Constitutional Philosophy

Lecture 2 Jon Roland November 17, 2012 Constitutional Philosophy

What is a law? • A command (see Rawls) • From a lawgiver (sovereign) • To whose authority we consent • Which we have an inalienable duty to obey • And help enforce • According to the meaning it had for the lawgiver • Directly interpreted by us and not through a mediator

What is Authority? • Not just a lawmaker (a “who”) • But also a jurisdiction (a “what”, “where”, or “to whom”) • Subject matter (subjectam) • Territory (locum) • Personal (personam) • And a process (a “how” and “when”) • And a legitimate purpose (a “why” and “whither”) • Delegations of power can never be plenary

But to what can we consent? • There are limits to consent (Locke) • Nature forbids consenting to loss of “inalienable” rights • Except through “due process” as price for incompetence, violations of social contract, or for defense • Entering into or remaining on territory of a state subjects one only to laws compatible with constitutions of nature, society, and state

Disobedience breaks social contract • Real law is not just a suggestion or guide • Violation has consequences • Including losing honor and forfeiting life • One may seek the protection of an enabling herd • But that only puts your herd at war with the rest of society • Exerceatur constitutio, ruat cœlum. Let the constitution be enforced, [though] the heavens fall.

“All the laws but one?” • Lincoln agonized over breaking some laws: “are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?” (Speech to Congress, July 4, 1861) • Suicide pact? Inter arma, silent leges • Necessity may excuse, but it never authorizes • Fallacy of Necesse ergo praesto • And there is usually a price to pay • Great challenges test constitutions and societies, which sometimes fail

What can the meanings be? - 1 • 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.

What can the meanings be? - 2 • 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.

Historical Linguistics • For when the lawgiver is no longer available to interrogate • Or there are multiple lawgivers who may have had different meanings • A law is written in the legal jargon of when it was enacted • But natural languages are often ambiguous • Or polysemous (more than one meaning at the same time)

Theory of Mind • We understand one another by forming a theory • In our minds • Of what is in the minds of others • Which we build by confirming or refuting evidence • From exchanges with the other mind • Or from accurately anticipating what he will say in later messages of his that we have not previously read

So decoding past messages • Involves using such clues as we can find • To build a theory of mind of the authors and • Of the meanings they wished to convey • We can never be sure what the dead meant • But we can plausibly narrow it down greatly • In most cases to one most likely meaning • Although we may need clues from beyond the message itself, to its cultural context

Legal Construction • Presents special challenges • Because it is not just about getting the original meaning • But about applying it to specific situations • Leading to the untenable division • Between questions of “law” and “fact” • When it is a fact issue whether a law was passed • Or whether it was a law at all

Constitutional Construction • More properly, judicial decisionmaking • Textual • Historical • Functional • Doctrinal • Prudential • Equitable • Natural

Strict Construction? • Some (Scalia) reject it as overliteralism • But in the common law tradition it is more complicated than that • Powers were to be interpreted strictly and • Rights (against powers) broadly • Intent was not just motive or desired outcomes • But mainly function, discernible from structure • And intent, meaning, and understanding not the same

The Framers had a Vision • They were called “framers” for a reason • They saw constitution writing like designing a building • Constrained by natural law and circumstance • But affordable and buildable, presently safe • That had to satisfy those who would live in it • That allowed some concessions to taste and convention • But that had to remain safe for a long time

The Constitution had to Work • For men, not just angels • But men at a level of civic virtue then achieved • Which could endure as long as the virtue did • But which likely would fail if virtue failed • As would any constitution of liberty • Depending on the people to understand it • And enforce it, at the risk of their lives and fortunes

But in the U.S. of 1787 ... • Almost everyone, and every settler, was literate • Many were acquainted with what law there was • Which was mainly 4 volumes of Blackstone • People bought newspapers with political speeches • Most government was county, consisting of one unpaid judge and sheriff, doing everything with unpaid militia and juries • Jefferson proposed smaller ward republics

While in the U.S. Of Today ... • Most people live in anonymous cities • A voting precinct contains about as many people (3000) as a county once did, but no government at that level other than voting • Grand juries get too many cases to deliberate • Or attend to investigation of public administration, or private complaints • And they are unduly controlled by public prosecutors, mainly a late 19th century change • And people not taught how to serve on juries

The English Constitution • Not strictly “unwritten” but • Scattered over many documents, 1200 years, much in Latin or Law French • Subject to being rewritten by any session of the House of Commons • Which functions as an ongoing constitutional convention • That can rewrite its own rules, propose, and approve in one day

English Common Law • Comprised the bulk of English law • Consisted of records of court decisions • Needed doctrine of binding stare decisis • But learning the law was an endless task • And almost any position could find a precedent • Few court records in the colonies • And the colonists felt the need for codification, thus, their constitutions that overrode precedents

