What doesn't work

What doesn't work is for citizens to demand change from others without writing the language in which that change will be implemented. If you file a court action, complaining of some injustice, and demanding relief, you might "win" the judgment but lose the case if you don't draft the order for the judge to sign. Leave it to the judge to draft it and he is likely to accept a draft prepared by your opponent, which doesn't give you the relief you thought you won. Similarly with other reforms. We can't leave the drafting of the language of proposals to others. If we want it done right we have to write it. That applies not just to court orders, or to legislation, but to how we want the Constitution to be interpreted. That is why I have proposed Clarifying Amendments in my Draft Amendments to the U.S. Constitution. They need never be ratified if enough of us use them as a standard for our demands for how we want the Constitution interpreted.

I spent a couple of years in Washington, lobbying for various causes without pay. I learned how other lobbyists developed the kind of influence they have. It's not just that they bring money or votes. I didn't bring either of those. But I found I could earn access to members of Congress by helping them review their legislation to make sure it was what they wanted. Most members don't know how to draft legislation to the point where it is ready to be submitted, dropped in the "hopper". They provide a rough draft to the Congressional Research Service (CRS), who then puts it in final form, doing the numbering and finding the cites to existing legislation that would be affected by it and that it would amend. But they usually don't fully understand what the member wants to achieve, or get it quite right. A member will have a few legislative staffers to help with review, but they tend to be busy with other tasks, and they don't always understand exactly what the member wants, either. Of course, sometimes the legislation is really the staffer's idea and the member needs to make sure it is also what he wants. So I learned how to do that research and draft legislation ready for the hopper. I would try to anticipate objections from other stakeholders, and avoid ambiguities, so they would have less reason to tear it apart. I found that that was what the most influential lobbyists did. They didn't ask members to have legislation drafted for them. They did it themselves, giving sympathetic members a finished product. Interest groups who didn't do that seldom got anything like what they wanted, if they got anything at all.

The same principle works for publicity. The way to get articles written in the major media the way you want them written is to submit press releases that are ready to print without editing. Journalists are lazy. They would rather submit a press release and put their names on it than to write an article from scratch. You might have to submit hundreds of such press releases to get one published, but often all it takes is one to justify the effort to have written all the others.

Or consider court rules. They can be as important, if not more so, than legislation, although they are adopted by the judges, sometimes in defiance of legislation. Such rules tend to be written for the convenience of judges, but the language they contain usually started as the language in a lawyer's brief in some case. If enough lawyers submit enough briefs suggesting the same language for judicial rules, that language is likely to be adopted.

Another important area is administrative regulations. Agencies submit proposed regulations for public comment, and if enough members of the public object, they may withdraw proposed regulations, or greatly modify them to respond to objections. But what works best is for people not just to object to the language of regulations, but to propose alternative language, especially if enough people propose the same language.

In the field of rule drafting don't expect most lawyers to be experts. Most lawyers aren't even that good at drafting contracts, and drafting legislation, regulations, or judicial rules requires more advanced skills that it takes most people years to acquire. Even staffers in the Congressional Research Service aren't that good at it.

Speaking of contracts, consider how often you are presented with contracts written by others and asked to sign, on a take it or leave it basis. Read all such contracts carefully. Don't assume they have been subjected to thorough scrutiny to protect the interests of people like you. If you find language that seems against your best interests, it probably is. Strike that language out before signing it, or propose alternative language.

What is most difficult is to draft things in a way that wisely intervene in what are highly complex systems, with many feedback loops that make them incomprehensible even to the best experts. Intervene the wrong way and you get hundreds or even thousands of unintended bad consequences. You can take it as a general rule that if it is simple, obvious, and direct it is probably a bad idea. All the simple solutions are already in use. The measures that might actually improve things are almost certainly going to be subtle, complex, indirect, and not at all obvious. That also means they will be difficult if not impossible for most people to understand, and may be impossible to sell. The way most successful reforms get done is that the one person who understands them sells people on trusting him. Most people relate to personalities more than to ideas.

Most people who supported ratifying the U.S. Constitution didn't support it because they understood it. They supported it mainly because George Washington did, and they trusted him. They also expected him to be the first president, and figured that with him in that position, if any problems arose he would take the lead in fixing them.

So read the Draft Amendments. Study them. Learn why they are written that way, and not another way. You may thus acquire the skills you will need to get anything useful done.

Reports to Congress on militia, 1789-1819

We have just uploaded a searchable PDF file of Military Affairs, Vol. 1, a collection of reports to the U.S. Congress from March 3, 1789, through March 3, 1819, on military and militia matters. It is interesting for the insight it provides on early thinking on militia and the right to keep and bear arms. Of special interest are the following reports:

1. Organization of the Militia, 1789 — Page 7ff
2. Militia Return, 1803 — Page 163ff
3. Militia Report, 1815 — Page 604ff

There are also militia returns for the years 1794, 1805, 1809, 1810, 1812, 1813, 1814, 1816, 1818, and 1819, which can be found using the Table of Contents or the Index.

It is planned to expand this discussion to comment on particular points in these reports and what they reveal.

What does clearly emerge is the total absence of any consideration of restricting firearms possession or use, other than for training purposes. The focus was on arming, organizing, and training citizens. If some could not afford to purchase weapons, there was discussion of paying for weapons from tax funds to be given to them. It is also clear that the weapons were to be the state of the art in military equipment.

We can also get a picture from these reports of what the Founders envisioned for how militia was supposed to be used for many of the functions of governance that has been taken over by paid professionals in the late 19th and early 20th centuries.

Selling constitutional compliance

At our next meetup Thursday Mar. 19 we will be discussing how to promote constitutional compliance. This is a selling job, and it has been studied under the heading of "diffusion of innovations". In the early 1950s a team at the University of Chicago investigated how effective various kinds of marketing could be and how to allocate scarce marketing resources. They found that the main way that an "innovation", whether it be a new product or a new idea, spreads through a population is by first being adopted by what they called "early adopters". It then spreads to the next level of "secondary adopters" who emulate the first adopters, then to the "tertiary adopters", quadranary adopters", and so forth. Tools like broadcast advertising could reinforce the process, but not by very much. Most influence was from person to person, down the chain of influence.

That chain is not necessarily down from the top classes of society or politics. Most decisionmakers are not early adopters, but late adopters. New ideas mostly come from outside the halls of power, and the early adopters seldom have direct contact or influence with key decisionmakers. Their ideas have to work their way up the chains of influence and reach all or most of the key decisionmakers at all levels, departments, and organizations, until a critical mass is achieved. That can be done in many ways, from writing, teaching, political pressure, litigation, or public demonstration. It can take a lot of time and money to make a difference, because you aren't operating in a vacuum. You have to compete with other demands and influences. A good idea won't get very far unless it is backed by a lot of people, and more people than back the competition.

The researchers also found that most people didn't adopt after only one exposure to an innovation. They had to be moved to adopt through a series of repeated exposures at a certain rate, each of which took them one step closer to "closing the sale". In other words, it was not a wise allocation of resources to expend too much on one prospect or try to move him too far too fast, and the best strategy was to figure out where each person was and how to move him as far as he was prepared to go on each occasion, then go away and come back later to take him another step further. There is an optimum pacing for each person. Going too fast or too slow wastes resources.

All of this was presented in a book, Diffusion of Innovations, which is summarized here.

Selling constitutional compliance, that for most people is a complex, abstract idea, is difficult, and it has to compete with other ideas that are simpler and seemingly more attractive. Most people tend to be inspired by charismatic personalities rather than ideas, especially complex ones. We can call that the "leader syndrome", because it tends to cause people to be misled into supporting the wrong people, and failing to do the hard work needed even to enable the right person to be effective.

There is also a real problem with accurately understanding the Constitution the way the Founders did. Legal scholars debate all the time how to do that. There is a popular myth that the Constitution was written to be understandable by ordinary people, but it would be better to approach the study of the Constitution like learning a foreign language. The ordinary people of the new American states in 1787 were in some ways more legally educated and sophisticated than are people today. There are also some words and phrases in it that have specialized meanings that it can take a lot of reading to deeply understand. Terms like "due process", "jury", "right", "commerce", "necessary and proper", "reasonable", and "regulate". Even the Framers of the Constitution during the Philadelphia Convention had to look up the term "ex post facto" in a legal treatise to understand what it meant.

One doesn't have to be a lawyer to understand the Constitution. Indeed, law students don't learn that in law schools. Most lawyers never get it. It is better to look to a good legal historian and linguist.

I have tried to provide the necessary study materials at the Constitution Society website. There is a lot to read there, and there are no shortcuts. You just have to read a lot, and the sooner you get started the better. Try to study a certain amount every day. Don't be misled by a lot of false prophets out there with their own half-baked legal ideas.

Oppression flows from insecurity

The essence of the issue was well stated by Ali A. Mohamed, Al Qaeda spy now in U.S. custody (from an interview on National Geographic Channel documentary):

"Islam without political dominance cannot survive."

It is that belief, and not Islam, that is his true faith, the one he acts on. The Arabic Muslim word for that is fasad, and a practitioner a fasadi. We might reasonably call the political doctrine of it fasadism. It is a mistake and an insult to call it jihad.

Intolerance is indicative of those who have been taught to identify with a religion, but who don't really believe it, and don't have confidence it can survive or prevail in a competitive marketplace of ideas. It is not the true believers, but the nonbelievers pretending or deceiving themselves that they are believers. That is a problem of social pathology more than of religion proper.

We need to adopt proper labels for the sides in the clash. It is not the various traditional sects, or secularism vs. religious fanaticism. On the one side is constitutionalism, a belief in a rule of law, and particularly in a superior law from which all ordinary laws are derived, which embraces and protects any body of belief that teaches love, tolerance, and civic virtue. Constitutionalism is also a kind of religion, a civic religion as the political philosopher Montesquieu recommended, but a metareligion -- a religion about religions.

It is opposed by what? We have given many names to the opposition to constitutionalism: tyranny, fascism, totalitarianism, hate, intolerance, vice, barbarism, evil. But there is a danger in this, and a weakness that constitutionalists bring into the debate: We must avoid adopting the ways of the opposition, or we become them and they win. We also have the weakness that it is much easier to destroy than to create. Constitutionalism is about creation. But a single madman can destroy it all with the tools of modern technology.

We must gain control over the upbringing of all of our children. If we do not civilize them we will have barbarians in our midst, and civilization will fall.

The National Press Herd

The following are comments on the Feb. 6, 2009, Bill Moyers interview of Jay Rosen and Glenn Greenwald:
______

Humans are herd animals. They try to figure out where their herd is going and then position themselves somewhere in the middle for safety. Leaders seem charismatic only as long as they don't look too much like us, so, unable to agree on a leader from among the herd, people adopt the herd itself as its leader. However, there is no wisdom in numbers. Whenever too many people agree too easily they are probably wrong. The so-called "wisdom of crowds" only appears for specialized questions in selected situations.

The challenge for everyone is to learn how to perceive what herds we have become a part of and to overcome the bounds of herd mentality. "Thinking outside the box" needs to become not just a slogan but a habit -- and not just another orthodoxy.

Jay Rosen and Glenn Greenwald have become involved in their own orthodoxies in focusing on Washington, DC, and the mainstream media. Herd thinking is not just a problem in those areas, but in every level and branch of government, every profession and organization, every religion or school of thought. We have seen it within financial institutions and how it yielded the meltdown. It is especially dangerous in legal practice and the legal profession, where demands for strict constitutional compliance are dismissed out of hand as unrealistic or unworthy of acknowledgment.

It doesn't work to demand of those who are captured by the herd to break out of it and make needed change. We have to open it to disruptive outsiders. The Internet has enabled outsiders to become publishers, journalists, and lobbyists, but we still need to enable outsider intervention in administrative and judicial processes, public and private. The established institutions for that are the trial jury and the grand jury, but we have allowed judicial practice to disable their effectiveness. We will not reform those processes until we enable trial juries to review the legal decisions of the bench by hearing all arguments of law, and enable grand juries to hear complaints from any citizen, investigate any public or private institution or practice, and report on its findings, perhaps with an indictment authorizing a private citizen to prosecute. Citizens must not be denied standing to privately prosecute public rights, or to issue writs of quo warranto to challenge the authority of officials, public or private, to do what they propose to do. The presumption of nonauthority needs to be established as the bedrock of our institutions.

Dynamics of Deliberation

It is sometimes said that the essence of republican government is representation, but that is not correct. Its essence is deliberation. Representation comes when it becomes unwieldy for groups to deliberate directly, either because there are too many deliberants, or they have too much business to decide.

This matter is discussed in my Introduction to Constitutional Conventions: Their Nature, Powers, and Limitations, by Roger Sherman Hoar (1917).

Any scheme of representation must represent a balancing of several conflicting utilities:
1. Representation of diverse interests and expertise so that the body can avoid errors in their decisions.
2. Representation of interest groups in proportion to their numbers, so that distributive decisions can accurately weigh those interests.
3. Allow agendas that allocate enough time to every question for all views to be heard by all members of the body and commented on by all of those who wish to do so.

Experience indicates that there is a practical limit on the size of deliberative bodies, either of primary members or their representatives, if they have much business to decide. This emerges in the ways bodies of more than about 30 members tend to break up into committees of less than 15 members, each of which allows testimony and creates a record that nonmembers can read and comment on, but which otherwise limits the number of active discussants and the time each gets to make their points. Bodies of more than about 400 become extremely unwieldy if they have more than about a dozen questions of some complexity.

The throughput limits of deliberative bodies can be seen in such deliberative bodies as the U.S. Congress or the parliaments of most modern nations. About 20,000 bills are introduced in the U.S. Congress each year. That is more than any of the members can even read, much less deliberate on. As a practical matter only a few of those can survive a filtering process involving staffers and committees, during which what was originally proposed can be and often is substantially altered or even reversed in its intent or effect. Most of the real work and decisionmaking is done by the staffers, often influenced more by their handlers outside Congress than by their nominal supervisors, mainly because of the volume of business.

Some have proposed that to be more representative, representative assemblies need to be made larger. They cite that the original U.S. Constitution had each member of the U.S. House of Representatives represent about 30,000 citizens. That was based on the population of the U.S. in 1787, and when the size of the House became unwieldy, its size was fixed at 435, where it remains to this day, and each member represents about 700,000 persons.

A constituency of 30,000 was originally seen as appropriate in large part because it is infeasible to expect a representative to personally know or listen to more than about 3000 persons, which was about the size of a populous county in 1787, and that only about 3000 out of a population of 30,000 would seek to be heard. (The largest cities, Boston, Philadelphia, and New York, had populations of only about 20,000 each, small towns by today's standards.) Today 3000 is about the population of a voting precinct. Government by town meeting worked when not more than about 300 would show up at a meeting, but was soon abandoned when the numbers greatly exceeded that.

If 3000 persons want to talk to their representative every year, that is about 10 a day. If the representative allocated each one more than about 15 minutes each, or 2.5 hours a day, he wouldn't have time to actually do the work that he would be expected to do. (In the realities of today's permanent political campaign process, each member has to spend most of his time on fundraising and has to leave the deliberation and other work to staffers.)

Congress receives more than 200,000,000 communications a year. That is more than 1000 per member per day. A member of the U.S. House typically gets about 200-500 letters a day from constituents, which can increase to many thousands during peak periods. (Postal letters, since the anthrax attacks, are processed in a way that delays them several weeks.) The average member has 14 staffers, 8 in the Washington office and 6 in the district office. That is barely enough to count the mail, or count positions on a list of issues, much less give consideration to complex content or positions on issues not on the list. Their main job is to serve as gatekeepers on access to their member, which is often strongly influenced by the advantage to their member of getting re-elected if access is granted. Members soon realize that those granted most access are most important to getting re-elected, even if they don't know the details of whether that is based on money donated or voter influence.

Numerous proposals have been made to make at least the U.S. House of Representatives more "representative". Some have addressed the ways election districts are drawn. The Voting Rights Act tries to legislate against "dilution" of "majority minority" districts, which is becoming mathematically impossible but is politically untouchable. Some have argued for a proxy system, others for sortition, which is the only method anyone has found to dispel the undue influence of special interests discussed in public choice theory. On theoretical and practical grounds some form of most of these has more merit than increasing the sizes of deliberative assemblies.

The NRA and the Beltway Mentality

Much has been written criticizing the NRA for becoming captured by the "Beltway mentality" surrounding the U.S. Capitol, and I tend to agree with the criticism, but it is useful to try to understand how this mentality arises. Essentially, it arises when busy decisionmakers decide how to allocate their time and attention, and decide it is not worth spending time talking to anyone unless one or the other side is likely to be persuaded to change his position. In particular, elected officials are generally only interested in talking to constituents who might change how they vote. It is not worth the time to talk to people who are determined to either vote for one or against. The same is true of fellow members for votes on measures before Congress. His fellow members don't call Rep. Ron Paul or return his calls because they know how he is going to vote on everything and nothing they can say is likely to change that. They also don't expect anything he might say, however wise it might be, is going to change their positions or the way they are going to vote.

This presents a problem for a lobbying organization who represents single-issue voters. They are in DC to persuade members of Congress and other decisionmakers, and they can't do that if no one will talk to them. But they won't talk to them unless they are willing and able to persuade their supporters to vote differently than they would otherwise. Most members of Congress either know they have the support of pro-RKBA voters or that they don't. There is therefore no reason for them to talk to a pro-RKBA organization like the NRA. The only reason would be for a member to throw the NRA a bone if they will agree to ask their members not to vote against that congressman for doing so, and that will only happen if the congressman is persuaded that the NRA-ILA can persuade enough of its members not to vote against the congressman if he does that. That is how we get those favorable ratings for anti-gun congressmen that so irritate gun rights advocates. It is the price we pay for getting an occasional vote switch from a congressman that can make a difference in a close contest. Of course we can ignore the NRA-ILA on that and vote against the congressman anyway. That is what I have always done, although I vote for the Libertarian candidate if there is one.

What is more problematic is when the NRA takes a public position supporting something adverse to the RKBA, or perhaps to some other provisions of the Constitution. They do it to get some concession on another point they think is more important, on balance. That is the way the game of politics is played in Washington, DC. Go along to get along. The Art of Compromise. The problem is that for most members of Congress the Constitution is just another policy position to be compromised like any other. To demand the Constitution be excepted from that is to stand outside the herd and that means the herd won't talk to you. The desire to have powerful people talk to you is a powerful corrupting influence. That is how the Elites control the media, not just by owning them or buying advertising from them, but by denying access to those who don't cooperate. Without access it is difficult for a reporter to get a story, so he or she plays the game to stay in the game.

This problem is not just at the higher levels of decisionmaking. It dominates at all levels, and not just in the public sector. Large private organizations have the same problem, and when organizations are too interconnected or play the same strategies, they begin to function like a single large monopoly. A market can operate among organizations but not within them. When organizations become too large, too well-connected, or too many adopt the same strategy, they overwhelm the corrective influence of the marketplace and we get crashes. But it all begins with refusing to communicate with others when one doesn't expect to persuade or be persuaded, and thus do the Cassandras get ignored until it is too late.

The problem is characteristic of any system whose principal operating components have a restricted information throughput. The bottlenecks of verbal and written communication and cognitive capacity among human beings limits the decision rates attainable by any system composed of them. Many of the critical systems in our lives are possible only because computers have enabled us to remove humans from impeding information and decision flows. Much fast breaking decisionmaking would be impossible for systems consisting only of humans, no matter how skilled they might be. The U.S. Congress today provides a case study of a system that is being tasked with having to process more information than it can, and that is a potentially catastrophic situation.

References:
Richard Janow, A Fundamental Limit on Productivity in Organizations: Collaborative Entropy Costs, NJ Institute of Technology, May 31, 2008. Link.

Mortgage-backed security model is infirm

It should now be clear the mortgage-backed security (MBS) model is fundamentally infirm, and only undoing it will suffice, but that will be a major undertaking and has serious implications for the entire financial sector, which is going to have to get used to not being able to raise unlimited capital using smoke and mirrors.

The only effective way to sort out this mess is to separate out each mortgage note and evaluate and manage each separately. The problem is the loss of information and control that has come from first bundling mortgage notes into securities, then selling shares of the bundles in further bundles, without conveying the details of each note and the collateral that secures it.

The result of this layered bundling is that it becomes difficult to credit payments to each note, work out delinquencies with the debtors, or execute foreclosures if that becomes necessary. It is not just failures to pay that is resulting in foreclosures, but failures to credit payments made, and having service agents go out of business leaving a question of whether there are uncredited payments, and whether payments received but not credited should be considered unsecured claims of the debtor or the mortgage holder.

Most of this debacle could have been avoided had courts not allowed foreclosures without presenting the original signed note instrument in court, and required the one owner and holder of it to personally appear in court to testify. The practice of accepting "affidavits of ownership" in lieu of the physical original note paved the way for the entire catastrophe.

If local lending institutions need to raise capital to make more loans, their proper solution is to continue to be the owner, holder, collector, and manager of each note, and sell stock in their institution, or at least in bundles they retain, not selling the notes, bundled or otherwise. It has never made sense to trade in bundles containing assets that come and go as they are paid off or not. What is the value of a bundle containing paid-off notes? Or of another consisting entirely of foreclosed properties being torn apart by vandals?

There is a problem with how it can be done, constitutionally, without violating the Contracts Clause (and the Tenth Amendment, since the Contracts Clause is only a restriction on the states). I have proposed creating jurisdictions for federal Art. III or bankruptcy courts to challenge foreclosures if the original signed note, a complete record of payments received by the servicing agent, and the owner and holder of the note (not just his attorney) be required to personally testify in court (for a corporation that would be a senior official). That would require disaggregation of all those MBS, if not as securities then as transparent administrative processes that could enable evaluation not just of bundles but of each component of them, in nearly real time.

The federal jurisdictions need not overburden the federal courts, as I would expect it to impose similar judicial reform in state courts, something that has already begun.

I do not, as a libertarian, favor regulatory interventions in the sense of administrative agents directing the actions of people, setting standards, or requiring them to report on their activities. The Nondelegation Doctrine needs to be revived, not further buried. However, it would be appropriate to use grand juries to investigate the inner workings of organizations too large or well-connected to be allowed to fail. Their role would not be to enforce rules written (and probably misconceived) from the last bubble burst, but to uncover things like conflicts of interest and actions between managers and their principals. Grand juries can keep trade secrets while making things transparent that must be known for investors to make rational decisions. Unbound by specific rules, grand juries could freely seek out dysfunctions that can arise from clever managers evading any rules that bureaucrats or legislators can devise, and prick emerging bubbles that regulators are likely to be discouraged from doing.

It is worth studying the history of money and finance, going back to John Law. This kind of thing has happened before. It is what led the U.S. Founders to require in the Constitution that only gold or silver coin be legal tender (on state territory). We can question today whether gold or silver are still suited for backing currency, but it should not just be the "full faith and credit" of national governments and their ability to withdraw enough currency from circulation through taxation to offset the amount they print to pay their bills. Perhaps the world should go to backing by something like kilowatt-hours of energy or its equivalent. But not by credit instruments whose value essentially depends on continued economic growth, which will eventually falter, bringing down all or most national currencies.

Biden Clueless on Constitution

In the Vice-Presidential Debate October 2, Sen. Joseph Biden continued a pattern I have observed over the years he has been in public office: He seems unable to mention the Constitution without getting it wrong. His mentions of it during this debate was no exception. Let's examine some of his statements:

... in an Obama-Biden administration, there will be absolutely no distinction from a constitutional standpoint or a legal standpoint between a same-sex and a heterosexual couple.

The fact of the matter is that under the Constitution we should be granted -- same-sex couples should be able to have visitation rights in the hospitals, joint ownership of property, life insurance policies, et cetera. That's only fair.

It's what the Constitution calls for. And so we do support it. We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do.

He seems to be vaguely referring to the Equal Protection Clause of the 14th Amendment, but that amendment does not address governmental benefits to couples, whether same-sex or opposite-sex. That is a state matter. Constitutionally, there are not supposed to be any federal benefits, one way or another.

Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.

And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.

The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress.

The constitutional provisions on the Vice-President are in Article I, Section 3, Clauses 4-6. Here is what it says:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

It also provides, in Article II Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Senator Biden is incorrect. The Vice-President may preside over the Senate at any time it is in session, not just to break a tie. One would think that in 35 years in the Senate he would have noticed that the Vice-President has sometimes presided there.

It is interesting to note that there is a flaw in the Constitution here, in that it permits the Vice-President to preside over his own impeachment trial. One suspects he would be under some pressure not to do that.

Gov. Palin does not yet seem to be highly knowledgeable about the Constitution, but at least she hasn't gotten anything about it wrong.

Considering that Sen. Biden has taught constitutional law in a law school, one has to be concerned about how well his students learned the subject, and even more about what he might do if he ever ascended to the presidency.

Obama to Palin: 'Don't Mock the Constitution'

It is encouraging to see contenders introducing the issue of constitutional compliance into the campaign. However, none of them appear to yet have a firm grasp on the subject, including the two, Obama and Biden, who taught constitutional law in law schools.

The Founders did not, in general, use dictionary definitions of their terms. Dictionaries as we know them today were only just beginning to be written, and meanings of words were acquired by doing a lot of reading of works in which the words were used, and their meaning extracted by context, but seldom if ever defined.

It is therefore not surprising that Founder James Wilson, attempting to come up with a definition of "piracy", proposed "robbery and depredation on the high seas". However, from a more thorough examination of actual usages of the term, we can get something like this:

Piracy is a warlike act committed by a non-state actor, either a foreign actor against this country, or a domestic actor against another country.

But this covers what we are today calling "terrorism", and the Constitution, Art. I Sec. 8 Cl. 10, "The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas...", and we have a well-developed body of law on piracy.

We can then also see that the Constitution covers all possibilities, partitioning the set of warlike actions into those committed by state or non-state actors, those within the country by a domestic non-state actor (treason), and those committed between nations by a non-state actor (piracy).

That also makes a warlike act committed by an official without a declaration of war or letters of marque and reprisal an act of piracy.

From Sarah who? to Sarah wow! in one day

I predict history will conclude the Election of 2008 was decided when Obama unwisely chose Biden as his running mate and McCain brilliantly chose Palin. There are few more revealing tests of a candidate's judgment than his personnel choices, and for a presidential candidate the main such choice is the vice-presidential candidate.

Palin has much to learn on constitutional construction, but she is a quick study and we can work on trying to get her to attend to that.

I am not yet prepared to vote Republican myself, partly because there is still a need to move public policy in a constitutionalist direction and there is no better way to do that than by having the Libertarian Party get a lot of votes, but also because I vote in Texas which is safely Republican, so a Libertarian vote here will help libertarians, such as our friends in the Republican Liberty Caucus, take control of the Texas Republican Party, and even move the Texas Democratic Party our way.

Palin is being groomed as an eventual president, and while we might like a president to be a constitutional scholar of world repute, it is more important to be an inspiring leader, choose good advisers, and make appropriate nominations to the Supreme Court.

Sarah Palin may have an "ordinary" middle-class background and chosen lifestyle (until her selection for VP Friday), but she obviously has a natural talent for leadership and good judgment that is worth more than years in public office. That talent has now brought her to the center of power, and as she learns and grows, she will be doing things that are well beyond the capabilities of ordinary people. We can hope that she will not be corrupted by power the way so many others have, and I suspect she won't be. Whether that will cripple her prospects for ascending to the presidency, because the Establishment doesn't like people they can't corrupt, will remain to be seen.

During the weeks until the election, and afterwards if her ticket wins, she will be coached in policy issues to prepare her for campaigning and debate. We can hope that part of that will be on constitutional compliance. Now if she will break away from the Republican Convention to speak to the Campaign for Liberty rally nearby, she can solidify hopes for her as an emerging libertarian constitutionalist. We can speculate whether one of the factors causing McCain to pick her may not have been the growing strength of the Libertarian Party in the polls. If so, then the Libertarians will have moved public policy in their direction before the election even takes place.

The most encouraging sign that Palin may be a constitutionalist, or at least one in an early stage of development, is this quote:

[The Alaska Constitution is] my bible in governing. I try to keep it so simple by reading the thing and believing in it and living it. It's providential. Some of the crafters of the Constitution are still alive. They're my mentors, my advisers. I get to meet with these folks and ask, 'What did you mean by this?' And it makes so much sense.

