior delegation of authority to act if a need arises. There is a logical fallacy that covers this: Necesse ergo praesto. I have the need to do it, therefore I have the (legal) authority to do it. No you don't. If you act without authority to save the world, history may praise you, but it may still be lawful and dutiful to prosecute and execute you for it. After you are dead you will get a statue in your honor. That is the way law works, and is supposed to work.
The decision in Citizens United had nothing whatsoever to do with corporate personhood, nor do other statutes or court rulings on the subject of speech and campaign finance. The First Amendment state "Congress shall make no law ... abridging the freedom of speech, or the press ..." No law means no law. It makes no difference whether the speaker or publisher is an individual, a corporation, a genetically enhanced animal, an android, a space alien, or a rock. There is no constitutional power of government to try to restrict any attempt by anyone or anything to persuade anyone of anything. Voters have the absolute responsibility to decide how and by whom they will be influenced, and if they make bad choices, those are their choices to make. They are not children and we are not their parents.
I suggest this forum should focus on what the law "is", rather than on what it "should be". However, there are two legitimate concepts of what the law is. The first is what was originally meant, intended, or understood. The second is what is current custom, policy, practice, or doctrine, even if it conflicts with the first. As a legal historian I favor the first, but it is to be expected that legal realists, focused on winning cases, might favor the second. The problem comes when people seek the exercise of governmental powers that don't fall within the first or second, not by formally amending the Constitution, but by pushing changes in current practice as an alternative to formal amendment.
First, let us dispose of one argument: there is no such thing as a "natural right" to not have private parties spend their money to influence voters. The right is not to have government restrict how anyone may spend his money to do so. That is the right of free press (miscast as "speech"). "Congress shall make no law" means Congress shall make no law. What part of "no law" is unclear?
A more useful discussion would be on the question, "How might we amend the Constitution to delegate the power to restrict the undue influence of money in election campaigns?" Assuming we had any agreement on what constitutes "undue", which we don't, we would need to examine what government agents could do that would be effective in that regard. Imagine an ideal world in which there is no undue influence, and then try to find the actions by agents that could make that so.
I have yet to find any proponents of such restriction that can describe how that could be made to work, short of just picking the winners or abandoning elections altogether and going to some kind of sortition process. As long as voters can be influenced by others and those others can be paid to influence them, money will find a way to influence voters. Overcoming that would take godlike powers and government agents don't have godlike powers (although some might think they do). The system simply does not have leverage points at which interventions can be applied that would not make things even worse.
There are limits not only to what government is authorized to do, but to what it can do even if authorized, and people do not act wisely to try to exceed those limits.
Official power does not come from need. It comes from a delegation of authority from someone having the power to do so. The Universe may end without the exercise of a power, but that does not confer the slightest iota of authority, unless there is a prior delegation of authority to act if a need arises. There is a logical fallacy that covers this: Necesse ergo praesto. I have the need to do it, therefore I have the (legal) authority to do it. No you don't. If you act without authority to save the world, history may praise you, but it may still be lawful and dutiful to prosecute and execute you for it. After you are dead you will get a statue in your honor. That is the way law works, and is supposed to work.
The decision in Citizens United had nothing whatsoever to do with corporate personhood, nor do other statutes or court rulings on the subject of speech and campaign finance. The First Amendment state "Congress shall make no law ... abridging the freedom of speech, or the press ..." No law means no law. It makes no difference whether the speaker or publisher is an individual, a corporation, a genetically enhanced animal, an android, a space alien, or a rock. There is no constitutional power of government to try to restrict any attempt by anyone or anything to persuade anyone of anything. Voters have the absolute responsibility to decide how and by whom they will be influenced, and if they make bad choices, those are their choices to make. They are not children and we are not their parents.
2010/10/25
Right to Petition for Redress of Grievances
One of the best period treatises on the subject is The Subject's Right
of Petitioning, Anonymous. (1703)
It is important to explain that the First Amendment was written with a
view to the penalties and impediments that had been imposed in England
in the period preceding it. See particularly the suppression of the
London Corresponding Society and Society of Constitutional Information.
The right to petition is only the right not to be penalized or impeded.
