Additional Points About The Tree Falling In The Woods

The question-slash-riddle, "If a tree falls alone in the woods and there is no one around to hear it, does it make a sound?", has been conclusively answered.  I provided that conclusive answer.  I did so late last month.

However, to the points that I made at the time in support of my answer, I have the following to add:

• Human beings cannot hear dog whistles, but dogs can.  Also, when a dog whistle is blown, I think we regard what it causes nearby dogs to hear as "sound".  So, if I blow a dog whistle in the woods (or anywhere else, I suppose) and no dog is close enough to me to hear the whistle, does the whistle make a sound?  (Remember, I would not hear it make a sound whether a dog happens to be present or not.)  If not, would the whistle have made a sound if a dog had been present?
• If one were to look through a telescope at a dying star millions of light-years away from Earth, that star probably would not have existed in a very long time; the light that the observer could now see would have left that dying star millions of years ago.  Depending on when the star finally did "die" (assuming that it did), it is possible that no human being ever saw the star prior to the time of its demise.  Would we say (for that reason) that the star did not have an appearance at all during its lifespan, insisting that nothing has any such property as an "appearance" until and unless light (from the visible part of the spectrum) has traveled from it to the eyes of a person who possesses the sense of sight and who then perceives that "appearance"?  If so, would we say that the star (which we will have just denied had an appearance while it was still in existence) now does have an appearance, even though the star no longer even exists?

In the time since I previously posted on this topic, I have also decided to acknowledge a fact that may have had something to do with the question/riddle's reputation for being impossible to conclusively answer.  That key fact is that the question/riddle was not originally posed in the English language.  I do not know in precisely which language it was initially posed, much less the state of that language at the time when it was posed or what the words used in expressing the question/riddle (whatever those words were) would have meant to users of that language at that point in history.  However, I do know that two corresponding words from two different languages do not necessarily have precisely the same meaning in all of the ways in which they can be used, in every conceivable context.  (Even within a single language, the very same word may vary in its meaning between two different points in time.  I do not think that it has escaped anyone's notice that major changes in a word's meaning can take place over time -- the change that has taken place in the meaning of the word "gay" is probably one of the most widely-known examples of this -- but subtle changes can more easily go unnoticed, which can confuse people when they attempt to read anything that was written a long enough time ago.  For example, in the present-day use of the English language, the word "either" would mean one out of two (and only two) given alternatives, but when the United States Constitution was written, the word "either" could be used even when there were more than two given alternatives.)  Without knowing more about the original language and wording of the question/riddle, I cannot rule out the possibility that the original wording in the original language of the question/riddle would have been more difficult to answer than the modern English rendering of it is.

Back Home Again In Indiana

To my national and international audience, I apologize for writing yet another post on a topic that 1) concerns only the State of Indiana and 2) does not relate to the United States Constitution in any conceivable way.  I promise that I will soon get back on topic, or, to put it more accurately, that I will soon devote myself and this site to a better-developed and more perfect version of this site's original focus -- to a focus that more directly attends to all that ails America right now, with a special emphasis on the aspects that most people have overlooked or misunderstood.  However, tonight, my topic is Indiana's official state song.

For over a century, "On the Banks of the Wabash, Far Away", by Paul Dresser, has been the state song of Indiana.  I see no need to change the state song, but for years it has bothered me that the song "Back Home Again In Indiana" does not have any similar type of official recognition by the State of Indiana.  This is not an urgent or serious problem, but it would be easy to solve, so we should solve it.

I used to tell people that the Indiana General Assembly should give formal recognition to "Back Home Again In Indiana" because in addition to being a good song, it is well-known.  It is the de facto state song of Indiana.  It is one of the most familiar symbols of our state, largely because it is famously performed each year immediately before the Indianapolis 500 begins.  Most Hoosiers probably believe that it already is our state song.

However, the death of Jim Nabors last week provides an additional reason to give formal recognition to this song.  Almost every year for over four decades, it was Nabors who performed "Back Home Again In Indiana" at the beginning of the Indy 500.  Granting the song an official status would be a fitting tribute to a man known so well to the people of Indiana for singing that song for so many years.