• Interview by Dimitri Vassilaros for the Pittsburgh Review-Tribune, conducted July 12, 2007, published July 16, 2007

As several have noted, I think we see the first female president, and it is likely the lineup in 2012 will be Palin/Jindal, which will be as close to a libertarian, if not constitutionalist, dream ticket as we are likely to see in this generation.

Now if we can just get more libertarian constitutionalists elected to Congress....

Columnist Robert Novak: What is "Constitutional Compliance"?

Columnist Robert Novak was one of the two keynote speakers, along with former U.S. Rep. Barry Goldwater, Jr., at the evening dinner of the Austin conference of the Americans for Prosperity, Friday, July 18, the first of a two-day Defending the American Dream conference at the Renaissance Hotel.

After concluding his talk, he opened the floor for questions, and recognized Jon Roland, of the Constitution Society, who asked, "What will it take to make constitutional compliance the leading issue in these campaigns?"

Novak stumbled for a few seconds, then said (paraphrasing somewhat), "What do you mean by "constitutional compliance"? It may be difficult to make it an issue if [someone like me] has to ask what it means."

Roland then explained that the Constitution is presently being substantially violated, and that we need to return to compliance with it as originally understood.

Then Novak seemed to catch on somewhat that Roland was raising the issues being raised by Ron Paul. He said "I love Ron Paul, but not as a candidate for president. I want him to stay right where he is." He then went on to comment that we need the Federal Reserve.

After the meeting broke up, Roland handed Novak a card for the Constitution Society and invited him to visit its site to find out what "constitutional compliance" means. Novak laughed and said he would.

For someone in Novak's position to fail to even recognize the phrase "constitutional compliance" is revealing about the state of our civic culture and awareness of opinion leaders at the top of it. He is at the confluence of information flows on civic topics of all kinds. I have gotten similar deer-in-the-headlights reactions from congressmen and other decisionmakers.

I urge all recipients of this message to flood decisionmakers and opinion leaders with messages that use the phrase "constitutional compliance", that explain how the Constitution is being violated, what has to be done to bring officials into compliance, and the importance of doing that. Pick your own favorite areas of noncompliance.

I realize it may seem incredible to most people that such people don't even recognize the concept when they are confronted with it. We need to realize that those of us who are determined to bring this country back into compliance are a subculture that has not yet reached key countrymen with even the language of our concerns, much less the concepts. We have to make sure they can't escape being confronted with them, or having to answer questions about them.

Individual Rights View of the Second Amendment

Rather than searching for evidence of courts taking an individual rights view, it might make more sense to seek evidence from near the Founding of anyone taking the "collective rights" view. I confidently predict you will find none, because it was first introduced in the late 20th century to rationalize gun control, and would have been thought bizarre by the Founders, for whom all rights were inherently individual. For them, rights, which would be called "immunities" by the framers of the 14th Amendment, were restrictions on the power of officials to act against individuals. ("Privileges" were created by government, by contrast to "immunities", which preceded government.) Even something like voting (a privilege), which can only meaningfully be exercised on a collective occasion, is still individual, not collective.

It is not likely to be productive, after an issue has been misframed by partisans, to seek historical evidence of it being otherwise framed in the past, because anyone can always invent some new way to misframe an issue that previous generations would never have thought of and would produce no evidence on the matter one way or another.

This is perhaps negatively illustrated by the absence of attempts to exhaustively list ("enumerate") all rights ("privileges and immunities"), an effort which Justice Bushrod Washington found to be "more tedious than difficult" in Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823) , before making an effort to broadly list a few of them. Even the state ratifying conventions in their proposed amendments did not attempt to list them exhaustively. I have tried to do that in Presumption of Nonauthority and Unenumerated Rights. It can be done by proceeding from a higher level of abstraction and then working down to more specific levels, but people in the Founding Era were more accustomed to thinking in terms of more specific rights arising from particular disputes, without getting around to abstracting them systematically. We have made some philosophic progress in 232 years.

The Case against Thierry & Nugent for Libels and Contempt of Court illustrates something else: the original standard of due process according to which issues of law were supposed to be argued in the presence of the jury. See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573.

The term "states' rights" is a somewhat misleading abbreviation of "powers reserved to the states or to the people" from the Tenth Amendment, but even so it refers to the individual right not to have the central government exercise undelegated powers against either a state government or its citizens. We sometimes forget that the original idea was that individuals could privately prosecute a public right in court without having to have been personally injured first, a right that was not formally abridged until Frothingham v. Mellon, 262 U.S. 447 (1923). See "The Metaphor of Standing and the Problem of Self-Governance", by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.

The key point, as I have often stated, is that militia is primarily defense activity and only secondarily those engaged in it, as was common usage of many words in that era, and that there is no minimum number of those who may engage in it. An individual is always and at all times at least a militia of one. But 18th century English is a foreign language with respect to 20th century English.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

There is an important distinction between the legal duty to respond to an official call-up, enforced by penalties such as fines or imprisonment, and the social duty to defend the community. The two kinds of duty, the first deriving from the constitution of government, the second from the constitution of society, define two different subsets of the population, which I call the mandatory militia and the general militia, using the term to refer to those engaged in defense activity. The first is a proper subset of the second. People in the Founding Era often loosely used the same word to sometimes refer to the first, sometimes to the second.

However, there is a social duty to respond to a not necessarily official call-up that is enforceable by exclusion from protection or ejection from the community. As a duty, militia is the duty that defines the social contract, and as such precedes government. The authority to issue a call-up is a threat, and the duty comes with awareness of that threat, no matter who might become aware.

As discussed in "The Jury and Consensus Government in Mid-Eighteenth-Century America", William E. Nelson, communities in the 18th century were managed by juries and militia (and a jury was seen as a kind of specialized militia), with little government other than perhaps one part-time sheriff and judge. Militia was often called up not just for defense, law enforcement, or disaster response, but to perform community services such as repairing roads and bridges, erecting schools and town meeting halls, etc. These things were seen as defense activities. One was asked to care for those with smallpox because the disease was a defense threat. (And it is interesting that the understanding of disease as caused by an infectious agent was widespread long before Pasteur.) In an age when everyone was needed for defense, it made sense to make sure everyone could make a living and provide for his family. Care for the elderly was care for veterans who had done their part when they were younger.

DC v. Heller: Mixed Bag

DC v. Heller is an important win for the right to keep and bear arms. It's holdings are narrow: that two provisions of the DC statute, one banning possession of handguns, and the other requiring long guns to be kept in a non-functional state, are unconstitutional. The majority decision, by Justice Antonin Scalia, based that holding on the finding that the Second Amendment protects a pre-existing individual right to keep and bear arms apart from participation in militia. Much of his opinion consists of an etymological and historical analysis of the words in the Second Amendment. It seems likely that this decision will at least settle the issues of whether the right is individual, and whether participation in state-organized militia is necessary to assert the right.

The problem with this opinion is in the dicta that indicate the Court would accept as reasonable restrictions on the exercise of the right that could render it meaningless in too many situations. It is possible that these dicta are concessions that Justices Scalia, Roberts, Alito, and Thomas felt they had to make to win the swing vote of Justice Kennedy. However, it would have been better to omit them, since they are dicta and thus not necessary to reach the decision.

One thing missing from the decision is a holding on the level of scrutiny to be applied to any restrictions. Heller had moved for scrict scrutiny, which would bar most of the restrictions, federal, state, and local, that are presently enacted. The Court, as indicated by Justice Roberts, did not decide on the motion since it was not necessary to reach the decision on the DC statute.

In what follows I will be examining the points made in some detail, and expect to revise and extend this article over the days ahead, so readers may want to revisit it from time to time to get the latest version.

Troubling indications of what restrictions might be held reasonable

While in oral argument Justice Scalia indicated that only restrictions at the time the amendment was adopted might be reasonable, in this opinion he went far beyond that.

The only restrictions that existed at the time of ratification included:

1. Local militia commanders, but not state governments, could require militia participants to declare the numbers and kinds of weapons each could bring to a muster. There were no serial numbers in that era, but it is not too much of a stretch to require serial numbers for the limited purpose of making sure weapons could be returned to their owners if they got misplaced during operations.
2. Local militia commanders, but not state governments, could require militia participants to sign a roster and thus disclose their names.
3. Local militia commanders, but not state governments, could require militia participants to drill and practice with their weapons unloaded to prevent accidental discharges.
4. Local militia commanders, but not state governments, could require militia participants to use one kind of weapon in an operation rather than another, as best suited for the mission of each.

But then Scalia mentions that states began to assert a power to prohibit the carrying of concealed firearms without a license, and that such a restriction might be reasonable. However, it was not a restriction that appeared prior to about 1840, so does not meet the standard he stated in oral argument. It does indicate, however, that application to the states under the 14th Amendment is contemplated, since there are no federal concealed carry statutes.

Misreading of Miller

Although the decision in U.S. v. Miller, 307 U.S. 174 (1939), was not examined in depth, what was said about it missed what it was about.

The National Firearms Act (NFA) was a tax statute. The government was asserting a power to make it a crime to possess an object on which a tax had not been paid (unconstitutional), while refusing to accept payment of the tax if it were tendered (voiding the obligation). The Court had to decide whether the weapon in question was tax-exempt, as militia firearms were under the precedent of the Militia Act of 1792. It couldn't just find that anything useful for militia was tax-exempt, because almost anything can be used in militia under some scenario. The Court wanted a closer connection to militia than, say, a pair of combat boots or a canteen. Otherwise it would be creating a precedent that could be used to find all taxes void on everything.

About the only thing in the opinion that offers hope of incorporation under the 14th Amendment is Footnote 23:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

But that is a slim reed.

Fatal concessions in DC v. Heller?

The oral argument yesterday in DC v. Heller, the Second Amendment case before the U.S. Supreme Court, involved what I regard, and have regarded in the brief as well, as fatal concessions, even if Heller wins a complete affirmation of the DC Circuit decision to hold the DC ordinance totally unconstitutional. The most important came during this exchange during the argument made by Alan Gura, representing respondant Heller:

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly --

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

The problem with this concession is that it opens the door to the legislative violation of rights if the violation is "reasonable", shifting the question from a binary, either-or decision, to a slippery slope that can render all our rights protections meaningless. As may be seen in my previous article on this case, I argued that this would become the central issue in the case, and it was important to proactively define in the briefs what is and what is not "reasonable", rather than letting the opposition define it. Alan Gura, and for that matter, the supporting amici curiae, failed to do that. They might still win this case in a narrow decision, but at the cost of allowing an opinion that will cripple future cases that need to broaden Second Amendment jurisprudence. Lawyers have an unfortunate tendency to focus on winning their present cases at the cost of the cases to come. The opposition has put us in this position by pursuing a longer-term strategy, and we need to do that as well.

Another flaw was in allowing the opposition to frame the issue by not addressing the definition of militia. The term militia had more than one meaning, either at the same time or depending on context:

a. Defense activity (the original Latin meaning, and the leading Founders were Latin-literate).
b. Those engaged in defense activity (a common idiom of the era).
c. Those with a potential of engaging in defense activity.
d. Those who have a moral duty to respond to a militia call-up.
e. Those who have a legal duty to respond to militia call-up (with penalties for failing to do so).

The Second Amendment uses the term in the sense of (a) or (b). During the oral argument the participants were using the term in the sense of (c), (d), or (e), and as a plural or collective noun rather than as an activity that can involve a single individual as well as many of them. This can also be seen in the exchange about the distinction between "self" defense and "common" defense, forgetting that in law the plural contains the singular so that common defense includes self defense and self defense is part of common defense.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is also a type of noun called an actronym in which the word for an activity acquired the meaning of those engaged in it. It is most often used by the Founders as an outiseme, a polyseme with at least two meanings at the same time, the basic meaning of "defense activity" and a secondary meaning of those who engage in the activity or are obligated to do so.

Gura also left unchallenged the point made by Justice Alito that the power delegated to Congress in Art. I Sec. 8 Cl. 15 and 16 to regulate militia was "plenary", so that the power to organize the militia could include the power to disband it. Gura did briefly dispute this, but should have anticipated it in his brief with the argument that no delegations of power are plenary, because there are only certain directions in which power may be exercised that are constitutional.

The brief endorsed by the White House, which conflicted with that of the Solicitor General, Paul Clement, made the beginning of a good point by drawing an analogy to the preemptive power to regulate the time, place, and manner of congressional elections (except the place of senate elections). But it failed to go on to make the point that it is only constitutional to regulate elections to make them more convenient, fair, and accurate. It is no more constitutional for Congress to prescribe the disbanding of militia than it would be to cancel elections (especially if they didn't go the way Congress wants).

There are several important distinctions that cannot be overemphasized. They are very basic, and one might expect trained, professional lawyers to make them in the normal course of their profession. It is alarming to see members of the U.S. Supreme Court and lawyers arguing before them failing to make them.

The first such distinction is the proper meaning of the term constitutional right. In the U.S. Constitution this means an immunity, that is, a right against the exercise of a power by government officials, what is sometimes called a "negative right" by some commentators. To be such an immunity, it must not be legislatively disabled or restricted. The exercise of an immunity may be disabled or restricted by judicial due process, to resolve a conflict among parties, or if it is proved in court that if not disabled or restricted there will be harm to the subject or to others, or as punishment for a crime defined by a constitutional criminal statute. But that is not the same as a legislative disablement or restriction, which would be a constitutionally prohibited bill of attainder. See my article, Public Safety or Bills of Attainder?

Now it may happen that the exercise of some power happens, incidentally, to put a burden on the exercise of a right. This most often occurs with the exercise of a taxing power. The question then becomes whether the burden is undue, or excessive. For example, a court may reasonably find that it is not an undue burden on the right to a free press to impose the same 7% sales tax on the sale of newspapers or newsprint that is imposed on almost all other commodities. However, a 100% tax just on newsprint, especially that sold to a disfavored newspaper, would indeed be an undue burden. But that is not the same as a direct or indirect legislative restriction, regulation or prohibition of the exercise of a right, such as by doing what was done in the district of Columbia, by passing a criminal ordinance requiring firearms to be registered, then, beginning in 1976, refusing to accept further registrations.

Also confused in the oral argument was the question of what is the authority for any legislative restriction or regulation. Would it be the exercise of a municipal police power, of the alleged power of Congress under the Commerce Clause as extended by modern (incorrect) interpretations of the Necessary and Proper Clause, or of the Militia Clauses of Art. I Sec. 8 Cl. 15 and 16 and Article II. It should be clear that with militia involved, whether active and organized or not, the power of Congress and the derivative authority of the District of Columbia, considered as akin to a state, that power is limited to the Militia Clauses. That means that while the U.S. or DC government may require citizens not in a called-up status to keep certain weapons and equipment, they may only regulate or restrict such weapons or equipment for persons in a called-up status, and it would be unconstitutional to keep everyone, or some disfavored group, in a called-up status indefinitely as a way to authorize the regulation or restriction.

Another point of confusion was in discussion of United States v. Miller, 307 U.S. 174 (1939), in which the discussants took from it that the weapons that could not be properly prohibited were those that were in common use by the people (when not in called-up status), rather than, as the opinion states, suitable for militia use, which is quite a different thing. The issue in the case was whether the weapon in question could be taxed, because if it was suitable for militia use, it would be properly tax exempt, on the grounds that a tax on it would be an undue burden on the exercise of a right. Neglected in that case was the question of whether it was constitutional to make it a criminal offense to possess something on which a tax had not been paid, which, given the limited delegations of powers in the U.S. Constitution, is itself unconstitutional. But that point was not argued in that case, perhaps in part because the party, Miller, was dead, and no one appeared to represent him in court. That fact makes the entire case infirm. The Court did signal that it had to make the distinction between items suitable for militia use and those that are not because if everything was suitable for militia then nothing could be taxed. However, since almost any working item might potentially be used for militia in some scenario, the real distinction that has to be made is whether that item was so used for some significant period of time, or would be likely used for militia at least some of the time. The issue arises because while the materiel of regular military forces are normally acquired through a formal acquisition process, in which the items are clearly identified, with purchasing being tax exempt, for irregular forces where militia materiel is acquired informally by individuals, the taxability of each item becomes ambiguous.

Apparently, the respondants were trying to avoid arousing fears that their legal position might threaten restrictions on the possession of such things as fully-automatic firearms, armor-piercing ammunition, rocket-propelled grenades, or plastic handguns, or possession of firearms by various classes of persons administrative deemed to be "dangerous" (see my article above), which were not issues in this case anyway. The members of the U.S. Supreme Court seemed to want to explore that area, and none of the litigants seemed as prepared for that as they should have been. It is difficult to tell a justice of the Supreme Court that his question is not on point to an issue in the case, but that should have been done. What should not have been done was to concede that there were weapons suitable for militia that could nevertheless be prohibited as not protected by the Second Amendment. The remedies for misuse of such weapons are to organize and train people as militia, and if someone is not fit to have or use one responsibly, to disable his right in an individual due process proceeding.

Another annoying error made in reporting on this case is to treat the word "General" as a title or rank of the Solicitor General, Paul Clement. It is not a title or rank. It is just a way to distinguish the official as not a "Special" solicitor. Similarly, the term "Attorney General" only means the person holds a general power of attorney, instead of only a special power of attorney, and it is similarly incorrect to call an attorney general by the title "General". The proper term of address is only "Mister".

From my viewpoint all the briefs of the parties and amici were deficient in various ways. I find the arguments shallow, lacking in a deep, philosophic understanding of the issues, as well as failing to anticipate the course of future litigation. It will mean more work for the lawyers, and a continuing ability of the gun rights organizations to recruit members and solicit donations, but it does not move us to where we need to be. Gura, the respondant's team, and supporting amici were too willing to concede many ways that firearms might be "reasonably" restricted, ignoring the fact that there is no constitutional authority to do so even if the Second Amendment allowed it, which it does not.

Ron Paul 2008 Campaign Postmortem

As a veteran of many election campaigns and movements, going back to 1960, and as having spoken to a lot of voters in this campaign season, I have a somewhat different take on the Ron Paul campaign than Sean Scallon does.

Although there are still many voters who have never heard of Ron Paul and his message, there are also many who haven't heard much about the other candidates, either. I find that polling in single digits was not the result of not enough people knowing. This is best indicated by the results in his own congressional district, where 70% of Republicans voted to return him to Congress, but only 12% voted to nominate him as the Republican presidential candidate, not enough to pass the 20% threshold for getting delegates. Those results don't come from not knowing, or even accepting, him or his message. Voters in his district know him fairly well. They like and trust him, and more people vote for him for that than agree with his positions, most of which they don't understand and prefer to trust him to think about.

The 5% of the vote he got in the Republican primary in Texas, normalized by multiplying by .6 to project it to the results that might be expected in a general election, yields 3%. That is the same percentage I received in the 2006 election when I was the Libertarian candidate for Texas Attorney General, and I got and spent far less money and had far fewer campaign workers. In other words, when it came to the final test, we both only got a hard core of libertarian voters who are more concerned about sending a message to policymakers to move toward libertarian constitutionalist positions than they are about nominating a candidate that they think can win in the general election. They perceive that, even if they are ready for a president who takes such positions, most of the rest of the country is not. It is not unlike the perception that the country is not ready for a black or female or Muslim or gay or openly agnostic president, even though oneself might be ready. Their perception is that the country is more ready for any of those than it is for a libertarian constitutionalist president.

I do not find any serious deficiencies in the efforts of the many campaign volunteers, other than there not being enough of them. I have been involved in campaigns in almost every election during the last 48 years and this was without doubt the best organized, most effective, and most enthusiastic I have seen. Everyone involved should be proud of his or her contributions to the effort, and I commend them all.

But we were up against a mindset we could not overcome: voters just did not perceive Ron Paul as someone who could win the general election, or, even if he won, be allowed by the Establishment to govern. I find that only about 10-15% of Republican voters tend to agree with his libertarian constitutionalist positions on domestic issues, and less than half of those agree with his strongly non-interventionist foreign policy positions. While he attracted many volunteers who opposed the Iraq war and foreign intervention, most of the voters with those views preferred to vote in the Democratic primaries or caucuses, largely out of habit and their herd affiliations.

There was also the problem of there being too many candidates competing for the same libertarian constitutionalist voters, especially, toward the end, Mike Huckabee. If the Establishment wanted to defeat our movement, they could not have found a better way to do it than by loading the field with multiple candidates to divide and conquer. If Brownback, Hunter, Tancredo, Huckabee, and Thomson had just stayed out of the race Paul might have gotten as much as 20% of the vote, not enough to win, but enough to shift the policy direction of this country toward libertarian constitutionalism. The Republican voters were gullible enough to fall for that.

The movement has its work cut out for it. Don't get discouraged by that. It took 200 years to get into this predicament and it may take a few generations, or perhaps a major catastrophe, to get us out of it. We are about changing the civic culture of a country, without the benefit of most parents or schools helping to transmit the traditions and habits of thought that founded it. As my grandfather, who used to teach in a one-room schoolhouse, predicted, we have become a nation of historyless adolescents, and growing out of that fast usually takes a lot of pain.

Now the movement needs to shift to electing libertarian constitutionalists to lower offices. It was never realistic to think that electing a president could change anything without first electing like-minded people to every other level and branch of government. Without the rest of the building, beginning with the foundation, the weathervane to be put on top will just lie in the ground, never showing which way the wind is blowing.

I am a candidate for the Texas Libertarian Party nomination for U.S. Senator. There are other such candidates, perhaps even a few within the Republican and Democratic parties, but mostly not. If you want to move the civic culture in the right direction, that will mostly mean supporting or becoming Libertarian candidates.

Let us challenge the voters to vote for the Constitution, because any vote not for the Constitution is a vote against it, and that means a vote for most Republicans or Democrats. Make it clear that to vote against the Constitution is to vote for letting government spy on you, destroy your reputation, assault you, imprison you, take all your property, kill you, molest your family, and force you to dishonor yourself, with no recourse but violence and none to come to your aid. If that's what you want, then volunteer for it, but don't vote for having that done to the rest of us.

The Genomic Contract

The concept of the social contract (or compact, as some prefer), developed by such political philosophers as John Locke and Jean-Jacques Rousseau, heavily influenced the Founders. It describes a society as the result of a kind of unwritten contract among its adult members to cooperate and not prey on one another, who pool their powers and jointly decide to delegate some of those powers to agents who function as a government.

In 1976 Richard Dawkins wrote The Selfish Gene, in which he developed the concept that the fundamental unit selected for fitness in biological evolution is not the individual but the gene, and that it is a success strategy for genes to have their organisms sacrifice themselves to insure the survival not just of their own progeny, but of the genes they share with their relatives. This view of genetic evolution explains the advantage of individuals uniting in societies, because it is the society, more than the individual, that enables the survival of the genes shared by its members.

If we carry forward this gene-centric model of evolution, however, we see that it is not really "the gene" that is the fundamental unit. Genes mutate, and the mutations, if they make the organism more fit, tend to survive and yield "progeny" that are descended from them, but not the same. So it makes more sense to describe the fundamental unit not as a gene but as a genetic line of descent.

However, genes do not survive or propagate in isolation, any more than individual organisms do. It therefore makes sense to describe a genome as a kind of society of genes, united by a kind of contract, analogous to the social contract, which we may call the genomic contract. As a society, instances of genes cooperate to propagate the survival of a few copies of themselves, or mutated descendants. In multicellular organisms, especially those that reproduce sexually, most cells are nonreproductive and do not act to insure the survival of direct copies of their own genes, but the genes of cells differentiated to function as reproductive cells, in much the way that social species of organisms do.

Looking at genomes as societies of genes united by a genomic contract is not just a philosophic exercise. It can help us understand how genes are organized into genomes, how they adopt specialized roles, how they sacrifice themselves for the benefit of others, and even how they make collective "decisions". We may even be able to identify persistent transactions among them. We may be able to apply variations on economic, political, and anthropological models to help us understand them. We can speak of games with genes as players, and apply the methods of game theory.

This is only an introduction to the use of this concept. It is hoped that others will pick up on it and develop it further.

Arguments needed in D.C. v. Heller

The granting of certiorari by the U.S. Supreme court in D.C. v. Heller provides the first great opportunity we have had to get a decision on interpretation of the Second Amendment. Already a host of parties are preparing to file amicus briefs in the case, threatening to drown out two important arguments that need to be made and that it does not yet appear will be made by any of the amici:

1. The primary original meaning of "militia", from the Latin, is military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia.

The lost meaning of "militia"

The right to keep and bear arms (RKBA) is asserted in the Second Amendment with the preamble of militia being a primary purpose of that right:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Previous attempts to get around the right to keep and bear arms has been to subject firearms to taxes. This was the issue in United States v. Miller, 307 U.S. 174 (1939) [HTML] which took the approach that if the firearm in question had had a militia use, it would not have been taxable, and therefore it would not have been illegal to possess it without having paid the tax. While one could question the constitutionality of making it a crime to possess something on which a tax has not been paid, we can understand the concern of the Court that if one cannot make a distinction between militia-related items that are tax exempt and non-militia-related items that are not, then, since almost anything could conceivably be used for militia under some circumstances, nothing would be taxable.

Therefore, it is not enough to establish the individual RKBA if we do not address the way Congress has been trying to do an end-run around it using its taxing power and the precedent of Wickard v. Filburn supporting criminal penalties for activities that have a 'substantial effect" on interestate commerce, under an expansive interpretation of the Necessary and Proper Clause to assert the power to not only "carry into execution" the expressed powers, but to do whatever might be convenient to try to attain the purposes for which a regulation of commerce might be enacted.

To make the proper determination of what is and what is not "militia-related" we therefore have to understand the original meaning of "militia", and do so better than most scholars have done heretofore.

Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it.

The term "militia" is derived from Latin roots:

• miles /miːles/ : soldier^[2]
• -itia /iːtia/ : a state, activity, quality or condition of being^[3][4]
• militia /mil:iːtia/: Military service^[5]

In English, the usage of "militia" to refer to those engaged in the activity dates back to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline^[6]

The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.^[7]

Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin or used a Latin word in English discourse.^[8][9]

The reason this distinction is important is because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.

This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.

The key thing to understand is that "militia" is not a plural "group", with the implication of "two more more". We can see in the writings and speeches of the Founders that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is militiae, and if the Latin-literate Founders had meant it that way, they would have said militiae. They were, in that usage, meaning the activity, and sometimes, blending both meanings at the same time.

The meaning of the word is discussed in more detail in Militia v. Inimicitia.

What kind of "regulation" of militia is "reasonable"?

It won't be a victory for the original meaning of the Second Amendment if the holding of the Court is that the right to keep and bear arms is individual if it also holds that it is subject to "reasonable regulation" and that exception allows all the restrictions that are presently enacted.

Clearly, the concept of militia does contemplate regulation beyond the "self-regulation" that would satisfy the stipulation that militia be "well regulated". We have in U.S. Const. Art. I Sec. 15 and 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

While militiamen are in called-up status, they are subject to miltia discipline, under which they can be directed what weapons to use and for what purposes. When not in called-up status, they can be required to keep certain kinds of weapons, ready for call-up. See the Militia Act of 1792. Although it may not be obvious to some, it would be unconstitutional to get around the RKBA by keeping the entire population in a permanent called-up status. Call-ups are supposed to endure only as long as an imminent threat exists for which only militia can meet it.

To understand what kind of regulation is reasonable for persons not in called-up status we can use the analogy to the preemptive authority to regulate the time, place and manner of congressional elections, it is unconstitutional to do so in a way that would make elections less fair, convenient, or accurate. Similarly, it is unconstitutional to regulate militia in ways that make them less effective in performing their functions "to execute the Laws of the Union, suppress Insurrections and repel Invasions", or at the state or local level, to respond to disasters. People may be required to be armed, but not forbidden to be armed, without a specific due process proceeding to disable the exercise of the right on proof the individual is a treat to himself or others, with a right to a jury.

