Sixth Circuit upholds individual mandate

Thomas More Law Center, et al. v. Obama, et al., No. 10-2388

http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf

This case is instructive for how to pursue further argument in the issue. The case is the first appellate decision, and is expected to be appealed to the U.S. Supreme Court. This Circuit was considered the most likely to overturn the individual mandate, and thus provide a circuit conflict that the Supreme Court would want to resolve.

It appears the opinion of Judge Sutton is directed toward U.S. Supreme Court Justice Kennedy, expected to be the swing vote on the case. The dissent by Judge Graham provides support for the opposite position.

Judge Sutton provides the key language:  “The Court has upheld other federal laws that involve equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals.  If, as Wickard shows, Congress could regulate the most self-sufficient of individuals – the American farmer – when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it.  And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Further:  "What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Further: “The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.”

See also pp. 47-48, discussing the EMTALA requirement that hospitals provide emergency care even to those who can’t pay. Judge Graham points out that "...Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects." Or because the states do the same, by requiring "emergency" treatment of everyone, and then broadly interpreting "emergency" to include everything needed to extend life indefinitely. The individual mandate to buy insurance rests on the mandate to treat everyone. The way to solve the collective action problem is to repeal the mandates to treat. If any legislative body mandates treatment then it incurs the duty to pay for it, respondeat superior. A mandate to treat cannot create a constitutional authority to do anything. Constitutional authority is not contingent on legislative acts that create some condition.

Note that Judge Sutton does not rule out future as-applied challenges to the mandate but only the current facial challenge. See pp. 37-38, 49-50, and 52-53.

A sentence in the dissent weakened Judge Graham's argument.  It said that the decision to self-insure is noncommercial, to justify its holding.  But this contradicted by Wickard.  If the case for constitutionality turns on this, then there is little chance of prevailing unless it is distinguished from the line of cases from McCulloch through Wickard and Raich.


Once again we see the cited cases as those that have the most pernicious impact on jurisprudence, and that the key is to attack the line of precedents that began with McCulloch v. Maryland, as I argue in Unnecessary and Improper. Focusing only on the "action-inaction" distinction is a weak reed on which to hang the issue. The original meaning of "carrying into execution" has never been addressed by the Supreme Court, and we need persuasive argument that the phrase limits powers "necessary and proper" to only making an effort, and does not allow doing anything that might serve an outcome for which the authorized effort might be made.

If we lose this one, it is unlikely that even winning the presidency and both houses of Congress (the Senate by 60 votes) would be able to overcome the momentum of the Health Care Act, the repeal of which ar this point would wreck the health care system as thoroughly, and more abruptly, as enactment of it will. The only way forward is nullification and constitutional amendments.



 

Cigarette labeling and the Commerce Clause

The recent rule laid out by the FDA for the labeling of cigarette packs with scary images of injury caused by smoking on the upper half of each pack has been opposed by the cigarette industry as an infringement on "commercial speech". Once again, even the wealthy industry doesn't seem to be able to find lawyers who know how to make competent constitutional arguments.

Under the Commerce Clause as originally understood, Congress does indeed have authority to regulate the time, manner, and place of items shipped in interstate commerce, and thus the labeling of packages. However, no power is plenary. Any power must be exercised only for a reasonable public purpose. Thus, it would be improper to require items to be shipped in packages with no labels at all, so that an inspector would have to open each package to find out what is inside. At a minimum, it should have a label identifying the sender and receiver and some code that the receiver and inspector knows how to interpret to tell him what is inside. Congress may reasonable also require the label to identify the contents to an inspector, and also show things like the quantity of the contents.

But what about a requirement to put gruesome images on the upper halves of both sides of packs? In my interpretation of the Commerce Clause, that would be authorized only if cigarettes are shipped across state lines as separate packs. That would also mean each pack would have to be labeled with its own sender and receiver. If packs were shipped in opaque cartons or cases, Congress would have authority to require such gruesome images on the cartons or cases, but not on the packs they contain, if those do not become visible until the carton or case is delivered to its recipient within a state and opened there. Once the recipient accepts delivery the item is no longer "commerce" among the states. At that point only the state has jurisdiction.

Could Congress get around this interpretation by requiring cigarettes not be shipped in opaque containers, but only in containers that are transparent and revelatory of the labels on the packs? Yes, but the cigarette companies could get around that by shipping cigarettes in cases without packs, and putting them into packs after they arrive in a state. Congress would have no authority over the labeling of such local packs.

The FDA would argue, of course, that Congress has power under the "substantial effect" doctrine of the Necessary and Proper Clause to regulate items of commerce beyond the delivery to a shipment recipient within a state, but the counterargument is that it is only power of "carrying into execution" an express power, that is, to make a certain kind of effort, not a power of "carrying into effect", that is, to get a desired outcome. The Supreme Court has never ruled on that line of argument. That is the argument the cigarette companies need to make, not an appeal to the First Amendment.

I am not a smoker, don't like smoking near me, and don't like having to help pay the medical bills through my taxes of persons with smoking-caused morbidities, but this is a case of good intent not being enough to overcome the lack of congressional constitutional authority.  The remedy needs to be left with the states.

Case interpreting the Petition Clause

The Supreme Court rendered a decision June 20, 2011, in Borough of Duryea v. Guarnieri

This is probably the most significant case interpreting the Petition Clause of the First Amendment, which states:

Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances.

The particular holding in the case is not very important. It is that in cases involving a government employee suing the government employer for retaliation for filing a grievance, the employee’s claim that such retaliation violates the Petition Clause of the First Amendment is governed  by the same Connick v. Myers/Pickering test which applies when the employee claims that such retaliation violates the Speech Clause of the First Amendment.

But the case is significant in several ways:

(1) It recognizes that lawsuits are “Petitions” under the First Amendment. This is a much-debated academic issue, and one on which Justice Scalia dissented in the opinion;

(2) It explains that the Petition Clause and Speech Clause are not always coextensive, and leaves open the possibility that here may be additional claims under the Petition Clause which plaintiffs may invoke consistent with the purpose of that Clause.

Here is the relevant language from the majority opinion on this point:

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Wayte v. United States, 470 U. S. 598, 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are“not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by the government to address those concerns. See Sure-Tan Inc., supra, at 896–897.

This Court’s opinion in McDonald v. Smith, 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

The question of the Petition Clause’s scope is relevant to constitutional limitations on lobbying laws.  Borough of Duryea suggests that lobbying laws may be subject to both Speech and Petition objections.  It will be interesting to see how the jurisprudence in this area develops given this opening from the Court to develop a broader basis for the Petition Clause claims.

Individual Standing to Enforce the Tenth Amendment

The unanimous opinion in Bond v. United States handed down by the United States Supreme Court June 16, 2011, may open federal courts to individuals to challenge federal statutes, such those against drugs, as unconstitutional infringements on individuals' rights and usurpations of Federal Power in realms reserved to the States under the Tenth Amendment to the Constitution.  This case is a turning point on Tenth Amendment and standing jurisprudence, and offers one of the first glimmers of hope since the Lopez case.

Note however, that it is only a reversal on the single issue of standing to challenge the statute, and thus a partial reversal of the precedent on standing in Frothingham v. Mellon, not on the merits of whether that statute is indeed unconstitutional. That finding remains to be made. Spread the word on this precedent. It needs to be cited often in other cases and in law review articles.

When I cite Frothingham I am referring not so much to that case alone as to the line of precedents built on it, including many misapplications and conflations, such as that between "failure to state a claim" ("frivolous"), and standing/justiciability. Justice Kennedy in this opinion tries to draw a line between those, although he also points out they are entangled.

