Edward Coke owes his excellence to his access to a time machine

Also, Edward Coke lived in the 17th century.

A Gift From 1816

As Indiana’s bicentennial is now only four years away – and with that, the 200th anniversary of the adoption of the State’s first constitution – I propose that we amend Indiana’s current constitution to restore an important part of the original, which was replaced when Indiana’s second (and current) constitution took effect in 1851.

Our original (1816) constitution’s Bill of Rights began, “That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare, That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights; among which are the enjoying and defending life and liberty, and of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”

This language, which is noticeably similar to one of the most memorable parts of the Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness”), was actually drawn from an early Pennsylvania constitution, which itself had adopted (with a slight modification) the language of the Virginia Declaration of Rights, which was adopted about two months before the Declaration of Independence. Twenty-one state constitutions currently include this or something like it, including Virginia and West Virginia, which use the older version from the Virginia Declaration of Rights. The very close Massachusetts variant, adopted in 1780, was used to bring about the end of slavery there, making it the first of the United States to do so. Later, in 1847, in Liberia, when former American slaves and their descendants formed a republic and constitution for themselves, they chose to incorporate into that constitution this same language that Pennsylvania, Indiana, and other American states had used.

At Indiana’s 1850 - 1851 constitutional convention, a delegate named Watts initially proposed carrying the 1816 language over into our new (and now current) constitution, but at the suggestion of another delegate, he agreed to replace it with the more elegant but less specific language of the Declaration of Independence, which ultimately was used. The only reason given for the change was to invoke and honor Jefferson and other contributors to the Declaration. Records of the debates and proceedings of the convention show delegates using the two versions interchangeably, with some delegates, including Watts, indicating that they believed the two versions to have the same meaning (though later on in the convention, Watts attempted to change the wording back to the 1816 version, explaining that the Declaration version did not include everything that he had thought that it included). Ultimately, the Declaration version was used, and it remains in Indiana’s constitution today (altered only by a 1984 amendment which replaced the word “men” with “people”).

The Hoosiers of 1851 were right to understand the rights to “life, liberty, and the pursuit of happiness” as having a certain, settled meaning which extends to the defense of life and liberty, the just acquisition, possession, and protection of property, and the pursuit of happiness and safety. However, these rights can only be applied in their long-established meaning, in practice, so long as the people, the legal community, and the judges of the state remain aware of that meaning. Unfortunately, through no fault of their own (after all, unless they had somehow been notified that the meaning and effect of natural rights had already been well-discussed, established, and settled, why would people go looking for that information, and how would they know where to look?), this no longer seems to be common knowledge, even among lawyers or judges. 1

If our legal system is unable or unwilling to vindicate the great rights of “Life, Liberty, and the Pursuit of Happiness” when they are stated in these general terms, then let us be more specific. We can begin by restoring the details that were declared and established by the first Hoosiers, in 1816.

1. In Doe v. O’Connor, in 2003, though the Indiana Supreme Court did not ultimately apply this section or state its understanding of it, the Court’s review of other states’ courts’ treatment of similar sections of their own constitutions strongly implies that it would treat our own Article I, Section I as though it were only a vague mission statement rather than binding law – notwithstanding that the Court has given effect to that section on previous occasions. (Indeed, if conclusions can be drawn from that portion of Doe v. O’Connor, the Court may well even be hesitant to apply the more specific, 1816 language; however, even if the change has no other effect, I would hope that the Court could be persuaded at least to recognize the right to defend life, liberty, and property – traditionally known as the “First Law of Nature” – which the 1816 language would clearly embed.)

More from Gibbons v. Ogden, and more concerning the American Revolution

This is a bit more substantial than the previous post:

"It is true, that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution, to prohibit the States from exercising this power.  The idea that the same measure might, according to circumstances, be arranged with different classes of power, was no novelty to the framers of our constitution.  Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussions which preceded the war of our revolution, and all of them were well read in those discussions.  The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed."

The regulation of commerce may be accomplished by means which raise a revenue, and the raising of revenue (using taxes) may be accomplished by means which regulate commerce.  This might be diagrammed using the familiar diagram of two overlapping circles, where the section of overlap is a tax (by any name) which regulates commerce, or at least which is designed to regulate commerce as it brings in revenue.  During the Revolutionary War, the Founders opposed the imposition of taxes for the purpose of raising a revenue where it was not a bona fide regulation of imperial commerce, but NFIB v. Sebelius has brought before us (or, at least, made us conscious of) the matter of regulations -- of something other than commerce among the several states -- which are not bona fide revenue-raising levies.  The overlap between taxes and regulation did not stymie the First Continental Congress.  Maybe we should follow its lead, and draw the line at the boundary between good faith and bad.

Gibbons v. Ogden and NFIB v. Sebelius

Please forgive the absolute lack of context:

"In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

Here is a link, in case you are interested in knowing what the Court was actually considering.  I guarantee that this would qualify, at best, as obiter dicta, but still ...

McCulloch v. Maryland and NFIB v. Sebelius

I just re-read McCulloch v. Maryland for the first time since the Supreme Court decision on the health care bill was "handed down," and I was surprised to find that the reasoning, though not necessarily the holding, of McCulloch was very arguably hostile to the understanding of the federal taxing power that was employed by Chief Justice Roberts in his opinion.  (I should admit up front that other parts of the McCulloch opinion tend to favor holding the taxing power to nevertheless extend beyond the distinctions recognized in McCulloch, so I am not making the claim that McCulloch itself, as a precedent, stands or stood against Chief Justice Roberts' opinion -- the importance of it is that such crucial distinctions were understood and recognized early in the Constitution's existence.)

On its face, McCulloch may seem to have little similarity to the health care case, NFIB v. Sebelius -- it concerns the extent of the power of the states to impose a tax directly and specifically on an enterprise of the federal government (which the Court had just determined to be constitutional), and the extent and contours of the power of Congress to impose taxes was not even considered.  However, at several points, the Court recognizes that a tax for certain purposes, or with certain effects and apparent purposes, may differ from other taxes in a crucial legal way.

"That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose, that the people of any one state should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it is as it really is."

The part about the power to tax involving "the power to destroy" is well-known, but in the passage above, we find Chief Justice Marshall recognizing that taxes involve not only a power to destroy, but also "a power to control."

The (McCulloch) opinion continues,

"If we apply the principle for which the state of Maryland contends, to the constitution, generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent-rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states."