Some people may wonder how Indiana can formally recognize "Back Home Again In Indiana" without stripping "On the Banks of the Wabash, Far Away" of the recognition that it currently enjoys.  It is easier to do this than they think.  States can designate almost* anything they wish as their "official state _______" (fill in the blank with the category of your choosing).  A state is free to establish nearly* any category (and any number of categories) that it wishes.  If it desires to do so, a state may set up different categories that are completely synonymous (or, if they choose, that are nearly synonymous) and name a different "official state ________" for each of those categories.  They may even name several different "official state" things for a single category.  There are (almost*) no rules.

I can illustrate this with specific examples of how some of our fellow states have adopted multiple songs as songs representing those respective states.  Arkansas law (Arkansas Code of 1987, 1-4-116) identifies two state songs, one state anthem, and an "official historical song", for a total of four songs.  Florida (Florida Statutes 2017, Title IV, 15.0326 and 15.0327) has both an official state anthem and an official state song.  Georgia (Georgia Code 50-3-60 and 50-3-61) has a single official song, but there is a second song which it identifies as its "official waltz".  Finally, Tennessee has a grand total of seven state songs (Tennessee Code 4-1-302).  I want to make certain that no one overlooks that last point, so I repeat: Tennessee has seven state songs.

That kind of practice is not limited in its application to the designation of state songs, either.  Alabama deemed it worthwhile to have both a state freshwater fish and a state saltwater fish (The Code of Alabama 1975, Sections 1-2-8 and 1-2-9), a state flower and a state wildflower (Section 1-2-11), and two state butterflies (though only the Eastern Tiger Swallowtail is actually given that title, at Section 1-2-23; the Monarch Butterfly is instead dubbed the state's official insect, at Section 1-2-24).  I found plenty of additional examples of this in other states, but I have made my point.

In conclusion, I assure members of the Indiana General Assembly that they can easily grant some kind of official recognition to "Back Home Again In Indiana".  It could be declared the state anthem of Indiana (leaving "On the Banks of the Wabash, Far Away" as our state song), possibly, or it could simply be added to "On the Banks of the Wabash, Far Away" as a second state song.  I think any legislator who makes the attempt to do this would find it very difficult to mess it up.  Almost* any way of doing this would be perfectly acceptable.


* I wrote that a state is free to declare almost anything its "official state _______", and I repeatedly emphasized words indicating the existence of an exception to the general rule.  That exception, of course, is religion.  A state may not declare an official state religion.  Legislators, be sure to avoid accidentally establishing an official state religion.

The Answer Key, Item #1

I have an abundance of important points on issues of consequence to make in the posts to come on Ordain and Establish, but I take the present opportunity in order to conclusively answer a question that I think that people have been debating for far too long.*  Tonight, I give you The Answer Key.

This long-debated quarrel has been over the question: "If a tree falls in the woods and no one is close enough to hear it fall, does the falling tree make a sound?"  This question is reputedly difficult to answer.  However, the answer is "Yes"; assuming that the circumstances concerning the falling of the tree are such that a person would have been able to hear it if that person had been within earshot, the tree would make the same sound in the person's absence.

I am aware that many people will be skeptical of or will disagree with my answer (though probably only for the next one or two minutes).  I ask them: if audio recording equipment were left behind in the woods near the tree in question and that equipment were recording at the time of the falling of the tree: 1) Would the audio recording equipment record anything as a result of the falling of the tree, and 2) If so, what would the equipment record?  It is my privilege to supply the answers to these questions as well: Yes, the equipment would record something resulting from the falling of the tree.  Specifically, it would record the sound produced by the falling tree, which the falling of the tree will have produced even though no person was present to hear it.  Additionally, I will insist (and rightly so) that the equipment will have recorded that sound regardless of whether any human being ever listens to that recording and hears its reproduction of the sound that was recorded.

I am also aware that a number of people will attempt to contrive (and might even believe themselves to have succeeded in contriving) a response that will rescue themselves from the necessity of agreeing with what I have written.  For their benefit, I offer the following:

• If a tree falls somewhere in the woods but the only person within earshot happens to be deaf, does the tree make a sound?  Does the tree make a sound that the deaf person is simply unable to hear, or does the fact that the person is deaf prevent the sound from even existing?
  
• Would you say that deaf people can only fail to hear sound while in the company of one or more persons possessing an unimpaired sense of hearing, on the ground that a sound cannot exist unless it is actually heard by someone, which cannot happen when the only person within range to hear the sound lacks the sense of hearing?
  
