Re: Not all remedies are judicial

June 30, 2014

@slcraignbc — Your question is somewhat confused. Terms in constitutions, statutes, administrative decisions, and judicial decisions, may each be ambiguous in different ways, sometimes even in more than one way in the same sentence. So your question is posed at too high a level of abstraction. Need to examine specific cases and terms used in each of them. There is no rule of construction that can be properly applied to all of them.

Strictly speaking statutes, administrative decisions, and judicial decisions cannot clarify ambiguities in constitutional terms. Only amendments can do that. Those subordinate actions can only apply constitutional terms to particular situations, and of course they can get it wrong. If they do, they are just wrong. They haven’t clarified or amended.

Expanded Bill of Rights

May 12, 2014

Expanded Bill of Rights

James Madison lumped most of the amendments proposed by the state ratifying conventions into the Ninth Amendment, expecting that judges and others would research the historical record to find the details. That has not happened, so perhaps it it time to spell them out.


June 1, 2013


by Jon Roland

A political or management system can be characterized by the kind of people it elevates to positions of authority. A number of terms have been proposed by cynics, such as plutocracy, rule by the rich, kleptocracy, rule by thieves, or kakistocracy, rule by the worst. But from this writer’s experience with the most influential legislators, bureaucrats, judges, and corporate executives, the finding is that what attribute is most important to the success of most of them is the ability to sell and make connections with other people. In Greek a salesman is a πωλητής, or poletes. This suggests a word, poletecracy.

In a few cases technical skills help enable someone to rise to power, but most people in high positions are not experts in anything but campaigning and dealmaking. Most are politicians (πολιτικοί) first and foremost. If they acquire any expertise, it is usually after being on a job for a while, not while they are climbing. Their personal assets are favors earned and paid, and being able to have other influential people take their phone calls.

Robert G. Kaiser, a reporter for the Washington Post, has a new book reporting the inside story of how the Dodd-Frank Act came to be. Kaiser’s “Act of Congress: How America’s Essential Institution Works, and How it Doesn’t”, uses the long battle over the act and his access to Christopher Dodd, Barney Frank, and their staffs to show how modern congressional legislating really works. He has identified three main things wrong with Congress as it presently operates, and one of the most important of these is the lack of real policy expertise on the part of members. They are only generalists, depending on the expertise of staffers,  lobbyists, and agencies, and often not understanding issues well enough to know who, if anyone, the experts are. It is this dependence on the expertise of others that makes staffers, lobbyists, and agencies more powerful than they should be for Congress to operate as the Framers intended.

Because it takes more time than one term provides to learn enough about how to be effective, and to build the connections they need to get anything done, they are almost compelled to spend much or most of their working hours raising funds for re-election, to protect the investment already made in preparing to be effective, both on the part of the members and of their staffs and contacts.

The problems are more complicated and difficult for Congress and the federal government, as it is for large, multinational business organizations, than it is for local government. States and large cities fall in between. But as the systems to be managed become larger and more complicated, they also become increasingly unmanageable.

The problem was discussed in a 1970 paper by Jay Forrester, “The Counterintuitive Behavior of Social Systems“, in which the author used computer simulation models to demonstrate that most people, even experts, are not very good at predicting how any given intervention in a complex system will play out. That leads to the observation that “if a solution is simple, obvious, and appealing, it is probably wrong.” Computer  models may not work, either, but without them the policy proposals most people will come up with are more likely than not to be ineffective or counterproductive.

One innovative proposal to remedy this problem is sortition, or random selection of decisionmakers, similar to the system used by the ancient Athenians. That doesn’t mean a one-step process of random drawing of names from the rolls of registered voters. The most successful system that used sortition, that of Venice from 1268 to 1797, combined random stages alternating with screening for talent and wisdom. Properly structured and conducted, it might select legislators who both have personal expertise from the day they start work, and who, because they can’t be re-elected, don’t have to spend any time or resources getting re-elected. The Greek word for such randomly selected legislators is nomothetai (νομοθέται). If a merit-weighted sortition process were extended to their staffs, and to the agencies for which they legislate, then we might expect better performance than we are currently getting.