The same applies to the issues of NFIB v. Sebelius.  Although freedom and individual choice are not made the supreme law of the land by the Constitution (though they are protected by it, to great extent), it can be doubted that the American people intended to subject every aspect of their conduct to the control of the federal government pursuant to the taxing power, just as it can very reasonably be doubted that they intended to subject the power of the federal government to the legislative powers of the individual states.  As one ought to intuitively sense, the power to tax is not a power to lay any conceivable amount of tax on any selected person or class of persons (or all people in the United States) and according to any scheme or on any basis that Congress could conceivably choose.

A principle is concerned, here, that I doubt was fully understood and developed at the time of the Constitution's drafting and ratification (and which I am not sure that I fully understand or have fully developed, yet), but it is nonetheless implicated by the Constitution: that the power to tax is a power to raise revenue, and that taxes levied for that purpose and pursuant to that power have certain attributes that distinguish them (and the incidental incentives and disincentives created by them) from taxes which are designed and levied so as to control human conduct as a general matter, or to reward or punish, or to assist or destroy.  Exactly what those attributes are, I cannot yet say -- as I admitted in an earlier post, Congress certainly should (and, as a logical matter, must) have a certain degree of discretion in deciding the extent to which it taxes what, and with what exceptions, and what exemptions, deductions, and credits, if any, it will allow, among other details.  I do not believe that it can be absolutely indifferent between all interests and all courses of conduct, and I doubt that a default mode or rate of taxation will ever be possible to discern.  Nonetheless, there must be outer limits to that discretion, restraining the use of taxes to roughly its proper purpose of raising a revenue (in ways that do not arrogate to Congress power and control that no one has ever validly given to it).  Otherwise -- if we cannot recognize anything that satisfactorily divides a tax from a law that mandates or prohibits, so long as the penalty is monetary and the violator is not given a trial -- what prevents Congress from effectively making an ex post facto law, where the penalty is a tax, or a bill of attainder or bill of pains and penalties, so long as the fine or forfeiture involved is characterized as a tax?  (Chief Justice Roberts attempted to explain why he accepted the penalty in the NFIB case as a tax, but the reasons he offered focused on forms, not substance.)

Finally, the opinion recognizes the distinction between a general tax which might happen to fall on the bank on the same terms as on everyone else, and one which is imposed specifically on the bank:

"This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional."

Again, it does not necessarily follow from this that the individual mandate, if accepted as a tax, is unconstitutional; it would be necessary to conclude also that such a regulatory tax falls outside the scope of the taxing power. What McCulloch does, however, is stand for the notion that it is possible for the Court to distinguish between taxes which are intended or designed to constrain, restrain, or destroy, on the one hand, and taxes for the purpose of raising a revenue, and the incidental incentives that follow them, on the other.

Eventually, this will be important, because once this legal issue has been given more thought and attention, it will no longer be possible for a Chief Justice of the Supreme Court of the United States to be satisfied that a rule enforced by a fine is nothing more than a tax, simply because it is collected by the IRS, does not observe due process requirements (because it is to be collected "in the same manner as taxes"), does not have a scienter requirement (which, unfortunately, is not as reliably connected with modern penal statutes as the Chief Justice seemed to think -- why would a characteristic that penal statutes tend to have but are not presently required to have, and which nothing prevents a genuine tax from having, help to distinguish a penal statute from a tax?), is of a certain magnitude (the question of the magnitude of tax rates being committed entirely to the discretion of Congress, if anything is ... at least so long as the government is not accumulating an utterly unjustifiable surplus for no legitimate reason, or taxing at rates calculated to bring about our annihilation, for whatever reason), is located in the "Internal Revenue Code" portion of the United States Code, is adjusted in ways which happen to be associated with taxes, right now, or is defended by government lawyers who say that they do not consider nonobservance of the rule to be unlawful -- of which factors, most have more to do with whether Congress thought of the penalty as a tax, or wanted it to be thought of as a tax, than whether it ought to be considered a legitimate use of the taxing power of Article I, Section 8.

Francis Lieber on Fundamental Laws and the Supremacy of Law

“The supremacy of the law is an elementary requisite of liberty. All absolutism spurns, and has a peculiar dislike of, the idea of fundamental laws. Aristotle enumerates as the fourth species of government that in which the multitude and not the law is the supreme master; James II. claimed the dispensing power, and Louis Napoleon affirmed, when yet president under the republican constitution which prohibited his re-election, that if the people wanted him to continue in office he should do it nevertheless, and all his adherents declared that the people being the masters could do as they liked, which reminds us of the Athenians who impatiently exclaimed: ‘Can we not do what we list?’ when told that there was a law forbidding what they intended to do.”

The American Revolution, and the distinction between taxes for the raising of revenue and taxes for the regulation of commerce

It is time that I comment on last Thursday's Supreme Court decision on the health care bill ("for I cannot call it a law"). There are, of course, many things to be said about it, but I'll begin with something that I think cuts to the center of Chief Justice Roberts' misstep.

There is a difference between the use of a tax to raise revenue and the use of a tax to regulate commerce. This was not only well-established when the Constitution was written -- it was an important principle in motivating those who formed the early resistance to taxation of the colonies by Great Britain. The Americans, at the time, objected to the use of taxes by Great Britain for the purpose of raising a revenue without the consent of the colonies, not to the use of taxes for certain regulatory purposes, but they definitely recognized the distinction between the two. In the Declaration and Resolves of the First Continental Congress in 1774, they qualified their objection to taxes (without consent of the colonies) by stating that "from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent."

Congress, of course, must enjoy a certain latitude in choosing the basis on which it levies taxes. If Congress were not meant to have discretion in this, I have no idea what scheme of taxation it ought to be forced to resort to by default. Additionally, unless Congress was meant to have discretion, I would have expected the Constitution to have been more specific in the terms by which it granted this power. To some extent, the result must be that Congress has some power, pursuant to its taxing power, to provide incentives and disincentives to certain courses of conduct -- if income is taxed, for example, then it is somewhat less advantageous to earn income; if property is taxed, that reduces the desirability of owning property; if the purchase of certain products is taxed, the incentive to purchase those products is reduced. Nevertheless, it is inconceivable that the power delegated to Congress by those who wrote and approved the Constitution extends its discretion in matters of taxation to the use of taxes to regulate all things. This would be so contrary to the principles, language, history, and structure of the Constitution that the Chief Justice ought to have recognized the absurdity of it in an instant -- I am not even aware of any Antifederalist who objected to the possibility of the use of the taxing power to force people to buy a product.