It is not the right to get redress. Originally, courts and government
were not viewed as a "redress delivery service". One got redress through
"self-help" or with the aid of volunteers from the community. Since this
could devolve into civil conflict, courts were established to allow a
pause in the dispute while disputants presented their arguments and
evidence and gave the community an opportunity to line up on one side or
the other. A court decision was supposed to represent the community
consensus, which is part of the reason the jury came to be the principal
decider.
So one should not look to the First Amendment for a right to redress,
only to petition for redress. There is a right to a kind of redress, but
it is to be found in the Ninth Amendment, not the First, and it is
represented in the prerogative writs, which were presumed to be remedies
without having to be explicitly declared as such, as evidenced by the
demand by the New York Ratifying Convention for a right to bring such
writs "in the name of the people", which was a recognition that the
people were now the sovereign and inherited the prerogative writs. See
Presumption of Nonauthority and Unenumerated Rights
Perhaps the most important of the prerogative writs was the writ of quo
warranto, whereby any person, as demandant, could file and serve the
writ on an official, the respondant, whereupon he would have 3-20 days
to prove his authority to the court, failing which he would be expected
to cease such exercise, and perhaps vacate the office if it was holding
the office that was being challenged. Note that this was not a petition,
but a demand. The burden of proof was on the respondant. The writ would
issue as an order even if the court failed to hold a hearing.
We've come a long way since the law worked that way.
of Petitioning, Anonymous. (1703)
It is important to explain that the First Amendment was written with a
view to the penalties and impediments that had been imposed in England
in the period preceding it. See particularly the suppression of the
London Corresponding Society and Society of Constitutional Information.
The right to petition is only the right not to be penalized or impeded.
It is not the right to get redress. Originally, courts and government
were not viewed as a "redress delivery service". One got redress through
"self-help" or with the aid of volunteers from the community. Since this
could devolve into civil conflict, courts were established to allow a
pause in the dispute while disputants presented their arguments and
evidence and gave the community an opportunity to line up on one side or
the other. A court decision was supposed to represent the community
consensus, which is part of the reason the jury came to be the principal
decider.
So one should not look to the First Amendment for a right to redress,
only to petition for redress. There is a right to a kind of redress, but
it is to be found in the Ninth Amendment, not the First, and it is
represented in the prerogative writs, which were presumed to be remedies
without having to be explicitly declared as such, as evidenced by the
demand by the New York Ratifying Convention for a right to bring such
writs "in the name of the people", which was a recognition that the
people were now the sovereign and inherited the prerogative writs. See
Presumption of Nonauthority and Unenumerated Rights
Perhaps the most important of the prerogative writs was the writ of quo
warranto, whereby any person, as demandant, could file and serve the
writ on an official, the respondant, whereupon he would have 3-20 days
to prove his authority to the court, failing which he would be expected
to cease such exercise, and perhaps vacate the office if it was holding
the office that was being challenged. Note that this was not a petition,
but a demand. The burden of proof was on the respondant. The writ would
issue as an order even if the court failed to hold a hearing.
We've come a long way since the law worked that way.
2010/10/24
Missing from Schrader v. Holder
The case of Jefferson Wayne Schrader and Second Amendment Foundation v. Eric Holder and Federal Bureau of Investigation is on facts well-selected for rolling back the unconstitutional provisions of 18 USC 922. However, it is missing several claims for relief that need to be included in the petition to establish a predicate for eventual appeal.
The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.
To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.
Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.
I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.
It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?
How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre?
The basic problem is that in only seeking to prevent federal denial of the RKBA on the basis of a state misdemeanor, it may serve to further confirm the unconstitutional power to make it a crime to possess a firearm on a basis of something other than an explicit judicial disablement of the RKBA by a court of the same jurisdiction. The entire premise of 18 USC 922 is criminalization based on only administrative findings that the possessor is "dangerous", using any of several criteria, none of which constitute judicial due process.
To be due process, for a fundamental right, someone must successfully petition a court of competent jurisdiction to explicitly disable that right, on proof beyond a reasonable doubt of crime or incompetency, not just have it disabled implicitly as an incidental result of disabling the exercise of another right. If a right were disabled, then the exercise of it would be contumacy, punishable by the court that issued the order, not by agents of a different sovereign. It is not necessary to challenge the line of precedents based on Wickard v. Filburn to roll back this clear constitutional violation.