Suppose, for example, Congress passed legislation to restrict all voting to a 1-second timeframe for all contests, or required that all polling places be on the moon, or that choices be limited to one or a few candidates approved by a government agency that screens out dissidents. Contrary to Justice Marshall in Gibbons v. Ogden, delegations of power to Congress are not "plenary" as to the "specified objects" of the delegation, but are constitutionally constrained to be reasonable and for constitutionally legitimate purposes. Restrictions like those listed above would be an abuse of discretion on the part of Congress. The only constitutionally legitimate ways that militia may be regulated is in ways that enable those engaged in militia to protect public safety, not in ways intended to protect public safety by disabling militia from doing so.

What is not reasonble or constitutional is prosecuting people on an administrative determination that they are "dangerous", even if there was a conviction of a "felony". without disablement of the RKBA being an explicit part of the sentence. See Public Safety or Bills of Attainder? — Written Jun. 14, 2000. Published in University of West Los Angeles Law Review, Vol. 34, 2002.

A case could be made for the constitutionality of regulating the quality of firearms, in much the way the U.S. DoD regulates the quality of the firearms it purchases for its own use, but not for prohibiting weapons that "do not have a sporting purpose". Militia is not about hunting. even thoug hunting may be a way to maintain militia skills.

The idiom of using the same word for an antivity and those engaged in it

There are many other examples of this idiom. From the Century Dictionary, the precursor of the Oxford English Dictionary, we have the following:

assembly (a-sem'bli), n.; pl. assemblies. [ME and OF assemblee] 1. The act of assembling, or the state of being assembled or gathered together. 2. A company of persons gathered together in the same place, and usually for the same purpose, whether religious, political, educational, or social; an assemblage.

congregation (king-gre-ga'shon), n. [F. congregation] 1. the act of congregating; aggregation. 2. Any collection or assemblage of persons or things.

delegation (del-e-ga'shon), n. [F. delegation] 1. A sending or deputing; the act of putting in commission, or investing with authority to act for another; the appointment of a delegate. 2. A person or body of persons deputed to act for another or for others....

ministry (min'is-tri), n.; pl. ministries. [F. ministere] 1. The act of ministering; the rendering of service; ministration. 2. The state of ministering or serving; agency; instrumentality. 3. The office or function of a minister, civil or ecclesiastical; the state of being a minister, in any sense; the discharge of a mionisterial office.... 4. The general or a particular body of ministers of religion; the ministerial or clerical class; the clergy or priesthood. 5. The body of ministers of state in a country; the heads of departments collectively; the executive administration.... 6. A ministerial department of government; the organization of functionaries administering a branch of public afffairs; a minister and his subordinates collectively....

hunt (hunt), n. 1. The act of seeking for or chasing game or other wild animals for the purpose of catching or killing them; a pursuit; a chase. 2. A pack of hounds engaged in the chase. 3. An association of huntsmen...

police (po-les'), n. [F. police] 1. Public order; the regulation of a country or district with reference to the maintenance of order.... 2. An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by whom the municipal laws and regulations of a city, incorporated town or borough, or rural district are enforced. 3. In the United States Army, the act or process of policing.

Other such words include service, movement, wedding, viking, aggregation, march, and court.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is a type in which a noun meaning "those engaged in the activity" is derived from the noun meaning "activity" without losing the original meaning.

How to achieve energy independence

Whenever the subject of excessive dependence on oil imports comes up, someone always calls for achieving energy independence, but then the discussion gets diverted into such remedies as energy conservation, wind farms, geothermal and ocean thermal sources, ground-based photovoltaic arrays, biofuels, coal, ocean deposits of methyl hydrate, and, of course, the big ones -- nuclear or fusion reactors.

However, there are problems will all of those. No reasonable amount of conservation is going to keep our economy going if energy supplies are cut off. Wind farms, and geothermal and ocean thermal sources, can help in some places, but one can't depend on them as a replacement for fossil fuels. Ground-based photovoltaic systems are still somewhat expensive, although the cost is coming down. Biofuels turn out to cost more energy and other resources than they save, at least if corn is used instead of sugar cane or switchgrass. Coal and methyl hydrate will just accelerate the global warming problem. Nuclear presents the problems of waste disposal and proliferation, and fusion reactors don't work yet.

The one alternative that is seldom mentioned is space solar power: putting photovoltaic arrays in orbit and beaming the power to receiving antennas on the Earth. It is not a new idea. It is estimated that about 40 satellites in geosynchronous orbit could meet the needs for energy of the entire world, and it it was the United States who puts them up and operates them, we would be the energy exporters to the world instead of importers. Once in operation, it is estimated the cost of energy from them would be less than half the cost from other sources, and that it could pay off the investment to put up the system in less than a decade. It requires little new technology, other than ways to bring down the costs for vary large systems. It has much support from leading engineers and scientists, including a team within NASA. And nations like Japan are moving ahead to do it without waiting for us.

So why aren't we doing it? The answer, as usual, is politics. The alternative is opposed by the proponents of nuclear power, who keep making the argument that Earth-to-orbit lift costs are too high, when the proposal has long been to use materials mined from the Moon or an asteroid rather than lifted from Earth. The real problem for them is that such a proposal doesn't make them a lot of money. It would be creating an industrial system in space that they would not control and from which they could not profit.

And of course, they don't hesitate to raise other objections:
1. It is too "Buck Rogers". Silly argument, considering what we have done in the last 50 years, but they make it.
2. It would be vulnerable to attack by space weapons. And oil tankers, refineries, pipelines, and nuclear power plants aren't?
3. It would be vulnerable to space radiation and coronal mass ejections. They can be hardened against that, as we already do with communications satellites.
4. They could become platforms for death rays. Yes, but all the more reason that we put them up instead of someone else.
5. The power beams would disrupt migrating wildlife. The heating effect would be less than sunbeams through clouds, negligible.
6. The satellites would brighten the night sky, impairing ground-based astronomy. But we could move the telescopes out into space, even putting them on the solar power satellites.
7. The space aliens might object. Okay, this is for humor. But since the satellites would support the effort to defend the Earth from impacts with asteroids and comets, one suspects the aliens wouldn't object to us doing that.

Check out some of these links:
Space Studies Institute http://ssi.org/
Sunsat Energy Council http://www.sunsat.org/
NASA
http://grin.hq.nasa.gov/ABSTRACTS/GPN-2003-00108.html
http://www.hq.nasa.gov/office/legaff/solar.html
http://science.nasa.gov/headlines/y2001/ast23mar_1.htm
http://space-power.grc.nasa.gov/ppo/projects/sdp/
Solar Power Satellites http://www.freemars.org/history/sps.html
Wikipedia articles
http://en.wikipedia.org/wiki/Solar_power_satellite
http://en.wikipedia.org/wiki/Microwave_power_transmission
http://en.wikipedia.org/wiki/Future_energy_development
Space.com
http://www.space.com/businesstechnology/technology/solar_power_sats_011017-1.html
http://www.space.com/businesstechnology/technology/space_solar_000908.html
http://www.space.com/businesstechnology/technology/solar_power_satellite_000421.html
Space Daily http://www.spacedaily.com/news/ssp-01a.html
Reinventing the Solar Power Satellite http://gltrs.grc.nasa.gov/cgi-bin/GLTRS/browse.pl?2004/TM-2004-212743.html
Solar Power Satellite Place http://tech.groups.yahoo.com/group/solarpowersatelliteplace/
Space Solar Power Library http://www.nss.org/settlement/ssp/library/index.htm
Space Based Weather Control http://www.borderlands.com/spacewea.htm
Resources for the Future http://www.rff.org/rff/News/Releases/2000/Satellite-Solar-Power-Faces-Considerable-Economic-Challenges.cfm
Access to Energy http://www.accesstoenergy.com/view/atearchive/s76a4466.htm
Lift Elevators to Space http://www.liftport.com/forums/index.php?topic=619.0
MSNBC http://cosmiclog.msnbc.msn.com/archive/2007/09/07/350320.aspx

What you can do is spread this message with the suggestion that everyone write to their favorite media urging them to provide more coverage of this alternative. The time for replacement of fossil fuels is already very late.

Thoughts on Iraq

The last two elections were not referenda on Iraq, because they were not framed as a change in direction toward any particular policy alternative, not even immediate withdrawal. There was and is dissatisfaction, but no clear alternatives offered other than "to do something" differently. That can cause people to vote against incumbents, but it doesn't count as a referendum in any meaningful sense.
Yes, with the advantage of hindsight, we should have done certain things differently, including perhaps not going in at all, but it is important to understand what we missed, and when I say "we", I mean almost all of us, because most of us who had much of an opinion did think it seemed like a good idea at the time to get rid of Saddam. (A few of us opposed going in without a constitutional declaration of war, but the odds are that Congress would have voted for one.)
One of the things we didn't miss was the now common view that the people of Iraq are not ready for republican self government. The fact is that 94% of the Iraqi people of all sects are no less ready to govern themselves in peace than most of the people in every other country. They might not have enough sense to vote for "seculars" instead of for "sectarians", but that was something they could eventually have learned. No, what we missed, and it is important, was that remaining 6%.
Or to put it another way, Saddam did indeed have weapons of mass destruction, just not the kind we were looking for. They were that 6%, who Saddam had reduced to a state of barbarism that he very likely calculated would destroy the country when he was no longer around to keep them under restraint. What is happening in Iraq now followed our deposing of him, but would have happened anyway when he eventually died. We were destined to go in to clean up the situation, sooner or later. We just moved up the date by invading.
What perhaps we most missed is the fact that it only takes a small minority of determined barbarians to destroy a civilized society, and it doesn't matter how civilized the rest of the society might be. It is easier to destroy than to create, and no society is really ready to withstand that kind of destructive force. It is worse than most natural disasters. Historically, most societies that have faced similar internal barbarism have either descended into brutal despotism, the barbarians usually becoming the despots, or the barbarians were wiped out, usually along with a lot more innocents. Some of these "burnouts" have reduced the populations of countries by as much as 90%, and destroyed the entire civilized infrastructure.
The trouble is that most Westerners don't really understand bad guys like Saddam. He was expertly playing a "Samson" or "apres moi" gambit. He made Iraq a monument to himself that would self-destruct when he was gone, and trigger a chain of events he expected, with some good reason, would sweep the Middle East, deny oil from that region to the world, trigger a world war for oil and other resources, and bring down the industrialized nations and Western Civilization. We can argue that it would not get that far, but that it was what he tried to set up to happen is all too plausible.

So when it comes to considering our options, let us remember the answer Chinese Premier Chou En-Lai gave to the question, sometimes reported as being asked by Henry Kissinger, "What were the consequences of the French Revolution?" He is reported to have replied, "It's too soon to tell." We won't know whether there is anything else we could do or how it might turn out. History is not a game like chess where we can evaluate the state of the game at any given point. We are flying blind, and while we can try to do the right things, we can never be sure we may not be doing the wrong things, whatever we do.

Constitutional views on abortion

The abortion issue was misframed in the badly-argued Roe v. Wade case, which could not have been decided otherwise given the way it was argued. A person has rights, and a non-person doesn't, so if the issue is framed only as a contest between the rights of a person and a non-person, the person wins. However, (state) law may protect things that are not persons, essentially as a kind of public property. It may also restrain the ways a person with superior rights may exercise those rights against another entity, person or non-person. Thus, the owner of a piece of property who has consented to another person visiting him there, then orders him to leave, does not thereby immediately acquire the right to shoot him. He does not have the duty to allow the visitor to stay if the visitor will die of exposure if evicted, but he should still be alive when he is evicted. Thus, without violating the rights of the pregnant person, a state could require that the abortion be conducted, if possible, in a way that would leave the fetus alive at the point it is ejected, presumably into the care of others. However, this requirement could not constitutionally "burden" the right of the person to eject. It would have to be at least as easy as killing the fetus, and any additional expense would have to be borne by the party seeking live termination. Now, admittedly, there is presently no way to do that in most cases, but as a theoretical proposition, it is constitutionally permissible.

One problem with the debate on abortion is that it tends to gloss over the real issue: do we really want to criminally prosecute someone, the pregnant female, her abortionist, or perhaps even the guy who got her pregnant, with deprivation of liberty, or even life (as first-degree murder), for terminating a pregnancy (even if the fetus is left alive)? If a pregnant female hints to someone she is considering having an abortion, do we really want to lock her up or appoint a guardian to supervise her to prevent her from aborting? Can we really get a jury, if it is not stacked with anti-abortionists, to convict? Who is going to pay for the prosecutions, the incarcerations, the executions, and perhaps for the unwanted children who will be born if the measures to prevent abortion happen to be successful? How is any law enforcement agency even going to be able to investigate or prove cases if having an abortion becomes as easy as taking a pill that will be available either over the counter or on the black market?

Those who oppose abortion seem to try to avoid answering those questions. I have tried to find out why, and my conclusion is that for most of the stronger proponents of criminalizing abortion, the real motive is to punish women for having extramarital sex, by forcing them to either rear an unwanted child, watch it suffer and even die because she is inadequate for the task, or suffer the pain of first bonding to it and then having the state take the child away from her (and perhaps deliver it into to the clutches of pedophile "foster parents". (Does any of this resemble Prohibition or the War on Drugs?)

The proper libertarian position on this issue is that government is incompetent to intervene without making a bad situation worse, and that the way to prevent abortions is to encourage birth control, or abstention, at least for minors and mental incompetents. It is not a problem within the competence of government. It is a problem for social pressure and moral suasion.

There are no reliable statistics on the question of how the legality or illegality of abortion impacts abortion practices, so it is largely a matter of conjecture. However, anecdotal evidence from those involved in the field indicates that the impact of Roe v. Wade, making abortions "legal", and therefore presumably easier, was to shift the date of abortions back to an earlier stage of pregnancy, especially to the first trimester. It has also shifted the practice away from lay abortionists to physicians and clinics, reducing the mortality of the women. There is also evidence that the increased rate of abortion has had a significant impact on the crime rate and psychotropic dependency, as the reduction of juvenile crime and drug addiction has tracked the reduction in unwanted births, to the extent we can get reliable data. Although abortion may not be beneficial for the fetus, it appears to be beneficial, on balance, for almost everyone else and on society as a whole.

I have made a good-faith effort to find any ways that government intervention has or could make the situation better. I have found some theoretical ways, but none that work in practice, other than providing contraceptives and training in their use, or putting young people under 24-hour supervision, such as keeping them in gender-segregated boarding schools. Even government suasion, such as waiting periods, counseling, etc., appears to be counterproductive. Reduced funding tends to shift terminations toward later stages of pregnancy, and increases the rate of mortality and morbidity among the women. Any responsible policy analysis of this or any other issue must consider all the costs and benefits, not just those that support a particular position. It is easy in this field for emotion to distort judgment, and we must always be on guard against this.

As for leaving the matter to the states, it does not work to allow each state to have a different definition of personhood, given that all the rights recognized, explicitly or implicitly, in the Constitution, attach to persons, other than the rights of citizenship (voting, holding office). All that any state would have to do to deny someone any right would be to change their definition of personhood to exclude that individual, as was done (inconsistently) to justify slavery. Now, as I have pointed out in previous posts, a state may protect things without declaring them to be persons, but not to the extent that it imposes an undue burden on the exercise of a right by a person. That only leaves the possibility of legislation requiring abortions to leave the fetus alive if not unduly burdensome on the woman, but as yet this is infeasible in practice.

People who come to the abortion issue from a religious standpoint have trouble accepting that "personhood" is a matter of convention. It is not something that is somehow defined by nature or scripture. It is defined by law and legal practice, and has to be, because it is only "persons" (legal roles) that can meaningfully be deemed to have legal rights, powers, and duties. Too many people try to confuse the issue by framing it in terms of "human life" or other such term, but that is not a proper legal term.

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decisionmaking, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

What the issue comes down to is that not every instance of something that can be called "human life" is a person, and a "person" is not necessarily a human. If a human female gave birth to an individual that had the DNA of a human but managed to express that DNA as a cocker spaniel, with all the capabilities and limitations of a cocker, and therefore not the competences of a person, the law would have to treat it as a nonperson. On the other hand, we already find corporate entities to exhibit the competences of personhood and treat it as a person. At some time in the future, we could have a robot, a space alien, or a chimpanzee genetically enhanced to be able to speak and reason like the average human, appear in court with a legal claim and the expectation of receiving redress of its grievances. A judge might dismiss the claim of a robot or a chimp, but if the space alien has a saucer hovering overhead with its beam weapons directed at the courthouse, one suspects he would find its personhood apparent.

So what it really comes down to is whether a being has a gun or the support of something with a gun, to defend its rights. Law and politics, in the end, respects power and the willingness to use it. That comes down to money and votes.

A constitutionally principled and competent position on abortion is that rights belong to legal persons, that in a court contest between a person and a nonperson the decision must favor the person, that at the time the Constitution was ratified personhood was defined by convention to begin at birth and not earlier, and that there is no consensus or sufficient support to amend the Constitution to change the definition, therefore we hold that while a state may encourage pregnant a woman to terminate a pregnancy in a way that allows the fetus to survive, this must not be done in a way that unduly burdens her right to do so.

A few points need to be emphasized:

Congress has no authority under the Constitution to define when or how personhood begins or ends. That was done by the ratifiers of the Constitution when they froze the prevailing definition as of the time of ratification, which was that it begins at birth (or even somewhat after birth, such as baptism, entry into the family Bible, or registration with the county recorder). If Congress had such a power the majority party could define members of the minority party as "unpersons" not entitled to rights or the protection of the law. As much as some people might like to legislate against abortion, violating the Constitution is not the way to act against it.

Denying funding is certainly constitutional, but removing jurisdiction from federal courts is not. This approach is based on the wrongful decision in Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). See the decision at http://www.constitution.org/ussc/074-506.htm and my commentary at http://www.constitution.org/ussc/074-506jr.htm . The Constitution only grants Congress authority to reassign jurisdiction between original and appellate, not to remove jurisdiction from all federal courts for certain issues. For any judicial issue there always has to be a court somewhere that can hear it, even if it is only the Supreme Court, and the Supreme Court always has at least appellate jurisdiction. Congress also has no authority to recognize the authority of the states to do anything, like some kind of license. The states do have the authority to protect the unborn in certain ways, just as they have the authority to protect trespassers from being summarily shot without due notice or an opportunity to leave peacefully. They could similarly require that, if it can be done without unduly burdening the right of the woman to terminate her pregnancy, the termination leave the fetus alive. That may not be medially feasible today in most cases, but with medical progress it may become possible. Some might like to punish women for getting pregnant irresponsibly by forcing them to carry to term, but as a matter of constitutional law we have to make more subtle decisions.

Passing a statute criminalizing abortion would merely drive it underground, as it was before Roe v. Wade, when it was difficult to get juries to convict. Statistical studies show that the rates of abortion are about the same regardless of whether it is legal or illegal. Like the prohibitions on alcohol and psychotropic substances, such laws are unenforceable in practice, and do more harm than good. Law is not some kind of magic. Passing a law against something is as likely to cause more of it than less. Some interventions are simply beyond the competence of government, and we need to recognize those limits and use other measures, like education and social pressure, to do what government can't.

A law is a command from those authorized to issue it to the members of the public body bound to obey it. To be a law it must continue to mean what it meant to the lawgiver when it was issued, to the extent that meaning can be discerned upon investigation. It is not a stretch to interpret "writings" to include all kinds of communication of information, or "arms" to include all the kinds of tools that might be used by military or militia to accomplish their proper missions (from ammunition to computers). "Mile" has essentially the same meaning. All we have done has been to adopt more precise measurement operations.

Now consider some other constitutional terms, such as "jury" or "due process", and posit extreme departures from original usage. Are we really free to redefine those terms? The U.S. Supreme Court sustained the power of a state to try a case with a jury of as few as six in Williams v. Florida, 399 US 78 (1970), but I regard that as a wrong decision, if the term in the Florida Constitution is considered to have the same meaning the term has in the U.S. Constitution, which can be presumed if it is not redefined in the Florida Constitution. But suppose "jury" were interpreted to be a single individual designated by the Party (as in Orwell)? Or suppose "due process" were interpreted to mean, as it did for the Queen of Hearts in Alice's Adventures in Wonderland, "Sentence first--verdict afterwards." http://www.gutenberg.org/files/19033/19033-h/19033-h.htm . The defenders of that interpretation might argue that it is "due" because it is uniformly applied to everyone, but I would argue that it unconstitutional because it does not provide the minimal level of protection of the rights of persons that was the standard when the Constitution was adopted.

Now we get to the term "person". Are we really free to redefine it by contemporary usage? The slave states tried to do that for blacks to maintain slavery, although they tried to do it using the term "citizen" rather than "person" and attaching rights to citizenship instead of personhood, which is contrary to the usage of those terms in the Constitution. Proponents of making abortion illegal might try to redefine the term to include more objects, but if we allow that we must also, logically, allow redefinition to include fewer. To allow states to each adopt their own definitions would be to allow them to define "person" to exclude humans of German descent, or perhaps members of the opposition political party, making it legal for any person to kill anything not a person. Be careful what you ask for.

We can detect the onset of brain activity. For most fetuses it is a sudden event that occurs at about the 145-day point. "Like a lightbulb", said one fetal neurologist. The idea of moving the commencement of personhood back to that point has been proposed, but it would require a constitutional amendment.

Suppose we only redefine the term "person" to begin at some point before birth. That would mean that if there were any reasonable suspicion that the woman might terminate the pregnancy, the court would have the duty to confine the woman under constant supervision of a guardian ad litem to deprive her of the opportunity to abort, and charge the woman or her spouse the costs of the court-appointed supervisor. If anyone has been following what has been happening in family courts recently, this is not an implausible scenario. Be careful what you ask for.

I remember the days when the "conservative" position was to support abortion as a way to reduce crime, thought to be increased by producing more unwanted children, a hypothesis that has recently been supported by research). The reality is that if there is not more of a consensus to make it a crime than we have in this country today, anti-abortion criminal laws would be unenforceable, as they were before Roe v. Wade. What we don't need is yet more unenforceable statutes.

Considering personhood to begin at birth may not be a perfect solution from all viewpoints, but we can reasonably maintain that it is the worst solution -- except for all the others.

It is not a stretch to interpret "person" to include android robots, animals enhanced to have humanlike intelligence and ability to speak, or space aliens, but to do that we would be invoking a bundle of competences that they have and a fetus does not. We are still stuck with the meaning of the term for humans in 1787 that personhood begins at birth (or somewhat after).

Southern slaveholders denied rights to blacks by essentially adopting legal definitions of personhood that were different from the definitions used in other states. They tried to do it using the term "citizen" when they meant "person". If they had known what they were doing they would have used "person" and the issue would be more clear. But now that people are coming to use the words with greater precision, once we open the way for the states to redefine it there is nothing to prevent a local majority to redefine it to exclude anyone they don't like. How would you like it if some day those without social security numbers were defined as "nonpersons" subject to being killed by anyone on sight, and some bureaucrat deleted your SSN from the system?

I wouldn't be surprised if half of all pregnant women have thought about terminating the pregnancy, and hinted that to someone, which would create reasonable suspicion, and trigger confinement and 24/7 supervision. Consider the figues from http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm . You are probably looking at such draconian interventions for 1million women a year at a cost of $50,000 each, or $50 billion/year. Are you willing to pay taxes to do that? I suspect there would also be a cost from pregnant women assassinating the judges, supervisors, and other persons who tried to impose that kind of slavery on them.

Abortionists or even women acting alone have always been able to induce abortions throughout the gestation period without surgery, but at some risk. Surgery is safer but not necessary. Besides, long before Roe v. Wade juries were refusing to convict, especially when there was at least one woman on the jury.

There is no constitutional authority for the federal Congress to prohibit abortion, or any other medical procedure. The only constitutional federal crimes are treason, counterfeiting, piracy and felonies on the high seas, offenses against the laws of nations, enslavement, violations of rights by state agents, or impeding voting on certain grounds, such as race, gender, age 18 or above, nonpayment of a tax, etc. That's all. All those federal statutes prohibiting other things are unconstitutional. See http://www.constitution.org/col/02729_fed-usurp.htm .

The Constitution did not establish any mechanism other than that each and every person has to interpret and apply the Constitution himself, in any situation in which he might find himself, and may not relinquish the responsibility for doing that to supervisors, legal counsel, or even judges. If you read the opinion in Marbury v. Madison carefully, you will find that we are all on our own. One can say that this is a design flaw in the Constitution, but it is not. It is the only way a constitution can work, and if that is too much of a demand on citizens of a republic, then there is no constitutional design that can work, and a constitutional republic is impossible.

The founders adopted a system of constitutional republican government to surpass the limitations and defects of the old common law system, which incorporates nonconflicting parts of the common law, but established a completely new foundation on a historical act of ratification, not on custom, tradition, or precedent, except mainly to provide the definitions of key terms.

Congressmen routinely violate duty under Constitution

I spent 1970-72 in Washington, DC, working with members of Congress and their staffers, and have had frequent contacts with them since. The subject of constitutional compliance has often come up. When I challenge the constitutionality of some proposed legislation, I often get that "You are the first person to contact us with that point."

Sen. John Glenn (D-OH) once admitted he disregards and has broken his oath of office to uphold the Constitution.

On July 16, 1996, the Senate Committee on Governmental affairs held hearings considering a bill to require Congress to specify for each new law which section of the Constitution gives it authority to pass the law.  Sen. Glenn spoke out strongly against this requirement stating, "Why, if we had to do that we could not pass most of the laws we enact around here."  He stated that  the Clean Water Act, Endangered Species Act, the Americans with Disabilities Act and others could never have been passed if Congress had to find authority for them in the Constitution.  He declared, "Americans just want us to solve America's problems of health and safety--and not be concerned if they can be constitutionally justified."

This is typical of the attitudes of members of congress, who, although few of them have a deep understanding of the Constitution, disregard it because their constituents don't make constitutional compliance a leading issue on which they decide who to vote for.

They also have, on more than one occasion, expressed to me (but not for attribution) that Congress passes many provisions that they know are unconstitutional (some have estimated more than 2000 per year), but they rely on the fact that the federal courts, and especially the Supreme Court, don't have time to hear cases on more than a few of those. In other words, their strategy is to flood the legal system with so much unconstitutional legislation that most of it will never be successfully challenged in the courts. This problem is the reason why many members of the federal bench have been pushing back, trying to avoid encouraging people to take constitutional issues to court, and encouraging them to take them to Congress instead.

I have asked several members about this and one of them once said to me, "If I only voted for things that are constitutional I wouldn't be re-elected." Others have said the same thing in similar words. So most of them know that much of what they are doing is unconstitutional. When I point out that Rep. Ron Paul gets re-elected by about 70% even when he is opposed, they seem baffled at how that can happen. I reply that Paul's constituents are not refugees from a libertarian planet. They are typical of people in other congressional districts, and that while they might wish Rep. Paul would "bring home the bacon" to their district, and say so, they also respect his adherence to the Constitution and vote for him despite their pocketbooks.

What the voters lack are leaders with some stature, such as constitutional scholars, to raise the issue of constitutional compliance for much of the legislation before Congress. If the question is framed as a choice between constitutional compliance and their pocketbooks, they often will vote for the Constitution. But their election choices are seldom framed to them in that way.

Stettinius v. United States shows original meaning of "criminal jury trial"

The case of Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322, needs to be studied to understand the original meaning and role of the jury.