Proposed method of electing U.S. senators

August 1, 2012

Selection of members of legislative bodies not elected by population

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

Mortgage-backed security model is infirm

October 6, 2008

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.

There is also 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.t 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.

Common Law and the Constitution

September 15, 2008

The theory of common law is that there are principles of justice that arise naturally from the biological and social nature of humanity. I have sometimes discussed that in terms of there being an (unwritten) constitution of nature, and a subordinate (unwritten) constitution of society, to which there is a subordinate constitution of the state (society in exclusive control of a territory), and a further subordinate (probably written) constitution of government (the document adopted in 1789 for the U.S.). See Social Contract and Constitutional Republics.

In this concept what a court does when it has to decide without a legislative enactment (written constitution, statute, etc.) is to discover those natural principles applicable to the case and its issues. Court precedents are therefore a history of such discoveries (called “findings”) in similar cases that are respected on the assumption that the previous courts did a good job of discerning the principles. In this sense, common law courts are something like a peer-review process in scientific fields , in which claims of discoveries by scientists are subjected to examination to determine whether they stand up to challenge, and past scientific discoveries are accepted until refuted by a later discovery.

So while the term “common law” goes back to the 11th century in England, the concept is much older, and was discussed in ancient Hebrew, Greek, and Roman law, as well as the legal traditions of other lands and peoples.

The distinction is important. In theory, the judge and jury are not “making” law. That would be legislation, and that is not within their jurisdiction. It is “finding” the underlying principles of justice that presumably govern all human societies, whether some of them know it or not.

By the 17th century, the system of common law in England was becoming problematic. There were just too many precedents, and it was usually possible to find a supporting precedent to support any position litigants might take. Lawyers could spend a lifetime reading the record of old cases and never cover them all. Attempts were made to codify common law in legal treatises, such as those of Bracton, Britton, Hugo Grotius, Francis Bacon, Edward Coke (pronounced “cook”), Thomas Hobbes, Samuel Rutherford, Samuel Pufendorf, John Locke, Algernon Sidney, Bynkershoek, Burlamaqui, Thomas Rutherforth (online edition in progress), Vattel, and Blackstone. However, this only led to conflicting schools of thought on the subject.

The demand for codification and simplification was one of the factors driving the emergence of the English House of Commons as that country’s supreme lawmaking body. However, without a single, coherent written constitution of government, other than a collection of enactments that had special weight by tradition, Commons functioned as a kind of ongoing constitutional convention, concerning which it came to be said, “No man’s life, liberty, or property are safe while [Commons] is in session.”

This problem is precisely what caused tension with the British North American colonies, and ultimately to the break and the independence of the United States. Coming out of that experience without a written constitution of government, and comprehensive statutes, the new country chose to abandon so much reliance on tradition and the common law, and adopted written constitutions for each state and then for the Union. They did not, however, discard it altogether. The written constitutions incorporated the nonconflicting parts of what had then become the American branch of common law (Camdenian rather than Mansfieldian), including almost all the definitions of legal terms.

So the U.S. Constitution is written in the language of the American common law, and I strongly advise modern students to approach the Constitution as though they were learning a foreign language. Contrary to what many think, much of the Constitution is not really written to be understood by ordinary, non-legal-educated people. Terms like “due process” and “jury” were terms of legal art with a vast body of cases and treatises behind them. Americans in the Founding Era were much more law-literate than are people today, but even the Founders had to hit the books mentioned above to find out what they were saying when they drafted the Constitution. So must we to understand what they wrote. There are no shortcuts.

Jury “nullification” did not really come into being with the 1670 Trial of Penn and Mead and Bushell’s Case. Those cases only solidified what had already become established as a foundation principle of common law, although until them there was much judicial practice in conflict with the principle. It is to noted that it was also already established that arguments on issues of law were to be made in the presence of the jury, and not just in the privacy of the judge’s chambers, a principle confirmed as late as Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573, which has never been overturned (although it is now uniformly ignored).