Denial or prosecution on these grounds is a clear violation of Fifth and Fourteenth Amendment due process, along with the prohibitions on bills of attainder and ex post facto laws. This is discussed in Public Safety or Bills of Attainder?, University of West Los Angeles Law Review, Vol. 34, 2002. Although some might consider it good strategy to seek only a narrow ruling on the facts in this case, I submit it is time to go after the more fundamental constitutional issues. We may never have a better case in which to do that.
I am of course aware of the wrong court decisions that upheld 18 USC 922, but the cases leading to those decisions were not well argued, and Heller and McDonald open the way to re-examine those precedents, eventually going all the way back to Wickard.
It doesn't work to make an argument that because some indicator of being dangerous occurred sometime in someone's life that therefore a federal administrator can find it is a crime for him to possess a firearm, leaving a court with nothing to decide but whether he possessed it, without having to first go to federal court on a petition to have his RKBA disabled. Oops, the federal court might decide it didn't have jurisdiction to grant such relief (it doesn't). If so, then how does it have jurisdiction to send someone to prison on no more due process than an administrative finding with no notice or hearing?
How creative do officials have to get in depriving people of their rights until courts and the people say it has become downright bizarre?
2010/09/26
Common law crimes unconstitutional
Most people today take it for granted that for some act to be a crime there has to be a statute that forbids it and imposes a criminal penalty for violators. Without knowing the Latin, they have a sense of the maxim, nullum crimen sine lege, there is no crime without a law. However, that maxim only dates to Bavaria in 1813.
What makes a crime "common law" is that the crime is defined, or the punishment for violation of it declared, only ad hoc or in custom or court precedent. Often the definition or declaration occur only when the verdict is rendered or the sentencing order announced, That violates the due process rule that defendants need to have notice of offenses or punishments therefor, prior to acting,and an opportunity to challenge the constitutionality thereof
In the English legal system inherited by the United States, crimes were for the most part not established by statutes, but by customary common law, in which judges sought to discover and impose natural, unwritten laws against crimes, especially after the local courts, conducted by nobles, were replaced by a national system of courts with judges appointed by the king. A few "high" crimes, against the state, were established by statute, such as treason, sedition, and libel, but crimes like murder, robbery, fraud, perjury, and assault, continued to be charged on the basis of court precedents.
Common law crimes
Note that power is granted to Congress:
U.S. Constitution, Art I Sec. 8 Cl. 6:
Congress shall have power ... To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
But this clause does not define counterfeiting nor prescribe penalties therefor, although it authorizes Congress to do so.
U.S. Constitution, Art I Sec. 8 Cl. 10
Congress shall have power ... To define and punish Piracies[,] and Felonies committed on the high Seas, and Offences against the Law of Nations;
But this clause does not define such offenses nor prescribe penalties therefor, although it authorizes Congress to do so.
U.S. Constitution, Art I Sec. 8 Cl. 16.
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,
This clause also does not define such offenses nor prescribe penalties therefor, although it authorizes Congress to do so. Militia includes army and naval personnel, bound by their enlistment contracts, which also includes an oath of office, making them public officials, subject to penalties for violation of high crimes or misdemeanors. Militia in called up status are likewise public officials, bound by oath of office.
Treason is defined,
Art. III Section. 3:
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason,
Note that "enemies" is not defined, and that is presumably left to Congress in its power to declare war, but that would make all espionage acts presume that anyone not authorized to have or disclose classified information an enemy or an abettor of one, including treaty allies.
But further note:
U.S. Constitution, Art I Sec. 10 Cl. 1:
No State shall ... pass any ... ex post facto Law ...
That prohibits states from prosecuting common law crimes, unless such crimes are codified in a constitutional statute of the state.
The problem with using court precedents as the law for criminal charges is that they are always for a different case. The law "found" for the immediate case is thus always in some sense undefined until charged, which is after the offense was committed, and thus is a kind of ex post facto law.