English Courts • Different kinds for different kinds of relief sought: common law, equity, admiralty, martial • Two main kinds were common law, for torts, crimes, probate, and property • And equity, for injunctions • Writs were forms sold by common law courts, one for each kind of issue: one filed with the court, one served on the defendant, one kept • Writ system replaced in U.S. by Field Codes about 1840

Writs • Not just court orders • Mainly the initial filings served on the defendant or respondant • Three main kinds: civil, criminal, and prerogative • The burden of proof for the first two were on the petitioner • The burden of proof of the third was on the respondant, not the demandant

Prerogative Writs • Quo warranto – Challenging authority generally • Habeas corpus – Challenging detention • Prohibito – Demanding some action stop • Mandamus – Demanding some action be taken • Procedendo – Demanding faster action • Certiorari – Demanding court records be certified, so they can be presented for appeal on a writ of error • Others, but seldom used

Handling of Prerogative Writs • Must be heard ahead of other cases • Respondant must respond within 3 days unless distance requires more, up to 20 days • No arguments or evidence required of demandant • Any person may demand for any other person or himself • Relief demanded issues by default if respondant fails to prove or no hearing is held

This not Current Practice • Current practice has deviated greatly from original, constitutional standards • Binding stare decisis persists, often treating a wrong precedent as more authoritative than the Constitution, practically amending it • But judges take oath to uphold Constitution, not precedent • Binding (vs. persuasive) stare decisis logically incompatible with having a written constitution

Constitutional Review • Not the exclusive prerogative of judges • They only get cases at a later stage • The militia duty to help enforce the law means • The duty to resolve conflicts of law • And enforce the superior law, especially the Constitution • Independently of judges, supervisors, or legal advisers • We are all on our own, so we better get it right

Constitutional Rights - 1 • a. Rights explicitly declared in U.S. Constitution. • b. Due process • 1. General • 1. Due notice of time, place, manner, parties, and subject of any proceeding with sufficient time to respond. • 2. Fair hearing and decision on the legal merits, with redress for just grievances, including damages, property, or injunctive or declaratory relief. • 3. Not to have just remedies made inaccessible or excessively difficult or costly.

Constitutional Rights - 2 • 4. Mandated testimony of witnesses. • 5. Unimpeded access to courts, court filing, and grand juries, subject only to routine scheduling. • 6. Direct presentation of complaints to a grand jury without the presence of any other government actor without the consent of the grand jury. • 7. Standing to privately prosecute a public right without having been injured or expecting personal injury. • 8. Not to be subject to retaliation. • 9. Not to have admitted any plea or testimony induced by a plea bargain. • 10. Not to have any property or asset taken or forfeited without civil or criminal judgment in a trial, with possession presumed to establish title unless proved otherwise.

Constitutional Rights - 3 • 11. Not to have any right, privilege, or immunity disabled by statute unless one is a minor, which by default shall be any individual under the age of 18 unless the disabilities of minority are extended or reduced by court order. • 2. Criminal trials: • 1. Indictment by twelve members of a randomly selected grand jury of 23 who elect their foreperson, upon a finding that the court has jurisdiction and that there is sufficient evidence for a trial, except for persons subject to military or militia discipline. • 2. Service as prosecutor upon receipt of an indictment by a grand jury, subject only to consolidation by the grand jury if more than one person seeks to prosecute the same offense.

Constitutional Rights - 4 • 3. Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in criminal cases for which the penalty is more than 90 days. • 4. No excessive bail when there is little flight risk. • 5. No excessive fines imposed. • 6. No cruel and unusual punishments inflicted. • 7. Speedy and public trial before an impartial jury of the state and district previously defined by law, wherein the offense shall have been committed, and to have the location of commitment be deemed where there was concurrence of mens rea and actus reus. • 8. Not to be twice prosecuted for the same offense or same facts under different jurisdictions.

Constitutional Rights - 5 • 9. To be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence, but not to have counsel or an attorney imposed on him without his consent. • 10. Not to be compelled to be a witness against himself. • 11. Not be disabled in the exercise, or deprived, of life, liberty, or property, without due process of law, by unanimous verdict of a jury of twelve. • 12. Unimpeded presentation of all evidence by the defendant, without being subject to a motion in limine.

Constitutional Rights - 6 • 13. Unimpeded presentation of all legal argument to the jury, up to the final instructions to the jury, except for argument on a motion in limine that cannot be made without disclosing evidence properly excluded. • 14. Unimpeded presentation of all pleadings, alternative instructions, and certified copies of applicable laws and constitutions, to the jury. • 15. Not to have a sentence that does not separately disable the exercise of the immunity, and order deprivation of it, within the scope of that disablement

Constitutional Rights - 7 • 3. Civil trials: • Trial by a randomly selected jury of twelve sworn to uphold applicable constitutions in which the amount at issue, including costs, exceeds the equivalent of at least 15.46875 troy ounces of pure silver. • 4. Appeals • Appeal from a jury verdict on a writ of error or habeas corpus, according to the rules of the common law in the United States as of 1787, unless the Constitution is amended to provide otherwise.

