How can beings with diverse ways of understanding use symbols to communicate and cooperate with one another, and give us laws that we might understand the way they meant them, when they did not always understand them the same way among themselves? It is an ancient question. After all, no two of us understand things quite the same way, and most of us don't even understand things the same way from one day to the next. Spouses sometimes don't learn to understand one another after decades together.
If you choose to dwell on the differences you would conclude that it is impossible for people to ever reach agreement on anything.
But they do.
You don't have to dwell on the differences. You can choose to focus on the commonalities, on the underlying principles that unite them, even if none of them deeply understand or can explain those principles themselves.
The answer is that while some of the differences may be important, and indeed, may be fatal, people who want to work together can usually find a way to reach common understandings, at least common enough to get by. Spouses who don't understand one another can still learn to finish one another's sentences, and to live together in some kind of harmony, or at least an armed truce.
Constitutions, statutes, contracts, customs, traditions, symbiotic relations among social species -- all of these rest on achieving a common understanding. But it can take some work to bring out those underlying principles. It is easy, in doing so, to pick apart their words as though they chose them with more care than they did, but that is often a mistake. Text must be read with due regard to the circumstances of its composition, the pressures to make haste and get through the moment. Lawgivers themselves sometimes get it wrong, leaving us to discern their functional, if not their motivational, intent.
After all, the alga and fungus that make a lichen would be hard pressed to deliver a learned exposition on the principles that unite them. It is up to the biologist to articulate the articles of their social contract.
See New Year's Greeting.
2012/03/22
2012/03/21
The original meaning of "carrying into execution"
Much of the argument on the ACA should turn on the original meaning
of the qualifying phrase in the Necessary and Proper Clause. Here is
an outline.
THE ORIGINAL MEANING OF "CARRYING INTO
EXECUTION"
THE ORIGINAL MEANING OF "CARRYING INTO
EXECUTION"
-
DELEGATION OF POWER IS AUTHORIZATION TO EXECUTE AN OFFICIAL ACT
-
Lawmaking power has two parts.
-
To enact a statute and publish it.
-
To authorize an executive agent to enforce the statute.
-
Only application to oneself or discharge of official duties can be continual.
-
For most enforcers, “execution” occurs only during specific acts of enforcement.
-
To be continual the enforcer must be able to enforce even when asleep.
-
-
Application to subordinates or private parties is discrete, with a beginning and an end, although it may be an overlapping series.
-
-
-
-
COMPLIANCE BY NON-GOVERNMENT ACTORS AND OUTCOMES ARE NOT PART OF EXECUTION
-
Established usage in 1787 did not call compliance by non-officials “execution” of a law.
-
Established usage in 1787 did not call outcomes beyond the duties of an official “execution”.
-
-
“NECESSARY” MEANS WHAT MUST BE DONE FOR SOMETHING ELSE TO BE DONE
-
“PROPER” MEANS FOR A LEGITIMATE PUBLIC PURPOSE, REASONABLE, AND JUST
-
“CARRYING” MEANS MAKING AN EFFORT
-
“EXECUTION” MEANS AN ENFORCEMENT EFFORT
-
It is performance of an official enforcement act.
-
Only interference with an enforcement act would bring private action within the scope of what is necessary and proper.
-
Private action outside of official enforcement action is not within the scope.
-
-
“POWERS” ONLY THOSE VESTED IN U.S. GOVERNMENT ACTORS, NOT PRIVATE PERSONS
-
Compliance with statutes by private persons is not “execution”.
-
The results of compliance by private persons is not “execution”.
-
Private persons cannot be made government actors other than through militia call-up, without their consent.
-
A power to command private persons to enforce statutes is found only in the Militia Clauses, and that is only when called up as militia, not between emergencies.
-
Purchase of health insurance is not defense activity, or militia, and therefore cannot be commanded by statute or officials enforcing statutes.
-
-
THE RESTRICTIVE PHRASE “CARRYING INTO EXECUTION” HAS NEVER BEEN RESOLVED BY THIS COURT
-
The phrase was not argued or decided in the cases beginning with McCulloch v. Maryland.
-
Without such argument, the Court presumed “necessary and proper” was for the purposes of the lawmakers, whatever those might be.
-
But U.S. Const. Art. I Sec. 8 Cl. 18 does not state “for the purposes of Congress”, but the much more restrictive phrase “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.”
-
-
THERE IS NO VESTED POWER FOR WHICH THE INDIVIDUAL MANDATE CAN BE NECESSARY AND PROPER
-
Medical insurance is not “commerce” subject to federal regulation.
-
The individual mandate cannot be necessary and proper to performance of an official enforcement act.
-
-
INDIVIDUAL MANDATE MAY BE CONSTITUTIONAL FOR SOME
-
For United States officials, agents, employees, and contractors.
-
For persons residing in federal enclaves created under U.S. Const. Art. I Sec. 8 Cl. 17, but only if they are represented in Congress, if it is deemed a “tax”.
-
It is not constitutional for all others, and the Court should so hold.
-
2012/03/19
How did sovereign immunity emerge?
One of the key problems today is sovereign and official immunity and its abuses. I can only hit a few highlights here.
First, people should be aware, if they are not already, that legal writers of the era before 1787, and after, were not as systematic as philosophers who seek comprehensive exposition and rigor would like. Many of them were just stringing together lecture notes and case opinions, and their analytic skills were often not very good. That does not mean there are not principles of law that they were trying to elucidate, even if they were not always attentive to some of the elements and details they should have been, from our viewpoint. But to get at those foundations one has to drill down to the principles they themselves often only dimly understood or poorly expressed, and build a logical structure on what we can discern.
The sovereign is the supreme lawmaker in any situation, especially on some land. There is no law without a sovereign. Originally, it was a victorious warlord who asserted dominion over a country. By the Magna Carta in 1215, especially Article 61, the concept had evolved into the distinction between the person of the crown, an office, and the individual actor who might fill that office.
The maxim that "the king can do no wrong" was just a polysemous way to say "the crown is not accountable", because it is the sovereign, and a court created by the sovereign can't command the sovereign. It can in principle command the individual who wears it, as Charles I was judged. And of course it can command the ministers of the crown, although not all judges are superior to all ministers. That is why the jury was established, to provide a way for the sovereign to intervene.
But of course, that made the people sovereign, if they tried to pursue the institution of the jury to its logical conclusion. For a long time the only person to both wear the crown and recognize its authority rested on the consent of the people was Elizabeth, England's first, and it would seem last, deep thinker to play that role. She surrounded herself with other deep thinkers, most notably Bacon and Coke, who laid the foundations for further progress.
American independence made the recognition that the people are sovereign explicit, and did more: It provided a structured process through which the people could express their sovereignty, through constitutional ratifying conventions, which freed them to hold the individuals who might office accountable because they had an orderly and legitimate way to replace them without impairing the office itself. That was done not by the people as sovereign, but by the people in the office of electors, an office that is as much subject to the constitution of government as other officials are.
Originally, immunity was a privilege granted by the sovereign to establish a legal claim against the actions of officials who also represent the sovereign, although perhaps not perfectly. That evolved into the concept that even the sovereign did not have unlimited power. He or it was limited by the superior constitutions of nature, society, and the state, and none of its agents could legitimately infringe on immunities that ultimately stem from those prior constitutions. The Framers called those immunities "rights" in the Constitution of 1787 and the Bill of Rights.
Strictly speaking, sovereign immunity is the immunity of the sovereign against itself. The erosion about which many justly complain has been the tendency for officials to claim a share of the sovereignty that properly belongs only to the people as a whole, and to seek the protection of the immunity of the sovereign. To the extent the agents are in fact acting within their lawful jurisdiction and discretion, they may legitimately claim that immunity. The problem is when they exceed that jurisdiction and discretion, and are their own judges concerning whether their actions are within or outside.
The traditional remedy for this was to subject all such decisions to a jury, but officials have removed many such decisions from the jury, where it properly belongs. That means the jury must review decisions of law, and reverse judges in favor of defendants. And it means private parties must be able to bring actions, including criminal actions, without being blocked by gatekeepers that do things like stack grand juries or prevent access to them for private criminal prosecutions.