Not all remedies are judicial

July 24, 2008

The classic legal maxim is “for every [violation of a] right there is a remedy”. But not necessarily a judicial remedy. Providing courts to decide cases is a privilege, not an immunity (right against the exercise of a power of government). The U.S. Constitution only requires one Supreme Court which may consist of only one justice. All else is discretionary. There can be no constitutional right to an adequate portion of a scarce resource, and court dockets are a scarce resource.

Not having a court with jurisdiction to decide a case does not mean one doesn’t have a right. Just not a judicial remedy. One always has the remedy of “self-help“, but since that can lead to violence and civil disorder, the political establishment creates courts to provide people with another alternative.

It was held in Barron v. Baltimore not that the plaintiff didn’t have a right against his state, but that federal courts did not have jurisdiction to provide a remedy, and that if he couldn’t get relief in a state court he was stuck (other than by the alternative of “self-help”, which was not mentioned).

The original design of the Constitution put the burden on the citizens of each state to make sure their state courts provide just relief. It was not their intent to make federal courts the courts of appeal for every state case. When the War of Secession and its aftermath showed that wasn’t working, the 14th Amendment was adopted, but not as a complete solution. The pressure is still on the people of each state to maintain just state courts. It is not the job of government to relieve the people of the burdens of their civic duties to supervise government.

The American Revolution was to replace the monarch with the people as sovereign, but that didn’t change most of the principles of law. It changed who would decide who would administer those principles.

The concept of “scarce resources”. It is not a matter of degree, or the availability of funds. It is a term of art in economics, and refers to any situation in which resources are expended, which may in principle be insufficient in some scenarios. The “rights” recognized as “constitutional” are only those that can protected by government expending no resources, and presumes a situation in which government has no resources.

Now one might argue that protecting the right of due process requires the expenditure of scarce resources, but it can always be protected by the government refraining from prosecuting a case, or providing a court in which a private party can prosecute a case. In other words, it provides that if any resources are provided, enough have to be provided to be fair to all parties. But there is no right to have any at all provided.

The concept of rights doesn’t entail a right to easy redress. Ultimately, one has to be prepared to take up arms and kill or be killed. One has rights without courts, but not if one isn’t willing and able to fight for them.

As a lawyer here in Texas put it, speaking of his fellow lawyers, “We own the courts and we make the rules [for our benefit, not the benefit of the people].” The result is that one gets the judicial administration one is willing to pay for, either by paying a lawyer or getting the legislature to fund it. But most legislative candidates will confirm that the voters don’t make the courts a leading issue. That is what has to change before the situation will improve (and maybe not even then, because of corruption).

Ultimately, the redress available is  not judicial, but political. One has to get one’s fellow citizens to elect the right officials. That won’t help particular cases, but may help similar cases in the future. The problem is that people tend to fixate on their own cases and never get around to working for general solutions.

Government is set up to provide many services, not all of which involve the protection of rights. Constitutional rights are those with respect to government, and are protected by government doing nothing. The problem for public understanding of these matters is the use of the same word for both a right against government action and for a “right” against private parties or impersonal vicissitudes, such as invasion, crime, disease, or accident. Those nongovernmental threats are unlimited. Governmental resources are limited, and therefore scarce by definition. Thus, we can appropriate money for police to investigate crime generally but it would be infeasible to hire bodyguards for every individual.

The annualized cost of something like a courthouse run about $200/sq foot for employee salaries, $20/sq foot for amortization of the cost of the building erection, $1/sq foot for maintenance, and $4/sq foot for utilities like electric power, water, sewage, etc. It will typically require about 1 sq foot for each citizen to be served, so you will see a courthouse for a county of about 20,000 people averaging about 20,000 sq feet, for an annualized cost of $4,500,000, or about $225 in taxes for each  citizen. However, the above estimates do not count the costs of the lawyers and judges, law enforcement officers, vehicles, and buildings, jails, and other facilities. It adds up.