It is true that long-standing precedents of the Supreme Court have failed to make the necessary distinction between a tax and a fine, but the Supreme Court is obligated to correct its precedents, when necessary, in order to follow the Constitution. In this case, the correction was needed, but the Supreme Court failed to recognize what was established (and declared by the First Continental Congress, even) nearly thirteen years before the Constitution was approved by the Constitutional Convention, and over fourteen years before it took effect. I think that the principle is obvious enough that there is no excuse for this failure.

Error

Today's Supreme Court decision, of course, was mistaken in a number of respects, but the most serious problem with it is that the Court failed to correct certain precedents that, it had become clear, were erroneous. In this post, however, I will only object to an idea expressed by Chief Justice Roberts in the opinion -- not an original idea, on his part, but rather one that is at the center of what is wrong with the existing relationship between the Supreme Court and Congress.

The Chief Justice wrote:

"The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to 'make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.' Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: 'Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.' McCulloch, 4 Wheat., at 421."

This is an excellent example of the mistakes that can be made when judges receive precedents -- even the most venerable, best established precedents -- without adequate caution. In the first place, I do not think that either the "necessary and proper" clause or this quote, which is meant to explain it, can correctly be understood as extending the reach of the federal government (regardless of what politicians and justices have managed to actually reach by invoking them); instead, they strengthen its grip. That clause does increase what the federal government is empowered to do (other than so far as it is understood as the equivalent of certain common law maxims of interpretation, which were similar to it, in which case it only guarantees those implied powers), but only as a means of carrying other powers into effect. It does not authorize any new "ends," except for intermediate ones. Secondly, so far as the quote from McCulloch suggests otherwise, it is contrary to the Constitution and illegitimate. The body of "constitutional law" is not like the common law -- it is simply a tool for ascertaining the true meaning of the Constitution and giving it its proper effect. A rule of this "case law" that is contrary to the Constitution must be void for the same reason that Marshall explained that a statute that is contrary to the Constitution must be void: because if the two are inconsistent, one or the other must give way, and the Constitution, which is the Supreme Law of the Land, does not give way. As Edward Coke said of Magna Charta, our Constitution is such a fellow that he will have no sovereign.

"Our permissive reading of these powers is explained inpart by a general reticence to invalidate the acts of the Nation’s elected leaders. 'Proper respect for a co-ordinate branch of the government' requires that we strike down an Act of Congress only if 'the lack of constitutional authority to pass [the] act in question is clearly demonstrated.' United States v. Harris, 106 U. S. 629, 635 (1883). Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices."

To some extent, it is. The Constitution, if understood and applied faithfully, settles certain policy questions and protects us, to some extent, from the consequences of bad political choices by marginal or temporary majorities. However, we will not have the benefit of this protection so long as the Supreme Court persists in its policy of giving its blessing to Congress' exercise of unconstitutional powers.

Also, respect for a co-ordinate branch of the government, as the following paragraph of Chief Justice Roberts' opinion somewhat recognizes, does not involve ignoring any violation of the Constitution, or any practice of deferring to Congress other than when the unconstitutionality of the act "is clearly demonstrated," if a "clear" demonstration requires anything more than a satisfactory demonstration that the act is, in fact, unconstitutional. I might tend more to agree with such an application of the Court's respect for Congress if there were any reason to believe that Congress has actually developed and maintains something stating its own theory of the extent and nature of its constitutional powers, but based on what I know of Congress -- and I admittedly do not have an intimate, internal knowledge of Congress and its members and its operation -- Congress, as an institution, has no such theory or understanding of the Constitution, much less one that it treats as binding on itself, and certainly not one that persists, more or less intact, from Congress to Congress. Why should the Court treat with any respect a judgment which no recent Congress has actually made, concerning the true meaning and effect of the Constitution on its own powers? And if it does, is it not in doing so deciding that it is better for Americans to be bound by unconstitutional laws than for Congress to be bound by valid ones? Whatever the basis for such a policy decision might be, it is not of the Constitution.

"Our deference in matters of policy cannot, however, become abdication in matters of law. 'The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803). Our respect for Congress’s policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed."

That, for the most part, is true, but it again uses this language of "respect for Congress' policy judgments," which is only appropriate so far as those policy judgments concern subject matter and powers committed to the control of Congress, either explicitly or fairly implied, by the Constitution. Roberts rightly acknowledges that this respect may not extend so far as to cause the Court to ignore the limits of Congress' constitutional powers, but I think that by casting "respect for Congress' policy judgments" as a principle of its own, he wrongly -- and possibly unintentionally -- prepares the Court for the short-circuiting of its own consideration of the extent of Congress' powers, and to resolve questions that are not immediately clear with deference to Congress rather than by inquiring, reasoning, and arriving at a plausible conclusion concerning what power or rule was actually adopted and incorporated into the Supreme Law of the Land. Maybe this is how he was able to overlook the fact that certain uses of the powers of Congress are more in the nature of a regulation or a rule of conduct than a justifiable application of those powers (according to their own nature and internal logic), such as the use of the taxing power to fine certain courses of conduct, without designating that conduct as an offense or other form of unlawful conduct -- and without due process of law.

Vox Populi Vox Dei

That maxim, for those who do not know what it means, means, "The voice of the People is the voice of God." It is false, of course; any person can make mistakes. More than a few of us do things that we wish that we hadn't done, and there are some who have committed crimes -- who have not only done a few things that happened to be prohibited by some legislature (or a City-County Council, passing "ordinances" about whether people can smoke in a place owned by someone who would allow it, or about the number of cars that people can park in their own yards) -- but who have done things that are actually worth incurring come sort of penalty over, due to the fact that the act was actually wrongful. Some of them are in legislatures. Some of the things that they have done, contrary to the laws of the "several States" and to the Supreme Law of the Land, have been in those legislatures, or in Congress (which is a legislature, to some extent).

As a part of my notes on Francis Lieber, author of the Lieber Code (among other works), I present the following, which concerns the idea that whatever the people are alleged to have declared is legitimate, advantageous, and just:

“Mr. Say informs us that when the first cotton manufactures were introduced into France, petitions from all the incorporated large towns, from merchants and silk-weavers, were sent to Paris, clamoring in vehement terms against the ‘ungodly-calico prints.’ Rouen, now the busiest of all the French cotton manufacturing places, was among the foremost, and the petition of the united three corporations of Amiens ended thus: ‘To conclude, it is enough for the eternal prohibition of the use of printed calicoes, that the whole kingdom is chilled with horror at the news of their proposed toleration. Vox populi vox Dei.’ This might well be considered as sufficient to prevent every reflecting man from using the maxim. We now know that the cotton tissue has become one of the greatest blessings of our race, giving comfort, health, and respectability to entire masses of men formerly doomed to tatters, filth, and its fearful concomitants, typhus and vice, and we know too that cotton manufacture is one of the most lucrative branches of French industry.”