But I don't think the reasoning in this case turns on whether the appellant was the defendant or the plaintiff, or whether it is a criminal or a civil case. Judicial doctrine recognizes that justiciability does not rest only on past injury, but also to the expectation of imminent injury. If not, then what is injunctive relief for?

So this case does seem to confer standing on individuals with either past or expected injury from the exercise of an undelegated power. The question then turns to whether the power has been delegated, and that takes us in most cases to the Commerce and Necessary and Proper clauses.

Reid v. Covert stands on the proposition that the government cannot acquire new powers, at least on U.S. soil, from a treaty. Agent B cannot acquire new powers from principal A by an agreement he might make with treaty partner C. He can only get powers from C, if C has the powers itself, and they must not conflict with his duties to A. That case did not overturn Missouri v. Holland, it appears, because the Court presumed the powers being exercised under that treaty were powers ("Commerce", N&P) that it had to exercise, which was not an issue before the Court. On remand in the Bond case it will be an issue, whether the lawyers know it or not.

I would argue that the power claimed in 18 USC 229 is not a power which Congress has authority to exercise on state soil, and therefore is not a power it may exercise under any treaty. As I have argued previously, the power "necessary and proper" cannot be determined without examining the qualifying phrase, "for carrying into execution", something that has apparently never been carefully done in any Supreme Court case, going back to McCulloch v. Maryland, which just took it as whatever was convenient to get a desired outcome. But from the common law rules of construction of delegated powers, the original understanding was not that a delegated power was to do whatever it might take to get a desired outcome. It was always only to make a certain kind of effort, which, if it did not avail, did not imply or authorize any larger power, or any new kind of power, especially a penal power.

And, to bring things down to common sense, the kind of stuff one could paint on a doorknob to harass someone is hardly a "chemical weapon" contemplated by the Treaty. Think overcompliance and void for vagueness.

So, for example, suppose Congress passed a statute regulating the shipment of flour. Under the Commerce Clause as originally understood, it could require that to be done in containers that would keep the contents dry, not be easily broken, labeled with the amount of flour it contains, and handled in a way that would avoid dispersing the contents (which can explode).

Under the Necessary and Proper clause Congress could authorize the leasing or erection of offices and inspection stations, the hiring of inspection agents and accountants, the publication of notices, forms, and reports, and various other incidentals of carrying the regulation into execution, that is, or making the effort.

Now suppose the inspectors needed some tool to conduct their inspections, perhaps some kind of scanner. Would that give Congress the authority to fund the development of such a tool for the private benefit of someone? The correct answer is no. It could develop the tool using its own personnel, or government contractors, but its only power to promote an art among private parties is to grant a monopoly for a limited time (originally only long enough to recover a reasonable profit), or to purchase it. If the government pays for its development, then it is not patentable. Similarly, if the private sector had already invented such a device, the government could promote it only by a patent or by purchasing it, not by doing something like spending money on marketing it to other buyers.

Now could the power to regulate imply the power to prohibit all modalities of some commodity? No. "The power to regulate is not the power to prohibit." It is only the power to "make regular". Restriction on modality is a kind of prohibition on some modalities, but there must always be some modalities permitted.

So does Congress have the power to prohibit all modalities of some substance that might be used to cause harm? No. It could restrict some modalities of things that are especially dangerous, which could be very restrictive indeed, but subject to safe transport, not restrict the possession or even use of such commodities when not actually being transported or traded from outside a state to a buyer inside it.

Now suppose someone tried to interfere with the inspectors in the conduct of their duties. Could Congress make that a crime? Not by original understanding, on state soil, using any but penal powers delegated by other clauses. It could on the soil of federal enclaves, nonstate territory, where Congress has broader powers, and on foreign soil over which we acquired power through treaty (such as the grounds of U.S. embassies abroad). But on state soil the interference could only be prosecuted criminally as either a state crime or as some form of treason, counterfeiting, piracy or felony on the high seas, or offenses against the law of nations.

The meaning of the "law of nations" clause was frozen in its state as of 1788. To allow future treaties or conventions to expand on that would be to allow them to amend the Constitution. In 1788 the law of nations did not include domestic penal powers, except for things like attacks on diplomats, on shipwrecked passengers and crew, or for piracy conducted from U.S. soil.

So if people tried to interfere with federal inspectors on state soil, those inspectors could shove them aside, or physically defend themselves from assault, or get a court, which on state soil would be a state court, to enjoin the interference, but not to criminally prosecute them (and the Framers neglected to delegate a power to make contumacy a crime). If the interference rose to the level of "making war" then they could be prosecuted for treason, but most of the other penal powers would be unlikely to provide authority for most such situations.

And don't argue that the First Congress made it a crime to rob the mail. The first few congresses were dominated by a lot of people who didn't fully understand or think through the limitations of the new Constitution they had adopted. Many thought Congress had power to authorize prosecution of common law crimes. It didn't.

Needless to say, legal practice has deviated a long way from this understanding, without amendment to the Constitution. Some may be willing to abide that. I am not one of them. Amend it or stop violating it.

With the few exceptions of things like state consent needed to divide states, state governments do not really have "rights". That is an abbreviated way to refer to rights of the people of states. (Which is what the Framers seemed to have meant by the term, using "state legislature" when they wanted to refer to the government of a state.) It is useful to recognize that prior to the 1923 Frothingham case, with its newly restrictive doctrine of "cases and controversies" that denied "standing" to parties without particularized injury (past or expected), the doctrine was that people had standing to privately prosecute a public right, on the doctrine that we all have the justiciable right not to have government anywhere exercise undelegated powers, and that any such exercise is a justiciable injury even if not particularized. The opinion in the Bond case recognizes this doctrine as prudential, not interpretative of the Constitution. It is for the convenience of the Court, to filter and hold down the number of cases it is asked to decide, not something the Constitution requires. (The same could be said of binding stare decisis generally.) It is worth re-reading The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

Approaches to reading the Constitution

This is a response to Saul Cornell, "Why the Right-Wing's Approach to Reading the Constitution Is Destroying This Country" -- That idea that judges should interpret the Constitution by discovering the original intent or meaning of the text ignores the history of this country's founding.

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The article uses a broad brush to make its point, but it is an exercise in tergiversation (look it up). Many people claim to be originalists, but only a few leading scholars can be properly so labeled, including Randy Barnett, Roger Pilon, Gary Lawson, Kurt Lash, Lawrence Solum, and a few others, including some but not most legal historians. Social conservatives are indeed prone to cherrypick the Constitution to support their policy agendas, but they do not deserve to be called "originalists".

At least some are supporting originalism rhetorically, even if they don't initially get it right. That's a start.

The Constitution does not support the policy preferences of most people, anywhere on the political spectrum. Most people who set out to discover what the Constitution originally meant have to abandon their own policy preferences, or else propose amendments. I have certainly had to abandon many of mine. But what I soon discovered was that those policy preferences were misguided or ill-conceived, and that the Constitution as originally meant actually represents better solutions, to the extent there are any solutions. What one often discovers that that those proposals discovered to be unconstitutional either would not work or would make the situation worse. There are many problems beyond the competence of government, no matter what its constitution might authorize.

See http://constitution.orghttp://constitution.org to find out what real originalism is all about.