There is one paragraph in this 1839 case which is key in the support of my position that the original standard for what a criminal jury trial was included arguing issues of law in the presence of the jury:

It is admitted by all who have advocated the right of the jury to decide the law in criminal cases, that that right extends only to the finding of a general verdict upon the general issue. When the issue is on some collateral point, it involves no question of law, but is confined exclusively to facts. When the verdict was upon such a collateral issue, there was no attaint. That process lay only in cases where the jury undertook to decide the law by a general verdict on the general issue. Whenever, by the pleadings, the law was separated from the fact, so that each could be seen and considered by itself, no [**15] pretence that the jury had a right to decide the pure unmixed question of law, has ever been set up by the wildest advocate of the rights of juries. In the trial of the impeachment of Judge Chase, Mr. Randolph, one of the managers of the prosecution, in speaking of this right of juries to decide the law, calls it "their undeniable right of deciding upon the law as well as the fact necessarily involved in a general verdict." He said, also, "There is, in my mind, a material difference between a naked definition of law, the application of which is left to the jury, and the application, by the court, of such definition to the particular case upon which the jury are called upon to find a general verdict. Surely, there is a wide and evident distinction between an abstract opinion upon a point of law, and an opinion applied to the facts admitted by the party accused, or proven against him." Speaking of the prior decisions of the same points of law in some former cases by other judges, Mr. Randolph said, "They exercised the acknowledged privilege of the bench in giving an opinion to the jury on the question of law after it had been fully argued by counsel on both sides." Again, he said, [**16] "I do not deny the right of the court to explain their sense of the law to the jury, after counsel have been heard, but I do deny that the jury are bound by such exposition." Mr. Early, another of the managers of that impeachment, said, "It is no part of my intention to deny the right of judges to expound the law in charging juries; but it may be safely affirmed that such right is the most delicate they possess, and the exercise of which is to be guarded by the utmost caution and humanity." Mr. Edward Tilghman, who was examined as a witness in the trial of that impeachment, testified, that in Pennsylvania, the judges, "in their charge to the jury, state the law and the evidence, and apply the law [*1328] to the evidence. The court generally hear the counsel at large on the law; and they are permitted to address the jury on the law and the fact; after which the counsel for the state concludes. The court then states the evidence to the jury, and their opinion of the law, but leaves the decision of both law and fact to the jury." In Croswell's Case, 3 Johns. Cas. 346, the counsel for the defendant admitted it "to be the duty of the court to direct the jury as to the law; and it [**17] is advisable for the jury, in most cases, to receive the law from the court, and in all cases they ought to pay respectful attention to the opinion of the court; but it is also their duty to exercise their judgments upon the law as well as the fact; and if they have a clear conviction that the law is different from what it is stated to be by the court, the jury are bound, in such cases, by the superior obligations of conscience, to follow their own convictions." The same counsel said further, that "in civil cases, the power of the court to decide the law, is absolute and conclusive, and may be rightfully so exerted. That in criminal cases, the law and the fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact." Judge Chase, in his answer to one of the articles of impeachment, says, "He well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law; and that hence results the power of juries to decide on the law as well as on the facts in criminal cases." [**18] "But he also knows, that in the exercise of this power, it is the duty of the jury to govern themselves by the laws of the land, over which they have no dispensing power; and their right to expect and receiver from the court all the assistance which it can give for rightly understanding the law. To withhold this assistance in any manner whatever; to forbear to give it in that way which may be most effectual for preserving the jury from error and mistake; would be an abandonment, or a forgetfulness of duty, which no judge could justify to his conscience, or the laws." And in the opinion which the court had prepared in the Case of John Fries [Case No. 5,126], they said: "It is the duty of the court, in all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to decide in this, and in all criminal cases, both the law and the facts, on their consideration of the whole case."

______
Now the above is not a holding, in that it was not the basis on which the case was decided (in favor of Stettinius, on the grounds the statute did not apply to the facts in the case). However. it does contain undisputed assertions that can be reasonably treated as declaratory of the law, and such dictum cited as such, just as the dictum in Marbury v. Madison

An earlier case, United States v. Fenwick, 25 F. Cas. 1062 (1836); 4 Cranch C.C. 675, makes a similar point, that the defense in a criminal trial has the right to argue the law to the jury (along with the bench and rest of the court), up to the point where the bench rules on the motion, and that such ruling is not to be made until all parties have concluded their arguments.


Sparf v. Hansen, 156 U.S. 51, 64 (1895), http://www.constitution.org/ussc/156-051jr.htm , did not overturn Stettinius. It only briefly mentions the case and does not contradict it:

These principles were applied by Judge Shipman in United States v. Riley, 5 Blatchf. 204, 27 F. Cas. 810, and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. United States, 5 Cranch C.C. 573, 22 F. Cas. 1322. They were also applied by Judge Jackson, in the District of West Virginia, in United States v. Keller, 19 F. 633, in which case it was said that although an acquittal in a criminal case was final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in order to discharge its whole duty, must take the law from the court and apply it to the facts of the case.

______
Shepardizing the case finds no other cases which could be construed as overturning Stettinius, so it may still be cited in court.

The URL for Stettinius is http://www.constitution.org/usfc/fc/22/Stettinius_v_US.htm and for Fenwick is http://www.constitution.org/usfc/fc/25/US_v_Fenwick.htm .

Jury size matters

In my article, "Mansfieldism Reconsidered", section "Trial by Jury", http://www.constitution.org/lrev/jdr/mansfield_recon.htm I state:

A unanimous verdict of twelve makes it more probable than not that there will be at least one juror who does not think the law makes the alleged act an offense if there is not at least a 94% level of support in the community for acts of that kind being offenses.

The key idea is that the jury system is not based on the assumption that the public from whom the jury is selected will be uniformly wise and skilled at jury duty. If it were, there would be no need for a jury of more than one.

Historical analysis indicates twelve was not just a "magic number", but a number arrived at through experience trying other sizes. The use of the number 15 for Scottish juries appears to be a legacy of that experimentation. And the ancient Athenians tried juries of 201 and sometimes 401.

Twentieth century "law office history" seems to hold that the size of the jury is to provide a "cross-section" of the public. In Williams v. Florida, 399 U.S. 78 (1970) the U.S. Supreme court sustained a state jury of less than twelve persons, finding that six was sufficient to provide a "cross-section". But from the experience of lawyers in jurisdictions where they have a choice of jury size, defendants usually choose twelve, which suggests a different dynamic, and that a jury of twelve provides a higher level of protection of rights, not just representation of diverse views.

Jury systems were established because the public could not trust the presiding officers of courts, the "bench", any more than they could trust the parties and their lawyers. Juries were thought to be less susceptible to being corrupted because they are assembled at random and serve for too brief a period of time to be easily compromised. On the other hand, juries composed of randomly selected citizens were also not as expert in deciding legal questions, and if they are not called to jury duty often enough to gain experience, the system has to rely on the attributes they bring with them from their ordinary lives. Justice systems tend to hold visions of things like a "reasonable man", an "ideal judge", or an "ideal juror". If any random selection of jurors drew nothing but ideal jurors, willing and able to exercise sound judgment and perceive the attempts to deceive them, so that they never render a verdict that would be a miscarriage of justice, then there would be little controversy about either using juries to bring verdicts, or the size of them. The system does not and can not depend on every citizen in the jury pool being ideal jurors, but it can work if a sufficiently large proportion of that pool are "adequate" in their judicial attributes, sufficiently resistant to miscarriages of justice, and the jury size is large enough to make it sufficiently likely that at least one such adequate juror will be selected, and, in a criminal case, the verdict is required to be unanimous.

Consider the formula

n^j = r

where n is the proportion of the population from which the jury is drawn who don't know or care how to be good jurors, j is the number of jurors in a jury, and r is the conviction rate.

Let's look at an array of several values of n, j, and r:

.98	6	0.8858
.98	12	0.7847
.96	6	0.7828
.96	12	0.6127
.94	6	0.6899
.94	12	0.4759
.89	6	0.4970
.92	12	0.2470

If the values of n can be taken as the proportion of the jury pool who does not take its jury duty seriously, then 1 - n are the proportion of those who do. That means for the jury system to render justice, for a jury of 6 we need to educate at least 11% (1 - .89) of the population to be good jurors, whereas for a jury of 12, we only have to educate 6% (1 -.94). In other words, the number of jurors required to make a jury can make all the difference between whether our efforts at public education are feasible. Reaching 11% is not just twice as difficult as 6%. It is likely to be 100 times as difficult. If civic education is not sufficiently productive of adequate jurors, then the remedy might be to increase the size of juries, perhaps to a number well beyond 12.

The historical background for the 12-person jury lies in English common law, where crimes were not in general defined by statutes, but by custom and tradition. Therefore, a jury was not just deciding whether the accused actually did the deed, but whether the deed itself was a crime. Without doing a mathematical analysis, their experience would tend toward a system in which there was at least 94% community support for a deed of a certain kind being a crime, if only to avoid public protests from those who did not support that.

The remaining challenge, then, is to prevent voir dire from being conducted in a way that strikes the few good jurors. To the extent the prosecution can identify them, the number of strikes it gets is sufficient to get juries that would convict a ham sandwich.

Right to petition does not entail a right to get an answer

The suit of the We the People Foundation (WTP) v. U.S. makes a flawed argument, that the right to petition entails the right to get an answer. It does not. The right to petition is only the right not to have a petition penalized or obstructed.

1. There is a right to answers to some kinds of questions, but not all kinds. The kinds to which we have a right include questions to officials of the form "What actions have you committed?" and "How and how much public funds did you expend?" An example of a kind to which we do not have a right is "What is the time of day?"
2. There is a right to redress, but the redress is not, with the exception of the kinds of questions to which we have a right to answers as in (1), the answers themselves, but the remedy sought if they do not answer. The proper historical names for the remedies are the prerogative writs, such as quo warranto, habeas corpus, prohibito, mandamus, procedendo, and certiorari. The correct way to have framed the WTP petition was as a petition for a writ of quo warranto, under which if the government does not provide answers, that is, proof of its authority to require persons to file returns and pay income taxes on wages, then the petitioners obtain the redress of a judgment by the court that the government must cease making and enforcing its unauthorized claims.
3. The provision of the U.S. Constitution that provides the basis for this right is not the First Amendment Right of Petition, which is only the right not to be penalized for petitioning, or obstructed in doing so. It is also not the Fifth Amendment Right of Due Process, which is only about restrictions on the ways that the exercise of rights may be disabled. It is not contained in the Seventh Amendment provision "rules of the common law" because that only applies to cases tried by a jury. It is contained in the Ninth Amendment, but the way to support that is to go back to the amendments proposed by the state ratifying conventions, which include:

• "Provided, That all commissions, writs, and processes, shall run in the name of the people of the United States, and be tested in the name of the President of the United States, or the person holding his place for the time being, or the first judge of the court out of which the same shall issue." New York Ratification Debates, http://www.constitution.org/rc/rat_ny.htm
• “10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• “That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.” “That the Privilege of the Habeas Corpus shall not by any Law be suspended for a longer term than six Months, or until twenty days after the Meeting of the Congress next following the passing of the Act for such suspension.” New York Ratification Declaration, http://www.constitution.org/rc/rat_decl-ny.htm
• "10. That every freeman, restrained of his liberty, is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same if unlawful; and that such remedy ought not to be denied nor delayed.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
• "12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• "12. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property,or character; he ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm
• "1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” Virginia Convention Bill of Rights, http://www.constitution.org/rc/rat_va_23.htm
• "1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” North Carolina Declaration of Rights, http://www.constitution.org/rc/rat_nc.htm

From there we have to go back to the historical meaning of those writs, adopted by reference, as remedies which may sought by the sovereign, which, following the Declaration of Independence, became the people, any one of which may appear on behalf of all.

Now, I realize this chain of reasoning is somewhat vague and indirect, and that is has been taken advantage of to deny the remedies, but if it is really understood the principles are clear. Our job is to not only understand it but assert it, and perhaps get a constitutional amendment that makes it explicit.

Why campaign finance reform efforts have it backwards

When I ran for Congress in Texas in 1974 I learned something important from my press agent: that one of the most important ways to influence voters were local, mostly weekly, newspapers, but that they would not provide free coverage unless the candidate buys advertising, and the amount of free coverage will be approximately proportional to the amount of advertising purchased. I later learned the same rule applied to radio. (That was before talk radio had become as great a factor.) I also found that, despite their protestations to the contrary, the attitude toward the candidates conveyed in free coverage was strongly influenced by the amount of advertising bought either by the candidate or by his known supporters, especially local businesses. Thus, if you had the support of local car dealers, you were likely to get more favorable coverage because car dealers pay for a lot of ads.

Not all of the media depend for their revenue entirely on advertising. Some get a substantial part of it from subscriptions or street sales. Those respond to what they perceive (correctly or not) as what their readers are willing to pay for. Some of them have come to realize that this will depend on the season (more interest in election information in the weeks preceding an election) or on recent events (e.g., legislation proposed or enacted that adversely affects people in the market for the media outlet).

The main reason why electoral processes worked better to avoid rent-seeking behavior in the early period of the United States was that voters demanded political information and were willing to pay for it. If a newspaper published the entire text of long speeches by candidates, they would sell more copies, and sell more copies than their competitors who didn't do that, enough to offset the additional cost of printing more column inches.

So the key to solving this part of the problem is to find ways to get more voters to seek out and pay for political information, and to do so in the mainstream media rather than in magazines, newsletters, and the Internet.

Part of the problem is that too many voters don't really think there is enough difference among candidates in what they are likely to do to justify them making the investment in time and money in acquiring more information. This is the problem of "rational ignorance".

I once joked to friends that the way to solve the problem would be to require that in every election there be a candidate who, if elected, would enact legislation that would select a date at random from the calendar, then summarily deprive everyone born on that date of all his property and his right to acquire more, then throw him in prison for life, and to hide a clue in his writings and speeches that he is the one who would do that. It would only take a 1 on 365 chance of being reduced to poverty and imprisoned to motivate intense investigation of all the candidates by every voter. But in fact that is exactly what existing candidates promise all the time, albeit not in those terms. It is just that voters don't think it will happen to them. If they realized it could, that would make a difference.

New Year's Greeting

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'
'The question is,' said Alice, 'whether you CAN make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'
Through The Looking-Glass: And What Alice Found There
Lewis Carroll

A word or statement has several meanings:
1. The meaning it had for the writer when he wrote it.
2. The meaning it had for the reader when he read it.
3. The meaning the reader thought it had for the writer when he wrote it.
4. The meaning the writer thought it would have for the reader when he read it.
5. The meaning the reader thought it should have had for the writer if the writer knew what the reader does.
6. The meaning the writer thought it should have for the reader if the reader knew what the writer does.
7. The meaning the reader thought the writer thought it would have for the reader when he read it.
8. The meaning the writer thought the reader thought it would have for the writer when he wrote it.
9. The meaning it has for the reader upon further reflection, perhaps years later.
10. The meaning it has for the writer upon further reflection, perhaps years later.

And then there are the meanings that third parties think the writer and the reader had at various stages in their evolution.

Some people become attached to their favorite meanings, and insist that others use the word to mean the same thing, even when they know they aren't, and won't, or can't.

Makes you wonder why anything thinks communication among human beings is possible, or that they can ever act in concert on anything.

I would wish you a good year, but you might not get my meaning of that, so I will wish you an interesting year. You can take that to mean anything you want.

Rep. Ron Paul on not depending on the courts for constitutional compliance

Many "conservatives", such as Lino Graglia, are now taking the position that "judicial activism" (see http://en.wikipedia.org/wiki/Judicial_activism, http://www.fed-soc.org/Publications/hottopics/august.htm and http://www.constitution.org/lrev/kmiec/judicial_activism.htm ) is a
court overturning an act of a legislative branch. In other words, not deferring to the legislative (and presumably also the executive branch), but following the doctrine of "presumption of constitutionality". Lino made that point in an op-ed Sunday ( http://www.constitution.org/col/np/aas/050710_gra-lev.htm ), and in comments to the Austin Federalist Society meeting June 16 (televised and archived at http://groups.yahoo.com/group/LibertyProspects/links/Liberty_InterNet_Rad_001029099481/
). On the other hand, Randy Barnett, at a recent session of the Heritage Foundation ( http://www.heritage.org ) in Washington, DC, took the opposite position, that it is the presumption of constitutionality that is the problem, implying that courts should be overturning more acts of the other two branches. This seems to define the divide between "conservatives" and "libertarians" on this question.

Lino's argument, like that of Scalia and some other "conservatives", seems to be that it is improper to pass the entire burden of complying with constitutions (both U.S. and state) onto courts, and leave it with legislatures and the political process where it belongs. The position seems to be that it is unhealthy to relieve people of their responsibility to enforce constitutions politically, and it is better to let the people suffer from the effects of unconstitutional legislation to induce them to exercise their responsibility.

While this prudential argument has some merit, my constitutionalist position is that the oath that judges and other officials take, and which is also a duty of civilians even without taking the oath, is to enforce the Constitution in any situation in which one becomes involved, even if that means accepting the burden that has been avoided by others. The problem of the judiciary is not that they deny support to the other branches in making decisions, but that the other branches are derelict.

Contrary to Lino's position, it is not "making law" to refuse to cooperate with the actions of the other branches when those actions are unconstitutional. Lawmaking is directing the actions of officials to apply coercive means and expend public resources in doing so. It is not "lawmaking" to block such positive action, only to order that coercive action be taken and public resources expended in doing so.

It is my general finding that in almost every case in which a court has found an official act to be unconstitutional, the court has been right. Although I do not like the term "judicial activism", if I were to define it consistent with originalism, it would be to sustain official acts when their constitutionality is in doubt. If there is any doubt, the decision should be that the act is unconstitutional. The logic of the Constitution is the presumption of nonauthority, and the burden must always be on officials to prove their authority, and to refrain from any action if their authority for it is challenged, until that authority is proved. That is the essential meaning of the Ninth Amendment.

That is why I call for a voting rule for multi-judge panels that the panel must be unanimous to sustain the constitutionality of any official act.

Why haven't nukes in U.S. been set off?

It is no longer a secret that the U.S. intelligence community is warning of the existence of suitcase nukes already on U.S. territory under the control of terrorists. Specifically, the estimated number is six or seven such devices, and that the terrorists in control of them are al Qaeda. Some of the rumors are more specific, saying the nukes consist of five 100kt devices and two sub-5kt devices. One of the larger devices could take out most of the people in metro areas like New York or Washington, DC.



The usual question raised by these reports is, "If they have them here, why haven't they set them off?" The standard theory from intelligence sources is that the devices are not operational, due to lack of maintenance, and that we are in a race against time until they can get them operational.

I am skeptical of that theory. The devices are presumably among the 40+ Soviet devices that Gen. Lebed reported were missing from the Soviet inventory, presumably made and last maintained in the late 1980s. However, if those devices are copies of U.S. designs, the word I am getting is that while U.S.-made devices of this kind become less reliable after a long period of lack of maintenance, they don't suddenly cease to be operational, and may continue to be likely to go off, perhaps with a lower yield, for several decades after manufacture. For the purposes of terrorists, it is not essential that all of them go off when planned. A 50% rate of success would likely be considered good enough.

I have a different theory, based on my reading of some of the literature and web sites associated with the Islamic imperialist movement, of which al Qaeda seems to be a part. The announced goal of this movement is not just to defend existing Islamic nations from the corrupting influences of the West, or even to destroy Western Civilization as the source of that corruption. Some of their web sites have put up maps of the world in the year 2100 that have the entire planet converted to Islam, presumably under a new caliphate modeled on the theocratic model of the caliphates of the past, somewhat similar to the Taliban.

Let's take those maps seriously, and ask how the leaders of that movement envision accomplishing that goal. Not by sending out swarms of missionaries, the way Christians would do. Not even by sending out hoards of mujahedin to conquer Western nations and give their populations the choice of convert or die, the way Omar and others spread Islam to much of the Middle East, North Africa, and to the other nations where it is now the dominant religion. They know those methods would not work. So what would work?

The answer is terrifyingly obvious. Beginning with the leading Western nation, the United States, smuggle in suitcase nukes until enough are in place, then set them off in random cities at random intervals, while delivering an ultimatum that they will continue to set them off until all the survivors convert.

The initial reaction to such a plan is that it wouldn't work. Americans would never submit to that kind of pressure. They would strike back, wiping out most of the centers of Islamic imperialist activity.

Strike back at whom, and to what effect? Would we nuke Mecca, or Medina, or Qom? That's not where most of al Qaeda is. All that would do is unite the Islamic world against the West, playing into the hands of the imperialists, who might regret the loss of the people of those cities, and some of the relics, but that might actually be welcomed by the imperialists, who see not just the West, but cities generally, as the source of moral corruption. Their Utopian vision is of a world of subsistance farmers and herders, with no cities and no technology more advanced than firearms. They not only don't mind if all of the Western cities are destroyed, but even if all of their own are. Their thinking is similar to that of Pol Pot and the Khmer Rouge, who emptied the cities and killed anyone suspected of being influenced by modern civilization, evidenced by the use of such technology as eyeglasses. The difficulty we have had in just rooting al Qaeda and the Taliban out of Afghanistan demonstrates the obstacles to effectively responding to this kind of threat, especially if we had to extend it to much of the world, or even within the United States to the terrorists that are already here.

I have another theory, that al Qaeda thinks it needs more than six or seven devices, and that it wants to get all it needs in place before setting off the first one. How many would it take, and how many might Osama or his cohorts think it would take? For the answer to the latter question we would need agents on the inside of their inner circle, but we can make some good guesses about how many cities would have to be nuked before the American people would capitulate. Make no mistake. If enough of our cities and other vital resources are nuked, at random sites and at random intervals, even the proud Americans will surrender. Not all of them, of course. There will always be sone holdouts. But I expect that after 20 or 30 nukes go off, either what's left of the government, or a new government that will emerge, will enforce at least outward shows of conversion to Islam on the entire surviving population. Although many of us don't like to admit it, that actually works, and has historically worked. It might take a few generations of cognitive dissonance for anything like genuine devotion to sink in, and while the majority might always remain hypocrites, they will be afraid to express dissent, even in private conversation. Orwell's classic 1984 remains a How-To manual for doing this sort of thing.

So my theory is that al Qaeda is trying to get at least 20 to 30 suitcase nukes into the U.S. and in place before beginning to set them off. That means we still have some time to stop them, either by stopping them from getting control of such devices, or from getting them into the U.S., or of course, by taking out the imperialists themselves. That is certainly the job of the intelligence agencies, primarily, but they do not have a good record of being effective in operating in the parts of the world that they must operate in to get this difficult job done. Building the network of agents worldwide to meet this kind of threat takes a long time, perhaps more time than we have. It is a job for human intelligence ("humint" in spookspeak), more than for signals intelligence ("sigint").

This means that the current half-hearted window-dressing that passes for governmental border security is not enough, nor is there any indication that the current administration takes the threat seriously enough to commit the resources it would take to seal our borders. The voluntary Minuteman Project shows how it can be done: putting a lot more people on the ground and in the air. Increased funding on the order of 10-20% is not nearly enough. Even a 100-200% increase would not be enough. But the policy of "catch-and-release" (to come right back over the border) is also not sufficient. The illegal intruders who are caught should at least be put to work building a fence or wall along the border, before being sent back.

It is also necessary to take firm action against another form the invasion of the United States is taking: the takeover of land and officials by criminal gangs. We get reports that the drug cartels are buying up large ranches and parcels of real estate along both sides of the U.S. border, both with Mexico and with Canada, especially on the U.S. side of the border with Mexico, and also land to create corridors for the movement of the criminals not only across the border, but from the border to transshipment hubs near major metro areas. The formula is "plata or plomo", "silver or lead". Landowners, officials, and other personnel the gangs seek to compromise are first offered purchase or bribes, and if that doesn't work, killed or threatened with violence. There is some indication that the titles to ranches are not being legally transferred, by deeds of record, but the landowners are being left in place, pretending to still own the land, and instructed to not cooperate with law enforcement or voluntary efforts like the Minutemen Project. There is even reason to suspect that drug money is being used to influence "civil rights" organizations to file lawsuits against such efforts as 'discriminatory". Those "civil rights" organizations might not realize they are working for criminal gangs, or perhaps even for terrorists, but they need to wake up and realize what is going on. It is not about harmless foreign jobseekers any more. It is estimated that at least 20% of the intruders are now criminals, prone to commit not just immigration crimes, but crimes of violence. The criminals and terrorists are using the flow of harmless jobseekers as a cover.

The threat of this kind of terrorism also strongly argues for decriminalizing drugs. Prohibition of alcohol didn't work, and prohibition of other psychoactive substances isn't working either. It doesn't prevent acquisition and use. All is does is create a channel of corruption, and worse, now creates a channel of corruption that can be exploited by foreign enemies bent on our destruction. We have enough to do to try to defend our borders against smugglers of suitcase nukes without also having to contend with narcotraffickers that create the underground pathways over which the terrorists can operate.

But this threat also strongly argues strongly for reviving the constitutional militia. When Secretary of State Rice takes the position, as she did in a recent speech, that border security is the "exclusive job" of the government, she is taking a position that is dangerously inadequate. She deserves credit for alerting the public of the danger of the first sign of the threat being "mushroom clouds" over our cities, and of relating how her father once organized a militia to defend their neighbors from violence, but she and others in government need to realize that the efforts that government can make are not enough and can never be enough. Nothing less that the total mobilization of the entire population can hope to significantly reduce a threat of this kind. Yes, civilians are disorganized, untrained, and difficult to control, but so are government operatives. The solution is to organize and train the civilians to function not just as an informer network, which is the opposite of what we need, but as militia, able to meet local challenges locally, even to securing and disarming things like suitcase nukes. There is simply no way government operatives can provide the coverage that is needed. It will take everyone working. There is no really good substitute for requiring everyone to show up for periodic training and organization, if only to break down the barriers of anonymity that now allow criminals and terrorists to operate freely without anyone spotting signs of the threat some might present. Surveillance will require intense socializing and community activity that involves everyone. Many government agencies need to work on this within their own organizations. Could Aldritch Ames have gotten away with his espionage activities if his colleagues had visited him and his wife in their home and noticed he was enjoying a lifestyle his salary could not support? An agency might review the security clearances of its personnel if they don't pay their bills, but does it check up on those who pay their bills too easily?

Finally, I have a theory on why the Bush Administration went into Iraq. Now I am not excusing it as a matter of law. Without a declaration or war, or letters of marque and reprisal, issued to the President and forces under his command, it is illegal, a violation of several clauses in 18 USC Chapter 45, and grounds for impeachment. On the other hand, that doesn't mean that the Iraqi policy of the Bush Administration is not a good idea, apart from its illegality, which could have been avoided by getting Congress to issue a declaration of war or letters of marque and reprisal. I am also aware of many reasons for that Iraqi policy, among which securing the flow of Iraqi oil into world oil markets to keep down the world price of oil is not a bad one. But I find another good reason, one that involves more subtle strategic thinking than this Administration is perhaps able to manage, but which would do them some credit if it was part of their thinking. The theory is this: to give al Qaeda something it wants, a recruiting ground sufficiently rich to induce them to concentrate their efforts on an insurgency there, and to delay setting off nukes on U.S. soil, giving us more time to try to find and secure those devices. The reason I suspect it is not part of the Administration's thinking is because they don't seem to be doing all that it would take to keep more nukes out of the U.S. Perhaps they are doing more, and being more effective, than is apparent from sources of information available to me. I hope so, but I doubt it. They need to be doing so much more for border security and militia activation than they are, it seems unlikely they are pursuing a diversionary strategy that is not combined with such other elements of a complete strategy.

See
http://en.wikipedia.org/wiki/Suitcase_bomb
http://www.nationalterroralert.com/suitcasenuke/
http://nuclearweaponarchive.org/News/Lebedbomb.html
http://cns.miis.edu/stories/020923.htm
http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=25157

Thomas comes closest in Ashcroft v. Raich

The decision in Ashcroft v. Raich (restyled Gonzalez v. Raich since Alberto Gonzalez succeeded John Ashcroft as U.S. Attorney General) is a setback for constitutional fidelity. Of all the members of the U.S. Supreme Court, only Justice Clarence Thomas came close to getting it right, and even he got it wrong on a few points.

For the decision see http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html , and particularly the dissent of Justice Thomas. While he gets the essentials of original understanding of the Commerce Clause nearly correct, he commits the first error in considering the original meaning of "commerce" to include both "goods" and "services". My research, including recent research of documents archived from the Founding Era, makes it clear that originally it included only tangible commodities, not services, and that the defining attributes were (1) transfer of title; (2) transfer of location (from a foreign nation or state to a different state in this nation); and (3) transfer of possession; and all this (4) for a valuable consideration.

His second error is to accept the doctrine that the power to "regulate" "implies" (authorizes) the power to "prohibit" or to impose criminal penalties (deprivation of life, limb, or liberty). The power to regulate originally meant only the power to restrict some modalities of something, not all modalities, and it only authorized the civil penalties of deprivation of property or privileges.

