Saturday, March 31, 2012

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.’”

Friday, March 30, 2012

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."

Thursday, March 29, 2012

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.

Wednesday, March 28, 2012

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.”

Tuesday, March 27, 2012

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."

Monday, March 26, 2012

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....”

Sunday, March 25, 2012

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.”

Saturday, March 24, 2012

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.”

Friday, March 23, 2012

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.”

Thursday, March 22, 2012

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.”

Wednesday, March 21, 2012

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.

Tuesday, March 20, 2012

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).

Monday, March 19, 2012

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.”

Sunday, March 18, 2012

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.

Saturday, March 17, 2012

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.

Friday, March 16, 2012

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.



_______________________________


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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Thursday, March 15, 2012

Hale on Martial Law

“But touching the Business of Martial Law, these Things are to be observed, viz.

"First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, Quod enim Necessitas cogit defendi.

"Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army, had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they were to be order'd and govern'd according to the Laws to which they were subject, though it were a Time of War.

"Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King's Courts are open for all Persons to receive Justice, according to the Laws of the Land.  This is in Substance declared by the Petition of Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and declared to be contrary to Law: And accordingly was that famous Case of Edmond Earl of Kent; who being taken at Pomfret, 15 Ed. 2. the King and divers Lords proceeded to give Sentence of Death against him, as in a kind of Military Court by a Summary Proceeding; which Judgment was afterwards in 1 Ed. 3. revers'd in Parliament....”

Wednesday, March 14, 2012

Liberty, Part XLV

Make no mistake -- this is not from the Constitution, and it was not an influence on the Constitution, but for the past couple of months, I have been offering ideas of liberty from a number of sources, and the following from France's Declaration of the Rights of Man happens to be excellent:

"1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

"2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

"3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

"4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

"5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law."

Tuesday, March 13, 2012

Where the Indiana Supreme Court was largely right

In 1856, the Supreme Court of Indiana released a very persuasive and well-considered decision. The beginning was not quite right, and I do not agree with all of the specifics near the end, but a good deal of it is definitely right and is worth reading:

Monday, March 12, 2012