• If a given tree in the woods does not fall at all, but a person a few yards away from the tree happens to experience auditory hallucinations that cause the person to perceive the sound of the tree falling, even though the tree did not fall and create the kind of vibrations that the human ear usually receives as "sound", did the tree nevertheless make a sound?  In the familiar, original scenario, some would deny that a falling tree does not make a sound (even though it makes vibrations of the very kind that register as sound) simply because no one actually would perceive the sound, but in this modified, hallucination scenario, sound is perceived, but this happens without the ear even needing to receive the vibrations which when processed by the ear and nervous system are what result in perception of such a sound.
  
• If no person is close enough to the falling tree to hear it make a sound, if we were to suppose that those circumstances prevent the vibrations created by the falling of the tree from qualifying as "sound", what word would we then use to describe what any animals in the vicinity happen to hear?  Is the availability of animal ear-witnesses sufficient to allow the vibrations to qualify as "sound", or would such animals hear something other than sound when a tree falls and no person (in possession of the sense of sound) is present to hear it create a sound?
  
• Before any human being had ever seen the far side of the Moon, did the far side of the Moon have an appearance?  Does the far side of the Moon have an appearance only intermittently, manifesting an appearance whenever a human being is positioned as needed in order to see that part of the Moon (and is, at that time, actually looking at the Moon)?
  
• When a person is alone in a room without any reflective surfaces in it, does most of the person's face become invisible?
  
• Given that I am not colorblind, if a colorblind person and I both look at a rainbow and then I close my eyes or look away from the rainbow, does my act cause the rainbow to have fewer colors than it had possessed only moments earlier?
  
• Is it possible for food to possess flavor before it has been tasted, or does its flavor exist solely while it is being tasted by someone?
  
• If a used (and fragrant) diaper is left in the woods and there is no one around to smell it, does it still possess an odor?
  
• (If the person (though I do not know who that person is) who was originally responsible for the current push for the Indiana General Assembly to raise Indiana's legal smoking age from eighteen to twenty-one years had simply kept that idea to him- or herself, would the idea still have been a noxious stain on the history and the reputation of human thought itself, embracing a plan of contemptuously thrusting the reach of legislative power (or attempting to do so) beyond the outermost bounds of what any honest and thinking person could countenance as conceivably being within the just and legitimate limits of the legislative power?  Of course it would!)

The answer to the original question has always depended on how we happen to use language and what meaning we have come to understand certain words to have.  If it were firmly established and widely known that the meaning of the word "sound" necessarily must either refer to (on the one hand) the vibrations that we may sense or else to (on the other hand) the way we perceive and experience those vibrations when and if they are received and processed by our ears and brains, no one would ever have found the "Tree falls in the woods" riddle either interesting or difficult.  However, though the meaning of that word has not been definitively established to that degree of precision, I think that considering how we use that word and certain analogous words that relate to other senses, the "Tree falls in the woods" question is not difficult to answer.


* Interestingly, though people have long been divided in the conclusions that they have reached concerning this ancient controversy, the partisans for the two opposing sides have not yet resorted to building up an ideological mythology for themselves, respectively, or to replacing rational arguments with far-fetched blanket accusations about the supposed motivations and intentions of the people on the "side" opposed to themselves.  Perhaps a little investigation and study of this phenomenon would be justified, with a view of finding ways to bring about the same state of things in relation to the plethora of highly divisive controversies that preoccupy large numbers of people with stimulating distractions having very little to do with the issues that they believe themselves to be fighting each other over.

Remembering That the Attitudes and Actions of the People Can Shape the Tendencies of Any Form of Government

"Mr. Montesquieu has pointed out the sentiments or maxims from which men must be supposed to act under these different governments.  In democracy, they must love equality; they must respect the rights of their fellow citizens; they must unite by the common ties of affection to the state.  In forming personal pretensions, they must be satisfied with that degree of consideration they can procure by their abilities fairly measured with those of an opponent; they must labour for the public without hope of profit; they must reject every attempt to create a personal dependence.  Candour, force, and elevation of mind, in short, are the props of democracy; and virtue is the principle of conduct required to its preservation.  How beautiful a pre-eminence on the side of popular government!  And how ardently should mankind wish for the form, if it tended to establish the principle, or were, in every instance, a sure indication of its presence!