The third shortcoming of his dissent is not to make it more clear that the delegation of a power is only authorization to make a certain kind of effort, not to do whatever it might take to obtain an outcome. The Necessary and Proper Clause only makes sense, "for carrying into Execution", if understood in this way. The express delegation of a power may only define a subject matter, but it should always be understood that the delegation is not plenary within the meaning of the subject matter, but is further restricted to constitutionally legitimate public purposes, which if exceeded are abuses of discretion. The Constitution is not written to enable the achievement of any or all of the purposes for which delegated powers might be exercised. If the effort authorized by the delegation is not sufficient to accomplish the purpose, it may be because the outcome is beyond the competence of government, or it may mean the Constitution needs to be amended to delegate additional powers, but it is not a legitimate remedy to expand powers to whatever extent the accomplishment of a desired outcome may require. That would be a formula for extending powers without limit in every subject area, because there are always outcomes that no delegation or exercise of governmental powers can achieve.

See my article "Original Understanding of the Commerce Clause" at http://www.constitution.org/col/02729_fed-usurp.htm.

French voters reject incompetent European Constitution

Today 55% of the voters of France showed they had enough sense to reject a European "constitution" that must stand as the most incompetent effort to draft a national or federal constitution in history. At http://www.constitution.org/cons/natlcons.htm we have copies or links to every national constitution we have been able to find, both past and current. None of them, including the Constitution for the United States, is perfect, and some are pathetic or corrupt, but none of them are as badly drafted as the proposed "constitution" of Europe.

The art of constitution writing is a highly advanced art. It is not just another kind of legislation. Every word is critical, and a single defect in wording or punctuation can make the difference between success and failure of the government and its society. There are probably not more than a dozen persons on Earth who have the advanced skills to do it right. Compared to constitutional design, fields like computer circuit design, or the design of space missions, are trivial. The men who designed the U.S. Constitution were geniuses who spent decades of intense study and the years between 1776 and 1787 experimenting with the design of their state constitutions. During the ratification debates of 1787-89 nearly the entire population of the American states became experts in constitutional design in a way that no other population has done before or since, hammering out a common understanding and agreement on the meanings of the words in the proposed Constitution drafted by the Philadelphia Convention. Even so, they left many ambiguities that led to civil war and ongoing controversies that continue to this day.

I usually refrain from criticizing the ways the constitutions of other nations are written, because the peoples of those nations seldom understand the criticisms and are just offended by the criticisms in a way that prevents them from thinking about what I am saying. I have avoided much criticism of the proposed European "constitution" because I wanted to let the Europeans discover its shortcomings for themselves. Unfortunately, a few of the proposed member nations have ratified it, allowing their hopes to triumph over their intellects.

The problem with the draft is that it is the result of political negotiations and compromises that became expressed in what is not a law but a political document, worded like a political platform or party manifesto, full of vague aspirations, suggestions, and abstractions that are the kinds of things overschooled European intellectual imbeciles would come up with.

The English version of the proposed European "constitution" is at http://europa.eu.int/constitution/en/lstoc1_en.htm and its deficiencies should be readily apparent to anyone familiar with the U.S. Constitution or its state constitutions, but I will just point out a few examples of them:

The term competences. What does that mean? It is used throughout the document, and seems to suggest authority to do something, rather than ability to do something with a likelihood of success. It is associated not with specifics like legislative bodies, officials, or courts, but with the "Union" generally. It does not delegate powers, or mandate their use as duties, or forbid the exercise of specific powers as rights, or specify procedures for taking actions or making decisions, including interpreting the provisions of the "constitution" itself. What does it mean that "the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas".

The term right. Instead of using it correctly to refer to restrictions on the powers of government officials, it is used loosely as "principles" that are nowhere defined, or suggestive of some vague "rights" to receive a sufficiency of a scarce resource, which has no place in a constitution of government. Socialistic drivel.

The various principles. What in the world is the "principle of conferral", the "principle of subsidiarity", the "principle of proportionality", the "principle of sincere cooperation", or any of the other "principles" it refers to? Sounds like a formula for the exercise of unlimited powers.

What does it mean that "The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions." What does "jointly" mean, and what does "functions" mean?

What does it mean that "Representation of citizens shall be degressively proportional"? How does anyone get from that to an exact number of representatives for each well-defined group of citizens, and who decides? Sounds like empowerment of some legislative body to exercise plenary powers to effectively rewrite the constitution from one day to the next.

What does it mean that "Citizens of the Union shall enjoy ... the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections ..."? Even children, or the mentally incompetent, or convicted criminals?

I could go on, but the reader can find more of the same kind of deficiency. The problem is that more voters in the European countries haven't pointed out these shortcomings in their public debates.

A properly designed written constitution of government must specify structures, procedures, rights, powers, and duties with sufficient unambiguity and precision that most ordinary people can understand all its provisions and consent to all the processes by which disputes over their interpretation are decided. Ultimately, all law rests on common understanding and consent by the people in general. It must provide for every process contingency and not mandate anything that is beyond the competence of government, such as providing people with a sufficiency of some scarce resource. "Creative ambiguity" might work for some treaties if all parties are cooperative, but it does not work for constitutions or other kinds of laws. It must never presume consensus on anything but the text of the written constitution, and allow for worst-case scenarios: wars, depressions, natural disasters, subversion, corruption, incompetence, and popular ignorance and passion. The American Constitution arose out of recent experience with war and depression. Hopefully, Europe won't have to go through another war to learn to get this kind of thing right.

The proponents of an European constitution need to go back to the drafting process with the help of competent constitutional designers, without the involvement of politicians or diplomats.

Contrasting Conferences

This is a report on two conferences I attended during early April, 2005, both on the topic of the Constitution, but profoundly different in many ways that are instructive. I expect to modify and expand it over the coming days, so look to my blog at http://constitutionalism.blogspot.com for the latest version.

The first was a gathering of self-identified “conservatives” entitled “Judicial Tyranny”, held in Washington, DC, April 7-8, details of which can be found at http://www.stopactivistjudges.org, sponsored by a group called the “Judeo-Christian Council for Constitutional Restoration”. In the discussion that follows, I will refer to this conference with the abbreviation JT.

The second was a gathering of self-identified “progressives” entitled “The Constitution in 2020”, held at the Yale University Law School in New Haven, CT, April 9-10, details of which can be found at http://islandia.law.yale.edu/acs/conference/index.asp, sponsored by a group, mainly composed of liberal-statist lawyers and law students called the American Constitution Society[1], http://www.americanconstitutionsociety.org/, which was formed to oppose the influence of the conservative-libertarian Federalist Society http://www.fed-soc.org. In the discussion that follows, I will refer to this conference with the abbreviation C2020.

The JT was only attended by about 100 persons, although they included a number of past and present public officials, such as U.S. Reps. Lamar Smith, Steve Chabot, and Todd Akin, or staff members representing Sens. Tom Coburn and Orrin Hatch. Former ambassador Alan Keyes spoke, as did former Alabama Chief Justice Roy Moore, and leaders of many of the conservative activist and evangelical Christian and Jewish groups. The first day of the JT was covered by C-SPAN, and the entire conference was videotaped, with DVDs of the proceedings available for purchase.

The C2020 was attended by a larger number, perhaps 600, mainly students from most of the universities that have ACS chapters. It appeared most were law students, and most of the students of the Yale Law School seemed to be there. The speakers and session leaders were mostly law professors or prominent lawyers. The only officials seemed to be some former judges. There did not appear to be any video cameras other than my own, and after I taped part of a general session a young lady on the conference staff directed me not to tape any of the breakout sessions, on the ground that it might inhibit candid participation. I took that to mean that the session moderators didn't want a record of what they would be saying to the student participants.

A sense of the C2020 can be obtained by visiting http://constitutionin2020.blogspot.com.

Neither conference presented any new papers or original contributions with which the attendees were not probably already familiar, other than a few handouts by the moderators in the breakout sessions.

Although the JT had a previously prepared "Declaration of Constitutional Restoration" with “action items” they wanted the conference attendees to approve and sign, the session was open to debate on the language of the Declaration. Several changes were made. Most of it was merely aspirational. I argued for deletion of two items that were unsound, the first of which is unconstitutional, and for the addition of a new item that would have advanced the cause, but the attendees were not prepared to understand my arguments and rejected my motions. However, in later conversation several said they agreed with me after further thought, and some decided not to sign the "Declaration of Constitutional Restoration" because of my arguments.

The C2020 did not discuss action proposals. There were general sessions at which a panel of 3-4 would take turns making their arguments for what was essentially a socialist agenda, although there were some mentions made of “reforms” that in practice would make it easier to elect liberal Democrats. At the end of each such session they took questions and statements from the audience, and I offered several myself, intended to introduce some new ideas to them. More about that later. There were also “breakout” sessions in which groups of 20-60 attendees were led by usually two moderators who made sure to frame the discussion to suit their agendas and make sure no new ideas not consistent with those agendas could be introduced. Every effort was made to encourage the attendees to recite a litany of socialist dogma, resistant to any challenges or innovation.

It is interesting that at both conferences many conference leaders claimed to be “constitutionalists”, and at least one of those at the C2020 actually claimed to be “strict constructionists”. People at both conferences complained of “activist” judges, but it was clear that the label applied to judges who made decisions they disagreed with, often without really understanding the constitutional issues. Both conferences were dominated by policy preferences, and in the case of JT, two action items, that are clearly inconsistent with the written Constitution as originally understood. The JT were more motivated to effect change, and the C2020 were more academically advanced, but from my standpoint they both have a long way to go to achieve what I would consider accurate and adequate understanding of the Constitution, of what is wrong in this country that relates to the Constitution, and how to make changes that might actually improve things from their own viewpoints. They also represent a cultural divide that won't talk to or listen to one another, or frame the issues in anything other than a conservative-liberal bipolarity, a term I choose deliberately to suggest it is a form of pathology that threatens this society.

Now in fairness to the people at both conferences, they are basically good people trying to do what they think is right. The people at the JT, however, were much more willing than the people at the C2020 to learn and consider new ideas, even though less intellectually prepared to do so. The people at the C2020, were, by contrast, amazingly closed minded, unwilling to consider anything that did not fit their ideological doctrines, even material of a purely mathematical character. They are two herds, composed of members unwilling to wander from the herd, although the JT people might eventually move in a new direction with enough guidance and thought. I suspect only hard experience will bring around the people at the C2020, and they aren't likely to get that in the academic world or even in conventional legal practice. At both conferences I said things and took positions that were fairly simple, straightforward, accessible, and not inconsistent with their ultimate goals, but which left the attendees stunned by incomprehension, unable to intelligently respond, even to ask questions. It is clear that if this country is ever to attain constitutional compliance, there is a lot of work ahead and not much time to get it done.

If we are to try to identify a single intellectual deficit of both groups of people it is what might be called linear thinking. Most members of both groups have a vague familiarity with the notion of unintended consequences, but it seems unlikely that many, or even any, of them know what a feedback loop is, outside of something that is a problem with sound systems, or how complex systems of many interacting feedback loops respond to interventions in nonintuitive and not easily predictable ways. They persist in seeking solutions to problems that are simple, direct, obvious, and wrong. The interesting thing is that they are not that far apart in their views of the ultimate state of society that is desirable. Where they differ is in their perception of the alternatives actually available and how those chosen would play out. I have noted before that it seems like the few people who grasp constitutional issues readily and competently are mostly comprised of persons with backgrounds in computer science and complex systems engineering. The “informal reasoning” taught to lawyers and most other people today does not prepare them to make policy or constitutional choices. Unfortunately, that too often means such decisions are either made badly, or are made by specialists paid to obtain an outcome favorable to some special interest against the best interests of society in the long term.

Society and constitutional issues were simpler in the Founding Era, and it took highly motivated men of genius and a society of constitutional scholars to make constitutional choices that were barely adequate to the problems they faced then. Today the few who might make competent choices of that kind, to deal with the current complex situation, are marginalized and largely disregarded, and most today in decisionmaking positions come nowhere close to being able to attain even the level of understanding that the Founders struggled to achieve. People today have the tools to enable them to pretend to be wise, and to delude themselves into thinking themselves less inadequate than they are, but as long as they continue this self-delusion, they will never make the enormous effort that adequate understanding requires.

The final approved form of the Declaration of Constitutional Restoration issued from the JT can be found at their website. Most of it is aspirational and unobjectionable, but it contains two items that are objectionable from a constitutional standpoint, and one from a policy standpoint:

2) Congress should withdraw jurisdiction from all federal courts to hear any challenge to the Defense of Marriage Act, state marriage acts, or state constitutional provisions, which are claimed to be a violation of the U.S. Constitution.

3) Congress should withdraw jurisdiction from all federal courts to hear all challenges to the acknowledgment of God as a violation of the First Amendment Establishment clause, rightfully returning these matters to the several states.

5) When and where appropriate, Congress should reduce or eliminate the funding of federal courts, the salaries of judges excepted, that overstep their constitutional authority.

I made motions to delete (2) and (5), even though I also object to (3) on the same grounds as (2), but for the purposes of that effort it was sufficient to make my arguments once.

In my argument in support of my motion to delete (2), I admitted that there is a U.S. Supreme Court precedent, which I did not name, Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868), the opinion on which is at http://www.constitution.org/ussc/074-506.htm), that seems to support such congressional removal of jurisdiction from all courts, but that it was clearly decided wrongly. As I argue in my commentary at http://www.constitution.org/ussc/074-506jr.htm the purpose of having a judicial branch is to decide questions arising under the Constitution and laws authorized by it, that if Congress could constitutionally remove jurisdiction from all federal courts on one subject, they could do so on all subjects, and they could effectively destroy the judicial branch and subvert the Constitution by adding a provision to every bill that “federal courts shall not have jurisdiction to decide on the constitutionality of this act”, then proceed to enact something like “voters may vote only for the candidates approved by the Select Committee”.

In defending the provision, a member of the drafting committee, a lawyer, cited the McCardle decision, and while he seemed to recognize the logic of my argument, argued that it was not unconstitutional to do this on these particular subjects. Of course, this doesn't work, especially when as in (2) it is applied to an Act of Congress. Although it has not been often invoked, the McCardle decision is one of the more pernicious, subversive, and potentially dangerous USSC decisions ever made. If people are going to complain of judicial tyranny, they should not make proposals that rely on instances of it.

In my argument on a motion to delete (5) I said that one of the main reasons for judicial tyranny is overcrowded dockets due to inadequate funding, which, as long as the judges are paid, doesn't hurt the judges, but only the litigants, and results in too many decisions made hastily, without due consideration of the arguments, often on the basis of personal relations with the lawyers. Reducing funding of the courts would not put pressure on judges to make better decisions, but worse ones, and removing all funding would not just inconvenience the judges, but would have the effect of removing their dockets, so that they could play golf while receiving their salaries, perhaps sign a few ex parte orders for their buddies, while litigants would be screaming for justice and perhaps resorting to violence and civil disorder when they didn't get it. This proposal is another example of one that is simple, direct, obvious, and wrong, that would produce results exactly the opposite of what is intended.

Now part of what is going on here is an effort of some conservatives to increase the power of Congress at the expense of the Judiciary, because they perceive that they now control Congress, and that the liberals control the Judiciary. Interestingly, at the C2020 a panelist made the statement exactly to that effect, that progressives control the Judiciary and need to gain more control over it, largely, it seems, by indoctrinating the next generation of lawyers and judges.

The reality, of course, is that both sides are wrong, from a competent constitutional standpoint. More than 98% of the instances of judicial tyranny consist of sustaining unconstitutional acts of Congress and the Executive Branch, so it is not a solution to reduce the restraint of the Judiciary on those usurptive branches. In the rare cases in which federal courts have overturned acts of the other branches, they have almost always gotten it right. The single most important thing the federal courts need to do to reduce judicial tyranny is to hold more acts of Congress and the Executive Branch unconstitutional. As sympathetic as I may be to the concerns of the people at the JT, I am concerned that they are unwittingly playing into the hands of a faction for whom “constitutional restoration” is only a cover for an unconstitutional agenda of their own.

After my motions to delete items (2) and (5) were rejected, with not a single vote in favor other than my own, I proposed adding an item that might ultimately operate to restore constitutional compliance:

Congress should amend the Rules of Judicial Procedure to require that in all cases in which the government is a party, all issues of law shall be argued in the presence of the jury, that the jury shall receive copies of all pleadings, and that the jury shall have the use of an adequate law library.

In support of my motion I explained that in the late colonial and early Republic period it was standard due process to argue all issues of law in the presence of the jury, because even though they were not asked to decide motions, in rendering a general verdict, such as guilty or not guilty, they were necessarily ratifying the decisions on motions by the bench, and could not properly bring such a verdict without hearing the evidence of the argument on the motions and the ways the decisions of the bench were made.

I made the same argument in a question I put to a panel at the C2020 that included the lawyer David Boies, asking them to join me in supporting the proposal. More on that below.

After I made my argument at the JT, long-time conservative activist Howard Phillips rose to support my proposal in the future, but said it thought it was premature at this time. The lawyer on the drafting committee was asked what he thought and said he would need a few months to study the matter. When the vote came, I did get some timid votes, indicated by the ayes being spoken softly, but the nays were louder and more numerous. I wonder whether, if there had been several votes, more of the attendees, realizing there was some support, might not have joined in supporting it, sensing the movement of the herd.

The somewhat limited proposals of the Declaration of Constitutional Restoration should be compared with the more comprehensive, detailed, and effective proposals contained in several documents on my website:

1. Constitutionalist Platform http://www.constitution.org/pol/us/consplat.htm
2. Declaration of Constitutional Principles http://www.constitution.org/consprin.htm
3. Statement of Grievances and Demands for Redress http://www.constitution.org/grievred.htm
4. Legal Reform Act http://www.constitution.org/pol/us/leg_ref_act.htm

I provided printouts of these documents to the lawyer on the drafting committee for their consideration in drafting future proposals. We will see what becomes of that.

In contrast, there was no opportunity to hand out papers at the C2020. Only the moderators of the breakout sessions seemed to have been allowed to do that. The conference leaders seemed to be trying to maintain tight control over what was said and read. The most I was able to do, other than during the general session questions, was to mention www.constitution.org and pass out my business cards.

I made three question-comments in the general sessions. The first was to a panel composed of Guido Calabresi, Judge in the U.S. Court of Appeals 2nd Circuit, and Patricia Wald, former Chief Judge in the U.S. Court of Appeals DC Circuit, and moderated by Paul Gewirtz:

If we are to take seriously the authority of the written Constitution as the “Supreme Law of the Land” then we need to re-examine the way we have come to use stare decisis, and recognize that in treating judicial precedents like constitutional enactments, untethered to the written Constitution as originally understood, we are making judicial decisions that are in fundamental conflict with the written Constitution.

Judge Calabresi made an intelligent response to my comment, explaining to the audience that each decision based on a previous decision can drift away from the written Constitution, and that it may become necessary to “ratchet it back” by reversing some of those precedents. Judge Wald did not respond directly to the point, but identified herself as a “strict constructionist” on some issues. It would be interesting to explore further what she meant by that.

My second question-comments was made to a panel consisting of law professors Yochai Benkler, Pamela Karlan, Burt Neuborne, and Nate Persily, moderated by Robert Post. Their discussion had been on partisan gerrymandering, so I said:

I filed an amicus curiae brief in Session v. Perry, the Texas Redistricting case. I found there were two groups of litigants, one arguing for setting aside the 2003 map gerrymandered in favor of the Republicans, and returning to the map of 2001, gerrymandered in favor of the Democrats, and the other favoring the 2003 map. In my amicus brief I argued that the arguments for setting aside the 2003 map are valid, but also apply to the 2001 map, and no one was representing the Constitution or the people with a nonpartisan solution. In my brief I proposed using computer software developed by the staff of the Texas Legislative Council that works very well to randomly draw maps that are equal in population, compact, contiguous, aligned to political boundaries, and simply-connected, and have it draw many such maps, selecting one at random, leaving the legislature with only the task of legislating the specifications for the program to draw the maps, without human intervention in the actual drawing. This nonpartisan solution did not come from a Republican or a Democrat, but from a Libertarian.

There was no response to my comment, indicating to me that the panelists had no interest in nonpartisan solutions, only in advancing their own partisan agenda any way they could.

My third question-comment was made to a panel composed of lawyers David Boies, John Podesta, Theodore Shaw, and Kathleen Sullivan, moderated by Walter Dellinger:

The standard of due process during the late colonial and early Republic period was to argue all issues of law in the presence of the jury. This is shown by transcripts of some of the trials during this period, some of which can be found online at www.constitution.org.[2] This is not the practice today. It was recognized then that although juries were not asked to decide motions, in bringing a general verdict of guilty or not guilty they were necessarily ratifying the decisions of the bench on motions, and they could not bring a verdict intelligently if they could not hear the legal argument and decide whether the bench had decided correctly. Are you prepared to join me in trying to remedy this departure from due process and get all legal issues argued before the jury?

They didn't respond, other than that David Boies had a surprised and perhaps alarmed expression on his face, and the moderator, Dellinger, said the proposal was “interesting”.

The first breakout session I attended was moderated by Bruce Ackerman and Jacob Hacker, but Ackerman took control of recognizing people to speak. He recognized me once, and I said, in response to confusion about how economic inequality occurs and persists:

These problems are well understood, but the understanding is not spreading rapidly. For example, if you go to www.constitution.org, click on Basic Principles, and scroll to the bottom, you will find links to papers on aggregating networks.[3] This research explains how the rich get richer, why equal distributions of wealth are unstable, why monopolies occur, and why a single species will displace all others in an ecological niche.

Ackerman asked me to summarize the research, which I did. But thereafter he pointedly refused to recognize me for further participation, turning to each of the others several times. It was clear that he didn't want the introduction of new ideas.

One thing that was interesting was Ackerman's pushing of his proposal that the rich be taxed enough to pay everyone, including the rich, $80,000 a year, without them having to do anything to earn it. He admitted at one point this might cause problems like capital flight (no kidding!), and he seemed oblivious to the problem of who is going to produce anything to tax if no one has to work. Perhaps Americans are to own the production of the rest of the world and pay themselves dividends for exploiting foreign labor. Hmm. Doesn't sound very progressive to me. No wonder they didn't want the breakout sessions taped.

After the session, I shook his hand and said, “Thank you for systematically ignoring the one person here who actually has solutions.” He grinned and said, “You have solutions?” Of course, progressives don't want solutions. They want the problems to persist that justify their activities. Like government workers everywhere, actually solving problems would put them out of their jobs.

That session with Ackerman ended early, so I had time to slip into another breakout session just before it ended, and I said:

All these discussions are ignoring the problems of legal and judicial misconduct and abuse. I cite as typical the case of a former lawyer who represented clients in seven civil rights cases against the Police Department of Lago Vista, Texas, one of which, Atwater v. Lago Vista, went to the Supreme Court, but without the original attorney, because the police chief went to a federal judge, who got the FBI to investigate the attorney, and miraculously “discover” that two sevens had been turned into nines in his social security number, which they used as the basis for a federal criminal charge, punishable by 5-30 years, which they used to pressure him into giving up his bar card, and thus drop the cases. Law professors teach law without criticizing judicial misconduct, because they are lawyers who can be disbarred for doing so.

The room responded with stunned silence. No one had anything to say about the problem of corruption in the courts and the practice of law.

Of these two conferences, clearly the JT was on a more promising track. Like most of them I grew up in a very different America, a small town in Texas where what are sometimes called “moral values” or “family values” were triumphant. There was some economic inequality, but no one was starving, and everyone who wanted to work could get a job and live comfortably. There were social circles, but no real social inequality. Everyone, rich and poor, went to the same churches and their kids attended the same schools. The kids went to school to learn, not to disrupt, making teaching them easy. Almost no one got divorced. There were no narcotics, almost no crime, no bullies, no gangs, and the kids didn't have too much money to spend, but had to earn it themselves. Everyone was on the same track to get as much education as possible, then start a career, and then and only then get married, have sex and start a family. It was idyllic, not just from a “conservative” viewpoint, but from a “progressive” one as well. Those were words we read in American history textbooks but they didn't have much relevance to our daily lives.

The situation was different in the cities, where the breakdown of values, as seen today, began, but even there the small town values prevailed until fairly recently.

But I witnessed the breakdown, and observed it closely. I understand very well what happened and why, and what might work to undo the decline, and what won't. A lot of people do, but too many people don't want to listen to what they have to say. They prefer their own theories and their own solutions. This is not the place to expand on what I learned about this, except to point out that it has nothing whatsoever to do with whether there is prayer in the schools, or whether homosexuals call their couplings “marriage”, or any of the many other things that too many people fasten on as the silver bullets to fix the problem of declining moral values. Until such folks, however earnest they might be, learn to put aside their delusions and come to understand what is really going on, they are likely to be more a part of the problem than a part of the solution.

Fortunately, these two conferences are not all that is going on in the field of constitutional compliance. If they were we would be in a desperate state indeed.

______

1 The ACS should not be confused with the Constitution Society, http://www.constitution.org, which I represent. They initially took the name Madison Society, but found another organization already had that name, and that we already had the name Constitution Society. Some have suggested a better name would be Anti-Constitution Society.

2 The transcripts of such trials, supporting my thesis, can be found at http://www.constitution.org/trials/trials.htm .

3 “Evolving Complex Networks in Constitutional Republics”, by Jon Roland, http://www.constitution.org/ps/ecncr.htm .

Terrorism, Civil Liberties, and Government Programs

The Constitution in 2020
Imagine for a moment you are the President of the United States. You are preparing to announce a new government program when an aide rushes in and tells you that Minneapolis has just been destroyed by a nuclear explosion. Hundreds of thousands dead or soon to die. Medical facilities overwhelmed. You know you will be expected to answer this attack, but how? You ask who did it, but no one knows, and no one is claiming responsibility. After several days of intelligence analysis, the best the intelligence agencies can do is report that it was probably a suitcase nuke and narrow it down to a short list of suspected terrorist groups and nations from which they may have operated, which includes some modern Western nations that are lax in their security measures.
While you are agonizing over what to do, Denver is destroyed. The armed forces are mobilized, but still no idea where to send them, or what they are to do when they get to wherever they are sent. You declare martial law in several cities where rioting is breaking out and people begin to flee the cities and loot stores and supermarkets for supplies. You discuss an all-out nuclear attack on the short list of suspect nations, but two of them have nuclear weapons already, and threaten to use them. Furthermore, Russia and China warn against such a response, hinting that they will launch a retaliatory attack on the U.S. if we attack any nation not proved to be responsible for the attacks on the U.S.
There follows a pattern of random cities being destroyed all across the U.S. at approximately one-week intervals. San Antonio, TX. New Haven, CT. Redmond, WA. Atlanta, GA. It goes on, and on, and on. You order general martial law, and seal the borders, pending inspection of all cargo entering the U.S., which proves to be impossible. In the meantime, people are fleeing the cities, rioting, forming armed groups to defend themselves against rioters, and detaining anyone who looks suspicious, including anyone of apparent Middle-Eastern extraction.
At this point I will leave it to the reader to think about what he would do as President, and ask readers to think about what this kind of all-too-real nightmare scenario might mean for our constitutional order. Preserving "New Deal values" would seem a luxury in the face of the threats of nuclear terrorism.
For discussion of these and other topics, I invite readers to our Constitution Society site and to our Constitution Blog. If I were to address the conference, it would be to examine these and other issues, and ask whether, even if such a nightmare can be avoided, "progressives" do not face a choice: between civil liberties and government programs (jobs). Much "progressive" thought presumes that government agents are for the most part benign, and abuses rare, but many of us note a disturbing trend toward abuses of constitutional rights as prevailing practice or even policy in more and more branches and departments of government. What "progressives" call "fundamentalists" would argue that such abuses are the inevitable consequence of progressive programs that are all too willing to expand government powers beyond what is delegated by the Constitution, abandoning the wisdom of the Founders that the only way to secure rights was to restrain government powers, not enhance them.

Talk to Government Investigator, Go to Jail

The following clauses have been prosecuted against individuals, such as Martha Stewart, by U.S. government agents. It is allegedly authorized by the Commerce Clause, extended not only to all economic activity, even intrastate, but to all activity whatsoever, even noneconomic:


http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001001----000-.html

TITLE 18 > PART I > CHAPTER 47 > § 1001

§ 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.