One of the confusing parts of discourse on this has been a tendency for too many legal scholars to treat all judicial remedies as being for damages or property, and overlooking equitable remedies and the prerogative writs. The Eleventh Amendment was written with only damage claims in mind, and should have specifically excepted other kinds of remedies. The concern for that was that if states could be sued without their consent, plaintiffs could dismantle the states. But the framers of that amendment missed the point that what they wanted to do was provide immunity from execution of money or properly judgments, not from suit. Actions at law serve many purposes than commanding the loser to pay up, such as bringing out the truth.
Official immunity was restricted and tolerable as long as officials did not band together as a tribe dedicated to protecting one another from the public, but year by year they have done just that, and gone from official immunity for momentary acts within their legitimate authority, to immunity for anything they do while they hold the office. That makes their title of office a title of nobility.
All the conceptual tools we need are to be found in the Constitution, but not without some analysis of its historical and conceptual roots.
First, people should be aware, if they are not already, that legal writers of the era before 1787, and after, were not as systematic as philosophers who seek comprehensive exposition and rigor would like. Many of them were just stringing together lecture notes and case opinions, and their analytic skills were often not very good. That does not mean there are not principles of law that they were trying to elucidate, even if they were not always attentive to some of the elements and details they should have been, from our viewpoint. But to get at those foundations one has to drill down to the principles they themselves often only dimly understood or poorly expressed, and build a logical structure on what we can discern.
The sovereign is the supreme lawmaker in any situation, especially on some land. There is no law without a sovereign. Originally, it was a victorious warlord who asserted dominion over a country. By the Magna Carta in 1215, especially Article 61, the concept had evolved into the distinction between the person of the crown, an office, and the individual actor who might fill that office.
The maxim that "the king can do no wrong" was just a polysemous way to say "the crown is not accountable", because it is the sovereign, and a court created by the sovereign can't command the sovereign. It can in principle command the individual who wears it, as Charles I was judged. And of course it can command the ministers of the crown, although not all judges are superior to all ministers. That is why the jury was established, to provide a way for the sovereign to intervene.
But of course, that made the people sovereign, if they tried to pursue the institution of the jury to its logical conclusion. For a long time the only person to both wear the crown and recognize its authority rested on the consent of the people was Elizabeth, England's first, and it would seem last, deep thinker to play that role. She surrounded herself with other deep thinkers, most notably Bacon and Coke, who laid the foundations for further progress.
American independence made the recognition that the people are sovereign explicit, and did more: It provided a structured process through which the people could express their sovereignty, through constitutional ratifying conventions, which freed them to hold the individuals who might office accountable because they had an orderly and legitimate way to replace them without impairing the office itself. That was done not by the people as sovereign, but by the people in the office of electors, an office that is as much subject to the constitution of government as other officials are.
Originally, immunity was a privilege granted by the sovereign to establish a legal claim against the actions of officials who also represent the sovereign, although perhaps not perfectly. That evolved into the concept that even the sovereign did not have unlimited power. He or it was limited by the superior constitutions of nature, society, and the state, and none of its agents could legitimately infringe on immunities that ultimately stem from those prior constitutions. The Framers called those immunities "rights" in the Constitution of 1787 and the Bill of Rights.
Strictly speaking, sovereign immunity is the immunity of the sovereign against itself. The erosion about which many justly complain has been the tendency for officials to claim a share of the sovereignty that properly belongs only to the people as a whole, and to seek the protection of the immunity of the sovereign. To the extent the agents are in fact acting within their lawful jurisdiction and discretion, they may legitimately claim that immunity. The problem is when they exceed that jurisdiction and discretion, and are their own judges concerning whether their actions are within or outside.
The traditional remedy for this was to subject all such decisions to a jury, but officials have removed many such decisions from the jury, where it properly belongs. That means the jury must review decisions of law, and reverse judges in favor of defendants. And it means private parties must be able to bring actions, including criminal actions, without being blocked by gatekeepers that do things like stack grand juries or prevent access to them for private criminal prosecutions.
One of the confusing parts of discourse on this has been a tendency for too many legal scholars to treat all judicial remedies as being for damages or property, and overlooking equitable remedies and the prerogative writs. The Eleventh Amendment was written with only damage claims in mind, and should have specifically excepted other kinds of remedies. The concern for that was that if states could be sued without their consent, plaintiffs could dismantle the states. But the framers of that amendment missed the point that what they wanted to do was provide immunity from execution of money or properly judgments, not from suit. Actions at law serve many purposes than commanding the loser to pay up, such as bringing out the truth.
Official immunity was restricted and tolerable as long as officials did not band together as a tribe dedicated to protecting one another from the public, but year by year they have done just that, and gone from official immunity for momentary acts within their legitimate authority, to immunity for anything they do while they hold the office. That makes their title of office a title of nobility.
All the conceptual tools we need are to be found in the Constitution, but not without some analysis of its historical and conceptual roots.
2012/02/20
Court Administration Reform Act
The following is my proposed Court Administration Reform Act of
2013, to be introduced shortly after taking my seat in the U.S.
Senate. The title is linked to the web page where the latest version
can be found. Constructive comments are welcome.
113th Congress
1st Session
S. ____
To amend certain statutes concerning the assignment and
rules of procedure of United States judges and other
judicial officers.
IN THE UNITED STATES SENATE
January 25, 2013
Mr. ROLAND of Texas introduced the following bill; which
was referred to the Judiciary Committee.
2. The authority for this act is the United States Constitution, Article I, Section 1, and Article III.
2. Courtrooms and offices shall be expanded in number and size as required to accommodate all court personnel, subject to appropriations by Congress.
END.
1st Session
S. ____
January 25, 2013
A BILL
To amend certain statutes coded in 28 USC Part I.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
-
This Act may be cited as the 'Court Administration Reform
Act of 2013'.
SEC. 2. FINDINGS AND AUTHORITY.
1. Congress finds the United States Constitution, Article III, does not provide that judges must be appointed to particular courts.2. The authority for this act is the United States Constitution, Article I, Section 1, and Article III.
SEC. 3. ENACTMENT AND REPEALS.
1. Public laws and amendments thereto coded in 28 USC Part I, concerning Article III courts, are amended, effective immediately, as follows:
a. Henceforth judges shall not
be appointed to specific courts at confirmation, but shall
be assigned to a pool from which vacancies shall be filled
by drawing from the pool at random.
b. No vacancy shall be filled
until there are at least 20 judges in the selection pool.
c. While in the selection pool,
judges shall enjoy the same salaries and benefits of
assigned judges, but may be assigned temporary duties as
magistrates, clerks, administrators, researchers, writers,
or teachers.
d. Judges assigned from the
selection pool shall serve for two years, beginning October
1 of the first odd-numbered year after their assignment,
after which they shall return to the pool, and may not be
assigned to the same court twice in succession.
e. Magistrates and clerks shall
be similarly appointed to pools, one for magistrates and one
for clerks, and shall be randomly assigned to courts from
such pools, there to serve for four years, but not to
succeed themselves on the same court, and no vacancy shall
be filled until the pool for that kind of position shall
contain at least twenty candidates.
f. Judges, magistrates, and
clerks shall receive a reasonable compensation for the costs
of relocations to their assignments.
2. Beginning October 1, 2017, and each odd year thereafter,
the number of judges on each appellate court, including the
Supreme Court, shall be increased by two, until the number
shall reach twenty-seven.
a. All appellate cases shall be
initially heard by a randomly selected panel of three, from
which appeal may thereafter be made to a randomly selected
panel of nine, unless the court shall not then have nine, in
which case all of them, and if the court shall have at least
fifteen judges, appeal may then be made to the entire court
sitting en banc.
b. A vote of two judges shall be
sufficient to accept an appeal for review.
3. In any case tried or heard on appeal by a panel of more
than one judge, the judges must be unanimous to sustain a
claimed power of a government actor against a claim by a
private party that the government actor lacks authority to
exercise such power.SEC. 4. TRANSITION.
1. Additional magistrates and clerks shall be appointed sufficient to handle the workload of the judges, subject to appropriations by Congress.2. Courtrooms and offices shall be expanded in number and size as required to accommodate all court personnel, subject to appropriations by Congress.