"But perhaps we must have possessed the principle, in order, with any hopes of advantage, to receive the form; and where the first is entirely extinguished, the other may be fraught with evil, if any additional evil deserves to be shunned where men are already unhappy.  At Constantinople or Algiers, it is a miserable spectacle when men pretend to act on a foot of equality: they only mean to shake off the restraints of government, and to seize as much as they can of that spoil, which, in ordinary times, is engrossed by the master they serve."

. . .

"The principle of monarchy, according to Montesquieu, is honour.  Men may possess good qualities, elevation of mind, and fortitude; but the sense of equality, that will hear no encroachment on the personal rights of the meanest citizen; the indignant spirit, that will not court a protection, nor accept as a favour what is due as a right; the public affection, which is founded on the neglect of personal considerations, are neither consistent with the preservation of the constitution, nor agreeable to the habits acquired in any station assigned to its members.  Every condition is possessed of peculiar dignity, and points out a propriety of conduct, which men of station are obliged to maintain.  In the commerce of superiors and inferiors, it is the object of ambition, and of vanity, to refine on the advantages of rank; while, to facilitate the intercourse of polite society, it is the aim of good breeding to disguise, or reject them."

. . .

"Entangled together by the reciprocal ties of dependence and protection, though not combined by the sense of a common interest, the subjects of monarchy, like those of republics, find themselves occupied as the members of an active society, and engaged to treat with their fellow creatures on a liberal footing.  If those principles of honour which save the individual from servility in his own person, or from becoming an engine of oppression in the hands of another, should fail; if they should give way to the maxims of commerce, to the refinements of a supposed philosophy, or to the misplaced ardours of a republican spirit; if they are betrayed by the cowardice of subjects, or subdued by the ambition of princes; what must become of the nations of Europe?  Despotism is monarchy corrupted, in which a court and a prince in appearance remain, but in which every subordinate rank is destroyed; in which the subject is told, that he has no rights; that he cannot possess any property, nor fill any station independent of the momentary will of his prince.  These doctrines are founded on the maxims of conquest; they must be inculcated with the whip and the sword; and are best received under the terror of chains and imprisonment."

. . .

"Whilst we thus, with so much accuracy, can assign the ideal limits that may distinguish constitutions of government, we find them, in reality, both in respect to the principle and the form, variously blended together.  In what society are not men classed by external distinctions, as well as personal qualities?  In what state are they not actuated by a variety of principles; justice, honour, moderation, and fear?  It is the purpose of science not to disguise this confusion in its object, but, in the multiplicity and combination of particulars, to find the principal points which deserve our attention; and which, being well understood, save us from the embarrassment which the varieties of singular cases might otherwise create.

"In the same degree in which governments require men to act from principles of virtue, of honour, or of fear, they are more or less fully comprised under the heads of republic, monarchy, or despotism, and the general theory is more or less applicable to their particular case.  Forms of government, in fact, mutually approach or recede by many, and often insensible gradations.

"Democracy, by admitting certain inequalities of rank, approaches to aristocracy.  In popular, as well as aristocratical governments, particular men; by their personal authority, and sometimes by the credit of their family, have maintained a species of monarchical power.  The monarch is limited in different degrees: even the despotic prince is only that monarch whose subjects claim the fewest privileges, or who is himself best prepared to subdue them by force.  All these varieties are but steps in the history of mankind, and, mark the fleeting and transient situations through which they have passed; while supported by virtue, or depressed by vice.

"Perfect democracy and despotism appear to be the opposite extremes at which constitutions of government farthest recede from each other.  Under the first, a perfect virtue is required; under the second, a total corruption is supposed: yet, in point of mere form, there being nothing fixed in the ranks and distinctions of men beyond the casual and temporary possession of power, societies easily pass from a condition in which every individual has an equal title to reign, into one in which they are equally destined to serve.  The same qualities in both, courage, popularity, address, and military conduct, raise the ambitious to eminence.  With these qualities, the citizen or the slave easily passes from the ranks to the command of an army, from an obscure to an illustrious station.

"In either, a single person may rule with unlimited sway; and in both, the populace may break down every barrier of order, and restraint of law.  If we suppose that the equality established among the subjects of a despotic state has inspired its members with confidence, intrepidity, and the love of justice; the despotic prince, having ceased to be an object of fear, must, sink among the crowd.