“Unanimity of itself proves nothing worth being proved for our purpose. In considering unanimity, the first subject that presents itself to us is that remarkable phenomenon called Fashion—a phenomenon well-nigh calculated to baffle the most searching mind, and which has never received the attention it deserves at the hands of the philosopher, in every point of view, whether psychological, moral, economical, or political. Unassisted by any public power, by the leading minds of the age, by religion, literature, or any concerted action, it nevertheless rules with unbending authority, often in spite of health, comfort, and taste, and it exacts tributes such as no sultan or legislature can levy. While it often spreads ruin among producers and consumers, it is always sure to reach the most absolute czar and subject his taste. Though the head may wear a crown, Fashion puts her shears to its hair, if she has a mind to do so. Far more powerful than international law, which only rules between nations, she brings innumerable nations into one fold, and that frequently the fold of acknowledged folly. How can we explain this stupendous phenomenon? It is not necessary to do so here. The fact, however, must be acknowledged. It is the most remarkable instance of unanimity, but will any one say that Fashion is a vox Dei? The very question would be irreverent were it not candidly made in a philosophical spirit.”

“What fearful fanaticisms have not swept over whole countries with deplorable unanimity! The Romans were unanimous-enough when they slaughtered the worshippers of that God whose authority is invoked to dignify the voice of men in the fallacious maxim. If the voice of the people were the voice of God, the voice of the people ought not only to be unchangeable, but there ought to be one people only. Two nations frequently clamor for war, and both, under the motto Vox populi vox Dei, draw the sword against each other.”

“If we carefully view the subject of unanimity, we shall find that in the cases in which vast action takes place by impelled masses—and it is in these cases that the maxim is invoked—error is as frequently the basis as truth. It is panic, fanaticism, revenge, lust of gain, and hatred of races that produce most of the sudden and comprehensive impulses. Truth travels slowly. Indeed, all essential progress is typified in the twelve humble men that fallowed Christ. The voice of God was not then the voice of the people. What the ancients said of the avenging gods, that they are shod with wool, is true of great ideas in history. They approach softly. Great truths always dwell a long time with small minorities, and the real voice of God is often that which rises above the masses, not that which follows them.”

“But the difficulty of fixing the meaning of this saying is not restricted to that of ascertaining what is the voice of God. It is equally difficult to find out what is the voice of the people. If by the voice of the people be meant, as was stated before, the organically evolved opinion of a people, we do not stand in need of the saying. We know we ought to obey the laws of the land. If by the voice of the people be meant the result of universal suffrage without institutions, and especially in a large country with a powerful executive, not permitting even preparatory discussion, it is an empty phrase; it is deception, or it may be the effect of vehement yet transitory excitement, or of a political fashion. The same is true when the clamoring expression of many is taken for the voice of the whole people.”

“Another instance, showing that no dependence can be placed upon the maxim, is that of proverbs. They are doubtless the voice of the people, and many of them contain much wisdom, but there are also many in favor of our worst passions and meanest dispositions …. A very large class of proverbs is directed against peasants and the laboring classes; against women, lawyers, physicians—indeed, against all the staple topics of former satire.”

“Sometimes the maxim is doubtless used in good faith, as the French at times use, without reserve, that favorite expression of theirs: The instinct of the masses; but generally, I think, Vox populi vox Dei is used either hypocritically or when people have misgivings that all may not be right, pretty much in the same manner as persons say that an argument is unanswerable, when they have a strong foreboding that it may be found very answerable.”

“Vox populi vox Dei has never been used in France so frequently as after the second of December, yet there are unquestionably thousands in that country who would find their religious convictions much bewildered, if they were obliged to believe that it was the voice of God which spoke through ballot boxes under the management of the most centralized executive in existence; and that the voice of the Deity requires a thousand intrigues among men for its utterance.”

“The doctrine Vox populi vox Dei is essentially unrepublican, as the doctrine that the people may do what they list under the constitution, above the constitution, and against the constitution, is an open avowal of disbelief in self-government.”

“The true friend of freedom does not wish to be insulted by the supposition that he believes each human individual an erring man, and that nevertheless the united clamor of erring men has a character of divinity about it; nor does he desire to be told that the voice of the people, though legitimately and institutionally proclaimed and justly commanding respect and obedience, is divine on that account. He knows that the majority may err, and that he has the right and often the duty to use his whole energy to convince them of their error, and lawfully to bring about a different set of laws. The true and stanch republican wants liberty, but no deification either of himself or others; he wants a firmly built self-government and noble institutions, but no absolutism of any sort—none to practise on others, and none to be practised on himself. He is too proud for the Vox populi vox Dei. He wants no divine right of the people, for he knows very well that it means nothing but the despotic power of insinuating leaders. He wants the real rule of the people, that is, the institutionally organized country, which distinguishes it from the mere mob. For a mob is an unorganic multitude, with a general impulse of action.  Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor. The consequences are fearful, and invariably unfitting for liberty.”

“Whatever meaning men may choose, then, to give to Vox populi vox Dei, in other spheres, or, if applied to the long tenor of the history of a people, in active politics and in the province of practical liberty, it either implies political levity, which is one of the most mordant corrosives of liberty, or else it is a political heresy, as much so as Vox regis vox Dei would be. If it be meant to convey the idea that the people can do no wrong, it is as grievous an untruth as would be conveyed by the maxim, the king can do no wrong, if it really were meant to be taken literally.”

Markup

There is sometimes a lot to be learned by looking at manual markup on a draft of a document. Fortunately, such drafts exist of the United States Bill of Rights.

Constitutions and an Idea of "Conservatism"

This is from a certain Edward Shepherd Creasy, in 1848:

“The ancient Athenians had a national oath by which each generation of citizens bound themselves to defend the state, and to hand it down to their descendants better than they had found it:—
…

“That oath was conceived in the truest spirit of Conservatism; and in its spirit should each Englishman act who truly venerates the Constitution of his country, and wishes to preserve it unimpaired. For that purpose, while religiously guarding its primary institutions from the experiments of the mere theorist and the assaults of the destroyer, he must work out its vital law of growth and development, and endeavour to apply its principles to the emergencies of the present time, as his ancestors did to the emergencies of the times gone by. Finality is a delusion, and Revolutionary Change is madness. The only safe course is the good old track of Constitutional progress by means of Constitutional Reform.”