Social Security is not an insurance program

For those who have deluded themselves into thinking their payments into Social Security have earned them benefits, there is the Supreme Court case Flemming v. Nestor, 363 U.S. 603 (1960), in which we find these excerpts:

... eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes ...
...
To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands.
...
Congress included in the original Act, and has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act.
...
We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment.

So contributors to Social Security may have a political claim, but not a legal claim, to benefits. Paying in to Social Security earns no one anything.

See "Private Alternatives to Social Security: The Experience of Other Countries", John C. Goodman, Cato Journal, vol. 3, no. 2 (Fall, 1983), especially the section on the system adopted in Chile.

You would be better off donating to an effort that is doing something about problems like this. Pass it on.

Is TSA "Groping" Bill Junk Legislation?

I testified against HB 1937 before the Committee for reasons discussed here.  It is a poorly conceived effort to solve this and other problems of unconstitutional federal action, given the existing state of judicial support for such unconstitutional action. The present legal reality is that "federal agent" is now a title of nobility, and federal agents may murder, rape, steal, or do anything they want, protected by the judicial doctrine of official immunity. If federal courts were still devoted to the Constitution, a bill like HB 1837 would be okay, but they are not. What is needed is a more subtle, comprehensive approach, and I have proposed one that might work: the establishment by amendment to the Texas Constitution of a Federal Action Review Commission, a grand jury empowered to hear citizen complaints of federal usurpations, and if it found them unconstitutional, that finding would trigger a requirement for all state officials, agents, and contractors to refuse to cooperate in any way with such usurpations, and encourage private citizens to do the same. Since the state is not allowed to represent citizens in court who might do so, it would provide a fund to pay the legal and other expenses of those who thus resisted. This would engage the entire state in concerted non-violent civil disobedience, which is about the only way left to us to get the central government to abandon its unconstitutional practices.

However, now that the U.S. Attorney has foolishly threatened the State if it merely passes the bill, we have no choice but to go ahead and pass it, and I urge the Legislature to do so. My proposal would be a far better solution, but we must not yield to such pressure.

University of Texas law professor Robert Chesney makes the common mistake of treating all enactments, statutes, regulations, or administrative policies as "law". Other than constitutions, only statutes are law and only if they are constitutional. Most federal statutes are unconstitutional. Not just some provisions of a few of them. Most of them. It is long past time to proclaim the emperor has no clothes. We need to stop pretending the central government is clothed by the Constitution when it is not.

The U.S. Congress passes about 20,000 unconstitutional provisions a year that could be challenged in court as separate issues. That is far too many to be addressed one at a time by state legislation like HB 1937. We need a more comprehensive approach that can tackle them all.

As for the Ninth Amendment, there are plenty of people who are defending it, especially law professor Randy Barnett. More can be found here.  We are still a minority, but you can help spread our message.

The gravy train is at the end of the line.

Social Security is not and never was any kind of insurance program. Your payments into it are not and never were premium payments for a retirement pension. There is no "social security" account with your name on it. The government has never claimed otherwise, and indeed, has explicitly denied it. The notion to the contrary that too many people seem to have is a delusion they invented and prefer to believe, but which has no basis in either law or reality. Social security, and the other entitlements, are no more than transfers of wealth from one group of people to another, and there is no legal obligation to make such transfers in the future to those who have had their wealth taken from them for that purpose, in the past.

Better make friends with your children and grandchildren, because it won't be long before you will have to depend on them to support you in poor health or old age. If the government sends you money, it will be money that will be nearly worthless. You will need to wheel a shopping cart full of $1 billion-dollar bills to the store (if any remain open) to buy a slice of bread.

The gravy train is at the end of the line. Get off and work, or die. Those are your only choices.

No government-issued ID to vote

Kansas SOS Kris Kobach has written this oped for the WSJ. But his reasoning is flawed. Here are my comments:

There is a critical difference between presenting identification to cash a check, and doing so to vote. The first is a transaction between private parties. The second is the exercise of a public duty by a public official, the elector, for whom the only qualification is being a citizen and resident of the voting jurisdiction. There is no constitutional requirement to have or present any kind of government-issued identification document. There is no constitutional authority to require anyone to present what one is not required to have, and no constitutional authority to require anyone to have such identification, or even to have a name.

No one owns his name. A name is what others call us, and is under their control. No one can be required to accept or disclose what others call us.

It is not improper to require confirmation that one is qualified to vote, but the traditional way to do that is by a jurat of a notary public who knows the individual. That jurat does not need to cite a name or other identification. In this digital age, we have the alternative of digital notaries who certify the connection between an individual and his public encryption key. Such circles of trust are the constitutional solution to identification. Government identification puts too much power in the hands of government, a power they can be relied upon to abuse.

None of the government-issued identification documents now available actually prove one is a citizen. They may be evidence of many things, but the closest thing to proof of citizenship is a birth certificate, and that can easily be faked, as we have recently seen with the bogus "certificate of live birth" the White House foolishly put on their website without first removing the image layers that disclose the sequence of alterations to the image, which show clearly it is fraudulent. A passport is also not proof of citizenship. They are issued to non-citizens, and are only as reliable as the information provided to the Passport Office. Garbage in garbage out.

The closest thing we have to reliable identification is a jurat from a notary public who knows the individual personally. Government-issued ID is just a way for government to control people.

Mistakes made regarding "sovereign citizens"

CBS News had a segment, Who are "sovereign citizens"? My comment follows:

Each side in this dispute is making its own mistakes about the law.

The "sovereign citizens" are correct in their position that being subject to the law rests on their consent. Where they get it wrong is in failing to recognize they give that consent by remaining on the territory of the polity, be it nation, state, county, or whatever. Jurisdiction is primarily territorial (in Latin, ad locum). To expatriate, people have to leave the country. If they don't, they are subject to the law of the country.*

However, they, and their opponents, also err in accepting the rules that are being enforced as "the law". To be law, official acts must be constitutional. If unconstitutional, it is not law, even if people think it is law. Much of what is being enforced is not law, and no one is bound to obey or help enforce it. Further, no one may rely on judges, supervisors, or legal advisers. Every person has the absolute duty to make an independent determination of what is and is not law.

Instead of arguing they are not subject to the law, the protesters need to be arguing that what some are attempting to enforce is not law, but a usurpation. That is the proper frame for discourse.

The people are collectively sovereign when they elect delegates to constitutional ratifying conventions or legislatures sitting as constitutional ratifying conventions, but not as individuals. To be individually sovereign one would have to be the monarch of his own independent country somewhere, and there is nowhere left on Earth where anyone can do that.

There is a sense in which we are each "sovereign" in the interpretation and application of the law to cases before us, but that power comes with a duty to get it right, by basing decision on the best evidence of what the lawgivers meant in the laws they gave us. However, none of us is individually sovereign in the making of law, or free to exempt ourselves from subjection to it. That is a subtle but critical distinction too many dissidents, and their critics, fail to make.

The proper frame for debate is not over whether we are subject to law, but over whether what is being enforced really is the law.

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* There are three kinds of jurisdiction: territorial (locum), personal (personam), and subject (subjectam). A court must have all three to hear a case. "Venue" is not the same as locum jurisdiction. The term means the location of a forum, normally within a jurisdiction territory. For more on this see A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824).

"Venue" is the location of a forum, of a particular court. "Locum" is a territory, such as a nation, state, county, town, or whatever, which is defined by geographic boundaries and may contain multiple courts or venues. However, a particular court may convene at different locations. Wherever it convenes is its "venue".