"If, on the contrary, the personal equality which is enjoyed by the members of a democratical state, should be valued merely as an equal pretension to the objects of avarice and ambition, the monarch may start up anew, and be supported by those who mean to share in his profits.  When the rapacious and mercenary assemble in parties, it is of no consequence under what leader they inlist, whether Cæsar or Pompey; the hopes of rapine or pay are the only motives from which they become attached to either.  In the disorder of corrupted societies, the scene has been frequently changed from democracy to despotism, and from the last too, in its turn, to the first.  From amidst the democracy of corrupt men, and from a scene of lawless confusion, the tyrant ascends a throne with arms reeking in blood."

. . .

"Democracy seems to revive in a scene of wild disorder and tumult; but both the extremes are but the transient fits of paroxysm or languor in a distempered state.  If men be anywhere arrived at this measure of depravity, there appears no immediate hope of redress.  Neither the ascendancy of the multitude, nor that of the tyrant, will secure the administration of justice; neither the license of mere tumult, nor the calm of dejection and servitude, will teach the citizen that he was born for candour and affection to his fellow creatures."

- Adam Ferguson, from "An Essay on the History of Civil Society"


[Note: I am fairly confident that I initially obtained the preceding material from the magnificent Online Library of Liberty maintained by the equally excellent Liberty Fund.  However, I do not at the moment have a way of verifying this, since I copied this extended quotation into my personal notes in early 2016.  I will look as soon as possible into what original source I was using when I took those notes last year, and if I find that it came from the Online Library of Liberty, I will update this post and the previous post with proper citations.]

Remembering the Difference Between Power and Right

"Prior to any political institution whatever, men are qualified by a great diversity of talents, by a different tone of the soul, and ardour of the passions, to act a variety of parts.  Bring them together, each will find his place.  They censure or applaud in a body; they consult and deliberate in more select parties; they take or give an ascendant as individuals; and numbers are by this means fitted to act in company, and to preserve their communities, before any formal distribution of office is made.  We are formed to act in this manner; and if we have any doubts with relation to the rights of government in general, we owe our perplexity more to the subtilties of the speculative, than to any uncertainty in the feelings of the heart.

"Involved in the resolutions of our company, we move with the crowd before we have determined the rule by which its will is collected.  We follow a leader, before we have settled the ground of his pretensions, or adjusted the form of his election; and it is not till after mankind have committed many errors in the capacities of magistrate and subject, that they think of making government itself a subject of rules.

"If, therefore, in considering the variety of forms under which societies subsist, the casuist is pleased to inquire, what title one man, or any number of men, have to control his actions? he may be answered, none at all, provided that his actions have no effect to the prejudice of his fellow creatures; but if they have, the rights of defence, and the obligation to repress the commission of wrongs, belong to collective bodies, as well as to individuals.

"Many rude nations, having no formal tribunals for the judgment of crimes, assemble, when alarmed by any flagrant offence, and take their measures with the criminal as they would with an enemy.  But will this consideration, which confirms the title to sovereignty, where it is exercised by the society in its collective capacity, or by those to whom the powers of the whole are committed, likewise support the claim to dominion, wherever it is casually lodged, or even where it is only maintained by force?  This question may be sufficiently answered, by observing, that a right to do justice, and to do good, is competent to every individual, or order of men; and that the exercise of this right has no limits but in the defect of power.  Whoever, therefore, has power, may employ it to this extent; and no previous convention is required to justify his conduct.

"But a right to do wrong, or to commit injustice, is an abuse of language, and a contradiction in terms.  It is no more competent to the collective body of a people, than it is to any single usurper.  When we admit such a prerogative in the case of any sovereign, we can only mean to express the extent of his power, and the force with which he is enabled to execute his pleasure.  Such a prerogative is assumed by the leader of banditti at the head of his gang, or by a despotic prince at the head of his troops.  When the sword is presented by either, the traveller or the inhabitant may submit from a sense of necessity or fear; but he lies under no obligation from a motive of duty or justice."

- Adam Ferguson, from "An Essay on the History of Civil Society"

Some Members of Congress Must Just Do These Things For Our Amusement

When I read bills and joint resolutions that have been introduced in either Congress or a state legislature, I find many for which I am unable to account without assuming that the legislators who introduced them intended it as a joke, hoping to amuse the public.  This joint resolution, introduced in the United States House of Representatives in 2013, is an example of such a joint resolution.