The Indiana Self-Defense Law

Recently, headlines (and other sources of media content) have been written which create the impression that Indiana's Right to Defend bill, which was passed by the Indiana General Assembly and signed into law by Governor Mitch Daniels this March, somehow legalizes the killing of police officers. Of course, there are certain situations in which this law actually would protect people who kill a police officer in self-defense, but, as a reasonably skeptical, level-headed person would have to suspect, the law would not legalize the murder of police officers as a general matter, or whenever they trespass on someone's property, or even whenever they enter a person's house in violation of the law. It only protects a person in using reasonable, necessary defensive force to repel unlawful police action.

Anyway, Radley Balko wrote about this at greater length.

Concerning the Police Power, Again

This is for those who think that legislatures can be (and have been) trusted with supreme, absolute legislative power (with a few limited exceptions set forth in their constitutions, and with deference being given to the legislature on the issue of constitutionality, for no reason which originates from the text or history of those constitutions); it is an old Indiana law, which, fortunately, is no longer on the books, regardless of what those "stupid laws" websites might claim: "Sec. 70. That if any person, shall vend or cause to be vended, any playing cards, or any obscene book, pamphlet or print, he shall on conviction thereof, be fined in any sum not less than one, nor more than three dollars for every such pack of cards, book, pamphlet, or print vended."

Yes, an American state legislature, duly elected by the people, understood its "police power" to extend to the prohibition even of decks of cards.

These days, we are past all of that, however. We just prohibit the sale of alcohol on Christmas and on Sundays (except for at the Indy 500).

The Indiana Constitutional Convention of 1850-1851

Concerning a proposal to retain certain natural rights-related language from Indiana's 1816 constitution, which had been borrowed from Pennsylvania's adaptation of the Virginia Declaration of Rights, and which was very similar to the famous second paragraph of the Declaration of Independence, a certain Mr. Howe said:

“The gentleman from Tippecanoe (Mr. Pettit) contended that the proposition that all men are born equally free and independent is not true. In the sense in which he uses the words, he is undoubtedly correct; but with his intellect certainly he ought to have been able to approximate to the meaning which existed in the mind of the immortal author of these words when he first committed them to paper. In the sense of Jefferson and the framers of the Declaration of Independence, the assertion is true, and always will be true. The assertion refers to the rights of man as existing under the law of nature; and by that law, in contra-distinction to the law of man, all men are born equally free. That is the way in which the term ‘men’ is used.

“It does not require a grammarian to know that men are not ‘born’ in the sense in which the gentleman from Tippecanoe used the term. All know that this ‘man’ is a generic term, including the whole human race, and refers undoubtedly to the time of their birth. It simply declares that all men are born free, and that by the law of man, and usurpation alone, they have become enslaved. That is the meaning precisely, and nothing more nor less. The objection that slavery now exists has nothing whatever to do with the matter. Now we all know—for we have all both heard and read—what is the origin of slavery. Is slavery legitimate by the law of nature or of man? Can you hold slaves by the law of nature? Every schoolboy will respond ‘no’ to the question, and tell you that it exists only by usurpation. The words, therefore, are not only true, but beautifully true; and as an abstract proposition it is little whether it is retained in the new Constitution or not. It will be equally true whether we adopt it or reject it. But inasmuch as our ancestors have seen proper to adopt these words, and inasmuch as they were in the mouth of every freeman of the country at the time, and have become nationalized, and immortalized by the circumstances under which they were written, I think we ought to retain them. There certainly can be no impropriety in doing so; but, on the contrary, I regard them as manifestly proper. If there be one political document that has been given to immortality more than another, it is precisely that Declaration. Nothing whatever in all Grecian or Roman times can possibly excel this in classic purity or excellence. Let us then adopt it.”

More about that 1798 insurance requirement for ships

In September, I wrote about the 1798 insurance requirement that supporters of the 2010 health care bill frequently attempt to use in order to establish that early congresses of the United States understood the interstate commerce power to allow them to require individuals to engage in commerce. I demonstrated that the two mandates were very different from each other, and that the 1798 act could not serve as a precedent for the 2010 bill. (I also pointed out that there was no reason to assume that whatever was done by an early Congress was necessarily constitutional.)

Well, I have something to add. In support of the 1798 law, there would have been no claim (or any need to claim) that the commerce power allows people to be compelled to engage in distinct, new acts of commerce or that they are engaged in certain markets whether they want to be or not, and regardless of what they do or do not do. The first reason for this (apart from what I wrote about in September) is that the 1798 law concerned an actual, existing commercial relationship between people and a ship, and it regulated the conduct of a party to that contract to adjust for the consequences of that relationship. The end arose out of and the means applied to the same class of actual commercial relationships -- it should not be difficult to see why this might be considered a genuine regulation of commerce.

Additionally, the ship itself would have been a creature of commerce -- an artificial person, created for the purpose of commerce (more or less a corporation), not a natural person. I will not say that simply because ships and corporations are artificial persons which exist for the purpose of commerce that the federal government may require of them anything it desires, but when such a vessel is the subject of a federal law, it is much more reasonable to think that it would be a valid application of the interstate commerce power than if the law applied to all persons. (If someone were to respond that the individual mandate could then properly apply to everyone who engages in commerce at all, I would wonder whether that person is giving the issue full and honest consideration. Under that approach, the objective would not be related to the basis on which the regulation applies to a person, as it would when the behavior of employers is regulated in order to affect the effect of employment on the condition of employees -- it would simply leverage the rightful liberty of every person to engage in commerce in order to compel us all to obey an unrelated command.)

One way or another, the regulation affected only actual commerce, unlike a requirement that everyone buy health insurance.

Concerning the Six Statutes

Last July, after finally finding two of the more obscure of the Six Statutes of the reign of Edward III, I posted the text of them, without attribution.  I hope that this will remedy that:

(Scroll down a page or two, if you are looking for the obscure statutes.)

I also found this:



I, honestly, did not see this until today, but it probably adds something to whatever a Six Statutes enthusiast might be looking for:



The same goes for this, though I would have taken note of it if I had found it, last summer:



And so it is done. The Internet now can be searched for sources demonstrating the identity and content of the Six Statutes.

When nothing more than a link is required...

Concerning amendment of the Constitution: something from the recent past.

The Continental Statement

As I did with certain quotes of Thomas Jefferson in December, I arranged the following quotes which I collected from Revolution-era American declarations of rights*, with the quotation marks erased (so that it can flow as a single, intact document on the American Revolutionary understanding of the nature of rights and justice and the purpose of government, and on what basis, with what conditions, and under what circumstances we are obligated to support it).