END.
2012/02/19
Does turnaround need unity?
Some
unity is needed to get each of many reforms, but it is possible to do
that without a single, comprehensive unified effort that combines all
the needed reforms. Turnaround is not a single reform, but the
convergence of thousands of reforms. We cannot expect any one unified
effort to cover them all. The various efforts should avoid conflicting
with one another, and support one another where possible, but it will
take massive efforts of many people in many organizations, moving like a
tsunami in the same general direction.
Just consider all the bills I have so far at http://jonroland.net/proposed_bills . Yes, if elected I could introduce them all, but getting them passed would take groups forming around support for each one. Of course, it would start with a group uniting to elect me or someone who would introduce all those bills, but after that it would take groups electing each of many more members of Congress, and building support for each bill in each state and district.
The tea party movement provides a model. Much of its strength rests on it being a large number of local efforts with no central leadership or agreed agenda. We need more of that, but now the components need to push more specific reform proposals that are a lot more substantive than the Contract from America suggestions.
Just consider all the bills I have so far at http://jonroland.net/proposed_bills . Yes, if elected I could introduce them all, but getting them passed would take groups forming around support for each one. Of course, it would start with a group uniting to elect me or someone who would introduce all those bills, but after that it would take groups electing each of many more members of Congress, and building support for each bill in each state and district.
The tea party movement provides a model. Much of its strength rests on it being a large number of local efforts with no central leadership or agreed agenda. We need more of that, but now the components need to push more specific reform proposals that are a lot more substantive than the Contract from America suggestions.
2012/02/18
Medical Care Reform Act
1st Session
S. ____
January 25, 2013
A BILL
To amend or repeal certain unconstitutional legislation concerning health care.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
- This Act may be cited as the 'Medical Care Reform Act of 2013'.
SEC. 2. FINDINGS AND AUTHORITY.
1. The Congress finds that funding and providing medical care as a transfer of wealth from one group to another is unconstitutional, a violation of U.S. Const. Article I Section 8 Clause 1 that requires public expenditures be only for the general welfare and not for the benefit of one group at the expense of another; however,2. The Congress also finds it is not unconstitutional to fund research, development, and testing of new medical methods of general benefit to all, or to fund and provide medical care for persons injured by government or preparatory for or in the course of government service or militia, or to prevent the spread of contagious disease, or to make use of capacity created for that purpose that would otherwise be wasted.
3. The authority for this act is the United States Constitution, Article I, Section 1.
SEC. 3. ENACTMENT AND REPEALS.
1. The following acts and amendments thereto are hereby repealed or amended as provided in (2) of this section:- PL 86-778 Social Security Amendments of 1960 (Kerr-Mills aid)
- PL 89-97 Social Security Act of 1965
- Medicare Secondary Payer Act of 1980
- PL 100-360 Medicare Catastrophic Coverage Act of 1988
- PL 105-33 Balanced Budget Act of 1997
- PL 108-173 Medicare Prescription Drug, Improvement, and Modernization Act
- Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act of 2010
a. The sole ultimate purpose of funds
expended pursuant to this act shall be research, development, and
testing of new medical methods which lead to being able to provide a
long life of youthful good health to all at a cost almost anyone can
afford. To that end,
b. Medical treatment shall be provided
only as an incident to research and testing studies, and not to those
whose treatment does not serve a research and development objective.
c. Expenditures under this section (2)
shall not exceed tax receipts dedicated to them, and under no
circumstances shall it be paid by borrowing or by donations from any
financial institution.
3. Existing programs to fund and provide medical care for persons
injured by government or preparatory for or in the course of government
service or militia, or to prevent the spread of contagious disease, or to make use of capacity created for that purpose
that would otherwise be wasted, are not to be affected by this act.SEC. 4. TRANSITIONAL.
1. Current obligations for services performed as of the date of enactment of this bill shall be paid.2. Conversion from a treatment system to a research system shall be phased in, after four months at the rate of five percent per month for twenty months, to be completed by the end of the second year.
END.
Campaign Finance Reform Act of 2013
1st Session
S. ____
January 25, 2013
A BILL
To amend the Federal Election Campaign Act, the Bipartisan Campaign
Reform Act, and amendments thereto, to bring them into compliance with
the United States Constitution.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
- This Act may be cited as the 'Campaign Finance Reform Act of 2013'.
SEC. 2. FINDINGS AND AUTHORITY.
1. The authority for this act is the United States Constitution, Article I, Section 1, Section 4, and Section 5 Clause 2.2. Application of the Federal Election Campaign Act of 1972, the Bipartisan Campaign Reform Act of 2002, and amendments thereto, to persons who are not current members of the United States Congress is unconstitutional.
SEC. 3. ENACTMENT AND REPEALS.
1. Provisions of the Federal Election Campaign Act of 1972 (FECA, Pub.L. 92-225, 86 Stat. 3, enacted February 7, 1972, 2 U.S.C. § 431 et seq.), the Bipartisan Campaign Reform Act of 2002(BCRA, McCain–Feingold Act, Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, H.R. 2356) , and amendments thereto, that apply only to persons not current members of the United States Congress, are hereby repealed, retroactively.2. Remaining provisions shall apply only to current members of the United States Congress while they hold that office.
3. The rule of construction for all cases arising under this act shall be the presumption of nonauthority.
SEC. 4. REMEDIATION.
Persons injured by the repealed provisions while they were enacted shall be entitled to just compensation therefor, upon adjudication in the United States Court of Claims, or other court of competent jurisdiction.END.
2012/02/16
Civil Rights Act of 2013
b. Due process
1. General
1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.
2. Fair hearing and decision on the legal
merits, with redress for just grievances, including damages, property,
or injunctive or declaratory relief.
3. Not to have just remedies made inaccessible or excessively difficult or costly.
4. Mandated testimony of witnesses.
5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.
6. Direct presentation of complaints to a
grand jury without the presence of any other government actor without
the consent of the grand jury.
7. Standing to privately prosecute a public right without having been or expecting personal injury.
8. Not to be subject to retaliation.
9. Not to have admitted any plea or testimony induced by a plea bargain.
10. Not to have any property or asset
taken or forfeited without civil or criminal judgment in a trial, with
possession presumed to establish title unless proved otherwise.
11. Not to have any right, privilege, or
immunity disabled by statute unless one is a minor, which by default
shall be any individual under the age of 18 unless the disabilities of
minority are extended or reduced by court order.
2. Criminal trials:
1. Indictment by twelve members of a
randomly selected grand jury of 23 who elect their foreperson, upon a
finding that the court has jurisdiction and that there is sufficient
evidence for a trial, except for persons subject to military or militia
discipline.
2. Service as prosecutor upon receipt of
an indictment by a grand jury, subject only to consolidation by the
grand jury if more than one person seeks to prosecute the same offense.
3. Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in criminal cases for
which the penalty is more than 90 days.
4. No excessive bail when there is little flight risk.
5. No excessive fines imposed.
6. No cruel and unusual punishments inflicted.
7. Speedy and public trial before an
impartial jury of the state and district previously defined by law,
wherein the offense shall have been committed, and to have the location
of commitment be deemed where there was concurrence of mens rea and
actus reus.
8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.
9. To be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence, but not to have counsel
or an attorney imposed on him without his consent.
10. Not to be compelled to be a witness against himself.
11. Not be disabled in the exercise, or
deprived, of life, liberty, or property, without due process of law, by
unanimous verdict of a jury of twelve.
12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.
13. Unimpeded presentation of all legal
argument to the jury, up to the final instructions to the jury, except
for argument on a motion in limine that cannot be made without
disclosing evidence properly excluded.
14. Unimpeded presentation of all
pleadings, alternative instructions, and certified copies of applicable
laws and constitutions, to the jury.
15. Not to have a sentence that does not
separately disable the exercise of the immunity, and order deprivation
of it, within the scope of that disablement
3. Civil trials:
Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in which the amount at
issue, including costs, exceeds the equivalent of at least 15.46875 troy
ounces of pure silver.