The joint resolution, H.J.Res.33, was designed to propose an amendment to the United States Constitution, repealing the Twenty-Seventh Amendment and replacing it with a new passage with very nearly the same wording as the Twenty-Seventh Amendment, but with one subtle change.  That change would have been to replace the word "varying" (as it appears in the Twenty-Seventh Amendment) with the word "increasing", a change which would under certain circumstances have had the potential to marginally alter the ability of Congress to alter its members' own compensation.

The Twenty-Seventh Amendment prevents any act of Congress "varying" the compensation of members of Congress from taking effect until the next regular, biannual election of U.S. Representatives has taken place.  By replacing the word "varying" with the word "increasing", the effect of the amendment proposed by H.J.Res.33 (if it had ever been passed and ratified as required by Article V of the Constitution, which did not happen; it was introduced during the 113th Congress, where it was ignored and permitted to expire) would have been to restore to Congress the freedom to pass a law to cut its own members' compensation without having to wait up to two years (after the next regular election of U.S. Representatives) for that law to take effect.  This would be useful if ever members of Congress were in such a hurry to cut their own pay that it would inflict irreversible harm to require them to wait up to two years for their pay cut to take effect.

I admit that I have met very few members of Congress and have not had the opportunity to observe it up close.  However, if it is safe to rely on Congress' reputation at all (as a general rule, I would want to avoid relying for information on a person or institution's reputation), I would not ordinarily expect Congress to attempt to reduce its members' compensation for their service in Congress.  I also find it difficult to imagine anything which, supposing that Congress were at some future time impelled to give its members a pay cut, would make it so urgent for that pay cut to go into effect that a delay of under two years would be intolerable.  However, this is the effect of the amendment that was proposed in H.J.Res.33: it ensures that whenever Congress intensely desires and is impatient to cut its own pay, nothing in the Constitution would any longer be standing in its way!

Now, I hope that I have not killed the joke by explaining it, but some people would not have understood why I am enjoying this House Joint Resolution / joke so much if I had not explained it.

Most people probably did not realize that there are actually multiple layers to this joke.  As a service to everyone who stands to benefit from it, I will now point out another of these layers.

The amendment proposed through H.J.Res.33 (of the 113th Congress, I emphasize) would have repealed the Twenty-Seventh Amendment to the Constitution in order to replace it with a different amendment containing nearly identical language, and the only substantive change that this would have brought about would have had a marginal impact under circumstances which, realistically, will never actually exist in practice.  The key to this layer of the joke, however, is that while the Twenty-Seventh Amendment was not fully ratified until 1992 (and as a result was not a part of the Constitution until that time), it is in fact a part of the Bill of Rights as proposed by the First Congress in 1789.  As proposed by Congress, it was designated "Article the Second", and preceded all ten of the amendments that we have come to consider our "Bill of Rights".

The significance of the Twenty-Seventh Amendment and Article the Second of the First Congress' proposed version of the Bill of Rights being one and the same is that in addition to what I have already pointed out -- that the potential benefit of H.J.Res.33's proposed amendment depends on the possibility that members of Congress may at some future time be in such a hurry to give themselves a pay cut that it would be unacceptable to allow the Twenty-Seventh Amendment to subject them to a delay lasting under two years ... that being a possibility that could arise, but which I think is unlikely -- the means by which H.J.Res.33 would have provided for this improbable future event would have been to repeal part of the Bill of Rights (as proposed by the First Congress), only to replace what had been repealed with almost precisely the same thing, changing only a single word in order to achieve a negligible change in substance.  Keep in mind that the very same effect could have been achieved through an amendment that simply established that the Twenty-Seventh Amendment may not be construed so as to delay an act of Congress in taking effect if it varies the compensation of Representatives, Senators, or both other than by increasing their compensation.

As I stated above, the only explanation that I find at all believable for the fact that a U.S. Representative offered this proposed constitutional amendment to the House for its consideration is that 1) he has an eccentric but magnificent sense of humor and 2) he realized that if he introduced a joint resolution of this character, someone would eventually discover what he had done and would get a great deal of enjoyment out of it.  Out of all of the bills and resolutions that have ever been introduced in the United States Congress, I doubt very much that many were inspired by greater motives than these.