When the Thirteen States declared independence July 4, 1776, and established their own constitutions of government, with the people replacing the Crown as sovereign, they continued the English legacy of common law crimes. However, by adopting the Constitution June 21, 1788, with its prohibitions of ex post facto laws for both Congress and the states, they removed the authority for such a criminal justice system at all levels of government.
It is not clear that the delegates to the Constitutional Convention were aware that in prohibiting ex post facto laws they might also be forbidding criminal common law. In some of their statements and language, they seemed to presume the continuation of it, but during the Constitutional Convention they were focused on other issues, only thought of a few crimes that got written into the Constitution, and just assumed all the rest could be handled by the states. In those days it was assumed that if, for example, a federal official committed bribery he could be prosecuted for that under a state statute in a state court. Criminal prosecutions were rare, and generally done by private persons rather than by public prosecutors. Those would not become prevalent until the late 19th century. It was a different time, when most government was local, and consisted mainly of militia and juries.
This is seen when the first congress made it a capital offense to rob the mails. If the offense was not among the expressly delegated penal powers of Congress, or an implied power of them, then the question arises of whether they understood their own new adopted Constitution, or whether it is a mistake for us to conclude that such penal powers were not implied.
The mistake comes in looking for a single, fixed common meaning and understanding of the words of the Constitution at the time it was framed or ratified. However, it is also a mistake to argue that because there is no evidence of such a fixed common meaning or understanding, we are not bound to it today.
The Founders were engaged in a process of discovery, learning, and discussion. Some of the leading Framers began with meanings they wanted words to express, discovered some words in their legal training and reading, and adopted the words they found, without perhaps always knowing the full meanings the words carried from more than a 1000 years of usage. In adopting those words, they were adopting the legacies of usage of those words, as found in the works of legal scholars they respected. Therefore, they were essentially adopting the applicable work of those scholars as part of the background of meaning, even if many or most of them had not yet learned all of that.
The meanings of words can be reasonably fixed at the time they are issued even if the writers haven't yet fully apprehended those meanings. It is a process of learning. Essentially, it is a somewhat foreign language for the framers and ratifiers as well. We saw that in the way Dickenson, in the Constitutional Convention, sought the meaning in Blackstone of the meaning of ex post facto. They started with a meaning they wanted, but weren't sure until they looked it up that those words carried that meaning. Having made the choice, they were also choosing the legacy of meaning of the terms, much of which they remained to discover.
At the framing only a handful had a fairly firm grip on the meanings. Others in the Convention learned as it proceeded to a conclusion. Then the process of discovery spread to others, who initially lacked consensus, but a consensus emerged, converging on a common understanding by the point of ratification and adoption of the Bill of Rights, which is really part of the ratification, the second phase. Note however that common understanding of the words doesn't mean agreement on which words to adopt, especially on how they expected events to unfold from the words chosen.
As members were elected to Congress, some came in who had not joined in the consensus, or who resisted it. This led to the departures leading to the Alien and Sedition Acts, and the reaction, which brought the Election of 1800, which we can take as a consolidation of the consensus on understanding. So we are looking at a learning and consensus-building process that took about 13 years. It was not just the appearance of a single fixed meaning[/understanding] at one moment in time.
Thomas Jefferson responded to the Alien and Sedition Acts, in the Kentucky Resolutions of 1798:
Jefferson omitted high crimes and misdemeanors, which include ordinary crimes, applied to federal public officials, military, and militia when in federal service, and are a kind of private law. U.S. Const. Art. II:
The Uniform Code of Military Justice provides a legacy indicating what the Framers meant by "high crimes and misdemeanors". They were offenses peculiar to officials, such as perjury of oath, abuse of authority, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. Offenses by officials also included ordinary crimes, but carried different standards of proof and punishment. They also included offenses against officials by civilians that would interfere in officials performing their duties. The term "high" was used to refer to operations involving officials and their duties.
We inherited a legal system in which all officials, including "civilian" officials, were regarded like military personnel, as they were in feudal times.