The term "political" jurisdiction is a misuse of terminology. A foreign diplomat is immune due to his status as a foreign diplomat, which is a kind of office with respect to U.S. law. However, he is subject to the laws of a different nation. The court lacks personam jurisdiction over such a person.

We have been speaking here only of judicial jurisdictions. There are also legislative and executive jurisdictions, each divided into locum, personam, and subjectam. For a court it defines the bounds on what cases it may lawfully hear. For a legislative body, the kind of statutes it may lawfully adopt. For an executive the kind of enforcement actions he may take.

It is all very orderly and systematic, but it is surprising how much of this never gets across to students in law schools.

Letters of marque and reprisal

Andrew Napolitano wrong about letters of marque and reprisal (LMR)

On Fox Business News this evening former judge Andrew Napolitano stated that letters of marque and reprisal are to be issued by the president to private actors. that is incorrect.

See http://constitution.org/mil/lmr/lmr.htm for more on the subject. They do not have to be issued to private actors, and Congress may not delegate the issuance to the President. It must issue LMR directly, and could appropriately do so to the President and forces under his command.

The several authorizations to use military force (AUMF) are similar to LMR, but are missing key elements, such as greater specificity concerning who may be targeted.

However, there are also two other constitutional powers that apply to such cases: the power to punish piracy and offenses against the law of nations, under which "pirates" are treated as a special case, as "enemies of all humanity" who may be killed wherever they are found. What we call violent "terrorists" are essentially what the Constitution calls "pirates" -- nonstate actors who commit unauthorized warlike acts against targets foreign to themselves. (If against their own it is "treason".) The historical legal precedents are for pirates to be tried in the field by military tribunals, which could be captains of sea vessels and the senior officers, and summarily executed if found to be pirates or closely associated with them.

That legal legacy obviously has problems for due process and is open for abuse, however, that is the legal tradition incorporated into the Constitution.

I have proposed an amendment to clarify the point:

Clarification of "piracy"

"Piracy" shall consist only of warlike acts committed by a foreign nonstate actor, or by a domestic nonstate actor against foreign persons or property. Letters of marque and reprisal make the person to whom they are issued a state actor, and under a declaration of war all citizens are to be regarded as state actors with respect to the foreign state defined in the declaration.

Prosecutorial misconduct

This is to comment on the article, "Head in the sand over prosecutorial misconduct", by Erwin Chemerinsky, in The National Law Journal, April 25, 2011.

The reform needed is suggested by reviewing the history of how we got to this point.

The abusable power of public prosecutors became entrenched when they were made elected officials in the late 19th century, before which criminal prosecutions were largely done by private parties. At that time it was thought the voters would be as concerned for protecting the rights of the accused as they were to "hang 'em all and let God sort 'em out." Alas, the voters came to see the threat as something that only menaced "those" people, not people like them. It has only been recently when "people like us" are threatened by the same abuse that the issue is coming into public discussion.

The obvious solution to to stop electing prosecutors. Have them selected at random, by sortition, from a large pool of qualified candidates, case by case. There would be a budget, and there could be professional staffs, but the first chair would be filled by someone without a career path in the seat.

A companion reform would be open (an increased number of) grand juries to direct citizen complaints, with no undue presence or  influence by professionals, and with the grand jury appointing the prosecutor by handing him an indictment.

We also need to educate the public from whom juries are drawn to be skeptical about everything they hear in the courtroom, whether from the attorneys, the witnesses, or the judge, and to summarily acquit if they sense any of the legal arguments in the case have been withheld from them, except perhaps arguments on motions in limine that cannot be made without disclosing evidence properly excluded. However, there should never be any motion in limine granted to a prosecutor in a criminal case. Only to a defendant.

Finally, any individual needs to be able to bring a complaint about a public official to a grand jury, to decide whether the official was acting within his or her jurisdiction, and if not, and if the evidence is sufficient, to conduct a civil or criminal prosecution against the official, thus stripping him of his official immunity.

See Trial Jury Reform.

"Natural born" eligibility

"Natural born" means born on the soil of the nation, regardless of the citizenship of the parents, unless one of them is a foreign diplomat recognized by treaty as not being subject to the jurisdiction of the United States. That's what jus solis means. Location is the only thing that matters. That has been the case in Anglo-American law since before the U.S. was founded. It was not the 14th Amendment that made it so. That amendment only made all such persons state citizens if they are also residents (for an unspecified period of time). They were already U.S. citizens.

The mistake comes from reading Emmerich de Vattel, who was often cited by the Founders, but Vattel was Swiss. He was describing the legal doctrine of the European Continent, where the rule for citizenship was jus sanguinis, or that citizenship was based on the citizenship of one's parents. That was not the doctrine of Anglo-American law, for which the rule was jus solis, or that citizenship was based on the soil of the nation, the location of one's birth, and not on the citizenship of parents. It is discussed in Blackstone, and particularly in the footnotes of Tucker's edition of Blackstone (1803).

Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States.

"Natural" in that context means "according to natural law", in other words, by the rules of the common law then established, which pretended to divine natural law in the ways court decisions were made.

It is a common mistake to think that "natural-born" is synonymous with "citizen at birth". One can also be naturalized at birth by statute. That was done for John McCain, retroactively by a statute passed after he was born on the soil of the Panama Canal Zone, which was a leasehold, and not U.S. soil. McCain was definitely not "natural-born", no matter what a Senate resolution might say.

So Obama is eligible only if we was born on U.S. soil, which could have been in the airspace above U.S. soil, or in U.S. coastal waters, or on the grounds of a U.S. embassy abroad (U.S. soil by treaty), or perhaps on a U.S. flag vessel at sea in international waters. Not if born in the air over international waters if it was not a U.S. flag aircraft, and not if in the airspace over a foreign country.

All this is actually spelled out with some clarity in U.S. code, which at least on this subject happens to get it mostly right, although it is ambiguous because it doesn't address "natural born" at all. Some people manage to mis-read 8 USC 1401, but that section is not defining "natural born". It is defining "citizen at birth", and it is part of Chapter 12, Subchapter III, Part I, titled Nationality at Birth and Collective Naturalization. Only the first two clauses are about natural birth. The rest are about collective naturalization.

A birth certificate is evidence of location and date of birth, and is usually dispositive. However, a "certificate of live birth", which does not show location and date, is not. That is all we seem to have for Obama, and what has been offered is clearly a forgery. More dispositive would be witnesses to the birth. Unless the mother was alone when it happened, there should be some witness, even if no longer alive, who made a record of the event.

The burden of proof of citizenship for purposes of removing an individual from U.S. soil is on the government. However, the burden of proof for purposes of voting or holding office is on the would-be voter or officeholder. Even if the candidate was actually born on U.S. soil, if he can't prove that he should not be deemed eligible. It doesn't have to be proof beyond a reasonable doubt. Likely few of us could offer that. But there does need to be a preponderance of evidence.

There have been some efforts to exclude Obama from the ballot until he proves his eligibility,  but it is useless to try to exclude Obama from the ballot, because it is not Obama that voters vote for. They vote for electors pledged to vote for him. The ballot might show the person to whom they are pledged, but that pledge has no legal status. The same people could be said to be pledged to vote for Mickey Mouse, when everyone knows that Mickey Mouse is a pseudonym for Obama. Or to some real person. Nothing prevents them from voting for anyone else when the time comes.

The only points at which an ineligible candidate might be blocked is (1) the counting of the elector's votes; (2) the certification of the elector's votes by Congress; and (3) inauguration. None of those points are subject to the orders of a court. For each of them, enforcement depends on the people involved voluntarily following the Constitution. Nothing can make them if they choose not to do so.