For that reason, I must now thank the author of H.J.Res.33 for the great work that he did with this.  Former Representative John Barrow (D-GA-12): I have uncovered your proposal from 2013 for repealing the Twenty-Seventh Amendment and replacing it with a passage consisting of the very words of the Twenty-Seventh Amendment that it was intended to replace, with the single exception of its using the word "increasing" where the existing amendment had used the word "varying", which had the potential (if the amendment had ever gone into effect) to ensure that in the event that members of Congress are determined to reduce their own compensation in as expeditious a manner as possible, the danger would no longer exist that the Twenty-Seventh Amendment could force them to wait up to two years to finally receive their pay cuts.  I found H.J.Res.33 to be everything that you undoubtedly intended for it to be.  It made my day.  Thank you.  If the rest of your material turns out to be anything comparable to H.J.Res.33, I believe that you are going to be a star.

Another Constitutional Authority Statement Relying On Section 8 Of Article I In Its Entirety

Returning to yesterday's discussion of the Constitutional Authority Statements required by the rules of the U.S. House of Representatives for all bills introduced in that house, I think it worth mentioning what I found had been submitted as supplying the constitutional authority for Congress to pass the "Protecting Against Child Exploitation Act of 2017", H.R. 1761.  I did not learn until earlier today that the House of Representatives had passed this bill, which is controversial for numerous reasons but which passed by a very large majority.

In addition to all of the other objections to H.R. 1761, however, I would like to add one relating to the very topic I covered yesterday: this is yet another bill for which the only constitutional authority that its sponsor thought necessary to offer in support of it came in the form of a bare reference to "Article I, Section 8".

As I wrote yesterday, submitting a Constitutional Authority Statement that founds the constitutional power of Congress to pass a particular bill on "Article I, Section 8" without offering any further details is hardly better than just claiming that Congress is granted that constitutional power by "the Constitution".

The Constitutional Authority Statement's reliance on Article I, Section 8 in its entirety is especially strange considering that throughout H.R. 1761's actual text, it is obvious that the bill is designed so as to take advantage of many of the U.S. Supreme Court's most bizarre and untenable precedents concerning the Constitution's grant of power to Congress to "regulate Commerce ... among the several States", using those precedents to set up a strong enough pretense of constitutionality to allow the bill to survive any potential challenges to it in court.

Through those precedents, the Supreme Court has made it possible for Congress to successfully use this "interstate commerce clause" to allow Congress to enact legislation for purposes and having effects which do not pertain to commerce between the states in any serious way.  (These precedents work very much to the advantage of dishonest people and people who readily believe and do whatever they are told, because such people are far more comfortable with this type of precedent than other people are able to be.)  For example, most of the body of H.R. 1761 is devoted to replacing 18 U.S.C. §2251 with a heavily modified form of the existing version.  Like that existing version, the §2251 that H.R. 1761 would replace it with makes it an essential element of the offense that the prohibited conduct be accompanied by any of a number of commerce-themed circumstances that it lists.  (The sole purpose of requiring the presence of those circumstances, which have nothing to do with the conduct meant to be prohibited, is to allow Congress to get away with legislating in matters that the Constitution does not place under its control, allowing it to prohibit a particularly heinous crime which, however, the states separately can and do prohibit and prosecute on their own.)  One of those listed circumstances, which H.R. 1761 borrows from the current version of §2251, requires nothing more to be satisfied than for the core offense (the conduct that Congress actually wants to prohibit, as opposed to the commerce-related hook that Congress uses to get control over the subject) to be committed using materials that have traveled in or affected interstate or foreign commerce.  As the core offense to be prohibited involves the sexual abuse of a minor, we would have to take leave of our senses to think that the source of any materials used by the perpetrator is important, but Congress knows that it has to insert irrelevant elements like this into the definition of the offense in order to give the courts what little they insist upon before they will treat it as though it were authorized by the Constitution ... so that is what Congress does.

But even though H.R. 1761 was clearly designed to allow the interstate commerce clause to be invoked as the source of constitutional authority for it, the Constitutional Authority Statement submitted for it makes nothing more than a general reference to Article I, Section 8 of the Constitution.  Unless U.S. Representatives are going to start taking the Constitutional Authority Statement requirement more seriously than this, it will do no good to keep that requirement in place at all.

Constitutional Authority Statements

The rule* requiring that for any bill or joint resolution to be introduced in the United States House of Representatives, a document submitted on its behalf must state "as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution," was adopted by that House in 2011.  Of course, I approve of the spirit behind that rule, but unless the rule can be put into a more useful form (although I doubt that it would be possible for a rule of either house of Congress to be adequate to this purpose), it would be best if the House of Representatives would dispose of it.