4. Appeals
Appeal from a jury verdict on a writ
of error or habeas corpus, according to the rules of the common law in
the United States as of 1787, unless the Constitution is amended to
provide otherwise.
c. Nonauthority
1. Presumption of nonauthority for any
claim to authority, to be strictly proved by an unbroken logical chain
of derivation from a constitution.
2. Not to have any government actor
exercise a power not delegated, regardless of whether one may be
personally injured by such exercise.
3. Not to have government actors exercise
powers on the pretext of being "necessary and proper" when they are not
just to perform his official duties but to get a desired result beyond
such duties.
4. To have delegated powers construed as
narrowly, and rights, privileges, or immunities construed as broadly, as
the language of the Constitution as meant and understood when ratified
permits.
5. Priority docketing of all prerogative
writs filed by a any person as demandant in the name of the people with a
court of competent jurisdiction and served on the respondant, within
three sederunt days, unless the respondant requires more, but not more
than 20 calendar days, including but not limited to, demurral, quo
warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari,
and scire facias, and to have default judgment even if no proof is
presented or a hearing is not held.
6. Unimpeded and unpunished
communications, including speech, press, and education, except such as
instigate or direct a felony, misdemeanor, or tort.
7. Unimpeded assembly and exercise of rights in concert with others.
8. Unimpeded assembly as militia for
organizing, training, and response to threats to public safety, subject
only to direction by state militia officers during a call-up.
9. Unrestricted keeping and bearing of
weapons, equipment, and supplies commonly used by military forces, or
suitable for militia, subject only to court order of disablement for
being a threat to oneself or others, or to the lawful orders of militia
officers during a call-up.
10. Unimpeded and unpunished petition for redress of grievances.
11. Unimpeded devotion or practice of
religion, not preferentially supported by public funds, that does not
instigate or direct a felony, misdemeanor, or tort.
12. Exclusion of government actors from
intrusion into one's real property, body, or use of one's personal
property, for search, seizure, or for any other reason, without consent,
a declared state of war or emergency threat to public, safety, a
warrant supported by an affidavit of probable cause, and just
compensation for any losses incurred, for each incident.
d. Supervision of government actors
1. Access to observation and recordation
of any government proceeding except trial and grand jury deliberations
or their equivalent, or deliberations on matters of security requiring
secrecy.
2. Receipt of records of all proceedings,
and accounting for all receipts, loans, debts, and expenditures, and
reporting thereof, for eventual examination prior to an election in
which the issues may be reviewed.
3. Accurate recording, counting, and
reporting of all votes cast by eligible voters in any public election
with protection from disclosure of how each voted.
4. Access to all information about
oneself, and either copies at cost of all documentation or to make one's
own copies using one's own equipment.
5. Effective low-cost remedies for getting
information about oneself corrected, and use of such information
restricted to that for which there is consent by oneself.
f. Other
1. Association and contract to do things
not unlawful, including practice of a profession or occupation,
marriage, procreation, and acceptance or denial of medical prevention or
treatment, except prevention of contagious diseases.
2. Formation, conduct, and revision or
dissolution of corporations, partnerships, and other trusts, in which
settlor, trustee, and beneficiary are distinct persons who may not be
impeded or penalized from directly appearing in any court in such
capacities.
3. Not to have some accorded special
privileges or protections that favor them over the rest of the people,
in ways not essential to the performance of public duties.
4. Travel within, to, and from the United States and any State, territory or locality.
5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.
6. Not to be enslaved or submitted to
peonage except as punishment for a crime, but subject to militia, jury,
witness, and other public duty.
7. Not to be impeded or punished for
voting if one is a citizen and resident on grounds of race, color,
creed, previous servitude, gender, age 18 or above, or failure to pay a
tax.
8. Custody and care of close relatives who are non sui juris.
9. Not to be neglected or abused while in custody.
10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.
11. Not to be deported without proof that
one has not been born or naturalized as a citizen, unless one is born to
a person not subject to the allegiance of the United States, such as a
foreign diplomat or an invader.
12. Not to be subject to penalty for not
doing something, such as paying a tax, if government agents refuse to
allow it to be done, such as accepting payment of a tax.
13. Not to deny relief from some
government action for lack of an appropriation to process the
application for relief, or having an official to receive the
application, and to fail to recognize the demand for such relief as
being granted by default.
14. Not to be required to procreate or if an adult, to refrain from procreating.
14. Not to be required to procreate or if an adult, to refrain from procreating.
g. The foregoing list is not exhaustive,
and further rights, privileges, and immunities are to be found in the
historical record. The rule of expressio unius est exclusio alterius shall not be applied.
b. Due process
1. General
1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.
2. Fair hearing and decision on the legal
merits, with redress for just grievances, including damages, property,
or injunctive or declaratory relief.
3. Not to have just remedies made inaccessible or excessively difficult or costly.
4. Mandated testimony of witnesses.
5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.
6. Direct presentation of complaints to a
grand jury without the presence of any other government actor without
the consent of the grand jury.
7. Standing to privately prosecute a public right without having been or expecting personal injury.
8. Not to be subject to retaliation.
9. Not to have admitted any plea or testimony induced by a plea bargain.
10. Not to have any property or asset
taken or forfeited without civil or criminal judgment in a trial, with
possession presumed to establish title unless proved otherwise.
11. Not to have any right, privilege, or
immunity disabled by statute unless one is a minor, which by default
shall be any individual under the age of 18 unless the disabilities of
minority are extended or reduced by court order.
2. Criminal trials:
1. Indictment by twelve members of a
randomly selected grand jury of 23 who elect their foreperson, upon a
finding that the court has jurisdiction and that there is sufficient
evidence for a trial, except for persons subject to military or militia
discipline.
2. Service as prosecutor upon receipt of
an indictment by a grand jury, subject only to consolidation by the
grand jury if more than one person seeks to prosecute the same offense.
3. Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in criminal cases for
which the penalty is more than 90 days.
4. No excessive bail when there is little flight risk.
5. No excessive fines imposed.
6. No cruel and unusual punishments inflicted.
7. Speedy and public trial before an
impartial jury of the state and district previously defined by law,
wherein the offense shall have been committed, and to have the location
of commitment be deemed where there was concurrence of mens rea and
actus reus.
8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.
9. To be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence, but not to have counsel
or an attorney imposed on him without his consent.
10. Not to be compelled to be a witness against himself.
11. Not be disabled in the exercise, or
deprived, of life, liberty, or property, without due process of law, by
unanimous verdict of a jury of twelve.
12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.
13. Unimpeded presentation of all legal
argument to the jury, up to the final instructions to the jury, except
for argument on a motion in limine that cannot be made without
disclosing evidence properly excluded.
14. Unimpeded presentation of all
pleadings, alternative instructions, and certified copies of applicable
laws and constitutions, to the jury.
15. Not to have a sentence that does not
separately disable the exercise of the immunity, and order deprivation
of it, within the scope of that disablement
3. Civil trials:
Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in which the amount at
issue, including costs, exceeds the equivalent of at least 15.46875 troy
ounces of pure silver.
4. Appeals
Appeal from a jury verdict on a writ
of error or habeas corpus, according to the rules of the common law in
the United States as of 1787, unless the Constitution is amended to
provide otherwise.
c. Nonauthority
1. Presumption of nonauthority for any
claim to authority, to be strictly proved by an unbroken logical chain
of derivation from a constitution.
2. Not to have any government actor
exercise a power not delegated, regardless of whether one may be
personally injured by such exercise.
3. Not to have government actors exercise
powers on the pretext of being "necessary and proper" when they are not
just to perform his official duties but to get a desired result beyond
such duties.
4. To have delegated powers construed as
narrowly, and rights, privileges, or immunities construed as broadly, as
the language of the Constitution as meant and understood when ratified
permits.
5. Priority docketing of all prerogative
writs filed by a any person as demandant in the name of the people with a
court of competent jurisdiction and served on the respondant, within
three sederunt days, unless the respondant requires more, but not more
than 20 calendar days, including but not limited to, demurral, quo
warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari,
and scire facias, and to have default judgment even if no proof is
presented or a hearing is not held.
6. Unimpeded and unpunished
communications, including speech, press, and education, except such as
instigate or direct a felony, misdemeanor, or tort.