[* The second paragraph of the Declaration of Independence does clearly and succinctly explain the nature of rights, justice, government, and law, which is why it is the heart of what I edited together, below; nevertheless, I think that the details offered by one of the drafts of the Declaration, and by the Virginia Declaration of Rights, and by many of the early state constitutions, add something of value which justifies their inclusion.]

-- A frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free. That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare,

We hold these truths to be self-evident, That all men are created equal; That they are endowed by their Creator with certain unalienable rights (that from that equal creation, they derive in rights inherent and inalienable: certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity); That among these are Life, Liberty, and the Pursuit of Happiness; That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and whenever any form of government becomes destructive of these ends – whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual – it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

The body-politic is formed by a voluntary association of individuals; it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. The end of the institution, maintenance and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life – every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence.

It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may, at all times, find his security in them. All laws, therefore, should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens; all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them. Of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration.

Every individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to expense of this protection; to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people ... are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent, the surrender is void; but the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

On reception of the common law

I recently became interested in reception "statutes," and I tracked down all of them that I could find.  Although it currently makes no practical difference how a state received the common law (the various states tend to follow general continent-spanning trends in common law, regardless of how each of them adopted the common law), it makes sense that it eventually could.

Those which adopted it by custom (or appear to have done so -- there were a few states that did not appear to have either a reception statute or a reception constitutional provision) or adopted it through their constitutions could very reasonably be understood to have given their courts the power to continue to cleanse the common law of obsolete forms and vindicate its true principles, as British courts had done over the centuries.  Those which adopted the common law by statute alone, however, even if they intended to give their courts that same power, arguably lacked the power to do it.  The constitutions of American states usually make explicit what the United States Constitution only implies: that the executive, legislative, and judicial powers are to be separated and committed to distinct branches, and that none of those branches is to possess the powers of another, other than in internal administrative matters, or where necessary in the proper execution of their own powers, or where specifically authorized by another part of the state's constitution.  If it is debatable whether courts' development of the common law is legislative activity, it should at least be clear that it violates a state's "separation of powers" clause for its legislature to enact, by reference, a body of law with the intent (and the result) of giving the courts of the state the power and the liberty to create, define and redefine, alter, and wholly reshape its content and effect.  If this power concerned only trivial matters, it might have been less inappropriate for us to continue to overlook or ignore this violation, but other than to the extent that it has been pre-empted or controlled by constitutions or legislation, it is the common law which contains and supplies the substance of our rights as they are comprehended by our legal system.

I do not bring this up because I am opposed to the development of the common law; I am not opposed to that.  Its ability to adapt is one of the reasons why it has worked so well as the "background" and foundation (please excuse the mixed metaphor) of our legal system.  However, we need to get our affairs in order so that we can practice constitutional government without absurdities, and without the need to resort to legal fictions to address those absurdities, and without opportunities for improvements in the law being lost simply because we have continued to allow such an important part of state law to rest on a source of authority which does not make sense and is incapable of being understood (other than by recognizing it as absurdity and leaving it at that).

Additionally, it is clear that as flexible as the common law is, and as important as that flexibility has been to its continued fitness for use, part of its excellence is in that it has a skeleton of principles that are not meant to be changed or violated.  Unfortunately, the way the common law is currently viewed in the legal community and treated in the courts, that "skeleton" is frequently broken.  In considering how to fortify that skeleton, it will be important for us to understand how the common law was ever instituted throughout the United States (Louisiana excepted).  I can think of a few ways in which improvements in reception "statutes" could improve the quality of the line of common law that we get out of our states' courts, partly by using them to point out some of the principles, tendencies, and traits of the common law which ought to endure even as the common law evolves over time.  However, I suspect that any attempt to make changes of that kind to reception statutes would lead others to begin to notice and think about the constitutional problem with the very idea of a reception statute, so I suggest that we (those of us who understand what I just wrote and who also care) begin to consider, discuss, and then resolve the question of how best to correct the constitutional problem.  Once we have done that, I (of course) suggest that we make the correction.

Thomas Jefferson, on the Common Law

It may not yet be clear to you why I am posting this, but it concerns the source of the authority of the common law. Most states have a reception "statute" (often a constitutional provision) that adopts the common law within their jurisdiction, but it was once believed that it attached to English emigrants and was carried with them to America, in the state that it was in at the time of their departure, and planted in American soil to the extent that it was consistent with local conditions. Jefferson, in his Summary View, expressed a different theory:

“To remind him that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness.”

“That settlements having been thus effected in the wilds of America, the emigrants thought proper to adopt that system of laws under which they had hitherto lived in the mother country, and to continue their union with her by submitting themselves to the same common sovereign, who was thereby made the central link connecting the several parts of the empire thus newly multiplied.”

Jefferson and the Origin of Law

“To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil powers, his majesty has expressly made the civil subordinate to the military.  But can his majesty thus put down all law under his feet?  Can he erect a power superior to that which erected himself?  He has done it indeed by force; but let him remember that force cannot give right.”

Liberty, Part XLIX

Justice James Wilson:

“But legislators should bear in their minds, and should practically observe—and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject—the following great and important political maxim:—Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. ‘Legum’—I repeat it—‘servi sumus, ut liberi esse possimus.’”

Liberty, Part XLVIII

Former Justice James Wilson:

"Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty."

I agree

Jacob Sullum of Reason does not believe that Florida's "Stand Your Ground" provisions of its self-defense law have anything to do with the failure of police to arrest George Zimmerman for the shooting of Trayvon Martin.  I agree.

I am interested in the laws of the various states in relation to self-defense, as my posts on the "First Law of Nature" and Indiana's Barnes case have doubtlessly made clear.  As a result, when Florida's self-defense statute first came under fire for having somehow protected Zimmerman, I looked it up.

