Archive for July, 2008

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.

Columnist Robert Novak: What is “Constitutional Compliance”?

July 19, 2008

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.