Battle of San Jacinto

The Battle of San Jacinto, fought on April 21, 1836, in present-day Harris County, Texas, was the decisive battle of the Texas Revolution. Led by General Sam Houston, the Texas militia engaged and defeated General Antonio López de Santa Anna's Mexican forces in a fight that lasted just eighteen minutes. The Texan militia moved quickly and silently across the high-grass plain, and then, when they were only a few dozen yards away, charged Santa Anna's camp shouting "Remember the Alamo!" and "Remember Goliad!," only stopping a few yards from the Mexicans to open fire. The Texans achieved complete surprise, and achieved one of the historically most decisive and unequal victories of any battle between regular soldiers and volunteer militiamen. About 630 of the Mexican soldiers were killed and 730 captured, while only nine died of the roughly 900 Texans who fought.

Santa Anna, the President of Mexico, was captured the following day and held as a prisoner of war. Three weeks later, he signed the peace treaty that dictated that the Mexican army leave the region, paving the way for the Republic of Texas to become an independent country.

One of the key lessons of this critical battle is the way Houston held back his troops until just the right moment. After the massacres at the Alamo and Goliad his men were clamoring to engage the Mexican troops immediately and without tactical planning. Houston knew that if he had yielded to their demands, they would have been wiped out just like the defenders at the Alamo and Goliad had been. So he led them in a tactical retreat, while keeping track of the movements of the Mexicans. When Santa Ana camped without posting sentries or otherwise preparing for an attack, Houston seized the opportunity for a decisive victory.

Although the Texas troops are often referred to as an "army", they were not enlisted for fixed terms for pay, and thus were militia, rather than army, forces. Only a few of the men were appointed to have military rank, or had formal backgrounds as soldiers in any regular army.

For more on the Battle of San Jacinto:

Wikipedia
Battle of San Jacinto, Wallace L. McKeehan
Texas State Library and Archives
San Jacinto Museum of History
Texas State Historical Association
The Battle of San Jacinto, YouTube, from the movie The Alamo)

Waco: The Massacre at Mount Carmel

Waco: The Massacre at Mount Carmel

These are the complete movies that shocked a nation and spawned the modern constitutional militia movement.
Waco: The Rules of Engagement
WACO- A New Revelation

Easy YouTube Video Downloader for Firefox.



Our situation does require courage, but it also requires wisdom, preparation, planning, and widespread organized public support. We must reject foolish rhetoric that does not contribute to the solution. Wise persons do not posture or threaten. They quietly organize and prepare.

The Davidians provide an instructive model for us. They did not sally forth from their compound seeking government agents to fight. They exercised their rights nonviolently, resorting to violence only when it was initiated against them. They lost, but they lost in a way that inspired others to tell their story, and still others to organize the modern militia movement that has done more than almost any other effort to prevent similar abuses, just by existing, without a shot being fired.

Those who feel the urge to indulge in violent rhetoric would better serve their cause by organizing and training. The time may come for initiation of force, but that point is far down the path. There are many things that need to be done before that.

We can also learn from the model of the way Sam Houston led the Texas Militia against the Mexican Army. Many of his troops were spoiling for a fight before they were ready, which would only have gotten them killed and defeated their cause. Houston wisely held them back, waiting for the right moment. Finally it came, at San Jacinto, April 21, 1836, in one of the most amazingly unequal battles in military history. Never before had so few militia defeated so many regular soldiers, and inflicted so many casualties while suffering so few. After the battle, many of the Texians wanted to kill the captured Santa Anna, but once again, Houston wisely held them back, and instead exacted a treaty from Santa Anna that effectively granted Texas independence. Houston is reported to have said to his men, "You want blood. I want Texas."

Debt-based currency

Anything, including debt certificates, may be used as currency if it is accepted as such by most players in the market. The key to that acceptance is that the supply of it track the growth in economic production. Not the GDP, which calls it growth if two people who produced for themselves start trading the same products with one another without increasing the net amount produced. Arguably, it should also not include services, such as entertainment, that do not contribute to production. In other words, production of capital rather than consumption.

The problem with debt certificates is that there is no natural mechanism to hold down their supply, other than periodic market collapses. On the contrary, there are strong incentives on the part of both the public and private sector to magnify the supply of debt certificates. See what happened with securitization, which is still going on.

Note that congress has no constitutional authority to make anything legal tender on state territory. Only the states have that authority, and only to make gold or silver coin legal tender there. Congress may make federal reserve notes legal tender on federal territory, like the District of Columbia or various military bases and port facilities, under Art. I Sec. 8 Cl. 17, but nowhere else. It can also accept FRNs for payment of debt to the federal government. What it may not do, contrary to the Legal Tender Cases, is compel anyone outside exclusive federal enclaves to accept FRNs or anything else in payment for debts. Every state that accepts FRNs as legal tender is violating the Constitution.

When the Federal Reserve creates "money" out of thin air and uses it to buy Treasury bonds to finance government expenditures, as it did in QE1 and QE2, it is doing several things. One is to use focused inflation to prop up prices of various investment vehicles, such as housing, bonds, stock, and securitized debt, which would otherwise fall. Contrary to popular belief, rising prices of oil and food are not the result of it, not yet. That will come, but those price rises are due to reduction in supply of oil and food, not an increase in the supply of currency.

There is a close relation between this kind of government financing with debt certificates and unemployment. Opponents of deficit reduction by reduced government spending fear the unemployment of government workers, and that would indeed happen. However, a debt-finance deficit also involves the creation of the money that goes to foreign governments ("sovereign wealth funds") that loan the money back to us, but also accumulate FRNs that drives currency exchange rates that favor the sale of their products to us, and the offshoring of U.S. jobs to them. For every government job maintained by continuing the deficit, there is a destruction or non-creation of at least five jobs in the private sector, about two off-shored and the rest layoffs or never created.

The entire federal deficit comes from only a few key programs: Social Security, Medicare, Medicaid, unfunded government pensions, farm subsidies, and military spending. In trying to sustain the elderly, the ill, farmers, and our policing of the world, we are now at the brink of bringing down Western Civilization. This is not just a U.S. problem. The entire world has been following our lead and will fall with us. Within a year of the collapse, we may see unemployment of 90% everywhere, riots, looting, destruction of productive facilities, and hundreds of wars everywhere, some of them nuclear.

That outcome is not worth sustaining the elderly or the ill. If we have to choose, it is better to let them all die. Better them than most of the rest of the people on Earth. Those are our choices. Too many people are in denial that those are our choices. We will soon see, because at this point it is probably too late to prevent it.

It all rests on consent

Two questions were asked in a forum on the history of law by Daniel R. Mandell:

First, would the Supreme Court need the approval of the President (or the Executive Branch) to enforce its decision [in the Cherokee cases, when the U.S. Supreme Court decided in favor of the Cherokee, and President Jackson defied the court order and drove the Cherokee out of Georgia]? Second, has the Supreme Court ever actually tried to enforce a decision opposed or resisted by the President?

The short answers to each question are yes, consent of executive officials is needed, and no, not in any important way. But the questions are important, and deserve more discussion.

First, this is not just an issue for the U.S. Supreme Court. In the United States, courts in general do not have direct line authority over armed enforcement agents. Federal courts once did, for U.S. marshals, under the Judiciary Act of 1789, but that authority was steadily eroded, and formally ended in 1969. Judges or court administrators might hire, fire, promote, or reassign clerks and bailiffs, but no longer most of the armed agents they might need to enforce their orders. However, that does not mean that as a matter of custom, policy, and practice individual agents seek the consent of their superiors before carrying out any court order, or that they might not defy their superiors to carry out such orders if there were a conflict.