Though critics have tended to identify the "Stand Your Ground" policy as the object of their criticisms, it is difficult to see what it has to do with this case.  The "Stand Your Ground" policy is simply a legislative correction of one of the more absurd policies of the common law, that being one of the two most common ways of addressing the absurdities of the common law.  The common law rule allowed a person to be convicted of homicide for killing a person in self-defense, unless the jury was adequately convinced that the defendant had done all that he could do to escape -- a rule which 1) would have tended, from the perspective of the attacker, to reduce the danger to himself in threatening the lives and persons of others; and 2) (a) encouraged those whose lives or health were threatened to risk serious injury or death for the benefit of their attackers, in order to avoid criminal liability, or (b) punished those whose efforts to preserve the lives of their attackers were not convincingly satisfactory.  (Also, I do not see how placing the burden of proof on the prosecution would have changed any of this, though it would, of course, have affected the extent to which this rule was a problem.  The point is that no one who is attacked and placed in danger of life or serious bodily injury should have to weigh that kind of harm against the possibility of prosecution for or conviction of a serious crime, and that no such person, having been attacked, should have to surrender anything to a would-be murderer in order to save his own life.)  This change in the law is just, and it is not unusual, and, more to the point, it would not protect Zimmerman -- not based on the facts that are currently known to the public, at least -- particularly considering that Section 776.041 specifically denies the application of the "stand your ground" rule in the case of one who "initially provokes the use of force against himself or herself."  If there is any problem with that branch of Florida's self-defense provisions, it not in the "stand your ground" rule as a general matter, but in that it does not distinguish between actual attackers (in cases where the assailed is justified in using deadly force against the assailant) and those who provoke the attack in some other way.  Now that Florida legislators are aware of the problem (assuming that they have noticed), it would make sense for them to make that adjustment, but even as it is, I am impressed by how well that part of Florida law is designed and written.

However, this may be a case of mistaken identity.  A Professor Michael J.Z. Mannheimer, quoted in the Reason article, objects to a different part of the Florida self-defense chapter -- one that could more plausibly be said to have been responsible for Zimmerman's continued freedom.  He refers to Section 776.032, which grants a certain immunity to those who act in self-defense, protecting them from prosecution until and unless there is probable cause "that the force used was unlawful."

I do not think that this part of the law is at fault, either.  Section 776.032 does not require specific evidence eliminating any possibility of self-defense, nor does it shield everyone who claims to have acted in self-defense, but it does allow the possibility or appearance of self-defense (based on the evidence) to negate the probable cause for the possibility that the force used was unlawful.  This is appropriate and just, and should not have had a significant effect on Florida law, if it did -- probable cause is already needed in order to arrest a person, and if among the apparent facts of a homicide case are those which tend to establish that the killer acted in self-defense against a serious threat, it would be difficult for anyone to justify arresting that person.  (Was the former practice in Florida, in that situation, to arrest and prosecute the person -- even though it appeared that he had acted in self-defense?  I hope not.  If it was, then this is a good law, and if it was not, then this part of the law did not change anything and could not have done any damage.)  If this law has been interpreted and applied in Florida so as to have absurd or unjust results, the law itself is not to blame for it.

Liberty, Part XLVII

Former Justice James Wilson:

“Let us suppose, that one demands obedience from me to a certain injunction, which he calls a law, by performing some service pointed out to me: I ask him, why am I obliged to obey it? He says it is just I should do it. Justice, I tell him, is a part of the law of nature; give me a reason drawn from human authority. He tells me, he had promised it. Very well, perform your promise. Suppose he rises in his tone, and tells me, he orders it. Equal and free, I see no reason for obeying the order of one, who is only equal and free. Repelled from this attack upon my independence, he assails me on a very different quarter; and, softening his accents, represents how generous, nay how humane, it would be, to do as he desires. Humanity is a duty; generosity is a virtue; but neither is to be referred to human authority. Let invention be put upon the rack, and the severest torture will not draw from it a discovery of any external human authority, by which I am obliged to obey the supposed law, or to perform the supposed service. He tells me, next, that I promised to do it. Now, indeed, I discover a human source of obligation. If I promised to do it, I am bound to do it; unless the promise is either unlawful, or discharged; dissolved by an equal, or prohibited by a superiour authority. But this promise originated from consent; for if it was the abortion of compulsion—the effect sometimes of exterior and superiour human power, but never of human authority—I am not bound to consider it as my act and deed.”

Blackstone on Accountability

"[T]he most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens."

That an entire code would be needed to describe the just extent and operation of natural rights...

...And yet, our reluctance to create such an extensive code, placing it above our legislatures, cannot rightly be understood as our decision to surrender our rights to the free discretion and will of legislators.  It would be a major undertaking to create such a code, and the code would most likely need to be modified more often than a constitution, due to its volume and the tendency of a highly detailed body of law to need to be corrected or adapted more often than a more general one.  However, who can believe that because we have not detailed the minutia of natural justice in stone, we have somehow empowered our legislatures to abandon it altogether?

(All of that was more my reaction to the following than my idea of what the author of it actually had in mind.  The relevance is in how the author does express the opinion, below, that the full extent and operation of a person's rights could not be fully set forth without something as extensive as the totality of the laws of Great Britain, as of the late 18th century.)

From Political Disquisitions:

“Enumerating the political regulations, necessary for supporting natural personal rights, would only be narrating the laws of England, relative to this subject, which are so admirably calculated for this purpose, as appears, to be incapable of much improvement....”

Liberty, Part XLVI

From Political Disquisitions:

“To protect these rights and secure them against the violations, to which, in a state of nature, they are so much exposed, ought to be the principal end and intention of political institutions; which, in place of contracting or diminishing natural liberty, ought to extend and enlarge it, by preventing violence and unjust restraint. True liberty consists not, in a power of acting as one may think fit, but of acting without constraint or controul, provided, he does not injure others.”

From Political Disquisitions, on the Right to Defend

Political Disquisitions is a late 18th century book by "Anonymous," of which a copy was owned by John Adams.

“The natural rights of mankind, are those rights, which are invested in them, by the immutable laws of nature; rights of which they cannot be deprived, without the most flagrant injustice, and which the legislature therefore, should be particularly attentive to maintain inviolate.”

“These consist, in the right of self-defence, in the uninterrupted enjoyment of life, limbs, body, health, and reputation, of liberty and property.”

The True Sense in Which All Men Are Created Equal

“Though I have said above, Chap. II. That all men by nature are equal, I cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level: birth may subject some, and alliance or benefits others, to pay an observance to those to whom nature, gratitude, or other respects, may have made it due: and yet all this consists with the equality, which all men are in, in respect of jurisdiction or dominion one over another; which was the equality I there spoke of, as proper to the business in hand, being that equal right, that every man hath, to his natural freedom, without being subjected to the will or authority of any other man.”

John Locke, on Freedom

“So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possession, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”

The Right to Defend -- Vindicated in Indiana

Yesterday evening, Indiana Governor Mitch Daniels signed S.B. 0001 into law.  This bill, of which I spoke in favor before a committee of the Indiana House of Representatives, was designed to resolve and negate the Indiana Supreme Court's Barnes decision of last year, and to restore the right to defend, as a statutory matter.