7. Unimpeded assembly and exercise of rights in concert with others.
8. Unimpeded assembly as militia for
organizing, training, and response to threats to public safety, subject
only to direction by state militia officers during a call-up.
9. Unrestricted keeping and bearing of
weapons, equipment, and supplies commonly used by military forces, or
suitable for militia, subject only to court order of disablement for
being a threat to oneself or others, or to the lawful orders of militia
officers during a call-up.
10. Unimpeded and unpunished petition for redress of grievances.
11. Unimpeded devotion or practice of
religion, not preferentially supported by public funds, that does not
instigate or direct a felony, misdemeanor, or tort.
12. Exclusion of government actors from
intrusion into one's real property, body, or use of one's personal
property, for search, seizure, or for any other reason, without consent,
a declared state of war or emergency threat to public, safety, a
warrant supported by an affidavit of probable cause, and just
compensation for any losses incurred, for each incident.
d. Supervision of government actors
1. Access to observation and recordation
of any government proceeding except trial and grand jury deliberations
or their equivalent, or deliberations on matters of security requiring
secrecy.
2. Receipt of records of all proceedings,
and accounting for all receipts, loans, debts, and expenditures, and
reporting thereof, for eventual examination prior to an election in
which the issues may be reviewed.
3. Accurate recording, counting, and
reporting of all votes cast by eligible voters in any public election
with protection from disclosure of how each voted.
4. Access to all information about
oneself, and either copies at cost of all documentation or to make one's
own copies using one's own equipment.
5. Effective low-cost remedies for getting
information about oneself corrected, and use of such information
restricted to that for which there is consent by oneself.
f. Other
1. Association and contract to do things
not unlawful, including practice of a profession or occupation,
marriage, procreation, and acceptance or denial of medical prevention or
treatment, except prevention of contagious diseases.
2. Formation, conduct, and revision or
dissolution of corporations, partnerships, and other trusts, in which
settlor, trustee, and beneficiary are distinct persons who may not be
impeded or penalized from directly appearing in any court in such
capacities.
3. Not to have some accorded special
privileges or protections that favor them over the rest of the people,
in ways not essential to the performance of public duties.
4. Travel within, to, and from the United States and any State, territory or locality.
5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.
6. Not to be enslaved or submitted to
peonage except as punishment for a crime, but subject to militia, jury,
witness, and other public duty.
7. Not to be impeded or punished for
voting if one is a citizen and resident on grounds of race, color,
creed, previous servitude, gender, age 18 or above, or failure to pay a
tax.
8. Custody and care of close relatives who are non sui juris.
9. Not to be neglected or abused while in custody.
10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.
11. Not to be deported without proof that
one has not been born or naturalized as a citizen, unless one is born to
a person not subject to the allegiance of the United States, such as a
foreign diplomat or an invader.
12. Not to be subject to penalty for not
doing something, such as paying a tax, if government agents refuse to
allow it to be done, such as accepting payment of a tax.
13. Not to deny relief from some
government action for lack of an appropriation to process the
application for relief, or having an official to receive the
application, and to fail to recognize the demand for such relief as
being granted by default.
14. Not to be required to procreate or if an adult, to refrain from procreating.
14. Not to be required to procreate or if an adult, to refrain from procreating.
g. The foregoing list is not exhaustive,
and further rights, privileges, and immunities are to be found in the
historical record. The rule of expressio unius est exclusio alterius shall not be applied.
b. Due process
1. General
1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond.
2. Fair hearing and decision on the legal
merits, with redress for just grievances, including damages, property,
or injunctive or declaratory relief.
3. Not to have just remedies made inaccessible or excessively difficult or costly.
4. Mandated testimony of witnesses.
5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling.
6. Direct presentation of complaints to a
grand jury without the presence of any other government actor without
the consent of the grand jury.
7. Standing to privately prosecute a public right without having been or expecting personal injury.
8. Not to be subject to retaliation.
9. Not to have admitted any plea or testimony induced by a plea bargain.
10. Not to have any property or asset
taken or forfeited without civil or criminal judgment in a trial, with
possession presumed to establish title unless proved otherwise.
11. Not to have any right, privilege, or
immunity disabled by statute unless one is a minor, which by default
shall be any individual under the age of 18 unless the disabilities of
minority are extended or reduced by court order.
2. Criminal trials:
1. Indictment by twelve members of a
randomly selected grand jury of 23 who elect their foreperson, upon a
finding that the court has jurisdiction and that there is sufficient
evidence for a trial, except for persons subject to military or militia
discipline.
2. Service as prosecutor upon receipt of
an indictment by a grand jury, subject only to consolidation by the
grand jury if more than one person seeks to prosecute the same offense.
3. Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in criminal cases for
which the penalty is more than 90 days.
4. No excessive bail when there is little flight risk.
5. No excessive fines imposed.
6. No cruel and unusual punishments inflicted.
7. Speedy and public trial before an
impartial jury of the state and district previously defined by law,
wherein the offense shall have been committed, and to have the location
of commitment be deemed where there was concurrence of mens rea and
actus reus.
8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.
9. To be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence, but not to have counsel
or an attorney imposed on him without his consent.
10. Not to be compelled to be a witness against himself.
11. Not be disabled in the exercise, or
deprived, of life, liberty, or property, without due process of law, by
unanimous verdict of a jury of twelve.
12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.
13. Unimpeded presentation of all legal
argument to the jury, up to the final instructions to the jury, except
for argument on a motion in limine that cannot be made without
disclosing evidence properly excluded.
14. Unimpeded presentation of all
pleadings, alternative instructions, and certified copies of applicable
laws and constitutions, to the jury.
15. Not to have a sentence that does not
separately disable the exercise of the immunity, and order deprivation
of it, within the scope of that disablement
3. Civil trials:
Trial by a randomly selected jury of
twelve sworn to uphold applicable constitutions in which the amount at
issue, including costs, exceeds the equivalent of at least 15.46875 troy
ounces of pure silver.
4. Appeals
Appeal from a jury verdict on a writ
of error or habeas corpus, according to the rules of the common law in
the United States as of 1787, unless the Constitution is amended to
provide otherwise.
c. Nonauthority
1. Presumption of nonauthority for any
claim to authority, to be strictly proved by an unbroken logical chain
of derivation from a constitution.
2. Not to have any government actor
exercise a power not delegated, regardless of whether one may be
personally injured by such exercise.
3. Not to have government actors exercise
powers on the pretext of being "necessary and proper" when they are not
just to perform his official duties but to get a desired result beyond
such duties.
4. To have delegated powers construed as
narrowly, and rights, privileges, or immunities construed as broadly, as
the language of the Constitution as meant and understood when ratified
permits.
5. Priority docketing of all prerogative
writs filed by a any person as demandant in the name of the people with a
court of competent jurisdiction and served on the respondant, within
three sederunt days, unless the respondant requires more, but not more
than 20 calendar days, including but not limited to, demurral, quo
warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari,
and scire facias, and to have default judgment even if no proof is
presented or a hearing is not held.
6. Unimpeded and unpunished
communications, including speech, press, and education, except such as
instigate or direct a felony, misdemeanor, or tort.
7. Unimpeded assembly and exercise of rights in concert with others.
8. Unimpeded assembly as militia for
organizing, training, and response to threats to public safety, subject
only to direction by state militia officers during a call-up.
9. Unrestricted keeping and bearing of
weapons, equipment, and supplies commonly used by military forces, or
suitable for militia, subject only to court order of disablement for
being a threat to oneself or others, or to the lawful orders of militia
officers during a call-up.
10. Unimpeded and unpunished petition for redress of grievances.
11. Unimpeded devotion or practice of
religion, not preferentially supported by public funds, that does not
instigate or direct a felony, misdemeanor, or tort.
12. Exclusion of government actors from
intrusion into one's real property, body, or use of one's personal
property, for search, seizure, or for any other reason, without consent,
a declared state of war or emergency threat to public, safety, a
warrant supported by an affidavit of probable cause, and just
compensation for any losses incurred, for each incident.
d. Supervision of government actors
1. Access to observation and recordation
of any government proceeding except trial and grand jury deliberations
or their equivalent, or deliberations on matters of security requiring
secrecy.