Ultimately, all decisions by government officials depend for their enforcement on the voluntary assent of enforcement agents, from clerks to military personnel, or of the people generally. When conflicts develop between the will of line or judicial superiors, and the law, as perceived by each agent or individual, then each agent or individual has to decide for himself which to support.

In theory, every government agent takes an oath to follow the law, not the will of officials in conflict with the law. That requires that every agent, or for that matter, every individual, make an independent determination of what is the law, resolve any conflict of laws, and help enforce the law, regardless of what a judge, a superior, or a legal adviser might say. The argument in Marbury v. Madison applies not just to judges, but to everyone, in any legal issue in which one might become involved. Ultimately, having a written constitution of government means we are all on our own, required to each become an expert on constitutional and legal construction.

In practice very few individuals have the will or the skill to fulfill that awesome responsibility, and therein may lie the flaw in the very concept of constitutional government, that it requires more of most human beings than they can bear. But for those of us who have taken the oath to "preserve, protect, and defend the Constitution", and who take that duty and our honor seriously, the duty is ours, whether we can bear it or not, and we must do the best we can.

So, what would have happened if the Supreme Court had ordered U.S. marshals to enforce its orders in the Cherokee cases, in conflict with President Jackson and local officials in Georgia? They would have been outnumbered and outgunned, which is probably why that option was not pursued. The array of forces on the ground did not make it feasible.

However, historically and originally it was less paid law enforcement agents to which courts looked to carry out their orders, than to militia. Courts could and did call up militia for that purpose, and the people, as militia, if they respected the authority of the courts, as they usually did, would enforce the court orders. In the early republic, government was mostly local, and mostly carried out by juries and militia. See "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, at http://constitution.org/jury/pj/nelson.htm . But that was for local courts and local judges. Had the U.S. Supreme Court tried to command local militia in Georgia to carry out its orders, it would likely have been ignored.

And that brings us to the key point: If people ignore the decisions of courts or other officials, those decisions become empty gestures. It all rests on voluntary consent, from one decision to another. We can speak of the consent that is expressed in constitutional conventions or elections, but the real consent that matters most is the habit and custom of obedience, and if that fails, governance itself fails.

If current government policies bring the collapse of the world economy, we may see this point manifested in ways most people can barely imagine.

Notice of silver claim

The following was sent to the  U.S. agent for holding the silver seized from the Liberty Dollar organization:

---

I hereby certify that I am the bearer of Liberty Dollar warehouse receipts and an interested party in any forfeiture action regarding my property. I demand the return of my property in a timely manner and to be informed with sufficient time to reply to any and all actions until my property is returned.

It has been suggested that that I offer to accept "fair market" value of the silver in lieu of the silver itself. That is not acceptable, for the following reasons:

1. The silver was purchased and the warehouse receipts received on the territory of the State of Texas, and not within a federal enclave established under U.S. Const. Art. I Sec. 8 Cl. 17. Therefore, they are subject only to the legal tender laws of the State of Texas.

2. The State of Texas has not established gold or silver as legal tender within the State, which are the only things it may make legal tender under the U.S. Const. Art. I Sec. 10 Cl. 1. Texas statutes only reference legal tender of the United States, but the United States Congress has no constitutional authority to make anything legal tender within state territory. Therefore, there is no legal tender defined in the State of Texas.

3. With no legal tender defined, there can be no substitution of anything of equivalent "fair market value" for the items purchased, not even of equivalent amounts of silver from a different repository. It has to be from that repository unlawfully seized by the U.S. government.

4. Furthermore, the silver must be delivered to me at no charge for delivery. That was the terms of the original purchase and by seizing the silver the U.S. government has assumed liability under those same terms.

Under no circumstances will I accept federal reserve notes in payment for any debt by the U.S. government. The "full faith and credit of the United States" no longer has any value, if it ever did. The U.S. government may accept them for payment of debts to it, but it has no constitutional authority to prescribe what others are to accept in payment from it to them, except on non-state U.S. territories, which are the only places on which the U.S. Supreme Court decisions in the Legal Tender Cases constitutionally apply.

Militia deterrence

The main role of militia, as of firearms, is deterrence. It works best when it never has to be used. But its effectiveness as a deterrent depends on widespread use and support by the public. If they fail to recognize they are all militia, or are supposed to be, freedom dies.

It is highly likely that the United States would have long since fallen into fascism but for so many citizens being so well armed. Sometimes it is what doesn't happen that matters most.

For more on this topic see

Constitutional Defense
19 April 1775 vs. the DC Gun Case, by Edwin Vieira
Armed citizens: the deterrent factor, by Massad Ayoob
Credible Deterrence & the Logistics of Liberty, by Mike Vanderboegh
An Armed Community: The Origins andMeaning of the Right to Bear Arms, by Lawrence Delbert Cress
A Dissenter's Fate in Fascist America, by Kevin Ellul Bonici

Immunity creep

It is a long-established doctrine of law that officials should not be subject to civil or criminal prosecution for acting within their jurisdiction, and constitutions and laws sometimes make that official immunity explicit. However, over time judges have been extending that immunity from momentary actions to everything done "on duty" or perhaps even "while in office". The practical effect of this is to convert official titles into "titles of nobility", putting officials beyond the law or accountability for their misconduct. Removal from office can be a remedy, but too much misconduct needs other remedies, and we are headed for a clash in which the public will demand them.

For more on this see

Immunity - Official Immunity
Qualified immunity — Wikipedia
Defenses: Official Immunity
Supreme Court Case Establishes Official Immunity for Police Officers and Police Departments in New Hampshire, by Charles P. Bauer
Defenses: Qualified official immunity
Private-Law Models for Official Immunity, by Richard Epstein
Tort - Defamation - Elected Official Immunity, by Edward Wesoloski
The Case Against Official Immunity, by Jesse Walker
Absolute Immunity on Trial, by Radley Balko
Supreme Court rules witnesses cannot be sued under 1983 for the content of their testimony - Briscoe v. LaHue, 460 U.S. 325 (1983)

The original standard was that while officials might have immunity from judgment, they did not have immunity from prosecution, and that it was for a trial to determine what immunity, if any, the defendant should have.

Is punishing interference necessary?

The question has been raised whether 18 USC 111 is authorized by the Necessary and Proper Clause. In the words of one correspondent,

Protecting officers and employees doing their actual authorized constitutional tasks seems like a paradigm case for the application of a "necessary and proper" clause, whether in a constitution, statute, corporate board resolution, or similar grant of authority.  If punishing violators/interferors is reasonably necessary to keep the tasks being performed, which it seems likely, then why not?

That argument is sometimes made, but all the delegated powers to which the Necessary and Proper Clause might be applied are only to make an effort, not to get a result. That principle was subverted by Justice Marshal in McCulloch v. Maryland, who made a similar argument, but he was wrong. The power to punish or prevent interference with the exercise of authority is not logically necessary, because it is still possible to make the effort even if it doesn't succeed in its object. Punishing or preventing that interference was left to state law, and federal officials were just expected to have and use whatever force they needed to overcome interference. If interference is effective it is not because it is not subject to punishment, but because the effort is not supported by enough force or resources. Because the exercise may always be made effective with enough support, punishment of those who interfere is not strictly necessary.