However, in United States v. Hudson, 7 Cranch 32 (1812), the Supreme Court held that there was no jurisdiction to try common law crimes in the courts of the United States. This was affirming the position of Jefferson in the Kentucky Resolutions of 1798. In the final paragraph, Justice Johnson states:
The issue would come before the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 (2001), in the dissenting opinion of Justice Scalia:
There is also a growing departure from original understanding, that seeks to justify the exercise of criminal powers. For example, we have this from West's Encyclopedia of American Law:
What makes a crime "common law" is that the crime is defined, or the punishment for violation of it declared, only ad hoc or in custom or court precedent. Often the definition or declaration occur only when the verdict is rendered or the sentencing order announced, That violates the due process rule that defendants need to have notice of offenses or punishments therefor, prior to acting,and an opportunity to challenge the constitutionality thereof
In the English legal system inherited by the United States, crimes were for the most part not established by statutes, but by customary common law, in which judges sought to discover and impose natural, unwritten laws against crimes, especially after the local courts, conducted by nobles, were replaced by a national system of courts with judges appointed by the king. A few "high" crimes, against the state, were established by statute, such as treason, sedition, and libel, but crimes like murder, robbery, fraud, perjury, and assault, continued to be charged on the basis of court precedents.
Common law crimes
This list includes offences that have been abolished or codified in one or more or all jurisdictions:
- Murder
- Manslaughter
- Mayhem
- Common assault aka assault
- Battery
- Assault with intent to rob
- Assault with intent to rape
- Kidnapping / abduction
- Rape
- Buggery
- Arson
- Larceny
- Robbery
- Burglary
- Trespass
- Extortion
- Concealment of treasure trove
- Cheating
- Fraud
- Forgery
- Counterfeiting (but see below)
- High treason (but see below)
- Petty treason
- Misprision of treason (disputed - alleged to be statutory)
- Misprision of felony (disputed - alleged not to exist)
- Compounding treason
- Sedition
- Seditious libel
- Contempt of the sovereign
- Espionage
- Contempt of court a.k.a. criminal contempt, contumacy
- Compounding a felony
- Fabrication of false evidence
- Escape from lawful custody
- Breach of prison/breaking prison
- Rescue/rescuing a prisoner in custody
- Harboring a fugitive or felon
- Effecting a public mischief (disputed - held to no longer exist)
- Malicious mischief
- Riot
- Mobbing
- Piracy (but see below)
- Rout
- Affray
- Unlawful assembly
- Breach of the peace
- Defamatory libel
- (Causing a) public nuisance
- Obscene libel
- Blasphemy
- Blasphemous libel
- Incitement
- Challenging to fight
- Maintenance
- Champerty
- Embracery
- Eavesdropping
- Barratry, inciting litigation for profit
- Being a common scold
- Nightwalking (so as to cause alarm)
- Outraging public decency
- Forcible entry
- Forcible detainer
- Attempt
- Conspiracy
- Accessory
- Offering or paying a bribe
- Inebriation, public intoxication, posing a danger to others
- Running a disorderly house
- Administration of drugs with intent to enable or assist the commission of a crime
- Housebreaking with intent to steal
- Theft
- Use of threats with intent to extort money or property
- Wilful fireraising and culpable and reckless fireraising
See also criminal libel
High crimes and misdemeanors
- Misconduct in public office
- Perjury of oath
- Abuse of authority
- Failure to appear: subpoena, militia call-up, jury notice
- Failure to supervise
- Misappropriation of funds
- Acceptance of a bribe
- Dereliction of duty, Refusal to execute public office
- Conduct unbecoming
- Desertion, Away without leave
- Insubordination, Failure to obey a lawful order
- Obstruction of justice, perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
- False imprisonment
- Permitting an escape
- Commission of a constitutionally codified crime, which is considered misconduct.
U.S. Constitution, Art I Sec. 8 Cl. 6:
Congress shall have power ... To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
But this clause does not define counterfeiting nor prescribe penalties therefor, although it authorizes Congress to do so.
U.S. Constitution, Art I Sec. 8 Cl. 10
Congress shall have power ... To define and punish Piracies[,] and Felonies committed on the high Seas, and Offences against the Law of Nations;
But this clause does not define such offenses nor prescribe penalties therefor, although it authorizes Congress to do so.
U.S. Constitution, Art I Sec. 8 Cl. 16.