2. Receipt of records of all proceedings,
and accounting for all receipts, loans, debts, and expenditures, and
reporting thereof, for eventual examination prior to an election in
which the issues may be reviewed.
3. Accurate recording, counting, and
reporting of all votes cast by eligible voters in any public election
with protection from disclosure of how each voted.
4. Access to all information about
oneself, and either copies at cost of all documentation or to make one's
own copies using one's own equipment.
5. Effective low-cost remedies for getting
information about oneself corrected, and use of such information
restricted to that for which there is consent by oneself.
f. Other
1. Association and contract to do things
not unlawful, including practice of a profession or occupation,
marriage, procreation, and acceptance or denial of medical prevention or
treatment, except prevention of contagious diseases.
2. Formation, conduct, and revision or
dissolution of corporations, partnerships, and other trusts, in which
settlor, trustee, and beneficiary are distinct persons who may not be
impeded or penalized from directly appearing in any court in such
capacities.
3. Not to have some accorded special
privileges or protections that favor them over the rest of the people,
in ways not essential to the performance of public duties.
4. Travel within, to, and from the United States and any State, territory or locality.
5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto.
6. Not to be enslaved or submitted to
peonage except as punishment for a crime, but subject to militia, jury,
witness, and other public duty.
7. Not to be impeded or punished for
voting if one is a citizen and resident on grounds of race, color,
creed, previous servitude, gender, age 18 or above, or failure to pay a
tax.
8. Custody and care of close relatives who are non sui juris.
9. Not to be neglected or abused while in custody.
10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.
11. Not to be deported without proof that
one has not been born or naturalized as a citizen, unless one is born to
a person not subject to the allegiance of the United States, such as a
foreign diplomat or an invader.
12. Not to be subject to penalty for not
doing something, such as paying a tax, if government agents refuse to
allow it to be done, such as accepting payment of a tax.
13. Not to deny relief from some
government action for lack of an appropriation to process the
application for relief, or having an official to receive the
application, and to fail to recognize the demand for such relief as
being granted by default.
14. Not to be required to procreate or if an adult, to refrain from procreating.
14. Not to be required to procreate or if an adult, to refrain from procreating.
g. The foregoing list is not exhaustive,
and further rights, privileges, and immunities are to be found in the
historical record. The rule of expressio unius est exclusio alterius shall not be applied.
The following is the first draft of a bill I am composing, to be
filed when I take office as U.S. Senator from Texas. Constructive
comments are welcome. Click on this link to go to
the latest version. Please forward widely.Donations to support this work are needed for it to continue.
Civil Rights Act
1st Session
S. ____
To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.
IN THE UNITED STATES SENATE
January 25, 2013
January 25, 2013
Mr. ROLAND of Texas introduced the following bill; which
was referred to the Judiciary Committee.
1. All offenses and remedies under these titles shall be equally applicable to government actors of both the United States and the States of the United States, except that impeachment and removal by Congress shall apply only to United States actors whose appointments are subject to congressional consent.
2. Prosecution of a criminal case in the courts of the United States shall be conducted by a private person appointed by a duly met grand jury who has not served as a government actor of the United States in the preceding year, unless no such person can be found, in which case a government actor may prosecute.
3. Prosecution of a civil case in the courts of the United States shall be conducted only by a private person who has not served as a government actor of the United States in the preceding six months.
4. Prevailing private prosecutions, criminal or civil, shall be entitled to reasonable damages, fees, and costs in an amount not less than the value equivalent to one terajoule of electric energy, for the trial and each level of appeal, payable from the assets of the losing level, branch, and department of government, United States or State.
5. The rights of persons the infringement of which shall provide a basis for a criminal or civil prosecution shall include, but not be limited to, the following:
END.
A BILL
To provide remedies for violations of rights, privileges,
and immunities of persons by government actors.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Civil Rights Act of 2013'.SEC. 2. FINDINGS AND AUTHORITY.
1. The Congress finds that it has comminatory and punitive powers over government actors, including:
a. Military personnel under U.S.
Const. Article I Section 8 Clause 14.
b. Militia personnel under U.S.
Const. Article I Section 8 Clause 16.
c. Civil officers, their
subordinates and agents, of all branches and departments of
the government of the United States under U.S. Const.
Article II Section 4.
d. Civil officers, their
subordinates and agents, of all branches, departments, and
subdivisions of the governments of the States of United
States under the amendment to the U.S. Const. proposed in
1866 and presumed ratified in 1868.
2. The Congress finds that it has comminatory and punitive
powers over such government actors, expressed in the U.S.
Constitution as "treason, bribery, and other high crimes and
misdemeanors", includes:
a. Common law crimes established
in the territory of what would become the United States as
of 1787.
b. Offenses inconsistent with
the duties of government actors, including offenses of the
kind subject to court-martial under the Uniform Code of
Military Justice as of the date of enactment hereof, such
as:
1. Dereliction of duty, bribery,
yielding to intimidation, or bias.
2. Insubordination, failure to
obey a lawful order of a superior, or to comply with a
lawful statute or regulation.
3. Perjury, fraud, or conduct
unbecoming.
4. Abuse of power, tending to
the infringement of the rights of any person.
3. The Congress finds that it has power, under U.S. Const.
Article III Section 2 Clause 2, to establish jurisdictions
for civil causes of action among private parties of diverse
residency or citizenship in the courts of the United States.SEC. 3. ENACTMENT AND REPEALS.
Statutes codified in 18 USC Chapter 13 and in 42 USC Chapter 21 are hereby amended as follows:1. All offenses and remedies under these titles shall be equally applicable to government actors of both the United States and the States of the United States, except that impeachment and removal by Congress shall apply only to United States actors whose appointments are subject to congressional consent.
2. Prosecution of a criminal case in the courts of the United States shall be conducted by a private person appointed by a duly met grand jury who has not served as a government actor of the United States in the preceding year, unless no such person can be found, in which case a government actor may prosecute.
3. Prosecution of a civil case in the courts of the United States shall be conducted only by a private person who has not served as a government actor of the United States in the preceding six months.
4. Prevailing private prosecutions, criminal or civil, shall be entitled to reasonable damages, fees, and costs in an amount not less than the value equivalent to one terajoule of electric energy, for the trial and each level of appeal, payable from the assets of the losing level, branch, and department of government, United States or State.
5. The rights of persons the infringement of which shall provide a basis for a criminal or civil prosecution shall include, but not be limited to, the following:
a. All rights already
established in the above titles.
b. Due process
1. General
1. Due notice of time, place,
manner, parties, and subject of any proceeding with
sufficient time to respond.
2. Fair hearing and decision on
the legal merits, with redress for just grievances,
including damages, property, or injunctive or declaratory
relief.
3. Not to have just remedies
made inaccessible or excessively difficult or costly.
4. Mandated testimony of
witnesses.
5. Unimpeded access to courts,
court filing, and grand juries, subject only to routine
scheduling.
6. Direct presentation of
complaints to a grand jury without the presence of any other
government actor without the consent of the grand jury.
7. Standing to privately
prosecute a public right without having been or expecting
personal injury.
8. Not to be subject to
retaliation.
9. Not to have admitted any plea or testimony induced by a plea bargain.
9. Not to have admitted any plea or testimony induced by a plea bargain.
2. Criminal trials:
1. Indictment by twelve members
of a randomly selected grand jury of 23 who elect their
foreperson, upon a finding that the court has jurisdiction
and that there is sufficient evidence for a trial, except
for persons subject to military or militia discipline.
2. Service as prosecutor upon
receipt of an indictment by a grand jury, subject only to
consolidation by the grand jury if more than one person
seeks to prosecute the same offense.
3. Trial by a randomly selected
jury of twelve sworn to uphold applicable constitutions in criminal cases for which the penalty is
more than 90 days.
4. No excessive bail when there
is little flight risk.
5. No excessive fines imposed.
6. No cruel and unusual
punishments inflicted.
7. Speedy and public trial
before an impartial jury of the state and district
previously defined by law, wherein the offense shall have
been committed, and to have the location of commitment be
deemed where there was concurrence of mens rea and actus
reus.