That is what I decided after recently reading the "Constitutional Authority Statements" in the Congressional Record for a fairly large number of bills (though admittedly a fairly small percentage of all the bills introduced in the House of Representatives so far this year).  Reading those statements written by so many U.S. Representatives in their attempts to justify so many bills covering a wide range of issues quickly made two things obvious:

First, requiring the submission of these statements neither restricts (even a little) the ability of Representatives to introduce bills that would exercise powers not vested in Congress by the Constitution nor provides anyone (whether in Congress or out of it) with anything that could be used effectively to hold Representatives accountable when they rest their bills on dubious or nonexistent constitutional authority.

Second, unless a way is found to make requiring Representatives to file Constitutional Authority Statements for each bill to serve some useful purpose, it will continue to have only the lone effect that it has now: to add to the commonplace unconstitutionality of most of their bills the disgrace of putting on the record (and then publishing it) a collection of all of these statements, which demonstrate an almost universal, open contempt, with impunity and only rarely with any remedy, for the very idea that this rule was meant to promote **.  I think I am justified in describing it as "open contempt" when more than a fourth of the statements that I read relied exclusively on the "necessary and proper" clause (without any indication of what in the Constitution the bill might have been necessary and proper in order to carry into effect, if anything), another fourth either relied on the commerce clause alone or in combination with the necessary and proper clause, and about a sixth of the statements simply pointed to Article I, Section 8, with no additional detail ***.  Although Congress is granted some of its powers in parts of the Constitution outside of Article I, Section 8 (and by that, I do not just mean the amendments), the very purpose of Article I, Section 8 is to identify as comprehensively as possible what Congress is empowered to do, and it does so in eighteen different clauses, of which clauses there are many which identify several different powers.  It may be possible to draft a bill for which the constitutional authority would be best identified by a general reference to Article I, Section 8, without specific mention of anything in it, but that would be a very unusual bill, and none of the bills for which only the general reference to Article I, Section 8 was submitted as the source of authority had the unusual qualities that would be needed.

The fact that people are getting away with citing "Article I, Section 8" as the source of constitutional authority for their bills leads me to seriously doubt whether requiring Representatives to submit Constitutional Authority Statements for those bills is serving any useful purpose at all -- and if it is, I wonder how that is possible.  Pointing to "Article I, Section 8" (with no further specification) as the source of the constitutional authority for Congress to pass a given bill is hardly any better than it would be if a Representative were to instead say only that the constitutional authority for the bill comes from "the Constitution".


* This "rule" is a requirement that was inserted into Rule XII of the House of Representatives.  It is a rule in the ordinary sense of the term, but it has not independently been honored by the House of Representatives by the bestowal of the formal title of "Rule".  When I call it a "rule", I am using that term in its ordinary sense.

** It is possible that the rule was only meant to appear to promote the idea that it is only constitutional for Congress to exercise powers when the powers that it exercises are derived from the Constitution.  However, the rule was adopted over six years ago, and it makes little difference to me now whether the House of Representatives of the One Hundred Twelfth Congress sincerely believed that requiring bills and joint resolutions to be accompanied by Constitutional Authority Statements would discourage unconstitutional legislation.

*** I looked up these bills to see what the statements given were intended to justify -- after all, even as heavily abused as the interstate commerce clause is, it is certainly possible for it to be legitimately invoked as the authority for a bill, so I needed to find out what those bills actually were before condemning the use of the interstate commerce clause as authority for them -- and a few of the bills for which the interstate commerce clause or the "necessary and proper" clause had been offered were authorized by the Constitution (or contained little that the Constitution does not authorize).  For some of those, however, reveal another problem with requiring Constitutional Authority Statements to be submitted for all bills and joint resolutions in the House of Representatives: which power does Congress use when it passes a bill to repeal a prior act of Congress that was not authorized by the Constitution?  Which power does Congress use if it does not repeal but passes an act to ameliorate somewhat or deflate a previous act that Congress had passed without the authority of the Constitution?  Representatives who introduce such bills may find it difficult to identify a specific power to name in their Constitutional Authority Statements.  (For them, the best answer may be to simply point to the first sentence of Article I, but it is not a perfect solution -- particularly if they are unable to repeal the previous, unauthorized law altogether and have no choice but to leave a modified form of it in place for a time.)