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,
This clause also does not define such offenses nor prescribe penalties therefor, although it authorizes Congress to do so. Militia includes army and naval personnel, bound by their enlistment contracts, which also includes an oath of office, making them public officials, subject to penalties for violation of high crimes or misdemeanors. Militia in called up status are likewise public officials, bound by oath of office.
Treason is defined,
Art. III Section. 3:
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason,
Note that "enemies" is not defined, and that is presumably left to Congress in its power to declare war, but that would make all espionage acts presume that anyone not authorized to have or disclose classified information an enemy or an abettor of one, including treaty allies.
But further note:
U.S. Constitution, Art I Sec. 10 Cl. 1:
No State shall ... pass any ... ex post facto Law ...
That prohibits states from prosecuting common law crimes, unless such crimes are codified in a constitutional statute of the state.
The problem with using court precedents as the law for criminal charges is that they are always for a different case. The law "found" for the immediate case is thus always in some sense undefined until charged, which is after the offense was committed, and thus is a kind of ex post facto law.
When the Thirteen States declared independence July 4, 1776, and established their own constitutions of government, with the people replacing the Crown as sovereign, they continued the English legacy of common law crimes. However, by adopting the Constitution June 21, 1788, with its prohibitions of ex post facto laws for both Congress and the states, they removed the authority for such a criminal justice system at all levels of government.
It is not clear that the delegates to the Constitutional Convention were aware that in prohibiting ex post facto laws they might also be forbidding criminal common law. In some of their statements and language, they seemed to presume the continuation of it, but during the Constitutional Convention they were focused on other issues, only thought of a few crimes that got written into the Constitution, and just assumed all the rest could be handled by the states. In those days it was assumed that if, for example, a federal official committed bribery he could be prosecuted for that under a state statute in a state court. Criminal prosecutions were rare, and generally done by private persons rather than by public prosecutors. Those would not become prevalent until the late 19th century. It was a different time, when most government was local, and consisted mainly of militia and juries.
This is seen when the first congress made it a capital offense to rob the mails. If the offense was not among the expressly delegated penal powers of Congress, or an implied power of them, then the question arises of whether they understood their own new adopted Constitution, or whether it is a mistake for us to conclude that such penal powers were not implied.
The mistake comes in looking for a single, fixed common meaning and understanding of the words of the Constitution at the time it was framed or ratified. However, it is also a mistake to argue that because there is no evidence of such a fixed common meaning or understanding, we are not bound to it today.
The Founders were engaged in a process of discovery, learning, and discussion. Some of the leading Framers began with meanings they wanted words to express, discovered some words in their legal training and reading, and adopted the words they found, without perhaps always knowing the full meanings the words carried from more than a 1000 years of usage. In adopting those words, they were adopting the legacies of usage of those words, as found in the works of legal scholars they respected. Therefore, they were essentially adopting the applicable work of those scholars as part of the background of meaning, even if many or most of them had not yet learned all of that.
The meanings of words can be reasonably fixed at the time they are issued even if the writers haven't yet fully apprehended those meanings. It is a process of learning. Essentially, it is a somewhat foreign language for the framers and ratifiers as well. We saw that in the way Dickenson, in the Constitutional Convention, sought the meaning in Blackstone of the meaning of ex post facto. They started with a meaning they wanted, but weren't sure until they looked it up that those words carried that meaning. Having made the choice, they were also choosing the legacy of meaning of the terms, much of which they remained to discover.
At the framing only a handful had a fairly firm grip on the meanings. Others in the Convention learned as it proceeded to a conclusion. Then the process of discovery spread to others, who initially lacked consensus, but a consensus emerged, converging on a common understanding by the point of ratification and adoption of the Bill of Rights, which is really part of the ratification, the second phase. Note however that common understanding of the words doesn't mean agreement on which words to adopt, especially on how they expected events to unfold from the words chosen.
As members were elected to Congress, some came in who had not joined in the consensus, or who resisted it. This led to the departures leading to the Alien and Sedition Acts, and the reaction, which brought the Election of 1800, which we can take as a consolidation of the consensus on understanding. So we are looking at a learning and consensus-building process that took about 13 years. It was not just the appearance of a single fixed meaning[/understanding] at one moment in time.
Thomas Jefferson responded to the Alien and Sedition Acts, in the Kentucky Resolutions of 1798:
2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.