Ergo, to punish or prevent interference is a distinct power that, to be exercised, must be separately delegated, which would require an amendment. The Framers didn't think of everything. They omitted much that we might now want to add, but the way to do that is by amendment, not usurpation.

To understand the distinction one has to get into the heads of the Founders, and understand their legal English, which is not the legal English of today. In that context, to delegate a power was only to authorize a certain effort for a reasonable purpose of the polity. That authority was accompanied by an appropriation of resources to be used in making the effort. If that appropriation was not sufficient, it would not be within the jurisdiction of the delegated power to use more resources than were appropriated. Similarly, while the effort might involve shoving aside anyone who attempted to interfere, punishing the interference after the fact, perhaps to discourage future interference, is not an effort that the original delegation implied, but a new kind of effort that requires a separate delegation of authority.

To make this more clear, suppose the official is delegated power by a corporation, church, university, or other private institution to do something, such as conduct some event at a location and time specified. Perhaps that power even comes from a delegation from the local government. That is a certain effort. Now suppose someone interferes with that effort, such as by shouting or other disturbance. Does the official have the implied authority to punish the offender? He may, if the offender is a member bound by contract with the private organization and its by-laws so provide, but they probably only provide for expulsion from the organization, perhaps if a fine is imposed and not paid, but not for imprisonment or death. That would require a separate delegation of authority, and to the surrounding government, not to the private organization. The private official could file a criminal charge of disturbing the peace or trespass, and have a public official prosecute, but he would be at most a complaining witness, not the prosecutor under the authority of the private organization. He could be delegated authority to prosecute as a public official by a grand jury, but that is a separate delegation.

Now one may argue that this separation for an official of a private organization within a polity does not apply to a situation in which it is a public official, but it does. I just used that to show the powers are distinct. A public official may have both kinds of power delegated to him, but the first power does not imply the second.

So, yes, the Necessary and Proper Clause does authorize things like buying the bricks to build a post office, if funds for that are appropriated. But if all the funded bricks have been bought and delivered to the site, all the official may do is lay them, unless he also has funds to hire workers to do that. Now suppose that the source of the funding is the U.S. Treasury, and that someone interferes by throwing rocks at the workers laying the bricks. Does that alone provide constitutional authority for Congress to pass a law to make rock-throwing at federally-funded workers a crime? No. The federal official would be expected to file a state criminal charge under state law. He could prosecute the charge. Under original standards, anyone, including a federal official, may prosecute in a state court under state law (and a state official prosecute in a federal court under federal law). But on state territory the activities of federal officials have very much like the same position as those of a private organization, except when they have specific delegated powers to go beyond that.

Federal officials have authority on state territory to prosecute for treason, counterfeiting, piracy and felony on the high seas, or offenses against the law of nations, but not for murder, assault, vandalism, theft, fraud, perjury, or anything else not specifically delegated. Penal jurisdiction is defined by what is done (subjectam), where it was done (locum), or who did it (personam), but not on to whom or to what it was done. On state territory federal officials outside their jurisdictions are not privileged to receive more favorable treatment or protection than any other person would be. That includes conferring more privilege or protection to themselves than to others, beyond what is explicitly delegated.

"Federal agent" is not a title of nobility. Or at least it is not supposed to be.

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"You can't save the world if you can't pay the rent." — David Bossie

Democracy and Liberty

We should try to make some of these broad concepts more precise.

There are two main rights associated with liberty:
1. The right to a presumption of non-authority. Our public agents may only do what we formally authorize them to do.
2. The right to effective means to supervise public agents. We have to be able to find out what they are doing and hold them accountable for their action or inaction. That includes the powers to remove and to penalize.

Self-determination does not just mean voting in referenda and elections of officials, nor does it mean majority rule. Support of a majority is necessary but not sufficient, and for some more important issues other decision rules, such as supermajorities or structuring decisions into deliberative assemblies, or random selection of deciders (sortition) rather than election or appointment of them, may be required to protect the rights of individuals and minorities, especially from undue influence by rent-seekers.

Citizenship is inseparable from civic virtue. That means not just the opportunity to vote or hold public office, but diligence in doing so knowledgeably and wisely, and willingness to help defend the community (militia) and enforce constitutional laws. It also means resisting the tendency to hire public servants to do things the public should be doing, or to trust public servants to do the right thing without actively supervising the details of their work. It means restricting the numbers and activities of public servants to a level that makes effective supervision manageable without it becoming a full-time job for everyone.

The U.S. Constitution and imitations thereof remains the exemplar for how to balance conflicting values for real people in a real world. Nations have now experimented with enough variants to find that there are certain principles of sound constitutional design that are not mere expressions of cultural relativity. Some designs work better than others, and it is important that we discover which work and support them.

As for what the peoples of other countries want, I find most aspire to the same ideals we do (or used to do). The problem is that most, even in our own country, don't always understand what that requires of us, or accept doing what it requires of us. It is indeed hard, for everyone. Part of what makes it hard is that the institutions of liberty are vulnerable to brutal determined men, whether from outside or from within. Every child begins life as a barbarian and if not inducted into civilization becomes a threat to it. We are "never more than one generation from barbarism" (Arnold Toynbee, A Study of History). A few brutes can dominate the meek majority if the meek do not organize and hold firm against them.

Contingent state of war?

The law of nations actually defines what is "war" with enough precision to cover the present events in Libya. An act of war makes it war. Bombing a country is an act of war, unless it is some kind of training exercise, at the invitation of the government of the country. It is apparent that is not the present case. On the other hand, there is some confusion as to what is the government of Libya, or whether it even has one. Qaddafi asserts no title of office, so by the standards of the law of nations, he is a kind of pirate, not a head of state. No declaration of war is needed to attack pirates, just as we did not need one to attack the Barbary Pirates. However, the attack needs to be, to the extent possible, focused on the pirate personally, not on military assets of the country, no matter whom they are taking orders from. Therefore, it is constitutional to take out the command center from which Qaddafi is operating, even if it kills him, without a congressional declaration of war or letters of marque and reprisal, provided the collateral damage to anyone not associated with Qaddafi is minimal and compensated. There may be a reluctance to make a martyr of Qaddafi, but taking just him out is the appropriate course of action in this situation, if it can be done. However, the attacks already made exceed the bounds of just taking out a pirate and his henchmen, so a state of war exists unless an internationally recognized government of the country consents to the attacks. That is likely if the opponents of Qaddafi prevail, but is not if they don't.

The Constitution did not really contemplate contingent states of war, in which one side consents and the outcome can decide whether there had ever been a state of war.

All the President needs to do to legitimize his action is to recognize the Benghazi regime as the legitimate government of Libya, as France has done, and get them to issue an invitation to conduct exercises on its territory. It's not "war" if it's by invitation of the host government.

Message from Bernard

The following is a message from Bernard von NotHaus, recently convicted of the private minting of bullion coins made of pure silver, which do not "resemble" any U.S. coin, and which are worth more than any silver coin that was minted by the U.S. in the past. The message is posted here for your information.

... I just met with my chief defense attorney, Aaron Michel, who is very concerned with the government’s effort to mislead the people, just as they misled the jury.  He pointed out that the gov is now trying to brand all local non-government currencies as illegal and anybody who expresses opposition to the current US monetary policy as a “unique terrorist” who represents “a clear and present danger to the economic stability of this country.” 

