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Constitutional Philosophy
Lecture 2
Jon Roland
November 17, 2012
What is a law?
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A command (see Rawls)
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From a lawgiver (sovereign)
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To whose authority we consent
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Which we have an inalienable duty to obey
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And help enforce
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According to the meaning it had for the lawgiver
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Directly interpreted by us and not through a
mediator
What is Authority?
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Not just a lawmaker (a “who”)
But also a jurisdiction (a “what”, “where”, or “to
whom”)
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Subject matter (subjectam)
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Territory (locum)
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Personal (personam)
And a process (a “how” and “when”)
And a legitimate purpose (a “why” and
“whither”)
Delegations of power can never be plenary
But to what can we consent?
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There are limits to consent (Locke)
Nature forbids consenting to loss of
“inalienable” rights
Except through “due process” as price for
incompetence, violations of social contract, or
for defense
Entering into or remaining on territory of a state
subjects one only to laws compatible with
constitutions of nature, society, and state
Disobedience breaks social contract
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Real law is not just a suggestion or guide
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Violation has consequences
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Including losing honor and forfeiting life
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One may seek the protection of an enabling
herd
But that only puts your herd at war with the rest
of society
Exerceatur constitutio, ruat cœlum. Let the
constitution be enforced, [though] the heavens
fall.
“All the laws but one?”
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Lincoln agonized over breaking some laws: “are
all the laws but one to go unexecuted and the
Government itself go to pieces lest that one be
violated?” (Speech to Congress, July 4, 1861)
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Suicide pact? Inter arma, silent leges
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Necessity may excuse, but it never authorizes
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Fallacy of Necesse ergo praesto
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And there is usually a price to pay
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Great challenges test constitutions and
societies, which sometimes fail
What can the meanings be? - 1
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1. The meaning it had for the writer when he
wrote it.
2. The meaning it had for the reader when he
read it.
3. The meaning the reader thought it had for the
writer when he wrote it.
4. The meaning the writer thought it would have
for the reader when he read it.
5. The meaning the reader thought it should
have had for the writer if the writer knew what
the reader does.
What can the meanings be? - 2
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6. The meaning the writer thought it should have for
the reader if the reader knew what the writer does.
7. The meaning the reader thought the writer thought it
would have for the reader when he read it.
8. The meaning the writer thought the reader thought it
would have for the writer when he wrote it.
9. The meaning it has for the reader upon further
reflection, perhaps years later.
10. The meaning it has for the writer upon further
reflection, perhaps years later.
Historical Linguistics
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For when the lawgiver is no longer available to
interrogate
Or there are multiple lawgivers who may have
had different meanings
A law is written in the legal jargon of when it
was enacted
But natural languages are often ambiguous
Or polysemous (more than one meaning at the
same time)
Theory of Mind
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We understand one another by forming a theory
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In our minds
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Of what is in the minds of others
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Which we build by confirming or refuting
evidence
From exchanges with the other mind
Or from accurately anticipating what he will say
in later messages of his that we have not
previously read
So decoding past messages
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Involves using such clues as we can find
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To build a theory of mind of the authors and
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Of the meanings they wished to convey
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We can never be sure what the dead meant
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But we can plausibly narrow it down greatly
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In most cases to one most likely meaning
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Although we may need clues from beyond the
message itself, to its cultural context
Legal Construction
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Presents special challenges
Because it is not just about getting the original
meaning
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But about applying it to specific situations
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Leading to the untenable division
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Between questions of “law” and “fact”
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When it is a fact issue whether a law was
passed
Or whether it was a law at all
Constitutional Construction
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More properly, judicial decisionmaking
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Textual
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Historical
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Functional
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Doctrinal
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Prudential
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Equitable
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Natural
Strict Construction?
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Some (Scalia) reject it as overliteralism
But in the common law tradition it is more
complicated than that
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Powers were to be interpreted strictly and
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Rights (against powers) broadly
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Intent was not just motive or desired outcomes
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But mainly function, discernible from structure
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And intent, meaning, and understanding not the
same
The Framers had a Vision
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They were called “framers” for a reason
They saw constitution writing like designing a
building
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Constrained by natural law and circumstance
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But affordable and buildable, presently safe
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That had to satisfy those who would live in it
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That allowed some concessions to taste and
convention
But that had to remain safe for a long time
The Constitution had to Work
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For men, not just angels
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But men at a level of civic virtue then achieved
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Which could endure as long as the virtue did
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But which likely would fail if virtue failed
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As would any constitution of liberty
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Depending on the people to understand it
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And enforce it, at the risk of their lives and
fortunes
But in the U.S. of 1787 ...