If one does polls of voters one will find few of them put much priority on judicial services. It is just not a prominent issue for most people.

Political remedies are general, not specific. One still wants remedies for particular cases. Moreover, the political remedies  mostly operate through courts. The mistake too many people make is to neglect the political phase and then expect to salvage their neglect in the judicial system. It is much like the way people pay attention to general elections but neglect the nomination or party-building process. There is a general need for people to become involved at an earlier stage in almost everything.

Bills of Attainder and Trial by Jury

July 24, 2008

The subject of bills of attainder is discussed in Public Safety or Bills of Attainder? — Written Jun. 14, 2000. Published in University of West Los Angeles Law Review, Vol. 34, 2002. This is to make some additional remarks on it and related subjects.

A question as arisen concerning Art. III, Sec. 2 Cl. 3 of the Constitution, which states “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury;”. That is not a delegation of a power. Powers to prosecute crimes are delegated elsewhere, in Art. I Sec. 1, Cl. 6, Cl. 10, Cl. 16, in Art. III Sec. 3 Cl. 2. and in Amendments 13, 14, 15, and 18 (repealed but with a lingering power in 21). The intent was not that it was only a right that could be waived by the defendant, as courts have held since, but also a mandate, since the Founders were well-acquainted with corrupt courts that could enter pleas or waivers without the consent of defendants.

So, yes, that means that every conviction of a crime in federal courts held without a jury is void.

The cited delegations of legislative powers are to adopt statutes to define what act is a crime, and the penalty for it. Congress may also legislate the creation of courts with various jurisdictions, including the jurisdiction to try cases in which a prosecutor petitions the court to find a defendant guilty of a legislated crime and apply the legislated penalty. The legislation defines the crime and declares a punishment for that crime, not for the offender, but the court applies the statute when it passes sentence, disabling the exercise of a right then depriving the disabled right, either permanently or for a period of time.

The delegations were for general categories of crime defined in the common law, but left it to the discretion of Congress to break out the general crimes into specific ones and to set the punishment for each. There are many things that can qualify as counterfeiting, piracy or felonies at sea, or offenses against the laws of nations, each with a different penalty. Treason, however, was defined, somewhat narrowly, in the Constitution, leaving to Congress only specification of the penalty for the various components of it (making war, giving aid and comfort).

Clause 16 is about discipline of military and militia, which includes criminal penalties.

The people are the sovereign, although they only act as sovereign when ratifying constitutions or constitutional amendments, either through legislatures or conventions.

The legislative disablement of a right to life, limb, or liberty, or punitive disablement of a right to property, is a punishment, even if actual deprivation is not immediately executed. It is authorizing others to execute deprivation, even if no specific warrants of execution are issued.

For more on this see Ex parte Garland , and the following quote, albeit from the dissenting opinion:

It is said that it is not necessary to a bill of attainder that the party to be affected should be named in the act …. It is very true that bills of attainder have been passed against persons by some description, when their names were unknown. But in such cases the law leaves nothing to be done to render its operation effectual, but to identify those persons. Their guilt, its nature, and its punishment are fixed by the statute, and only their personal identity remains to be made out.

A statute that declares a punishment for unnamed individuals who possess a firearm who are members of a class of those who are defined not by having had their right to do so specifically disabled by due process, but by other events or conditions, fits the above quote.

Is the Right to Vote Really Fundamental?

July 24, 2008

In another forum an argument was made in support of the proposition that voting is an “inalienable right” (or “fundamental right”). My answer is no.

The first error being made by those who hold it is “fundamental” is to treat “voting” apart from the question to be voted on. If there is some “right” (or immunity, as distinct from a privilege) to vote, then it must also be a “right” to have the question presented to the voter. But there are many kinds of question, and there may not be the same kind of “right” for all kinds of questions. Let us enumerate:

A. Questions that might be put to voters
1. Expression of consent to the general legal order.
2. Expression of consent to a particular legal measure, such as a constitution, constitutional amendment, motion, or retention of an official.
3. Nomination of a candidate for a particular office.
4. Election of a nominee for a particular office.
5. Expression of support or opposition for some policy or practice.
6. Expression of some aspiration, opinion, or other feeling unconnected with any particular policy or practice.
7. Other.