The alarming statement in the Department of Justice press release by U.S. Attorney Anna Tompkins should concern every American.  Tompkins said:  “Attempts to undermine the legitimate currency of this country are simply a unique form of domestic terrorism.  While these forms of anti-government activities do not involve violence, they are every bit as insidious and represent a clear and present danger to the economic stability of this country.  We are determined to meet these threats through infiltration, disruption, and dismantling of organizations which seek to challenge the legitimacy of our democratic form of government.”

Seth Lipsky’s article in The New York Sun regarding a “Unique form of Terrorism” confirms that the gov can tailor terrorism to any definition they want or need for any circumstance.  Lipsky’s article should only be the beginning of a much larger public outcry. 

It is clear that the government it trying to grossly expand its power to control the people’s basic rights of freedom of speech, expression and action regarding monetary policy.  For example the Department of Justice press release added this statement, “… and to insure a singular monetary system for all purchases and debts in the United States, public and private” to their quote of Article 1, section 8 clause 5 of the US Constitution, when no such law or even idea, exists outside of the hyperbole of the DOJ. 

We live in a very dangerous time of mounting price inflation, social unrest and expanding wars all based on an undisciplined monetary system run by madmen. 

Please take action.  Write an article, your Congressman, Senator, Attorney General, Letter to the Editor of your local newspaper and encourage your email list to do the same. 

There is an urgent need for a massive outcry and I urge you to speak out and encourage others, who support the principles of a free market, to also speak out.  Silence in the face of tyranny is consent. 

Thank you for your support to return American to value. 

Sincerely,

Bernard von NotHaus
Monetary Architect

Eight Current articles:

Did Bernard von NotHaus Counterfeit Coins?
http://www.lewrockwell.com/blog/lewrw/archives/82406.html

Ron Paul Legislation for Repeal of legal tender laws
Page 1:  http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=7&e=7&r=150
Page 2: http://editions.amospublishing.com/WDCN/print.aspx?d=20110404&s=42&e=42&r=150

Von NotHaus guilty on all counts
http://www.coinworld.com/News/20110328/Bulletin820110328.aspx

The New Face Of Terror by Chris Duane
http://www.silverbearcafe.com/private/03.11/liberty.html

A ‘Unique’ Form of ‘Terrorism’ by Sun editor Seth Lipsky
http://www.nysun.com/editorials/a-unique-form-of-terrorism/87269/

Press Release by the FBI of Charlotte...
http://charlotte.fbi.gov/dojpressrel/pressrel11/ce031811.htm

Liberty Dollar creator convicted in federal court
http://www.citizen-times.com/article/20110319/NEWS01/110319006/1001/news/Liberty-Dollar-fake-currency-creator-convicted-federal-court?odyssey=nav|head

Liberty Dollar founder convicted on federal charges by David Forbes
http://www.mountainx.com/blogwire/2011/liberty_dollar_founder_convicted_on_federal_charges

**********************************************************************************************

Some background links on the case.

FBI Raid

http://www.newswithviews.com/Ryter/jon201.htm

http://www.courierpress.com/news/2007/nov/15/liberty-dollar-office-raided/

http://www.constitutionpreservation.org/newsletter-items/bernard-von-nothaus-political-prisoner

http://www.dig4coins.com/news/latest-news/fbi-seized-gold-and-silver-qcoinsq-from-the-office-of-liberty-dollar

http://www.freerepublic.com/focus/f-news/1926165/posts

http://www.rumormillnews.com/cgi-bin/archive.cgi?read=114103 (Von Nothaus article)

http://letlibertyring.blogspot.com/2007_11_17_archive.html



Liberty Dollar's request for injunction against feds

http://www.prnewswire.com/news-releases/liberty-dollar-group-seeks-permanent-injunction-against-us-government-51667697.html

http://news.silverseek.com/SilverSeek/1174419765.php

http://www.illuminati-news.com/art-and-mc/Articles/19.html  (class action suit mentioned)

http://www.thepowerhour.com/news2/liberty_dollar.htm



Indictment

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://www.campaignforliberty.com/blog.php?view=19475

http://smithmillcreek.blogspot.com/2009/06/why-crack-down-on-liberty-dollar-now.html

http://adap2k.blogspot.com/2009/06/fbi-arrests-bernard-von-nothaus-and.html



Pre-trial and Trial

http://www.mountainx.com/news/2010/020310give_me_liberty_or_give_me_jail/

http://www.silvermonthly.com/1459/the-strange-case-of-the-liberty-dollar/ (3 July 2010)

http://www.masslpa.org/content/message-bernard-von-nothaus-liberty-dollar

http://statesmansentinel.com/creator-liberty-dollar-jail

http://coinworld.com/News/20110328/Bulletin320110328.aspx  (Von NotHaus takes stand in trial)

http://www.dgcmagazine.com/blog/index.php/2011/03/08/liberty-dollar-trial-begins-bernard-von-nothaus-gets-day-in-court/

http://www.freedomsphoenix.com/Article/085423-2011-03-10-united-states-v-bernard-von-nothaus-bvnh-case-5-09.htm

http://www.coinworld.com/News/20110328/Bulletin620110328.aspx



Conviction

http://www.gata.org/node/9715

http://gata.org/node/9718

http://news.goldseek.com/GATA/1300687500.php

http://www.blacklistednews.com/index.php?news_id=13115

http://www.wtffinance.com/2011/03/founder-von-nothaus-of-liberty-dollar-convicted-for-competing-gold-and-silver-currency/

http://truthiscontagious.com/2011/03/19/bernard-von-nothaus-liberty-dollar-founder-convicted-on-federal-charges

http://www.rense.com/general93/lib.htm

http://avstop.com/march_2011/bernard_von_nothaus_convicted_of_minting_his_own_currency.htm

http://reason.com/blog/2011/03/18/liberty-dollar-founder-reporte

http://deadlinelive.info/2011/03/20/confiscating-liberty-who-are-the-real-criminals/

http://www.citizen-times.com/article/20110320/NEWS/303200037/0/ENT/Liberty-Dollar-creator-guilty?odyssey=mod|lateststories

http://www.fourwinds10.com/siterun_data/business/currency/news.php?q=1300664426

http://crasch.livejournal.com/1060492.html

http://www.postchronicle.com/news/breakingnews/article_212355162.shtml?ref=rss

http://caps.fool.com/Blogs/fbi-busts-mastermind-criminal/560372

http://www.dgcmagazine.com/blog/index.php/2011/03/20/bernard-von-nothaus-has-been-convicted-liberty-dollars-big-trail-over/    (doj press release)

http://www.godlikeproductions.com/forum1/message1404973/pg1

http://implode-explode.com/viewnews/2011-03-19_LibertyDollarfounderconvictedofcounterfeitingUSattorneycallshima.html

http://timesnews.net/article.php?id=9030654

http://greenlaserreviews.com/2011/03/21/still-worried-about-alternative-currencies-in-the-mid-west/

http://jenkinsear.com/2011/03/19/counterfeiting-is-not-terrorism-resume-buildin/

http://www.reuters.com/article/2011/03/20/us-crime-currency-idUSTRE72J46L20110320?feedType=RSS

http://www.thelibertypapers.org/2011/03/18/liberty-dollar-founder-reportedly-convicted/

http://www.gsnmagazine.com/article/22734/%E2%80%98unique%E2%80%99_domestic_terrorism_undermined_us_currency


http://www.ticklethewire.com/2011/03/21/man-convicted-of-producing-7-million-in-counterfeit-liberty-head-dollars/

http://www.roguegovernment.com/Liberty_Dollar_creator_Bernard_Von_NotHaus_convicted_of_domestic_terrorism/25123/0/8/8/Y/M.html