8. Not to be twice prosecuted
for the same offense or same facts under different
jurisdictions.
9. To be informed of the nature
and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence, but not to have counsel or an
attorney imposed on him without his consent.
10. Not to be compelled to be a
witness against himself.
11. Not be disabled in the
exercise, or deprived, of life, liberty, or property,
without due process of law, by unanimous verdict of a jury
of twelve.
12. Unimpeded presentation of
all evidence by the defendant, without being subject to a
motion in limine.
13. Unimpeded presentation of
all legal argument to the jury, up to the final instructions
to the jury, except for argument on a motion in limine that
cannot be made without disclosing evidence properly
excluded.
14. Unimpeded presentation of
pleadings, alternative instructions, and certified copies of applicable laws and constitutions, to the jury.
15. Not to have a sentence that
does not separately disable the exercise of the immunity,
and order deprivation of it, within the scope of that
disablement
3. Civil trials:
Trial by a randomly selected
jury of twelve sworn to uphold applicable constitutions in which the amount at issue, including
costs, exceeds the equivalent of at least 15.46875 troy
ounces of pure silver.
4. Appeals
Appeal from a jury verdict only
on a writ of error or habeas corpus, according to the rules
of the common law in the United States as of 1787, unless
the Constitution is amended to provide otherwise.
c. Nonauthority
1. Presumption of nonauthority
for any claim to authority, to be strictly proved by an
unbroken logical chain of derivation from a constitution.
2. Not to have any government
actor exercise a power not delegated, regardless of whether
one may be personally injured by such exercise.
3. Not to have government actors
exercise powers on the pretext of being "necessary and
proper" when they are not just to perform his official
duties but to get a desired result beyond such duties.
4. To have delegated powers
construed as narrowly, and rights, privileges, or immunities
construed as broadly, as the language of the Constitution as
meant and understood when ratified permits.
5. Priority docketing of all
prerogative writs filed by a any person as demandant in the
name of the people with a court of competent jurisdiction
and served on the respondant, within three sederunt days,
unless the respondant requires more, but not more than 20
calendar days, including but not limited to, demurral, quo
warranto, habeas corpus, procedendo, mandamus, prohibito,
certiorari, and scire facias, and to have default judgment
even if no proof is presented or a hearing is not held.
6. Unimpeded and unpunished
communications, including speech, press, and education,
except such as instigate or direct a felony, misdemeanor, or
tort.
7. Unimpeded assembly and
exercise of rights in concert with others.
8. Unimpeded assembly as militia
for organizing, training, and response to threats to public
safety, subject only to direction by state militia officers
during a call-up.
9. Unrestricted keeping and
bearing of weapons, equipment, and supplies commonly used by
military forces, or suitable for militia, subject only to
court order of disablement for being a threat to oneself or
others, or to the lawful orders of militia officers during a
call-up.
10. Unimpeded and unpunished
petition for redress of grievances.
11. Unimpeded devotion or
practice of religion, not preferentially supported by public
funds, that does not instigate or direct a felony,
misdemeanor, or tort.
12. Exclusion of government
actors from intrusion into one's real property, body, or use
of one's personal property, for search, seizure, or for any
other reason, without consent, a declared state of war or
emergency threat to public, safety, a warrant supported by
an affidavit of probable cause, and just compensation for
any losses incurred, for each incident.
d. Supervision of government
actors
1. Access to observation and
recordation of any government proceeding except trial and
grand jury deliberations or their equivalent, or
deliberations on matters of security requiring secrecy.
2. Receipt of records of all
proceedings, and accounting for all receipts, loans, debts,
and expenditures, and reporting thereof, for eventual
examination prior to an election in which the issues may be
reviewed.
3. Access to all information
about oneself, and either copies at cost of all
documentation or to make one's own copies using one's own
equipment.
f. Other
1. Association and contract to
do things not unlawful, including practice of a profession
or occupation, marriage, procreation, and acceptance or
denial of medical prevention or treatment, except prevention
of contagious diseases.
2. Formation, conduct, and
revision or dissolution of corporations, partnerships, and
other trusts, in which settlor, trustee, and beneficiary are
distinct persons who may not be impeded or penalized from
directly appearing in any court in such capacities.
3. Not to have some accorded
special privileges or protections that favor them over the
rest of the people, in ways not essential to the performance
of public duties.
4. Travel within, to, and from
the United States and any State, territory or locality.
5. Not to be removed from the
location of one's birth or lawful residence, or impeded from
returning thereto.
6. Not to be enslaved or
submitted to peonage except as punishment for a crime, but
subject to militia, jury, witness, and other public duty.
7. Not to be impeded or punished
for voting if one is a citizen and resident on grounds of
race, color, creed, previous servitude, gender, age 18 or
above, or failure to pay a tax.
8. Custody and care of close
relatives who are non sui juris.
9. Not to be neglected or abused
while in custody.
10. Not to be denied any right,
privilege, or immunity for failure to have or present a name
or other form of identification.
11. Not to be deported without
proof that one has not been born or naturalized as a
citizen, unless one is born to a person not subject to the
allegiance of the United States, such as a foreign diplomat
or an invader.
g. The foregoing list is not
exhaustive, and further rights, privileges, and immunities
are to be found in the historical record. The rule of expressio
unius est exclusio alterius shall not be applied.
SEC. 4. REMEDIATION.
Persons whose rights have been violated within the preceding 20 years from enactment hereof shall have standing to seek relief under its provisions.SEC. 5. TRANSITIONAL.
Older victims of past abuse shall have their cases dockets ahead of younger persons to allow for them to receive redress while they remain alive.END.
2012/02/13
Abuses for which one can't get a jury trial
The jury is often recommended as the principal correction on
government abuse, and it is urged to educate the public on how to
serve on a jury, but if we examine a wide range of kinds of cases,
we can find many for which the target of abuse can't get a jury.
Here are a few, and recipients may be able to add to it:
For almost all of these, the only remedy is elections and constitutional amendments.