Congratulations, and thank you, to Governor Daniels, Senator Mike Young, Representative Jud McMillin, and everyone else who worked to vindicate the First Law of Nature, in Indiana.

Concerning an alloy of the common law and natural law

The idea that the Indiana Constitution prohibits the grant of any privilege or immunity that applies to a person in the violation of that constitution is implied as the constitution stands, particularly with the corroboration of the common law maxims (what may not be done directly may not be done indirectly; every right has means of enforcement and every wrong has a remedy), which are themselves corroborated by reason and good sense.

It is true that the provisions of the state and federal bills of rights do not generally state what the consequence is of their violation, or what their effect actually is, but these provisions were not handed down from the clouds by a mysterious Person, without thought to the landscape that they would adorn. That landscape was composed of an alloy of natural law and the common law. It was not perfected, yet, at the time of the American Revolution or of the adoption of any state's constitution (if it could ever be), and it was not intended to be frozen in its state as it was, but the common law did have, at least, certain essential attributes, rules, and principles. It was not arbitrary, and judges were never authorized to develop it as they wished, without regard for what was fundamental. Its fine points were open to being worked free of impurities, and it was even capable of adapting its particular rules to address new sets of facts, and to improvement on discretionary questions, but its major rules were steady, known, and right. (In Indiana’s case, it is this common law, and not whatever the Supreme Court might please to adopt at any time, that is the law of this state, subject to the statutes of the state.) The rights provisions of the constitutions crown and shield this landscape, and that is the key to understanding those provisions’ meaning and effect. Officers who invaded the homes of people without a proper legal justification were subject to criminal and civil penalties. The Fourth Amendment (and Indiana’s Article I, Section 11) was apparently meant to preserve that situation. To eliminate those penalties, or to privilege those actions, is to effectively legalize those actions, or to give them, effectively, a general warrant. It is the state’s sanction of those prohibited wrongs, and it ought never to be called “legal.”

I am aware that the common law and statute-law of the Kingdom of Great Britain, and England before it, and the several states after it, were not "set in stone." That is precisely the reason why I focus on the established fundamentals and make reference to the natural law element of the common law: because nothing suggests (and everything suggests the contrary) that the Americans who created the United States Constitution and, eventually, the Indiana Constitution wanted to freeze the common law in time, preserving every precedent and rule forever. It is one thing to say that, however, or to say that the common law was meant to be continuously perfected, over time, in its particulars. It is something else to say that the highest court in a jurisdiction is presumptively entitled to abolish or severely alter its major landmarks, rules, and principles at a time of its choosing, without the consent of anyone else (including when it does this at the instigation of the legislature of the jurisdiction).

Burlamaqui, on the Power of Government

“[I]n order to form a complete definition, we must say, that the right of sovereignty arises from a superiority of power, accompanied with wisdom and goodness.”

“But if we suppose a malignant power; reason, far from approving, revolts against him, as against an enemy, so much the more dangerous, as he is invested with greater power. Man cannot acknowledge such a power has a right; on the contrary, he finds himself authorized to leave no measure untried to get rid of so formidable a master, in order to be sheltered from the evils with which he might otherwise be unjustly afflicted.”

Tallagio Non Concedendo, 1297

This is the portion of the old statute that still remains on the books:

No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm, without the good will and Assent of Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Land.

Another English statute

Confirmation of Liberties, 1405

FIRST, That Holy Church have all her Liberties and Franchises; and that all the Lords Spiritual and Temporal, and all the Cities, Boroughs, and Towns franchised, have and enjoy all their Liberties and Franchises, which they have of the Grant of the King’s Progenitors, and of the Confirmation and Grant of our Lord the King that now is. And that the Great Charter, . . . , and all the Ordinances and Statutes made in the Time of our Lord the King, and in the Time of his Progenitors, not repealed, be firmly holden and kept, and duly executed in all Points: And that the Peace within the Realm be holden and kept, so that all the King’s liege People and Subjects may from henceforth safely and peaceably go, come, and abide, according to the Laws and Usages of the same Realm: And that good Justice and even Right be done to every Person; saving to the same our Lord the King his Regalty and Prerogative.

A Different Mode of Amendment

One of the many practical questions that was effectively settled by the First Congress was whether amendments to the United States Constitution would alter the existing text or would simply accumulate at the end of the document.  The Congress, of course, chose the latter method (although some of Madison's original proposals for the Bill of Rights would have inserted and replaced certain words in the main, original text).  Part of the reason for choosing that method involved a reluctance on the part of Congress to make any direct change to the text that was created by the Constitutional Convention and approved by state conventions, which would have created the impression that George Washington, among others, approved of and signed a version of the document that he never saw.

Although it is well-settled, now, that the Constitution is not to be amended by altering the existing text, this has resulted in a number of superseded or void clauses (and even full sections) being retained in the Constitution, with nothing but the amendments which replaced them to indicate that those clauses and sections are not still fully in effect.  (One consequence of this is that critics of the Constitution are still able to point to parts of the Constitution that vaguely refer to slavery, even though slavery has been illegal -- by the authority of the Constitution itself, through its Thirteenth Amendment -- for nearly 150 years.)  I agree with our current mode of amendment, but I admit that it is not the best method from an organizational standpoint.

As a result, mostly out of curiosity, I decided to create the following: what the United States Constitution might be like if we had used the other mode of amendment, altering the existing text instead of stringing amendments together at the end of it.  This is not the Constitution itself, but it is helpful in understanding the effect of the amendments, and, therefore, the true current meaning of the Constitution.

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article. I.

Section 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

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.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Section 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8.

The Congress shall have Power

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

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;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Section 9.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

Section 10.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article II.

Section 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State...

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January [...] and the terms of their successors shall then begin.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

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.

Article III.

Section 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and 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.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Section 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article IV.

Section 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Section 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. The Congress shall have power to enforce this article by appropriate legislation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington

Presidt and deputy from Virginia

Delaware

Geo: Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco: Broom

Maryland

James McHenry

Dan of St Thos. Jenifer

Danl. Carroll

Virginia

John Blair

James Madison Jr.

North Carolina

Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina

J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler

Georgia

William Few

Abr Baldwin

New Hampshire

John Langdon

Nicholas Gilman

Massachusetts

Nathaniel Gorham

Rufus King

Connecticut

Wm. Saml. Johnson

Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston

David Brearley

Wm. Paterson

Jona: Dayton

Pennsylvania

B Franklin

Thomas Mifflin

Robt. Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv Morris

[Rhode Island and Providence Plantations

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