...


http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001510----000-.html

TITLE 18 > PART I > CHAPTER 73 > § 1510

§ 1510. Obstruction of criminal investigations

Release date: 2004-08-06

(a) Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.

...

(c) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.

______


http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001512----000-.html

TITLE 18 > PART I > CHAPTER 73 > § 1512

§ 1512. Tampering with a witness, victim, or an informant

Release date: 2004-08-06

...

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -

...

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation [1] supervised release,,[1] parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.

...

(h) There is extraterritorial Federal jurisdiction over an offense under this section.

...

______


http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001515----000-.html

TITLE 18 > PART I > CHAPTER 73 > § 1515

§ 1515. Definitions for certain provisions; general provision

Release date: 2004-08-06

(a) As used in sections 1512 and 1513 of this title and in this section -
(1) the term "official proceeding" means -

...

(C) a proceeding before a Federal Government agency which is authorized by law; or

...

(3) the term "misleading conduct" means -
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;

...

(4) the term "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant -
(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or

...

(b) As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.

...
______

There is reason to suspect several such prosecutions have been done using false evidence or testimony. In the Martha Stewart case, there were no audio or video recordings made or disclosed. It was the word of the investigators against hers.

It is the usual practice of investigators not to tape record such interviews, but to have two or more agents do it, and then file a report, Form 302 for FBI agents, then join in testifying in support of that report, even if it is itself not truthful. Without a tape, you can't subpoena it as evidence.

It should be noted that the technology now exists to speak into a microphone with one voice and have a computer transform the voice into that of another, in real time, with such fidelity that the falsification is not readily detectable even by expert analysis. Such transforming of video records is more difficult, and not yet possible in real time, but given enough time, a video can be produced that can have anyone saying or doing anything.

We cannot trust government agents not to use such methods to produce false evidence.

We must therefore issue this warning:

NEVER talk to federal agents on any matter whatsoever. Don't even give them the time of day, or your name or other information, unless they waive in writing, certified by a court of competent jurisdiction, all rights to prosecute for making false statements or obstructing an investigation, you are accompanied by legal counsel, have at least two independent witnesses you can trust, and the entire session is videotaped and multiple copies of the tapes widely distributed to the custody of trusted persons.

But to avoid being prosecuted for obstruction of justice for refusing to talk to them, you need to say something like, "I will only talk to you with advice of, and in the presence of, legal counsel. Give me your card and my attorney will contact you."

For more on why this code is unconstitutional see
http://www.constitution.org/col/02729_fed-usurp.htm

______
Since this article was originally posted with the title "Talk to Federal Investigator, Go to Jail", I learned of cases in which people are being prosecuted for "lying" to state or local "investigators", on the alleged theory that such nonfederal agents share their information with federal agencies, and thus are acting as agents for the federal government. The standards for evidence of what people might say to such nonfederal investigators are generally even weaker than for federal, often no more than the word of one agent against one civilian with no witnesses and no recording. Therefore, I have changed the title to replace the word "Federal" with "Government". Since there is no definition of what an "investigator" is, or even if such person has to be a government employee, the advice to people needs to be, "Don't talk to anyone about anything."

The government needs to make up its mind. It can either get the cooperation of citizens, or it can prosecute them for what they (may or may not) say.

We are entering the era in which only militia can get the cooperation from civilians needed to enforce the law. That suggests government agents need to abandon law enforcement and leave it to militia.

Give Social Scurity Number, Go To Jail

The following clause has been prosecuted against individuals by U.S. government agents. It is allegedly authorized by the Commerce Clause, extended not only to all economic activity, even intrastate, but to all activity whatsoever, even noneconomic:

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00000408----000-.html


TITLE 42 > CHAPTER 7 > SUBCHAPTER II > § 408

§ 408. Penalties

Release date: 2003-07-24

(a) In general Whoever —

...

(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose?

...

(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person; or

...

shall be guilty of a felony and upon conviction thereof shall be fined undhttp://www.blogger.com/img/gl.link.gifer title 18 or imprisoned for not more than five years, or both.

______

There is reason to suspect several such prosecutions have been done by altering the records of use of social security numbers to make it appear a false number was used. Since this can easily be done by anyone with access to the records, we must issue this warning:

NEVER give or disclose a social security number to anyone for any purpose whatsoever, unless they can and will effectively guarantee, in writing, secured by a large bond, that any records of the use of the number will be kept secure from all persons who might have the capability to physically alter them to change the number, for the remainder of your life. Furthermore, you must be able to make and keep your own copy of any such records in a secure location, backed by a video tape of the complete transaction, with all records verified by a notary, and affidavits of at least two independent witnesses to the complete transaction and the social security number you provide.

In principle it might be safe to provide a social security number just long enough to verify the records of the correspondent, if no record is made of the number provided, but this should only be done if one can be sure no record is made.

This is not a small matter. Convicting innocent persons on false evidence is suspected in several cases. Anyone having information about any such prosecutions is asked to contact the author of this article.

For more on why this code is unconstitutional see http://www.constitution.org/col/02729_fed-usurp.htm

Getting it right on the First Amendment

In his op-ed on the First Amendment,¹ Rich Oppel commits two errors, the first fundamental, the second seemingly minor, but both revealing of the difficulty in educating Americans on the principles of constitutional republican government.

First, the seemingly minor error. He asked, “Can the government censor the Internet?”. An English teacher would remind him that the correct word is “may”, not “can”. The question is not about physical ability but legitimate authority. Of course, government may not censor the Internet. However, we can also ask whether it can, and the answer is also no. Several repressive governments have tried and failed. The Internet was designed to survive nuclear war. It routes around censorship like any other errors.

Second, the fundamental error is found in his statement that “First Amendment rights ... could be withdrawn or curtailed by amendment of the Constitution.” The error lies in regarding rights as deriving from the Constitution as the source. The rights recognized in the First Amendment precede and are superior to the written Constitution of government. While it would be possible to adopt an amendment that would seem to curtail those rights, such an amendment would itself be unconstitutional, and the rights would continue even if their exercise were threatened by official repression.

There are actually three constitutions. The third is the written Constitution of government, framed in 1787, ratified in 1789, and subsequently amended.

The second is the unwritten constitution of the society, arising from the social contract that created the society, obliging its members to mutual defense of one anothers' rights, and involving decision by deliberative assemblies or conventions called by due public notice and conducted by established rules of procedure. It was such conventions that established the written Constitutions of governments, both federal and state.

The first is the constitution of nature, the elements of which are the laws of nature, the nature of human beings and their situation in the universe, and the constraints those things put on what is rational for humans to do. Ancient political philosophers wrote of “natural law”, and theologians identified it with “God's law”, but whether one discusses the principles in natural or theological terms is a matter of personal preference.

A well-framed constitution of government must conform to the superior constraints of first, the constitution of nature, and second, the constitution of the society. Provisions or amendments not derived from or in conflict with them are unconstitutional, just as are statutes not derived from or in conflict with the written constitution of government. “Unconstitutional” means lacking in legitimate authority, even if enforced by physical compulsion.

Each of these constitutions are the sources of their own rights. From the constitution of nature we get the rights of life, limb, and liberty, and the means to secure them, such as arms. From the constitution of the society we get the right to title to property and the rights of due process. From the constitution of government we get the rights of denizenship, including the rights to remain on and return to the location of our birth, and citizenship, including the rights of voting and holding office.

Due process does allow for the exercise of a right to be “disabled”, or restricted, either to resolve conflicts in the exercise of rights that infringe on one another, to protect innocent individuals from harm, or as punishment for an offense. It also allows such exercise to be waived temporarily in a particular proceeding. But disablement or waiver is not removal of rights, the exercise of which can be fully restored by the removal of the disablement or waiver.

Therefore, any amendment to withdraw or curtail the rights of assembly, petition, speech, press, or religion would be as unconstitutional as would an amendment to require objects to defy the law of gravity or make two plus two equal five. Only changing humans into a very different kind of being would allow that.

We need to convey a deep understanding of “legitimacy” or “legitimate authority”, and how it can descend or not by a logical chain of derivation from superior laws like the Constitution to lower level acts of officials. We need teach that law is not just whatever official like judges do, or can be expected to do, or can get away with doing, but what they are authorized to do, and that legitimacy does not stem just from the results of the last election, but from the original historic act of ratification of the written Constitution of government, amendments thereto, and the admissions of each state.

Jon Roland is founder and president of the Constitution Society with a website at http://www.constitution.org

1http://www.statesman.com/opinion/content/editorial/01/30oppel_edit.html?UrAuth=%60N%60NUO%60NTUbTTUWUXUTUZTZUTUWU_UaUZU%60U]UcTYWVVZV

H. R. 2028 unwise, unconstitutional

H. R. 2028 is an attempt by Congress to prevent certain decisions by the Federal Courts by restricting their jurisdiction, using the precedent of Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). The Bill has been cosponsored by over 200 members of Congress

Kent Snyder The Liberty Committee
http://www.thelibertycommittee.org

Like most simple solutions, this one, H. R. 2028, is misguided, and deceptively so. It is also unconstitutional itself.

The problem is not jurisdiction. To meet the requirement that people have the right to petition for redress of grievances, there must always be courts available that can hear and decide any judicial question on its merits. The problem is not that federal courts hear and decide the cases, but the ways they decide them, both procedurally and substantively.

The main problem with the federal courts is not that they overturn congressional legislation, but that they sustain too much of it. Almost all of the decisions that find congressional legislation unconstitutional are correct. Many if not most of the decisions that find congressional legislation constitutional are not correct. If the federal courts were faithful to the Constitution, they would strike down most of the federal legislation enacted in the 20th and 21st centuries. As for reviewing state court decisions, that is mainly done in a way that is an outgrowth of judicial precedents that may need to be revisited. Trying to restrict jurisdiction to hear such cases doesn't address the problems created by the precedents, or by the ways congressional legislation enacted under the authority of the 14th Amendment has been worded.

There are several reforms that need to be made, none of which are addressed in this proposed legislation, and therein lies the deception.

The first reform is to deprecate the influence of the doctrine of stare decisis. This might be done by requiring that judges, in making a decision, exhaustively examine text, legislative history, and prevailing usage and practices at the time of enactment, before considering judicial precedents, and then only by citation of the reasoning used, not by treating the precedent as though it were itself an enactment. Stability in jurisprudence is not more important than fidelity to the written Constitution as originally understood.

The second reform is to reverse the presumption of constitutionality of legislation, and deference to the legislative judgment of Congress, and to require strict proof of the constitutionality and statutory authority for any official act, presuming the lack of such authority. Any official undertaking to exercise any power must be required, if that authority is challenged, to provide an unbroken logical chain of authority leading back to the U.S. Constitution, or for state official acts, to the state constitution as well. It needs to be logic that can be verified by a computer program, not the "informal reasoning" favored by lawyers that can accept logical contradictions.

The third reform would be to have all federal cases decided by tribunals of at least three judges, with the right to a jury at the first trial level, and a right to a review of appellate decisions by an independent grand jury. The panels should be selected by sortition, that is, at random. And the voting rule should be that the panel must be unanimous to sustain a claim of a power by a government official over the claim by an individual of a right not to have that power exercised. In other words, the presumption should always be on the side of the individual against the government.

The fourth reform would be to require all points of law be argued in the presence of a jury, in a jury trial, with the jury provided copies of all pleadings of points of law, and access to an adequate law library with instructions how to use it. This is especially important when the government is a party as plaintiff or prosecutor, and there may be a bias on the part of the presiding magistrate in favor of the government.

The fifth reform would be to remove all impediments to private criminal prosecutions in federal courts, especially in public corruption cases. This means the public and private prosecutors must have direct access to grand juries who are not so overburdened with cases that they do not have time to adequately investigate questions the public may raise.

The sixth reform would be to increase the size of the U.S. Supreme Court to, say, 27, and provide for most cases to be heard and decided by randomly drawn panels of three members, with appeal to panels of nine, from which there could be one final appeal to an en banc panel of all 27. The U.S. Supreme Court can today do justice to only about 80 cases a year, out of about 8000 that are filed with it, and too many of the 99% of those cases that are not heard have merit and deserve to be decided on their merits. Having the cases decided by panels of three would increase the throughput, while diminishing the weight of the precedent that such decision might tend to establish. Right now the U.S. Supreme Court is a bottleneck at the top.

The seventh reform would be to provide a screening process for nominees to the federal bench that would emphasize expertise in constitutional history and analysis, not just the study of precedents, the way the subject is now taught in the law schools. Judges need to know what Madison understood the provisions of the U.S. Constitution to mean when he helped draft them.

I urge the defeat of H.R. 2028 as presently drafted, or substitution into it of language that would accomplish all of the reforms listed above.

How I celebrated Constitution Day (and almost got arrested)
By Jon Roland

On September 17, 2004, I celebrated Constitution Day in Austin, Texas, the way I often have in years past. I stood on the side of a roadway and held up a sign to traffic:

HONK!
IF YOU LOVE THE
CONSTITUTION
COMPLETED SEP. 17, 1787
http://www.constitution.org

In past years I have picked such locations as near the Federal Courthouse or State Capitol. This year I decided to pick another location, on the overpass of Far West Avenue over the Mo-Pac expressway (Loop 1) facing southbound traffic on the expressway. As in previous years, I got a lot of honks and cheerful waves from motorists and their passengers.

I had been doing this for about an hour when first one, then a second, police vehicle showed up and parked beside where I was celebrating. They expressed the position that what I was doing was illegal, so I asked them to provide the statute that made it so.

While I conducted a mini-seminar on the Constitution with one officer (during which I pointed out that to be constitutional, an arrest warrant had to be physically presented to the subject, not just its existence verified over the radio, a point he seemed unfamiliar with), the second tried to find the provision in the printed Vehicle Code he carried with him. (I had asked for the statute, not the code, and said that since he was in communication with his headquarters, he should be able to get that, but it let it go for the moment.)

In the meantime I continued to hold up the sign, and kept getting honks.

After about half an hour, he came up with a section of Vehicle Code provisions that declared it illegal to "maintain" a sign on "state property". To that I raised the points that: (1) The word "maintain" in that context was intended by the legislature to mean "affix to the land or structures", not hold in the hands of an individual (or wear on a sweat shirt, or affix to a vehicle). (2) There was a question whether this was being done on "state property" for the purposes of enforcement: the state might "maintain" the highway and overpass, but that did not necessarily mean they "owned" it. The highway might be an easement, without air rights to the overpass, or the city or county might own the land, or the street and sidewalk, even if they might not "own" the bridge that supported it. They were unsure, so I asked them to call a supervisor. While we waited for the supervisor, I engaged both of them in discussion about the various organized activities I supported, such as Libertarian Party meetings, and invited them to attend.

Finally, the supervisor showed up, and said "there are precedents" that support their interpretation of the word "maintain" in the statute, although when asked, he couldn't cite any. His argument was that the word "maintain" when applied to someone holding stolen property seemed to cover holding up a sign in one's hands. I pointed out that that was a different context, and the meaning in that context didn't necessarily carry over to this one. Then I also raised the question of whether this was really state, city, or perhaps county, property, for the purposes of the statute.

Finally, the supervisor asked me how much longer I intended to do this, and I answered that I had intended to quit at 6:00 PM (it was then about 6:15) since rush hour was over, and go on to other things, and was only waiting for them to finish before leaving. So they gave me back my driver's license, and I left. As I looked back, they continued to talk among themselves for several minutes, and I can suspect they may have been talking about the issues I raised with them.

So I didn't get arrested (darn! :) I had the impression they had a vision of the incident making national news and leading to a lawsuit. But it does raise some interesting questions. These were good cops, trying to do a good job. This was Austin. In some cities of this country they might not have been so gentle or polite. But while the legal guidance they had might have made sense to the lawyers who wrote it, it was not clear to the cops on the beat, and they had a tendency to give the words they found on a page the widest possible construction, rather than the narrowest or most reasonable.

There are two reforms that need to be made:

The first is that the word "maintain" in those provisions of the Vehicle Code needs to be replaced with the words "affixed to the land or structures on it", or words to that effect. It should also explicitly state that it does not include signs held in an individual's hands, worn on a body, or affixed to a vehicle. It might seem a bit much to include in the Code things that are not included, but cops need that kind of clarification, as do civilians.

The second is that the boundaries of jurisdictions need to be clearly marked. There should be signs and boundary markings that make it clear to anyone what is federal, state, county, city, or private property and jurisdiction. It should not be necessary to research the county deed records and plat maps, or call for a surveyor, to decide what statutes apply where. The Code needs to also specify whether by "state property" it means the land, the easement, the improvements, or what, and what the boundaries of each such component of property might be.

I maintain that any law applicable only to certain property or territory should be held unenforceable unless or until the physical boundaries of the property or territory are clearly marked on the site, showing who is the owner, or which authority has the jurisdiction, on each side of the boundary lines. Otherwise, there is not due notice to the public, or to the law enforcement agents.

So, for those of you who might enjoy reading that I spent the night in the slammer, I'm sorry. Didn't get arrested. Maybe next year.

Grant Proposal

Constitution
Society
7793 Burnet Rd #37
Austin, Texas
78757
512/374-9585
http://www.constitution.org

In response to requests for a proposal of what we would do with substantial funds, we offer the following partial list of projects, not in order of priority, that we would do if sufficient funds were available. There are no specific amounts attached to these. We could use as much funding as might be provided, although some of them would not be worth commencing without a certain minimum level of funding, which is indicated. More detail is provided in the notes at the end.

Multimedia production and distribution. This would range from 60-second TV commercials to full-length movies or training courses. At lower levels of funding we might make use of local access TV facilities. At higher levels we might create our own studio with equipment for producing and editing multimedia materials.

Online documentation. We are already doing this with such collections as the Liberty Library of Constitutional Classics, but much work remains to be done, and much more needs to be added.

Print documentation. There is still a need for printed books and papers, and while we might put most of it online, some of it might be printed and distributed, especially to schools and libraries.

Research and writing. There is a great deal of original research that remains to be done in support of original understanding of the Constitution. Some of it might be done internally, and some might be done by grants to others. It could take the form of everything from introductions and commentaries published online, to law review and other journal articles, to complete treatises.

Constitution centers and local groups. Organize local groups with regular meetings, and eventually build advanced activities and permanent facilities.

Law education reform. Reform law schools, beginning with reforming bar exams to put more of an emphasis on constitutional history and analysis, staffing law schools with originalist constitutional scholars, and offering fellowships and scholarships to faculty and students for originalist research, writing, and teaching.

Litigation. Initiate or support litigation intended to make certain critical reforms in judicial precedents and practices, such as requiring all arguments of law to be made in the presence of juries, opening courts and grand juries to private prosecutions, especially in public corruption cases, and instituting more effective ways to prevent or correct instances of official misconduct or incompetence.

Legislation. Develop and do research in support of legislation intended to bring legal practices into compliance with constitutions, and build support among the public and opinion leaders for its adoption. Topics could range from judicial procedures to redistricting to constitutional amendments.

Notes providing examples and more detail

Multimedia production.


Educational programming. Commercials, infomercials, documentaries, discussions, and other programming for radio, TV, and webcast. Sponsor regular syndicated programs, and perhaps operate non-profit radio and TV stations in major markets.

Documentaries and docudramas on juries. A start on this has been made by the 2004 summer series, The Jury, on the Fox network, which was canceled after only a few episodes, and more recently in the ABC News series, In the Jury Room, which presented edited taping of actual jury trials and the jury deliberations. We would expand the topic to include grand juries, and federal and state courts. Eventually, we might cover the courts of other countries. The emphasis would be on examination of problems in the legal system that might be addressed by juries and grand juries. We might depict dramatizations of actual historical jury trials, such as the trials of Penn and Mead, Bushell's Case, and other milestone cases.

Online documentation.

Scan, OCR, correct, reformat, and insert links to connect documents to one another, and add annotations and commentary.

Scan works that are not available as scannable printed books from microfilm or microfiche, which requires a special scanner.

Greatly expand collections of law review articles, legal briefs, and legal treatises. Cross-link their cites to one another.

Provide online distance education programs on constitutional topics.

Print documentation.

Either self-publish or work with organizations like the Liberty Fund to produce print editions of our online works.

Develop curriculum materials and textbooks for children and adult continuing education, and for lawyer continuing legal education (CLE).

Produce ads for print publications, brochures, and handouts.

Research and writing.

Conduct or sponsor studies of the original meanings of words used in constitutions, such as commerce, regulate, promote, due process, etc., which have undergone some changes in meanings since the Founding Era.

Develop simulation games that can educate people and provide insight into constitutional design.

Develop a simulation game that would simulate a constitutional convention and examine how some constitutional designs work better than others, and are not just the products of a particular political culture.

Develop simulation games that would teach people how to solve problems of public choice to counteract the influence of special interests.

Develop a simulation game that would train chairpersons to conduct deliberative assemblies according to Robert's Rules of Order, Revised.

Constitution centers and local groups.

Organize groups with regular meetings in every county and urban neighborhood, within other organizations, near the campuses of major universities, as special study or activity groups.

As groups become stronger, establish regular rented meeting facilities, and finally establish permanent buildings, including such facilities as libraries, conference rooms, classrooms, and multimedia equipment..

Join centers with departments of constitutional studies in the universities, offering postgraduate degrees in the subject.

Establish enhanced constitutional education programs in schools and colleges.

Establish a reputation of the constitution centers as the place to which people subjected to abuses of their rights can turn for aid, and find legal help, support, and publicity, and as a source for grand juries to consult to get evidence they need on public corruption.

Build a dominant coalition of voters that will make constitutional compliance the leading issue in every election.

Make celebration of Constitution Day and Bill of Rights Day as large an event as celebration of independence day.

Law education reform.

Develop and promote an accreditation system for law schools independent of the American Bar Association.

Promote bar examinations at least a third of which are on constitutional material.

Recruit, educate, and place law faculty with originalist expertise on constitutional history.

Scholarships for law students who score well on constitutional examinations we would develop.

Conduct seminars and conferences on constitutional issues.

Make law and legal history education part of the curriculum for every citizen, up to and beyond at least the first-year level of present law schools, but with more of an emphasis on constitutional text and history.

Litigation.

Seek precedents requiring all issues of law to be argued in the presence of the jury, including providing them with copies of all pleadings, and access to adequate law libraries.

Revive private criminal prosecutions, especially in public corruption cases.

Reduce the indictment workload on grand juries, and enable and encourage them to investigate public corruption and incompetence.

Seek precedents to better protect the rights of litigants, and to strike down all unconstitutional legislation.

Systematically file amicus curiae briefs in cases with constitutional issues, that inform the court of historical evidence of original understanding, and recruit supporting briefs from other organizations. Write and publish reusable briefs for this purpose, with supporting law review articles and treatises.

Legislation.

Select judges by sortition, like juries, rather than by appointment or election.

Introduce a random, or sortition, component into the election of legislators, to reduce their susceptibility to undue influence by campaign contributors or special interests.

Introduce a random, or sortition, component into the awarding of government contracts, and the hiring, promotion, and assignments of personnel, to dispel undue influence.

Establish non-partisan redistricting using impersonal computer programs to draw districts.

Revive private prosecutions of public rights, enabling any person to bring an action for declaratory or injunctive relief without having to have been personally injured.

Revive quo warranto proceedings, and reverse the presumption of authority for official acts, requiring strict proof of authority when an act is challenged.

Repeal all unconstitutional statutes, such as criminal penalties based on the Commerce Clause, or defining interstate “commerce” as anything but transfers of ownership and possession of tangible commodities, and repeal all statutes, such as those for asset forfeiture, that are susceptible to abuse.

Require the video taping of all court proceedings, including those in chambers, make those recordings part of the public record, and require the taping and eventual public disclosure of most contacts among officials and between officials and members of the public.

End impediments to the publication of case records, and put all of them online as searchable files.

Require juries in cases of family law, competence, and custody.

End legislative disablements of rights and allow only disablements by explicit court order, such as imposing penalties for having been the subject of a judicial or administrative proceeding on some question without the specific activity having been judicially disabled with the right of a jury verdict.

End occupational licensing, including of lawyers, to make personal labor a right, rather than a privilege, subject to judicial disablement by jury verdict but not prior approval, and end the licensing of any activity that does not involve the use of public assets.

Reform legislative rules to open all legislation for public debate and to remove undue influence by partisan majorities.

Introduce rules that require sunset provisions in all legislation.

Postings to forum on ABC-News "In the Jury Room"

The forum is at http://forums.go.com/abcnews/thread?threadID=29323

ABC is to be commended for its series /In the Jury Room/. Besides being entertaining, it serves a need to educate the public how to serve on juries.

We have web pages on the subject:
http://www.constitution.org/jury/pj/pj-us.htm
http://www.constitution.org/jury/gj/gj-us.htm

I will be posting several messages on this topic which discuss some of the fundamentals of jury service that everyone needs to know, but which are seldom taught in the public schools. I invite others to contribute.

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There are several elements that must be proved beyond a reasonable doubt to establish guilt on a criminal charge:

(1) That the charge is authorized by a statute;

(2) That the statute is authorized by a constitution (state or federal);

(3) That the charge and statute are applicable to the facts alleged;

(4) That the court has both subject jurisdiction, and either territorial or personal jurisdiction. This point is discussed at http://www.constitution.org/cmt/stimson/con_crim_jr.htm ;

(5) That the rights of the accused have not been abused by officials, including the police, prosecutors, and judge;

(6) That the facts establish the following five elements of a criminal act:

1. Mens rea. Criminal intent. The accused must have intended to commit the crime.

2. Actus reus. The actual act that fits the definitions established by law.

3. Concurrence. Mens rea and actus reus must coincide in location and time.

4. Harm. Some injury must actually have been done.

5. Causation. The actus reus must have actually caused the harm.

Now these last items must be reconciled with statutes that are intended to prevent harm, and punish behavior that increases the risk of harm rather than cause actual harm. Many of these statutes are constitutionally problematic, and raise the question, to be decided by the jury, whether the risk was real or only a theory of the legislature that may have been misguided.

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A jury verdict, in a criminal case, as a matter of constitutional law, is not a judgment of whether the accused is a "good" guy or a "bad" guy, or whether what he is alleged to have done is "right" or "wrong". It is a judgment that the prosecution has proved beyond a reasonable doubt that the defendant violated a constitutional statute. Moral judgment should have no bearing on the matter, and jurors who allow themselves to engage in moral judgment instead of legal judgment are violating their oaths as jurors and the obligation all of us have to preserve, protect, and defend the Constitution.

It is a common practice to charge defendants with alleged offenses that are not authorized by law. This is an abuse of the rights of the accused and a violation of the oaths of the officials involved, or at least an exercise of gross incompetence. The jury system was established precisely to protect the accused against this kind of abuse, and to do that, there must be a basic foundation of knowledge and skill in analyzing law on the part of the citizenry from whom the jury is drawn. Because the jury cannot be reasonably expected to thoroughly know the law before the trial, a foundation of knowledge even the judge and lawyers often don't have before the actual trial, it is essential that all issues of law be argued in the presence of the jury, that they have copies of all pleadings, and access to an adequate law library and guidance how to use it. In other words, they need everything the judge has to help them make their decision. "That doesn't mean they are asked to decide motions or write legal opinions, but they are obligated to review the ways such decisions are made, and opinions written, in reaching a general verdict or "guilty" or "not guilty". If they were only being asked to bring a special verdict of whether the defendant committed the acts alleged, that would be a different matter, but a general verdict cannot be brought intelligently without a consideration of all issues of law and fact. In a constitutional republic, what is and what is not the law is a fact issue, because judges and other officials do not have the authority to make law, and legislatures are not authorized to make unconstitutional law. If there is no law, or it does not apply, the jury is obliged to acquit.

It should be clarified, however, that argument on evidence, and what may or may not be admitted, is sometimes an issue of law, and sometimes not, and might be excluded from the jury.

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Part of what a jury must decide is whether there is authority for statutes, charges, the actions of officials, and of the court to meet and decide.

All government authority begins with a constitution, either state or federal, which is composed of statements of the following kind:

1. Delegated powers.
--Permissive: An official may do something.
--Obligatory: An official must do something.

2. Rights, restrictions on delegated powers.
--A person has a right to not have officials do something.
--An official may not do something.