Constitutional Rights - 8 • c. Nonauthority • 1. Presumption of nonauthority for any claim to authority, to be strictly proved by an unbroken logical chain of derivation from a constitution. • 2. Not to have any government actor exercise a power not delegated, regardless of whether one may be personally injured by such exercise. • 3. Not to have government actors exercise powers on the pretext of being "necessary and proper" when they are not just to perform his official duties but to get a desired result beyond such duties. • 4. To have delegated powers construed as narrowly, and rights, privileges, or immunities construed as broadly, as the language of the Constitution as meant and understood when ratified permits.

Constitutional Rights - 9 • 5. Priority docketing of all prerogative writs filed by a any person as demandant in the name of the people with a court of competent jurisdiction and served on the respondant, within three sederunt days, unless the respondant requires more, but not more than 20 calendar days, including but not limited to, demurral, quo warranto, habeas corpus, procedendo, mandamus, prohibito, certiorari, and scire facias, and to have default judgment even if no proof is presented or a hearing is not held. • 6. Unimpeded and unpunished communications, including speech, press, and education, except such as instigate or direct a felony, misdemeanor, or tort. • 7. Unimpeded assembly and exercise of rights in concert with others.

Constitutional Rights - 10 • 8. Unimpeded assembly as militia for organizing, training, and response to threats to public safety, subject only to direction by state militia officers during a call-up. • 9. Unrestricted keeping and bearing of weapons, equipment, and supplies commonly used by military forces, or suitable for militia, subject only to court order of disablement for being a threat to oneself or others, or to the lawful orders of militia officers during a call-up. • 10. Unimpeded and unpunished petition for redress of grievances.

Constitutional Rights - 11 • 11. Unimpeded devotion or practice of religion, not preferentially supported by public funds, that does not instigate or direct a felony, misdemeanor, or tort. • 12. Exclusion of government actors from intrusion into one's real property, body, or use of one's personal property, for search, seizure, or for any other reason, without consent, a declared state of war or emergency threat to public, safety, a warrant supported by an affidavit of probable cause, and just compensation for any losses incurred, for each incident.

Constitutional Rights - 12 • d. Supervision of government actors • 1. Access to observation and recordation of any government proceeding except trial and grand jury deliberations or their equivalent, or deliberations on matters of security requiring secrecy. • 2. Receipt of records of all proceedings, and accounting for all receipts, loans, debts, and expenditures, and reporting thereof, for eventual examination prior to an election in which the issues may be reviewed.

Constitutional Rights - 13 • 3. Accurate recording, counting, and reporting of all votes cast by eligible voters in any public election with protection from disclosure of how each voted. • 4. Access to all information about oneself, and either copies at cost of all documentation or to make one's own copies using one's own equipment. • 5. Effective low-cost remedies for getting information about oneself corrected, and use of such information restricted to that for which there is consent by oneself.

Constitutional Rights - 14 • f. Other • 1. Association and contract to do things not unlawful, including practice of a profession or occupation, marriage, procreation, and acceptance or denial of medical prevention or treatment, except prevention of contagious diseases. • 2. Formation, conduct, and revision or dissolution of corporations, partnerships, and other trusts, in which settlor, trustee, and beneficiary are distinct persons who may not be impeded or penalized from directly appearing in any court in such capacities.

Constitutional Rights - 15 • 3. Not to have some accorded special privileges or protections that favor them over the rest of the people, in ways not essential to the performance of public duties. • 4. Travel within, to, and from the United States and any State, territory or locality. • 5. Not to be removed from the location of one's birth or lawful residence, or impeded from returning thereto. • 6. Not to be enslaved or submitted to peonage except as punishment for a crime, but subject to militia, jury, witness, and other public duty.

Constitutional Rights - 16 • 7. Not to be impeded or punished for voting if one is a citizen and resident on grounds of race, color, creed, previous servitude, gender, age 18 or above, or failure to pay a tax. • 8. Custody and care of close relatives who are non sui juris. • 9. Not to be neglected or abused while in custody. • 10. Not to be denied any right, privilege, or immunity for failure to have or present a name or other form of identification.

Constitutional Rights - 17 • 11. Not to be deported without proof that one has not been born or naturalized as a citizen, unless one is born to a person not subject to the allegiance of the United States, such as a foreign diplomat or an invader. • 12. Not to be subject to penalty for not doing something, such as paying a tax, if government agents refuse to allow it to be done, such as accepting payment of a tax.

Constitutional Rights - 18 • 13. Not to deny relief from some government action for lack of an appropriation to process the application for relief, or having an official to receive the application, and to fail to recognize the demand for such relief as being granted by default. • 14. Not to be required to procreate or if an adult, to refrain from procreating. • g. The foregoing list is not exhaustive, and further rights, privileges, and immunities are to be found in the historical record. The rule of expressio unius est exclusio alterius shall not be applied.

End of Lecture 2

Constitutional Philosophy