Jefferson omitted high crimes and misdemeanors, which include ordinary crimes, applied to federal public officials, military, and militia when in federal service, and are a kind of private law. U.S. Const. Art. II:
Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.That clause contains an implied power to criminally prosecute and convict such offenses, as does, in combination with it, the clause in Art. III
Section. 1. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour ...imply the power to criminally prosecute bad behavior of judges, without explicitly stating "Congress shall have power to ...", because jurisdiction is established by assuming a position of public trust with its attendant duties.
The Uniform Code of Military Justice provides a legacy indicating what the Framers meant by "high crimes and misdemeanors". They were offenses peculiar to officials, such as perjury of oath, abuse of authority, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. Offenses by officials also included ordinary crimes, but carried different standards of proof and punishment. They also included offenses against officials by civilians that would interfere in officials performing their duties. The term "high" was used to refer to operations involving officials and their duties.
We inherited a legal system in which all officials, including "civilian" officials, were regarded like military personnel, as they were in feudal times.
However, in United States v. Hudson, 7 Cranch 32 (1812), the Supreme Court held that there was no jurisdiction to try common law crimes in the courts of the United States. This was affirming the position of Jefferson in the Kentucky Resolutions of 1798. In the final paragraph, Justice Johnson states:
Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt — imprison for contumacy — inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in common law cases we are of opinion is not within their implied powers.Thus only the common law crime of contumacy survived the decision, which was essentially an interpretation of the Necessary and Proper Clause, not an invocation of the ex post facto prohibitions. It also neglected to mention that since the Constitution vested all lawmaking powers exclusively in Congress (as do state constitutions in their legislatures), judges have no power to make or change law, only to find and apply it.
The issue would come before the Supreme Court in Rogers v. Tennessee, 532 U.S. 451 (2001), in the dissenting opinion of Justice Scalia:
The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process.
... what a court cannot do, consistent with due process, is ... change (to the defendant’s disadvantage) the criminal law governing past acts.However, common law crimes are still prosecuted in some states. This creates a tension in the law that remains to be resolved.
There is also a growing departure from original understanding, that seeks to justify the exercise of criminal powers. For example, we have this from West's Encyclopedia of American Law:
The power to make certain conduct illegal is granted to Congress by virtue of the Necessary and Proper Clause of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemeanors, and it may revise the classification of crimes.This apostasy is based on the misinterpretation that a power is delegated not just to make a certain kind of effort, but to get a desired result, and therefore that any power that gets the desired result is "necessary and proper". If that were correct, the Union government has no limits and there would be no point in having a written Constitution.
2010/08/29
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:
The only remedy needed or possible can be summarized with fewer words:
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:
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.
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.
2010/08/27
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.
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:
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:
Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
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.
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.
2010/07/20
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.
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.
2010/06/28
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):
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:
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.
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:
- Rights to a presumption of nonauthority -- due process.
- Rights to the means to effectively supervise public officials -- partly but largely not due process.
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.
2010/06/24
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.
- 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.
- 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.
- Have multiple judges assigned to each court, and assign them to cases by sortition.
- 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).
- 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.
- Mandate reversal of any judgment that does not presume nonauthority for any official act and require strict proof of such authority.
- 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.
- Forbid motions in limine to the prosecution in criminal trials.
- 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.
- 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.
- 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).
- 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.
- Authorize grand juries to issue subpoenas directly rather than only through their courts.
- Authorize and direct grand juries to decide the jurisdiction, or lack thereof, or the immunity of any official, for any complaint brought before them.
- Authorize grand juries to order the removal of any impediments to access to them by members of the public.
- Authorize grand juries to issue to any complainant or his designee, not just to public prosecutors, an indictment authorizing criminal prosecution.
- Authorize grand juries to investigate any public or private enterprise whose activities may adversely impact the public, and to report their findings.
- Mandate that trial and grand juries be convened under the supervision of prior grand juries to insure there is no stacking.
- 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.
- 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.
- 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.
- Mandate reversal of any restriction on the practice of law without a jury trial.
- 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.
- 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:
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:
2010/05/08
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:
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.If those are granted, much of the rest is straightforward.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
2010/05/03
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.
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.
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