It is important to understand that every delegated power is a restriction on rights, and every right a restriction on delegated powers. A right may consist of a power that has not been delegated.

The exercise of a power by government officials is to be understood as involving an expenditure of resources,that is, affirmative action, and not the mere neglect to expend resources, or "inaction".

In general, any official act that is authorized is one that is an instance or subset of a delegated power at a higher level of law. Thus, a power to *regulate* commerce authorizes the congressional adoption of a particular regulation on some subset of all articles of commerce. On the other hand, the original understanding of the Founders was that only civil penalties could be imposed for violations of regulations, promotional activities, or expenditures, not criminal penalties, such as deprivation of life, limb, or liberty."Commerce" included only the transfer of ownership and possession of tangible commodities, not services, banking, information, or the transport of noncommercial items. It did not include the activities of those engaged in commerce, including activities that might have a "substantial effect" on commerce, but only the sale and delivery of commercial commodities and their attributes.

Therefore, federal statutes that prescribe criminal penalties for possession, use, or sale of mind-altering substances, outside the "federal enclaves" created under Art. I Sec. 8 Cl. 17, are unconstitutional. See http://www.constitution.org/juris/fjur/fed_jur.htm . However, state statutes against such substances are, in general, constitutional, for offenses committed within the territorial boundaries of the state. A jury must ask for proof of the authority of the charge and the jurisdiction of the court, based on the exact location at which the offense was committed, and if not, must acquit.

Time Reporter Held in Contempt in CIA Leak Case

It's an interesting constitutional case, and the First Amendment will undoubtedly be raised, because there are so many precedents involving it, but not on its merits. The First Amendment only protects the right to express and to communicate, not to withhold information. There is a right to privacy in the Ninth Amendment, but it is qualified by the public's right to know, on a question by question basis. It is like discovery in a civil case. The witness, whether before a grand jury or in a deposition, has the right to object to particular questions, and the matter may then be referred to the judge for a decision on whether the public's right to know prevails over the witnesses' right to privacy. That decision may, of course, be appealed to a higher court.

The only right to withhold information is in the Fifth Amendment, but, contrary to established precedents, that originally protected against not only being required to answer a question in a criminal case, or in the situation in which the witness might be incriminated thereby, but also questions that if answered truthfully, might tend to impair the witnesses' reputation or property interests. And, contrary to established precedents, the right originally applied on a question-by-question basis, not to testimony generally. In other words, a witness does not waive his right to withhold answers to some questions just because he agrees to testify on others.

See Shelton v. American Motors Corp., 805 F.2d 1323,1327 (8th Cir. 1986), which held that a party should not be allowed to depose opposing counsel without demonstrating that (1) no other means exists to obtain the information; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the party’s case.

In Hart v. Frost, 73 Okl. 148, 175 P. 257 (1918) the judge held:

The court finds that in the case at bar the court prevented defense counsel from objecting to each question as it was asked . . . by overruling the defense's request to do so, even though the transcript does not specifically show what objections were overruled, interposed by the defendant. The court specifically recalls the nature of the statements made in chambers off the record . . . and it is the court's finding that all parties understood that the defendant's objection that was overruled was his request to interpose objections question by question . . . .

Also see United States v. Allee, 888 F.2d 208, 212 (1st Cir. 1989).

It is important to understand that the privilege of confidentiality is just that, a privilege. It has no basis in the Constitution. It is a matter of customary prudential deference, and offers the argument made above that it should be respected if there are other ways to obtain the same information, and only breached after it has been demonstrated that no other alternative is available.

This applies to any confidentiality custom, whether it be for a journalist, a religious counselor, a physician, or whatever. It is a matter of judicial discretion, and is based only on custom, the resistance that some kinds of witnesses can be expected to offer, and the support of it by powerful political groups.

Of more interest to me, as a constitutional historian, is the way the grand jury often is abused by being used as an inquisitorial tool by prosecutors. If a witness finds that the prosecutor is present in sessions of the grand jury, he should demand his right to be questioned by an independent grand jury which is not unduly influenced by a prosecutor or the judge, and to demand they not be present. Only the members of the grand jury and the witness should be in the room during questioning.

A weaker but potentially useful line of attack, as a political weapon if nothing else, is to challenge the statute which the grand jury is apparently attempting to enforce, namely, the statutory basis for charging someone with a crime for disclosing the identity of a federal agent. There is no constitutional authority for such a statute to be enforced against civilians, only against government personnel who have agreed to be subject to it, such as military personnel and militia in actual federal service.

The Treason Clause might be invoked for authority, but the answer to that is that there is no enemy declared by resolution of Congress, as required by the Constitution. No declared enemy, no applicability of providing "aid and comfort" to an enemy.

One may object that this doctrine of interpretation would leave us defenseless to real enemies. The answer is that the Constitution arguably needs to be amended to provide that power, but unless or until it is amended, no such authority exists.

Usual disclaimer: This is not legal advice. Using these arguments is unlikely to result in favorable outcomes. However, as a matter of original understanding and true law, they are correct. Just don't expect appeals to the Constitution as originally understood to be respected by today's courts.

Stovepiping: The failure of bureaucratic responses to public threats


The term "stovepiping" is used to refer to the way that information from the lower levels of an organization is filtered, distorted, and compressed beyond usefulness for decisionmaking, in passing up the chain of command. the term has been coming into prominence since the public exposure of the way intelligence is reduced to about a two-page report for the president, the PDB, or "President's Daily Briefing" report. People have asked how all the
actionable intelligence gathered could enable the president to make informed decisions when it is thus filtered and compressed. The simple answer is, it can't.

However, the problem is not confined to the U.S. government. It is pervasive in all large hierarchical organizations, leading to calls to break them up and have the components proceed as a cooperating network, similar to the operation of small business entities in a healthy, competitive marketplace.

Some large organizations make periodic attempts to overcome this stovepiping effect by resorting to such devices as setting up "red teams", tasked to take contrarian positions in internal debates, much the way the judicial system conducts trials with an adversary system of opposing litigants and their counsels. Red teams are intended to dispel "groupthink", or the tendency to prematurely adopt a consensus position on some question and discourage dissent from it. The classic example of groupthink in action was the Bay of Pigs invasion, the result of no one challenging the plans as they were made. Others argue that the Vietnam war was another classic example of groupthink, even though there was dissent, especially among the public, the organizations making the decisions effectively excluded and ignored the dissent and failed to consider the sound arguments for it. (See "competitive diffusion processes" and why nationalism has a higher coefficient of diffusion than Jeffersonian republicanism and constitutionalism.)

Following are some links to further discussion of this topic:

Stovepiping:
http://www.newyorker.com/fact/content/?031027fa_fact
http://www.dodccrp.org/events/2004/CCRTS_San_Diego/CD/papers/171.pdf
http://www.thepoorman.net/archives/002133.html
http://www.leavenworth.army.mil/milrev/download/English/JulAug04/grau.pdf
http://www.narsil.org/politics/stovepipe1.html
http://www.hpti.com/objects/homeland.pdf
http://www.afsa.org/fsj/mar04/thielmann.pdf
http://www.fas.org/irp/congress/2004_cr/harman040104.html
http://www.cia.gov/csi/studies/vol47no1/article03.html
http://www.heritage.org/Research/HomelandDefense/EM828.cfm
http://reviews.infoworld.com/article/04/04/23/17OPcurve_1.html
http://www.usamnesia.com/2004/02/do-you-all-know-sy-hersh-americas-most.html
http://www.fas.org/irp/eprint/coia.htm

Red teaming:
http://www.fas.org/irp/agency/dod/dsb/redteam.pdf
http://www.hicksandassociates.com/whatwedo/red-teaming.html
http://www.sandia.gov/programs/homeland-security/red_teaming/redteam.html
http://www.janes.com/company/consultancy/red_team.shtml
http://www.cs.nmt.edu/~cs491_02/RedTeaming-4hr.pdf
http://www.ieaust.org.au/SafeAustralia/Presentations/Roberts/Redteaming1.ppt
http://www.au.af.mil/au/awc/awcgate/awc-sims.htm
http://www.redteamjournal.com/

Groupthink:
http://www.abacon.com/commstudies/groups/groupthink.html
http://en.wikipedia.org/wiki/Groupthink
http://www.afirstlook.com/archive/groupthink.cfm?source=archther
http://choo.fis.utoronto.ca/FIS/Courses/LIS2149/Groupthink.html
http://www.disinfopedia.org/wiki.phtml?title=Groupthink
http://www.groupthink.ca/

Innovation Diffusion Processes:
http://www.constitution.org/col/03317_diffusion.htm
http://www.ciadvertising.org/studies/student/98_fall/theory/hornor/paper1.html
http://mstm.gmu.edu/mstm720/Articles/DifussionOfInnovationsGlossary.html
http://www.context.org/ICLIB/IC28/AtKisson.htm
http://www.hq.nasa.gov/office/hqlibrary/ppm/ppm39.htm
http://www.convenor.com/madison/diffus.htm
http://www.personal.psu.edu/faculty/s/j/sjm256/portfolio/kbase/Systems&Change/ChangeProcess.html
http://outreach.missouri.edu/swregion/news/Publications/Diffusion%20theory.pdf
http://www.ou.edu/deptcomm/dodjcc/groups/99A2/theories.htm
http://web.cbs.dk/staff/damsgaard/abstract/doitheory.html

Critique of the 9/11 Commission Report


The Final Report of the 9/11 Commission criticizes intelligence and law enforcement agencies under both the Clinton and Bush administrations for a lack of imagination, but it also exhibits a lack of imagination, and neglects to candidly examine what security might be attainable with the best efforts we could make.

There is a management problem with the conveyance of information from the lowest levels to the top. An intelligence organization can have good data and excellent analysis, but lose the benefit of that in the ways information is reported up the chain of command.

I like to explain the problem by citing an anecdote from my experience as a computer programmer. I once worked for a client in Sacramento, California, called The Money Store, which dealt in mortgage loans. It had only four echelons from the workers to the CEO, but rather than upper management taking the time to visit the workers, they tasked them with filing written reports each week, on the work they had done that week. A few weeks after asking for those reports, the word came down that instead of reporting on what we had done the previous week, we were to report on what we were going to do the next week, as though we had already done it. It was explained that the reason for this was that as the reports were passed up the chain of command, it took a week for each level to summarize what had been done by the level below it, so that each level was actually reporting on what had been done two weeks previously at the next lower level. The result was that the information the top echelon below the CEO had about the activities of the organization was six weeks old, too old to make intelligent decisions. By assuming most workers could predict what they would get done the following week, it was hoped that upper management would then be able to make decisions on the basis of information that was only three weeks out of date.

Needless to say, reports of future work were garbage. In most organizations, work consists largely in dealing with unanticipated and unpredictable developments. Presuming that the predictions could take the place of reports on what had actually gotten done was worse than the delay in getting more accurate information.

The interesting thing is that this policy continued for many weeks, and was still the policy when my contract ended. I don't know why it took so long to figure out the policy was disastrous, something I reported myself in a memo, but suffice it to say that the company went out of business within a year thereafter.

Bureaucracies in general, and intelligence agencies in particular, have a fundamental problem with passing actionable information up the chain of command. It tends to get summarized, filtered and distorted in ways that defeat the mission of the organization.

Consider the path of information leading up to the PDB, the "President's Daily Brief", which are generally only about two pages. How is a president supposed to be able to make intelligent decisions on "intelligence" reduced in that way? Perhaps if he only had to make one decision a day, but if the daily situations require hundreds or thousands of decisions at his level, we have a throughput problem.

One of the kinds of computer program I used to write were what are sometimes called "executive information systems" (EIS). The program gathers and summarily reports data from the operations of the company, and presents it to upper management in easily understood ways, accommodating to their intellectual limitations, as any management tool must. But it was not just a summary, because it permitted the executive to click on details, down to the level of raw data. The EIS is not a substitute for detail, but a gateway to it, and a good executive will drill down to information at lower levels of operation to find out what decisions need to be made at upper levels.

If there is any executive that is in desperate need of a good EIS, it is the President of the United States. He also needs to be a speedreader and to devote a lot more time each day to acquiring information than he can get by reading a PDB.

Of course, there is also a problem with reporting only consensus instead of "red teaming" -- reporting dissident or opposing positions and arguments. All bureaucracies are susceptible to groupthink, and it takes a special effort, and an initiative from the top, to overcome it.

There is also a tendency to reject information that is not internally generated. I remember an occasion when I had an analysis I thought the CIA should have, so I offered to send it to them. The person I spoke to demanded that I not send it to them, no matter what the merits of it might be. Unless it was obtained at their initiative, they weren't interested. It didn't matter that several academic colleagues thought it was brilliant and important, and were prepared to recommend it. However, someone who was interested, and spent some time trying to understand it, was someone I suspected of being a Soviet agent. I concluded that the best way to get an original analysis through to the CIA was by passing it through the KGB or GRU. (I am told by a former Soviet intelligence agent that they had a similar problem, and that the best way to get original analysis to Soviet agencies was through the U.S. intelligence agencies.)

Now I have known some analysts in intelligence agencies, and they are a mixed bag. Some are fairly imaginative, but most are not, and the imaginative ones tend to be ignored more often than the unimaginative ones are. The fundamental problem is that for imaginative ideas to be assimilated by higher echelons, those higher echelons need some imagination themselves, and one doesn't rise in such organizations by being imaginative.

It has been suggested that the agencies make more use of outside consultants, such as assembling teams of science fiction writers, to come up with "high concept" threats that might require a defensive response, but there is little sign that any ideas such teams might come up with would survive the bureaucratic ladder.

There is also the issue of time. There is a credible threat that al Qaeda already has nukes in place in American cities, but the Commission Report did not address reforms that could be implemented in much less than a decade. By the time Congress could act on their recommendations, the Capitol is likely to have become a mushroom cloud.

Also missing from the Report is a candid assessment of how much security might be attainable with the maximum effort that might be made. therefore, I will attempt to do that in this article.

Let us consider only threats of actions that might kill 1000 or more persons on the territory of the United States, conducted by enemies of at least the level of preparation of al Qaeda. What are the odds of success of defensive measures in place before 9/11, today, and attainable in the future, given our actual and potential for infiltrating the actual enemy operations?

This is just a guess, but I would estimate that before 9/11 we had at most a 5% chance of stopping such attacks through action of government agents, that today we have at most a 10% chance, and in the future we might have, at most, a 20% chance. There is no way we will ever be able to achieve a 90% chance of stopping them, or anything close to it. That means that if al Qaeda has six or seven nukes in place in American cities already, as has been reported, then even with maximum potential future levels of protection, we might only be able to stop one or two of them from being detonated, and at present levels, we probably won't be able to stop any of them from going off.

Is there any alternative to defensive actions by government agents? Yes. On 9/11 there was something that worked -- the passengers aboard Flight 93 -- who constituted themselves a militia for the occasion and responded to end the threat, albeit it at the cost of their lives. It wasn't government agents that succeeded in protecting the U.S. Capitol, the apparent target, but citizens functioning as militia. The success score: Militia 25%, government zero.

The Commission failed utterly to recommend the one thing that might prevent the loss of seven cities and as many as 15 million people and the survival of our economy and that of the world. That one thing is to mobilize the traditional, constitutional, militia. The President needs to issue a nationwide call-up to the entire citizenry of the United States to muster, organize, train, and equip themselves to meet the threat, and to engage in a search of every inch of the surface of the United States, and every cave, basement, hole, or other hiding place. They need to know how to identify a threat, and how to disarm it themselves, because there may not be time to call in a team from the DOE or DOD.

The FBI has lately been making some half-hearted efforts to recruit citizens for defensive roles, but the only thing their limited imaginations seem to contemplate is an extension of their informant network. This situation does not need a flood of tips inundating federal agencies where they will just be ignored anyway. All that would do is threaten civil liberties, and it would be doing to ourselves what we would go to war about if it were done to us by a foreign actor. We need competent militia in the field capable of dealing with most situations locally, that bring in more capable personnel only if they encounter a situation they absolutely can't handle.

This solution runs up against the aversion of the Establishment to revival of the militia, because ordinary citizens, unlike government agents, when asked to take an oath to "preserve, protect, and defend the Constitution against all enemies, foreign or domestic", are afraid the citizens might actually read and understand the Constitution, and begin to perceive that those "domestic enemies" look a lot like them. There is a reason why the Establishment has been working so hard to suppress the revival of militia, since the Dick Act of 1903 that was intended to end the tradition. The Establishment has good reason to fear the militia, but today it has more to fear from threats like al Qaeda armed with weapons of mass destruction, and it had better make a choice quickly, because those nukes may go off this year.

But we also have to be realistic about what even a revived militia can do, especially in less than a year. If there are seven nukes in place, it might find six, and prevent five from going off. Since five are thought to be 100 kiloton devices, each capable of killing several million people, that could make an enormous difference, especially for those people and their families, and would be well worth the time, trouble, and expense of reviving the militia as an institution. It would be a little late to call up the militia after the mushroom clouds go up, although that would have to be done, and the result would be chaos.

But it is not just the lives of those people in the affected cities that are at risk. Few people have thought through what would happen after such an attack, one perpetrated by a stateless organization, but operating from countries that have arguably harbored them, and perhaps only through negligence, allowed them to come into possession of the weapons. If several cities are lost to nuclear attacks, the President will have little choice but to annihilate every country, and every people, that might possibly have contributed to the attack, even unknowingly. It would not be retaliation in the classic result of a failure to deter, but an attempt to eliminate the threat in the only way we have the means to do, and that is to wipe out the entire populations of whole countries, not only those listed as being among the "Axis of Evil". It is not apparent that those and other countries got the message that all of them will be attacked if the U.S. is hit, and that any weapons they think they have will be no deterrent against such retaliation. The attack may very well include Russia, China, Pakistan, India, and other countries that, while they don't want the U.S. attacked, are complicit merely by having nuclear technology that is susceptible to being diverted into weapons that have been used against us. Even Britain and France might be ordered to end all nuclear activities and turn over all nuclear materials to the United States, or face annihilation. Once nukes are used against the United States, the world as we know it will end, not just for the United States, but for people everywhere. The result could be the death of billions.

Al Qaeda envisions an ideal world in which the only inhabitants are poor farmers and herdsmen, devout because there is no possibility of the kind of wealth that has corrupted humanity during the last 200 years, and no relief from their suffering but hope for an afterlife. That vision may indeed be fulfilled.

Books on this topic:
(Click on the green A to order.)

A Nuclear Terrorism : The Ultimate Preventable Catastrophe, by Graham Allison, Times Books, 2004.

A Osamas Revenge: THE NEXT 9/11 : What the Media and the Government Haven't Told You, by Paul L. Williams, Prometheus Books, 2004.

Complaint to BBC News on their misuse of the term "militia"

The following is a comment I posted last night to the Feedback page of BBC World News at http://news.bbc.co.uk/2/hi/help/3281777.stm . readers are encouraged to make similar comments to them about hijacking words nd playing into the hands of those who seek to reframe public debate to their own sinister purposes.

------

You are misusing a legal term in some of your news reports. the term is "militia", and you are misusing it to refer to armed groups that are not militia as that term is established in English and American constitutional law, where its primary meaning is "defense activity" (res publica defendenda), and secondary meaning is those engaged in such activity. Groups like the Janjaweed in the Sudan are clearly not militia in the way they are operating. A better term would be "guerrillas" or "armed partisans".

You may reply that you are free to change the meanings of English words any way you might like, but "militia" is a critical legal term of art, especially important for a country like Britain whose "constitution" consists of a large collection of documents going back to 600 A.D. See http://www.constitution.org/sech/sech_.htm . Consider what happens to the protections of our traditional liberties if journalists change the meanings of terms like "due process", "jury", or "person". For more on how to use the term correctly see the documents beginning at http://www.constitution.org/cs_defen.htm

This misuse of the term "militia" is aligned with a political agenda of weakening constitutional protections and civic responsibility, essentially a fascist or corporatist agenda. You are not well-serving your public by supporting that agenda.

It's political campaign season again

It's political campaign season again and time to focus on making constitutional compliance an issue in the election. We are also focused on organizing Constitution Day events for September 17. While it is easy to get people to express reverence for the Constitution, it is much more difficult to get them to see the ways present practices and political platforms are inconsistent with it, and to get people to treat that inconsistency as important.

That is the problem. Most people are aware that the Constitution is being violated, but their priorities put other issues higher, especially during an election campaign. Only the candidates of the Libertarian and Constitution
Parties are trying to make it an issue, and their support among the electorate is still very low. We hope to get people to understand that the solution to almost every other problem we face depends on constitutional compliance, without which we will never be able to mobilize the consensus, commitment and deliberation that solutions to other problems require.

We are doing our part, within the limits of our resources. Already political organizations and journalists are reading the materials on our site to get constitutional information. Teachers and their students, ranging from the
level of elementary school to graduate and law school, are using our site as a primary resource, since the find their textbooks to be inadequate. Scholars are citing our documents in their journal articles. I am being asked to write articles, such as the one that recently appeared in the 4-volume Encyclopedia of Leadership on the "U.S. Constitution".

And the Constitution has been receiving more attention as people research online for such topics as "declaration of war" and "war powers". Our site is one of the most highly ranked by the major search engines, and is visited
often. We are approaching 50 million visits since we opened the site in 1995.

But all this takes money. Labor is not enough. If your financial circumstances don't permit you to help, we understand. Most of our donors from the past are worse off than they used to be. Some need help themselves. But you may still know of others who can that you can forward this message to with your suggestion that they donate.

I've just set up a Donation Plans page to allow donors to make recurrent donations through PayPal. A donor may select one or more monthly payment plans and cancel whenever he wishes to do so. He or she may pay through their PayPal or eBay accounts, by MasterCard or Visa credit or debit cards, by e-Check, or by any of several other methods. If you have a PayPal account, you can set up a similar system by clicking on "Merchant Tools", then on "Subscriptions and Recurrent Payments", and following directions. I have made a few cosmetic
changes to the forms they generate that you might like to imitate for other sites you support. Just copy the page and replace my email address for the address used for the PayPal account for that site.

You can also donate $10 per month to us using this link that can be put in email (although your email client may break it up):

https://www.paypal.com/subscriptions/business=jon.roland%40constitution.org&item_name=Level+0+Recurrent&item_number=0000&return=http%3A//www.constitution.org/donate/thanks.htm&cancel_return=http%3A//www.constitution.org/donate/goodbye.htm&no_note=1¤cy_code=USD&a3=10.00&p3=1&t3=M&src=1&sra=1

Our page is at http://www.constitution.org/donate/donate.htm . Take a look and perhaps try it out and see what you think.

Need translations of Robert's Rules into Arabic, other languages

Anyone concerned about the current world security issues involving Middle Eastern and Islamic countries should be aware of the many cultural differences that divide those peoples from the West, but may not be aware of the importance of seemingly minor tools and practices that Westerners take for granted that are unknown to other cultures, and could make a critical difference if they are made available to them.

One of those is parliamentary procedure. To put it simply, most of the peoples of the world don't know and practice adequate rules for the conduct of meetings, such as those of Robert's Rules of Order, Revised (RROR). The result is they tend not to work together well to solve their problems and to avoid conflict, including conflict with us.

One might think that something as important as RROR would have long since been translated into all the world's major languages, and at least be available to peoples everywhere who care to use it. But one would be wrong. Those translations have yet to be done, even after more than a century of use in English-speaking countries, where they have played a critical role. I remember being introduced to parliamentary procedure in the first grade of elementary school. It is such a deep part of our culture that we sometimes overlook its importance.

There is a translation into Arabic of the summary table from RROR, but not of the complete manual. We need translations of the complete manual, into Arabic and other languages.

I have spoken to various government agencies, NGOs, and others about this deficiency and the importance of filling the gap, and soon. But so far my efforts have fallen on deaf ears. For the State Department and the USIA it is a case of "not invented here".

So we need volunteers to do it. We can put the results online on our web site, as we have done with the original English version, at http://www.constitution.org/rror/rror--00.htm , but we need translators to do the work. Target formats are HTML and PDF. Sorry, there is no money in it, only the feeling that it might save lives, perhaps a lot of lives. Translators would, of course, be credited with their work, and that might have some benefits to them academically.

If a nuke goes off in an American city, and you didn't do something like this that might have prevented it, how would you feel about not having done so?

God, Man, and Tyrants

John of Salisbury and the Bestselling Book of the Twelfth Century
By Dave Kopel

[Liberty magazine, May 2004, pp. 37-38, 52.]


Who said “Rebellion to tyrants is obedience to God”? Pat yourself on the back if you answered “Thomas Jefferson and Benjamin Franklin.” They proposed placing the motto on the Great Seal of the United States. Pat yourself even harder if you knew that the phrase was created by John Bradshaw (1602–1659), the lawyer who served as President of the Parliamentary Commission which sentenced British King Charles I to death. But who thought up the idea?

The idea is implicit in much of the Old Testament, which is full of righteous Hebrews overthrowing tyrants. And certainly the history of Republican Rome and classical Greece has many similar stories. But in the first millennium of Western Christianity, Christians fell under the sway of the law of the Roman Empire, which emphasized absolute obedience to government, and claimed that the government was above the law. Cicero, who lived in the last days of the Republic, was the last great writer to articulate the right of revolution.

The man who restored the right to Western political thought was an English bishop named John of Salisbury. In 1159, he wrote Policraticus (“Statesman’s Book”), which became the best-seller of the century. Although Policraticus is mostly forgotten today, it is one of the few books which truly changed the world.

For the rest of this article and the text of Policraticus go to http://www.constitution.org/salisbury/policrat.htm . Some formatting is still needed on the book, and how soon that will get done depends on funding, so if you would like to see the work completed follow the instructions below to send a donation.

Article by Jon Roland published in Encyclopedia of Leadership

I was commissioned to write the following entry for the Encyclopedia of Leadership, Vol. 4, Ed. George R. Goethals, Georgia J. Sorenson, & James MacGregor Burns, Sage Publications, 2004. It is now shipping, so you might ask your local library about it. This article can also be found at http://www.constitution.org/col/jdr/usconstitution_el.htm

United States Constitution

A written constitution of government such as the U.S. Constitution presents a characteristic set of problems for leadership: meeting the demands of the people for the functions government can provide, while protecting the rights of every person, not only from private, natural or external threats, but from government itself and from tyrannical majorities.

A written constitution, unlike an unwritten parliamentary system of government, is a supreme law that supersedes later laws that conflict with it, unless they are adopted as amendments according to the procedures prescribed in the original constitution. It derives its primary legitimacy not from current assent but from an original historical constituent act of ratification, and no official act, no matter how popular, can be considered legitimate unless it is logically derived from an authorization contained in the written constitution as amended, and as originally understood.

The political theory on which the U.S. Constitution is based is that a society is created by a social contract, or compact. The main proponent of this theory was John Locke, who developed it in his Second Treatise on Government, published in 1690. Although it is possible for a new society to be created by adults coming together and explicitly agreeing to form a new society, people are initially inducted into an existing society by their parents or guardians, beginning with a filial contract between parent and child, which is gradually transformed into a social contract between the child and the other members of the society, through a process of socialization, through which the child makes the transition from being a good child to being a good citizen. The essential terms of the social contract are that its members will mutually defend the exercise of one another's rights, from whatever might impair such exercise.

Every constitutional right is a claim against an affirmative action of government, and complementary to the exercise of a delegation of power to that government. A constitutional provision that protects a right restricts powers, and a delegation of a power restricts rights. A challenge for leadership is to define the line separating the two spheres of action, and to separate and confine the actions of civilians and officials within their proper spheres.

The written constitution ratified in 1789, and the subsequent Bill of Rights, the first ten amendments, declared various rights, with the Ninth Amendment providing for unenumerated rights that complement delegated powers, but the Founders did not have confidence in the effectiveness of such declaratory provisions, which might be easily subverted by interpretation. They rather relied on structural and procedural provisions, which divided the powers of government, allowed the divisions to check the actions of one another, and defined procedures by which departures from constitutional compliance might be corrected. Some procedures were permissive, allowing for the exercise of discretion, and others were mandatory, constrained by defined duties.