- Abuse of rights by a government official such as a cop
- File criminal complaint under 18 USC 241, 242
- Prosecutor refuses to prosecute, or takes to grand jury with recommendation they no-bill it; or
- Judge rules there is no question of fact, therefore no
right to a jury; or
- Prosecutor takes case to trial, but neither he nor defendant request a jury, because the judge is a former prosecutor who likes cops; or
- Judge directs jury to acquit: or
- Judge removes jurors from panel until he gets jury he
wants
- Case dismissed
- Remedy: Private criminal prosecution, which will
require electing official to provide for that by law
- File civil petition under 42 USC 1983, or under Bivens
precedent or other theory of law
- Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
- Never get to apply for a jury
- Appeal it, but no jury available on appeal
- Appeal dismissed
- Remedy: Elect different judge or judge-appointing
official, or elect officials who will pass reform laws
- Individual sues official or government for damages or for contract payment
- Government claims official or sovereign immunity, or
- Government waives sovereign immunity and consents to be sued
- Individual wins judgment
- Can only collect by applying to admin for payment from fund appropriated for purpose
- Admin ignores judgment and refuses payment
- Individual seeks writ of mandamus, which is ignored; or
- Mandamus issued, and admin agent ignores it
- Appeals denied until all admin remedies are exhausted
- Individual runs out of money to pursue claim, and no legal fees available to interest lawyer on contingency
- Remedy: Elect officials who will adopt constitutional amendment
- Individual files writ of habeas corpus, or other writ
- Judge refuses to act on writ; or
- Respondant refuses to respond; and
- Judge takes no action against respondant
- Appeal denied because no issue of law on which appeal can be made
- Remedy: Elect officials who will adopt constitutional amendment
- Judge sanctions lawyer large amount of money for making arguments he doesn't like, pays money to opposing counsel
- No right to a jury
- Remedy: Elect officials who will pass law providing for a
right to a jury
- Administrative proceeding (such as tax court) rules wrongly against individual
- Wronged individual takes it to Art. III court
- Art. III court "defers" to finding of admin agency, putting burden of proof on individual
- Judge summarily finds for admin agency with no opportunity for jury
- Individual appeals, but no jury available on appeal
- Remedy: Elect officials who will adopt constitutional amendment
- Family court awards custody to one spouse, levies child support on other
- No right to a jury on custody issue
- Judge orders noncustodial spouse to jail for nonpayment of child support as "civil contempt", or garnishes his wages in state that allows that
- No right to a jury on civil contempt
- Remedy: Elect officials who will adopt constitutional amendment
- Probate court unjustly settles estate
- Divides estate among cronies, lawyers, court-appointed administrators
- No right to a jury on probate
- Remedy: Elect officials who will adopt constitutional amendment
- Bankruptcy court unjustly settles assets of bankrupt
- Divides assets among cronies, lawyers, court-appointed administrators
- No right to a jury on bankruptcy
- Remedy: Elect officials who will adopt constitutional amendment
- One party unjustly gets injunction, or is denied injunction
- No right to a jury on injunctions, except in a few states like Texas
- Remedy: Elect officials who will adopt constitutional amendment
- Individual prosecuted civilly for unauthorized practice of law
- No right to a jury on UPL
- Remedy: Elect officials who will adopt constitutional amendment
- Individual ruled incompetent, consigned to nursing home or
asylum
- No right to a jury on competency hearings
- Remedy: Elect officials who will adopt constitutional amendment
- Property taken by eminent domain
- No right to a jury on eminent domain
- Remedy: Elect officials who will adopt constitutional amendment
- Non-judicial foreclosure
- No right to a jury on non-judicial foreclosure
- Remedy: Elect officials who will adopt constitutional amendment
- Asset forfeiture in rem
- No right to a jury on asset forfeiture in rem
- Remedy: Elect officials who will adopt constitutional amendment
- Fines for code or zoning violation or for creating a nuisance
- No right to a jury on such cases
- Remedy: Elect officials who will adopt constitutional amendment
- Ineligible official assumes office, or exceeds his authority
- No right to a jury on such cases
- Remedy: Elect officials who will adopt constitutional amendment or statute to provide for quo warranto, perhaps decided by jury
- President enters into executive agreement with foreign executive on trade that puts someone out of business
- Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
- Never get to apply for a jury
- Remedy: Elect different judge-appointing official, or elect officials who will pass reform laws or impeach president
- President goes to war without congressional declaration of war or letters of marque and reprisal
- Dismissed by judge for lack of standing, failure to state a claim for which relief can be granted
- Never get to apply for a jury
- Remedy: Elect different judge-appointing official, or elect officials who will pass reform laws or impeach president
- Supreme Court or other appeals court makes wrong decision
- No right to a jury on appeals
- Remedy: Elect officials who will appoint different judges, or adopt constitutional amendment or statute to provide for reform
- Legislature passes, and executive officials enforce, unconstitutional statutes based only on wrong court precedents
- No right to a jury on constitutionality of legislation, or than the application of it to criminal cases
- Remedy: Elect different legislators, or officials who will appoint different judges, or who will adopt constitutional amendment or statute to provide for reform
For almost all of these, the only remedy is elections and constitutional amendments.
2012/02/12
What "commerce" meant to the Framers
Much of what the U.S. government does is based on the broad interpretation by judges of the term "commerce" in Article I Section 8 of the U.S. Constitution, but what did that term mean to the Framers, and how was it understood by people in 1787?
I set out to discover the evidence from historical records of what it meant. I had read most of what the Framers wrote, and much of what they read, and could find few mentions of the word, mostly after the Constitution was drafted and its ratification was being debated. One of the things I did was to search through copies in the archives of the American Antiquarian Society of the newspapers published before 1788, most of which were price reports on trade goods, but among all those editions, I found only four instances of the word "commerce", all used to refer to the trade goods being reported. Evidently the word "commerce" was not commonly used among ordinary people in the American colonies or newly independent states.
When I searched the works most often cited by the Framers as authoritative, I found only one instance of the word "commerce" defined. That was in The Law of Nations, , Book I § 92, by Swiss writer Emmerich de Vattel, originally published in 1758, in French. "Commerce" was a French word. He defined it thus:
However, I was not satisfied with that one brief passage. Fortunately, I found in a used bookstore a facsimile edition of the very first edition, from 1771, of the Encyclopedia Britannica, in three volumes. It was published with a magnifier lens to enable the reader to see its very fine print. It is a treasure trove of articles on subjects that reveal better than most writings what many of the terms meant, at least to the Scots authors of the set. It was clearly a product of the Scottish Enlightenment that had a large influence on the Founders of the U.S. One of its articles is on "Commerce", comprising more than 11 pages. I have scanned, OCRed, rendered it into HTML, and posted it on our website here for the convenience of readers. I plan to put up more of it here as time and donations permit.
The opening paragraph of the article reads:
The article does much more than just define the boundaries on what is and is not "commerce". It is a kind of mini-textbook on economics as it was understood at the time, with discussion of supply, demand, pricing, and money.
The article uses many terms in ways that allow the etymologist to extract their meaning. An example of this is the word "state", which from context refers to a society with a territory, not to a government. This is also the meaning it had in the U.S. Constitution.
I set out to discover the evidence from historical records of what it meant. I had read most of what the Framers wrote, and much of what they read, and could find few mentions of the word, mostly after the Constitution was drafted and its ratification was being debated. One of the things I did was to search through copies in the archives of the American Antiquarian Society of the newspapers published before 1788, most of which were price reports on trade goods, but among all those editions, I found only four instances of the word "commerce", all used to refer to the trade goods being reported. Evidently the word "commerce" was not commonly used among ordinary people in the American colonies or newly independent states.
When I searched the works most often cited by the Framers as authoritative, I found only one instance of the word "commerce" defined. That was in The Law of Nations, , Book I § 92, by Swiss writer Emmerich de Vattel, originally published in 1758, in French. "Commerce" was a French word. He defined it thus:
... commerce consists in mutually buying and selling all sorts of commodities.Although the Framers did not cite that particular passage, their frequent cites of other passages supports the position that had they been asked to provide authority for the term as they meant it, it would have been to Vattel.
However, I was not satisfied with that one brief passage. Fortunately, I found in a used bookstore a facsimile edition of the very first edition, from 1771, of the Encyclopedia Britannica, in three volumes. It was published with a magnifier lens to enable the reader to see its very fine print. It is a treasure trove of articles on subjects that reveal better than most writings what many of the terms meant, at least to the Scots authors of the set. It was clearly a product of the Scottish Enlightenment that had a large influence on the Founders of the U.S. One of its articles is on "Commerce", comprising more than 11 pages. I have scanned, OCRed, rendered it into HTML, and posted it on our website here for the convenience of readers. I plan to put up more of it here as time and donations permit.
The opening paragraph of the article reads:
COMMERCE is an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged, by a set of men called merchants, for an equivalent, proper for supplying every want, without any interruption to industry, or any check upon consumption.The rest of the article elaborates on this, explaining further the meaning of the term, and from that we can extract what the term included:
- Transfer of title to and possession of tangible commodities in exchange for a valuable consideration, here called an "equivalent", from a seller to a buyer.
- There must be at least one merchant between the ultimate producer of the commodity, and the ultimate consumer of it.
- Direct sales from producers to consumers.
- Services, credit, leasing, and financing (and today, energy).
- Transport that did not involve a sale.
- Speech, press, or other communications or information.
- Extraction of a resource.
- Manufacturing.
- Possession before or after the sale.
- Use and enjoyment.
- Disposition, including further conveyance not itself for a valuable consideration and through a merchant.
Potestas stricte interpretatur. A power is strictly interpreted.
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.Conversely, since rights (or more precisely, immunities) are the complement of delegated powers, narrow construction of powers means broad construction of immunities. If there is any doubt, the presumption must always be against a power and in favor of a right against the exercise of the power.
The article does much more than just define the boundaries on what is and is not "commerce". It is a kind of mini-textbook on economics as it was understood at the time, with discussion of supply, demand, pricing, and money.
The article uses many terms in ways that allow the etymologist to extract their meaning. An example of this is the word "state", which from context refers to a society with a territory, not to a government. This is also the meaning it had in the U.S. Constitution.
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