There are also several methods of voting:

B. Methods of voting
1. With one’s feet, by entering, remaining, or leaving the territory of some state (“people in effective possession of a territory”). This the Lockean method of expressing consent to the general legal order in (1) above.
2. By raising an objection, or failing to do so, when one has an opportunity to do so. Cooperation or noncooperation. Includes civil disobedience.
3. By making comments of general opposition or consent to a general consensus emerging from general discussion.
4. By voice vote in assembly.
5. By count of individual votes in assembly.
6. By casting of marked ballots in a formal balloting process, and the accurate counting of those ballots to get final decision. Ballots may or may not be printed with names of nominees or propositions, and voting may or may not be secret.
7. By electing representatives to a further deliberative assembly where decisions are made, perhaps to send representatives to a still higher deliberative assembly.
8. By designating or electing persons to a pool from which representatives are selected at random to serve in a deliberative assembly. This is done for trial and perhaps grand juries.
9. By adopting procedures for deciding questions by impersonal or random methods, such as by letting a computer do it, or using a coin toss or other random method. This would include letting a computer draw voting districts, or the use of juries or other method of sortition.
10. By adopting a procedure for allowing contending alternatives compete, such as by having contenders for office play a game of go and making the winner of the game the winner of the election contest. (Duels once were used for this.)
11. By adopting a voting and counting procedure, such as first past the post, successive runoffs, instant runoff, approval, proxy, or whatever.
12. By violence and intimidation, bribery, or other such means. (Usually thought of as what voting is not supposed to be, but it is a kind of voting and has to be included in a full array.)
13. By inheritance or designation of successors by predecessors.
14. Other.

Finally, we have several alternatives for deciding who qualifies to vote on any question:

C. Possible qualifications for voting
1. Personhood, regardless of other qualifications.
2. Personhood, unless voting disabled (minority, dependence, non sui juris, etc.).
3. Citizenship in nation.
4. Citizenship in state.
5. Citizenship in county.
6. Citizenship in city.
7. Citizenship in district.
8. Voting membership in association, shareholder, etc.
9. Age range.
10. Duration of residence.
11. Property holding.
12. Education.
13. Payment of a tax.
14. Militia service, etc.
15. Official position (member of legislative body, judge, etc.)
16. Other

Now, assuming we can reach agreement on what “fundamental” (or “inalienable”) means, which combinations of the above enumerations can be said to be “fundamental” or “inalienable”?

For Locke, only B1 is inalienable, although he did not use that term.

Keep in mind that we are speaking of an immunity from being prevented or impeded from voting, not some entitlement to be enabled to vote, such as by being transported to polling places, etc.

Considering all the ways the above items may be combined, there are clearly legitimate ways that voting may be restricted, by adopting one combination over another. Therefore, it only makes sense to speak of rights not to have one’s privilege of voting denied on certain grounds. There may or may not be a right to have a particular question put to a vote in a particular time, place, and manner, but once presented, there are legitimate and illegitimate grounds for denying or impeding voting on that occasion.

Voting can and does arise as a customary method of making collective decisions under the constitution of society, before a constitution of government is adopted, In that respect it is like “due process”, defined in terms of due notice and a fair hearing (oyer and terminer), but allowing for variation in procedure so long as certain standards of protections for all parties are maintained. Voting is one such procedure, for expressing consent or exercising a collective will, but it is not the only one. A particular procedure may become established in a written constitution of government, as a choice made by the framers and ratifiers, but until that is done, it hardly seems appropriate to designate it as “fundamental”.

In the final analysis, those rights are fundamental that people will tend to resort to deadly force to defend. Rights, like power, grow out of the barrel of a gun, if it comes to that. We need to ask how many of our rights people will defend that way today.

Can the President pardon people who haven’t been convicted?

July 23, 2008

Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”

Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.

Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.

There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.