In the U.S. model, there are actually two separate constitutions: an unwritten constitution of the society, and a written constitution of the government. The terms of the social constitution are that decisions be made by conventions, or deliberative assemblies, called by proper notice, and conducted by established rules of procedure that comprise due process. A convention may consist of such things as a general election or referendum, in which the voting members of the society function as a convention of the whole, a constitutional convention which may draft or ratify a written constitution of government, a legislature called under the terms of a written constitution, a town hall meeting, a judicial court, a grand jury to conduct an investigation and make a report of its findings, a trial jury to render a verdict, or a militia called to conduct defensive operations.

The U.S. model was a reaction to the British parliamentary model, which had no written constitution of government except statutes adopted by majority vote of the House of Commons, royal decrees, or key court decisions -- precedents that might be sustained by tradition, but which can be overturned at any time by the House of Commons, sitting as a kind of ongoing constitutional convention -- one that can make its own rules for who may be elected to it and how. The result is the consolidation of power within a single legislative body and a bureaucratic civil service that can easily impair public rights and leave abused persons without the means to seek adequate redress.

Distributed Powers

The problem for leadership is further complicated by the fact that the powers of government are not delegated to a single unitary hierarchy, but are distributed, or separated. A key design objective of constitutional government is to avoid excessive or unbalanced concentrations of power, mainly by dividing it among many branches and individuals, so that abuses by any can be blocked or corrected by the combined action of others. The main separation of powers was between the central government and the several states, a system called federalism. Within the central government, powers were divided between the executive, judicial, and legislative branches, and the Congress -- the legislative branch -- was divided into two houses, the Senate and House of Representatives. By legislation, the executive branch was further divided and subdivided into departments, the judicial branch into a system of general and specialized trial and appellate courts with various geographic and subject jurisdictions, and the houses of Congress into committees and subcommittees, each with their own staff agencies. The constitutions of each of the states followed a similar design, with the exception of Nebraska, which has a unicameral, or one-house, legislature. Similar separations of powers were done in the territorial governments set up for incorporated territories destined to become states.

In a constitutional republic such as the United States, the people, acting collectively through election, referendum or convention, rather than a monarch or dictator, is the sovereign, or supreme authority, and as such all officials must be accountable to the people by a chain of command that leads back either to officials elected by the people or to bodies, like juries, selected by lot, a process called sortition, from among the people. The appointment, supervision, promotion, discipline, and removal of every official is supposed to be based on how well he or she performs his or her duties under the authority of the Constitution, more than on how well such performance might please the policy preferences of transient majorities.

Although a constitutional republic is democratic in being accountable to the people, it is not usually a majoritarian democracy, in that decisionmaking is moderated by procedures and structures designed to require deliberation, and sometimes by rules requiring approval not just by simple majorities, but by supermajorities, or by majorities in a majority or supermajority of levels or branches to which power is distributed. Thus, amendments to the Constitution require either proposal by a two-thirds vote in each house of Congress, or application by majorities of two-thirds of the state legislatures for a convention to draft amendments, followed by ratification by the majorities of the legislatures of, or of conventions in, three-fourths of the states.

Such procedures and structures confer on certain officials or groups the power to veto, or block, action of various kinds, so that to get action, it is necessary to convince all of the elements whose approval is required. Thus, the President can veto any act of Congress, although that veto can be overridden by a two-thirds vote of both houses. However, he can also refuse to enforce an act of Congress, or sequester the funds for its implementation, a controversial move that can be overcome only by impeachment and removal of the President from office, or by withholding other legislation he might want passed, or appointments he might want approved.

Any federal court can declare or find a statute or other official act unconstitutional, and refuse to give it effect by not sustaining it. If the decision is made by an appellate court, the practice is to treat that decision as a precedent which effectively nullifies that act not only in that particular case but for similar cases in that court's jurisdiction. If the declaration or finding is sustained on appeal to the highest court, the Supreme Court, the act is effectively nullified for similar cases nationwide. Although such a decision does not remove a statute from the records, by the doctrine of stare decisis judges feel bound to follow the precedent, making further enforcement of that act infeasible.

Veto groups can also operate in the Legislative branch. The Senate can block appointments by the President by such procedures as refusing to hold committee hearings on nominations. Committees can refuse to pass nominees to the full Senate, and in the full Senate, members may block action by use of a filibuster, or extended debate intended to prevent business from proceeding, which requires a 60 percent supermajority to terminate.

A winner-take-all system of electing legislators by majority votes from states or single-member districts, together with a nationwide presidential election in which each presidential candidates seeks to also win the election of members of his party to Congress, tends to result in a two-party system, as each main party adjusts its messages to win enough swing voters to exceed 50 percent. One effect of this, however, is that dedicated single-issue constituency groups can become "veto blocks" that may not be able to gather enough support to get their legislation passed, but can block legislation they don't like and defeat candidates who don't at least keep their causes alive. They can also often negotiate the appointment of their partisans to key positions.

The proliferation of single-issue groups means that assembling governing coalitions and placing people in key positions to achieve needed action can be difficult, but this was intended by the Framers of the Constitution. It was expected that most of the situations requiring rapid response could be handled through general legislation and appointees with a certain amount of legislated discretion, and that most new situations that such general legislation did not anticipate would allow enough time to build the kind of consensus needed to adopt new legislation. This has led to some tension between advocates of immediate response to "emergencies" and advocates of deliberation within constitutional structures and procedures, and some of that tension has resulted in departures from constitutional compliance.

Some of those departures have become entrenched, and supported by politically powerful constituencies, who often attempt to conceal the noncompliance with assertions that the established practices amount to "informal amendments" to the "living" Constitution, even though they are not formal amendments to the text. The problem with this elevation of practices to constitutional status, of course, is that once begun there is no end to it, and if allowed to continue would render the written Constitution a dead letter and reduce all law to politics or force.

This displacement of the written Constitution with practice is sometimes discussed as the doctrine of "legal realism", which defines "law" as "what judges do" or can be expected to do, even if what they do is inconsistent with the written Constitution as originally understood. Although it is accepted that everyone has the duty to resolve conflicts of law, including conflicts with the Constitution, in any enforcement of law, and that everyone has the duty to help enforce the law and not just to obey it, the fact that judges get cases last puts them in a position that is sometimes attacked as judicial supremacy by those who think that judicial practice is inconsistent with or unauthorized by the written Constitution. This has been an ongoing tension since the country was founded.

Persuasion

In any political or legal system, leadership ultimately comes to either educating and persuading decisionmakers to adopt one's proposals, or replacing them with other decisionmakers who will. In a constitutional system like the United States, with powers and duties distributed among multiple officials, that means persuading or replacing multiple officials, which may require persuading or replacing the constituencies of those decisionmakers, the networks of lower-level decisionmakers whose own decisions persuade or replace higher-level decisionmakers. Ultimately, that may come down to the level of the individual voter.

Although persuading a few higher-level decisionmakers may be done through personal communications, one may not have access except through chains of lower-level decisionmakers, many of whom may have agendas of their own that conflict with the program of the reformer. Persuading many individual voters, however, may not be feasible through direct communications, and may require marketing methods with high costs and limited effectiveness, competing as they must with demands from work and family, and tastes for entertainment.

When the country was founded, a person could get elected to office without having to raise or spend much money to market his candidacy. There was sufficient demand for political information that it was profitable for newspapers to publish entire speeches of candidates, with the expectation this would sell more copies. However, the political culture has changed so that too many people now resist political information, compelling candidates to resort to expensive marketing campaigns that can break through the barriers and at least achieve name recognition and a positive image.

The Framers designed the Constitution with the expectation that officials would be essentially independent of one another, unduly influenced, if at all, mainly by things like salaries and prospects for reappointment or re-election. They perhaps failed to fully anticipate that, to achieve any result in a divided governmental system, people had to put together prevailing coalitions which would tend to persist from one issue to another and emerge into parties or, as the Founders feared, factions, that would come to exert continuing control over offices and officials in ways that would defeat the separation of powers. The Founders feared too much power being gathered into the same hands, but the same hands can be a faction as well as an individual, and a single faction can dominate all of the levels and branches of government to the exclusion of the others.

The problem the Framers confronted, and perhaps inadequately solved, was what came to be studied by the 20^th century as the public choice problem, beginning with the work of James M. Buchanan and Gordon Tullock, set out in The Calculus of Consent: Logical Foundations of Constitutional Democracy. They approached politics through game theory, and showed how people in a society would tend, over time, to involve themselves in the public decisionmaking process in such ways, and to such degrees, as seemed likely to them to pay off, less in the satisfaction that comes from exercising civic duty, than in the material benefits of the public decisions that they could expect to gain for themselves or their friends. Persons would tend not to invest their time and money in the political process unless they expected to profit from that investment. Decisions that had large benefits or costs for some persons would cause those persons to become involved in influencing those decisions, while those for whom the benefits or costs were small would not have a sufficient incentive to invest their influence in ways that would affect such decisions. Therefore, a small faction could gain a large benefit by contriving decisions that did so by imposing only small costs on the general population, at a level below the threshold that would trigger their involvement. This made the political process as a channel for what is called rent-seeking behavior, which is the diversion of wealth from producers to persons who invest not in production but in the processes of politics and government.

In seeking to avoid excessive or unbalanced concentrations of power in the public sector, the Founders neglected to provide for the emergence in the private sector of giant corporate entities that could accrue power that could challenge that of governments, and come to exercise undue influence over government. This has emerged to take many forms: Banks and financial institutions, especially those that loan money to government to support its operations. Contractors, especially in the defense industry. Labor unions. Trade associations. Eleemosynary institutions. Political party organizations. Lobbying groups. Large media organizations. These tend to seek to exercise control by either getting their people appointed or elected to key positions at all levels of key departments, or having handlers for every key position who may assume a position of influence in which their official can't or won't make a decision contrary to the handler's wishes, so that the handler comes to function as the real decisionmaker, in a kind of shadow government that is parallel to the legal government.

This pattern can be more clearly seen in a parliamentary system like that of Britain, where the majority party appoints the official ministers of government, but where the party out of power designates shadow ministers for every department, who may exercise more real influence than the official minister over the lower level civil servants of the ministry, who may have been appointed by that party out of power, and might expect to be promoted if it regains power. Thus a party that has appointed most of the bureaucrats might expect to continue in real power even if it loses an election. The same applies to special interests that function as parties unto themselves.

Since the adoption of a civil service system, the United States has had a similar problem with shadow governance, for while the reform was intended to replace political appointees lacking merit with nonpartisan professionals, what has actually happened is only to make it more difficult for a party that wins elections after a period of dominance by another party to actually govern and implement its policies. The civil service protections have also allowed bureaucracies to become power centers themselves, a constituency often uniquely situated to protect its own interests. The internal politics of organizations is just as contentious as the external politics we see in elections and referenda, and much more difficult to expose and hold accountable.

The problem for leadership in a constitutional republic is to assemble and sustain a winning coalition on an issue, while avoiding opposition from veto blocks.

— Jon Roland

Further reading:

Ernest Barker, ed., Social Contract, London: Oxford U. Press, 1960. Contains essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

Locke retrieved August 18, 2003 from http://www.constitution.org/jl/2ndtreat.htm .

Hume retrieved August 18, 2003 from http://www.constitution.org/dh/origcont.htm .

Rousseau retrieved August 18, 2003 from http://www.constitution.org/jjr/socon.htm .

James Madison, Notes of Debates in the Federal Convention, 1840. New York: W.W. Norton & Co., 1987. Retrieved August 18, 2003 from http://www.constitution.org/dfc/dfc_0000.htm . Vol. 5 of Jonathan Elliot, The Debates in the Several Conventions on the Adoption of the Federal Constitution, retrieved August 18, 2003 from http://www.constitution.org/elliot.htm .

James Madison, Alexander Hamilton, John Jay, The Federalist, 1787-88. New York: Bantam, 1989. Retrieved August 18, 2003 from http://www.constitution.org/fed/federa00.htm .

Bernard Schwartz, The Roots of the Bill of Rights, New York: Chelsea House, 1980. See also the Documentary History of the Bill of Rights at http://www.constitution.org/dhbr.htm .

Leonard W. Levy, Original Intent and the Framers' Constitution, New York: Macmillan, 1988.

Herman Belz, A living constitution or fundamental law?, New York: Roman & Littlefield, 1998, retrieved August 18, 2003 from http://www.constitution.org/cmt/belz/lcfl.htm .

James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy, Library of Economics and Liberty. Retrieved August 18, 2003 from http://www.econlib.org/library/Buchanan/buchCv3Contents.html .

J. Patrick Gunning, Understanding Democracy: An Introduction to Public Choice, Constitution Society. Retrieved August 18, 2003 from http://www.constitution.org/pd/gunning/votehtm/cont.htm .

Everett Rogers, Diffusion of Innovations, New York: Free Press, 2003.

M. J. C. Vile, Constitutionalism and the Separation of Powers, Indianapolis: Liberty Fund, 1998.

Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism, New York: Belknap, 1998.

J. Roland Pennock, ed., Due Process, New York U. Pr., 1977.

Godfrey Lehman, We the Jury: The Impact of Jurors on Our Basic Freedoms: Great Jury Trials of History, New York: Prometheus, 1997.

Kevin W. Hula, Lobbying Together: Interest Group Coalitions in Legislative Politics, Washington, DC: Georgetown University Press. 1999.

Harvey Yorke, The Candidate's Handbook For Winning State and Local Elections. Revised by Carl Yorke, 2002. Available from http://www.candidateshandbook.com .

Harry Helms, Inside the Shadow Government: National Emergencies and the Cult of Secrecy, Los Angeles: Feral House, 2003.

Diffusion of innovations


Those who support a cause that they are having difficulty selling to the public would benefit from the study of work in a field called "diffusion of innovations". There is a book with that title by Everett Rogers. See this link Also do a search on that phrase in google.

The initial work was done in the early 1950s at the University of Chicago. It was funded by corporate sponsors who were considering the large sums they would have to spend on national television advertising, and wanted to know how effective such spending might be, and what kinds of advertising would be most effective.

The researchers found that populations tended to divide into distinct groups of adopters: The primary adopters were quick to try and adopt new things. The secondary adopters tended to defer adopting until after enough of the primary adopters had done so and used the innovations for a while. The tertiary adopters tended to defer adoption until a sufficient number of the secondary adopters had tried and used the innovations for a while. Sometimes there was also a group of quaternary adopters, and sometimes a group of holdouts that would never adopt, or even actively oppose the innovation.

It was found that messages like broadcast advertising could accelerate adoption by the primary adopters, but were not sufficient by themselves to get the secondary and lower level groups to adopt. The primary influence, it was found, was among peers within each group, and downward from one group to the next lower group. Examples of satisfactory use are far more effective in winning converts than the kinds of reasoned argument that might be conveyed in broadcast messages. It was also found that emotional messages are far more effective than reasoned ones.

This research also showed the importance of repetition. Except for the early adopters, people generally do not adopt something new based only on a single message or example, no matter how compelling. They exhibit characteristic herd behavior, in which a member only moves in response to its repeated perceptions of the movements of multiple other members of the herd. The timing of the repetitions is also important. Too frequent repetition, or messages that are too intense, can turn the person against the innovation, but too much delay between repetitions can lose much of the effect of previous repetitions.

What works best is a carefully timed series of repetitive messages or examples, neither too mild or too intense, that incrementally move each person along a path from where he is to where the promoter wants him to go, avoiding sidetracks. To the extent possible, it is best to conserve resources by focusing not on those who have already adopted, or who are not ready to move forward, but on those who have been prepared by previous efforts and are ready to take the next step.

Promoters of political causes should also be cognizant of competitive diffusion processes. There are likely to be multiple innovations in the field that will tend to compete with one another, and indeed, the introduction of an innovation may stimulate the appearance of a competing or opposing innovation. The receptiveness of the population to the competing innovations may differ greatly, so that we can speak of a characteristic "coefficient of diffusion" for an innovation for that population.

Thus, we can describe what happened in Southeast Asia during the Vietnam war as a competitive diffusion process between the innovations, or memes, of Western liberal republicanism, promoted by the United States, and traditional nationalism, promoted by the North Vietnamese. While the former idea won many converts, the latter had a higher coefficient of diffusion at that stage in the local population's cultural development, with most of the population not understanding the idea and identifying it with foreign intruders. The result was that, despite all the efforts of the U.S. forces to "win the hearts and minds" (WHAM) of the people, nationalism prevailed.

It is useful to examine chains of influence leading to decisionmakers. One who seeks some reform must first describe in detail how it would work, and what resources it would require, then identify who makes the decisions to move forward on implementing it. In most cases the promoter will not have direct access to the decisionmaker, but must work his way up one or more chains of influence, beginning with those with whom he is in direct contact and over whom he has the most influence, and working toward the decisionmaker through those who most influence the next, converting each along the way, or perhaps contriving to replace them with others, including the decisionmaker himself. The key to advancing along the chain is to be able to discern what each wants and will respond to, consistent with what the reformer seeks to do. Such an effort will often be far more cost-effective than attempts to influence the general population in an unfocused way, especially that part of the general population that exerts or is likely to exert little if any influence on the chain of influence to the decisionmakers.

Promoters of a cause must also understand that some causes, however meritorious, will not be adopted by the majority of the population until the conditions for adoption are ripe. The ideas of constitutional republican government adopted by the Thirteen English Colonies in the 18th century were not entirely new. Indeed, they had been developing over the previous 2000 years, adopted by a few leading thinkers, but not adopted by a sufficient number of the general population until the right conditions of a frontier allowed them to flourish. Propagating those ideas beyond that initial frontier environment, even with the compelling example of the United States, is by no means assured within the short to mid term future, and may not even survive in the United States now that the frontier conditions that permitted their emergence have faded. If such ideas succeed, it will take a strong effort by many dedicated people to overcome unfavorable conditions.

It must also be understood that more complex causes are more difficult for the mass of people to understand well enough to adopt, and that a complex cause is likely to have a low coefficient of diffusion, no matter its intrinsic merits. A complex cause or proposal is likely to have to be sold not directly, but by appealing to concern about the problem it seeks to solve, and by promoting the proponents of that solution to decisionmaking positions, where they can carry out the details that the mass of people would never adopt no matter how well it might be explained to them. Most people can be persuaded to have confidence in personalities long before they adopt their proposed solutions.

Sometimes all that the proponents of a complex cause can hope to do is keep it alive, perhaps for hundreds or thousands of years, until the conditions for it to prevail occur. This may require extraordinary conviction and patience.

Roland interview on BBC World Service March 4, 2003

Jon Roland, President of the Constitution Society and webmaster of http://www.constitution.org was interviewed by reporter Monica Whitlock for a program analysing dictatorship for the 50th anniversary of the death of Josef Stalin March 5, 2003, which aired beginning at 16:30 GMT on BBC World Service March 4, 2003. The 15-minute program may be heard by going to http://www.bbc.co.uk/worldservice/programmes/analysis.shtml and clicking http://www.bbc.co.uk/worldservice/ram/analysis_tue.ram or entering pnm://rmv8.bbc.net.uk/worldservice/analysis_tue.ra. You may need something like RealPlayer to listen to it, which may be downloaded by going to http://www.real.com and clicking on the "Free RealOne Player" link.

Monica Whitlock is noted for her reports on events in the former Soviet Union. She was led to interview Roland by discovering his article, "Principles of Tyranny" at http://www.constitution.org/tyr/prin_tyr.htm.

Remarks on the annversary of the death of Josef Stalin

Josef Stalin has the unique honor of being perhaps the only 20th century figure for whom the anniversary of his death, rather than his birth, is celebrated. March 5, 2003, marks the 50th anniversary of his death, and on that day in 1953 the entire world breathed a sigh of relief when the word came out of Moscow.

Yet Stalin did not die on that day, or at least his legacy didn't. The old Spanish joke was to say every day, "Franco is still dead". The Russian version was, "Is Stalin dead yet?", and the joke was still being told when the Soviet Union collapsed in 1991.

During WWII Stalin discovered, if he didn't already know, that the best way to maintain political control over a country like the Soviet Union was to have an external enemy. Germany provided that enemy, but after it was defeated, Stalin needed to replace it, so he made an enemy of the West.

And it wasn't just for his domestic purposes. He knew that the only way to make the West a credible enemy was to be a real enemy for them, and he set out to become that enemy. He succeeded brilliantly, and the result was the Cold War, the wars in Korea and Viet Nam, and the death and suffering of millions of people.

When Stalin died, he left the Soviet Union in the hands of people with blood on their hands, because he only allowed such people to rise in his system of governance. The result was they were too guilty to immediately reform their corrupt tyranny, and knew no other way to maintain control. It wasn't until Mikhail Gorbachev rose to power, with the sponsorship of Yuri Andropov, someone who had not been personally blooded, that reform could come. Gorbachev first replaced the old Stalinists with his own breed of technocrats, then called for "perestroika" and "glasnost". Today, the Soviet Union is just something on old maps. It fell in a nearly bloodless revolution the likes of which no one could have imagined in the days that Stalin ruled supreme and Orwell wrote his classic novel, Nineteen Eighty-Four.

But we still have to ask, "Is Stalin dead yet?" The answer remains to be seen.

Waco still a burning issue

Friday, February 28, 2003, is the tenth anniversary of the assault by agents of the federal Bureau of Alcohol, Tobacco, and Firearms (BATF) on the Davidian residence near Waco, Texas. After a shootout and several
deaths on both sides, the Federal Bureau of Investigation (FBI) took over and there was a 51-day standoff until the final assault on April 19, 1993, which resulted in a fire and the deaths of more of the residents, for a total of 87, including many children. Some of the few surviving Davidians were tried in federal court in San Antonio on several charges in the spring of 1994, but none of the federal agents involved were ever charged with crimes. The result of this incident led to the emergence of the militia movement in the United States.

It is worth reviewing the highlights of some of the issues involved in this case. See http://www.constitution.org/waco/mtcarmel.htm for more details.

First, the assault was for the ostensible purpose of serving a search and arrest warrant for weapons violations. This was done by first imposing a $200 transfer tax (a kind of excise) on certain kinds of firearms, specifically those converted to full-automatic fire, then refusing to accept payment of the tax, and issuing a regulation, under the alleged authority of the Commerce Clause, making it a crime to possess or transfer a firearm that had not been taxed. The unlawfulness of this method was set forth in the opinion in the federal appeals case United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991), http://www.constitution.org/2ll/court/fed/fed_case.htm .

Second, the BATF agents did not present a warrant to the residents. Apparently, they didn't bring it with them. After the Davidians resisted the initial assault, however, the agents discovered the original warrant was defective, and got a federal magistrate to sign and backdate a better version, which is the one that was presented for the first time at the 1994 trial.

Third, as it was later revealed, the purpose of the BATF was to stage an "event" in which they could collect a trophy they could use to argue for an increased appropriation. Their budget was then up for review, and there were efforts to reduce the appropriation, due to dissatisfaction with the agency's performance. The BATF agents came ill-prepared for anything but a media event. This was revealed by a film, Waco: The Rules of Engagement, http://www.waco93.com/ .

Fourth, in the final assault April 19, 1993, a tank was used to inject flammable and toxic CS vapors into the buildings, and another tank was used at the rear of the complex, out of sight of news cameras, to push over buildings, run over people, and support automatic weapons fire evidently used to prevent the occupants from escaping. This action also apparently started the fire that burned down the buildings with most of the occupants inside. In private, off-the-record conversations, FBI agents would later reveal that the burnout of the Davidians was intentional, and was primarily motivated by the high cost of the standoff. Apparently, the tank crew and assault personnel used were with the Army Delta Force, and incendiary grenades used by that organization were found in the debris. Such use of military personnel is a violation of the Posse Comitatus Act. This was clearly shown in a film, Waco: A New Revelation, http://www.waco-anewrevelation.com/ .

Fifth, in the 1994 trial the lawyers for the Davidians were not allowed to try to impeach the testimony of the government witnesses and their allegations that some of the weapons found in the debris had been converted to full automatic. The judge made a deal with the defense lawyers that if they would not challenge his ruling on not questioning prosecution evidence, he would allow instructions to the jury that they could consider self-defense as a justification for their resistance. Despite blatant judicial and prosecutorial misconduct, the jury found all defendants not guilty of all the criminal charges, and only guilty of some of the enhancement points to the criminal charges. This was the result of confusing instructions to the jury that did not make it clear that they could not find someone guilty of an enhancement if they did not find him guilty of the crime itself. Initially following the law,
the judge ruled that the defendants could not be held guilty of an enhancement if not guilty of the crime, but then he reversed his own ruling, and sentenced them to maximum penalties for the crimes for which they were found not guilty, except for the enhancement.

Sixth, during this entire process, there was egregious fabrication of evidence and destruction or concealment of evidence that would support the innocence of the accused. A good example was the "missing front door" that if produced would have shown all the initial weapons fire came from the agents and not from the Davidians. More than the assault itself, it was the trial that drove the emergence of the militia movement. That trial will be studied in centuries to come as a monument to judicial and prosecutorial misconduct.

This case will continue to burn in the hearts of minds of patriotic Americans until the Davidians are not only freed but compensated, and the agents involved prosecuted and imprisoned. However, this would need to be done in a Texas state court, because federal courts do not have jurisdiction for such a criminal prosecution of federal agents, and almost all attempts to criminally prosecute federal agents in state courts are blocked by federal courts seizing jurisdiction and then dismissing the cases, claiming immunity for the agents if they were on duty during the offense.

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Exchange between Morris Dees and Jon Roland, 1999 Nov. 9

Morris Dees spoke to a crowd of several hundred persons in the Sacramento Ballroom of California State University at Sacramento (CSUS) beginning at 19:30, Nov. 9, 1999. After his talk, he took questions, and one of them was from Jon Roland.

ROLAND: There is one area of hatred and divisiveness which you haven't really addressed today, and which I think deserves more attention, and that is the growing polarization between law enforcement organizations and their personnel, and the American people. We are seeing an increasing militarization of law enforcement, increasing use of dynamic entries for serving search and arrest warrants, too many mistakes that are not corrected.... In other words, it's not enough to address hate crimes from random individuals or small groups. The more dangerous forms it can take are when they are perpetrated under color of law.

DEES: You have a question? I'll be glad to respond to your comment.

ROLAND: Well, I'd like to suggest that you devote more attention to these kind of hate crimes, [and] the kind of hatred that infests our government and our law enforcement organizations. [applause]

DEES: You make a good point. You make a good point. We have devoted quite a bit of attention.... I've filed personally lawsuits against law enforcement officers who are just over the line and who have admitted to what I would consider a hate crime. I think the beating of Rodney King to be a hate crime. I think the arresting of a person based on the fact that the color of their skin is some[?] profile would be tantamount to a hate crime. But one thing that it is important to note [is] that the great bulk of law enforcement officers that I've been[?] in contact with around America are not involved[?] in prejudice, in hate crimes. In fact, in the Deep South we have a kind of a prejudice against southerners. The church burnings that took place in the South, and around the country.... But if you look at those church burnings where they caught the perpetrators, it wasn't the FBI or any national law enforcement officers that broke[?] the case. I've had ... in South Carolina, it was the Sheriff of Clarendon County, South Carolina, that had the two young white klansmen in jail within 48 hours after the church burning. There's no question that, that there are law enforcement officers in this nation who are guilty of biases and prejudices and what I would consider hate crimes. If I'm under[?] ... that we don't pay attention to those.... We put on seminars all over the nation. I spoke to the California Chief of Police [?!1] ... We're invited by the U.S. attorneys, and prosecutors, and law enforcement officers all over the nation. We put on seminars on hate crimes, and on ... and we intend on our web site we're creating, called tolerance.org[?2], to have a special division[?], so that police agencies can find the best practices of other police agencies that have confronted the great issues that you're dealing with. You raised a good point. Thank you.

Notes:

[1] Needless to say, there is no "California Chief of Police". Presumably he was thinking of the Chief of Police of some city in California.

[2] It sounded like he said "tolerance.org", but this domain name is taken by someone else. No reference to anything like it appears on the Southern Poverty Law Center web site http://www.splcenter.org

Transcription by Jon Roland, who is responsible for any errors. Doubtful words are followed by [?] above.