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Almost everyone, and every settler, was literate
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Many were acquainted with what law there was
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Which was mainly 4 volumes of Blackstone
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People bought newspapers with political
speeches
Most government was county, consisting of one
unpaid judge and sheriff, doing everything with
unpaid militia and juries
Jefferson proposed smaller ward republics
While in the U.S. Of Today ...
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Most people live in anonymous cities
A voting precinct contains about as many
people (3000) as a county once did, but no
government at that level other than voting
Grand juries get too many cases to deliberate
Or attend to investigation of public
administration, or private complaints
And they are unduly controlled by public
prosecutors, mainly a late 19th century change
And people not taught how to serve on juries
The English Constitution
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Not strictly “unwritten” but
Scattered over many documents, 1200 years,
much in Latin or Law French
Subject to being rewritten by any session of the
House of Commons
Which functions as an ongoing constitutional
convention
That can rewrite its own rules, propose, and
approve in one day
English Common Law
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Comprised the bulk of English law
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Consisted of records of court decisions
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Needed doctrine of binding stare decisis
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But learning the law was an endless task
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And almost any position could find a precedent
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Few court records in the colonies
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And the colonists felt the need for codification,
thus, their constitutions that overrode
precedents
English Courts
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Different kinds for different kinds of relief
sought: common law, equity, admiralty, martial
Two main kinds were common law, for torts,
crimes, probate, and property
And equity, for injunctions
Writs were forms sold by common law courts,
one for each kind of issue: one filed with the
court, one served on the defendant, one kept
Writ system replaced in U.S. by Field Codes
about 1840
Writs
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Not just court orders
Mainly the initial filings served on the defendant
or respondant
Three main kinds: civil, criminal, and
prerogative
The burden of proof for the first two were on the
petitioner
The burden of proof of the third was on the
respondant, not the demandant
Prerogative Writs
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Quo warranto – Challenging authority generally
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Habeas corpus – Challenging detention
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Prohibito – Demanding some action stop
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Mandamus – Demanding some action be taken
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Procedendo – Demanding faster action
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Certiorari – Demanding court records be
certified, so they can be presented for appeal
on a writ of error
Others, but seldom used
Handling of Prerogative Writs
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Must be heard ahead of other cases
Respondant must respond within 3 days unless
distance requires more, up to 20 days
No arguments or evidence required of
demandant
Any person may demand for any other person
or himself
Relief demanded issues by default if
respondant fails to prove or no hearing is held
This not Current Practice
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Current practice has deviated greatly from
original, constitutional standards
Binding stare decisis persists, often treating a
wrong precedent as more authoritative than the
Constitution, practically amending it
But judges take oath to uphold Constitution, not
precedent
Binding (vs. persuasive) stare decisis logically
incompatible with having a written constitution
Constitutional Review
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Not the exclusive prerogative of judges
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They only get cases at a later stage
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The militia duty to help enforce the law means
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The duty to resolve conflicts of law
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And enforce the superior law, especially the
Constitution
Independently of judges, supervisors, or legal
advisers
We are all on our own, so we better get it right
Constitutional Rights - 1
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a. Rights explicitly declared in U.S. Constitution.
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b. Due process
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1. General
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1. Due notice of time, place, manner, parties, and
subject of any proceeding with sufficient time to
respond.
2. Fair hearing and decision on the legal merits,
with redress for just grievances, including
damages, property, or injunctive or declaratory
relief.
3. Not to have just remedies made inaccessible
or excessively difficult or costly.
Constitutional Rights - 2
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4. Mandated testimony of witnesses.
5. Unimpeded access to courts, court filing, and grand
juries, subject only to routine scheduling.
6. Direct presentation of complaints to a grand jury
without the presence of any other government actor
without the consent of the grand jury.
7. Standing to privately prosecute a public right without
having been injured or expecting personal injury.
8. Not to be subject to retaliation.
9. Not to have admitted any plea or testimony induced by
a plea bargain.
10. Not to have any property or asset taken or forfeited
without civil or criminal judgment in a trial, with
possession presumed to establish title unless proved
otherwise.
Constitutional Rights - 3
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11. Not to have any right, privilege, or immunity disabled
by statute unless one is a minor, which by default shall be
any individual under the age of 18 unless the disabilities
of minority are extended or reduced by court order.
2. Criminal trials:
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1. Indictment by twelve members of a randomly selected
grand jury of 23 who elect their foreperson, upon a
finding that the court has jurisdiction and that there is
sufficient evidence for a trial, except for persons subject
to military or militia discipline.
2. Service as prosecutor upon receipt of an indictment by
a grand jury, subject only to consolidation by the grand
jury if more than one person seeks to prosecute the
same offense.
Constitutional Rights - 4
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3. Trial by a randomly selected jury of twelve sworn to
uphold applicable constitutions in criminal cases for
which the penalty is more than 90 days.
4. No excessive bail when there is little flight risk.
5. No excessive fines imposed.
6. No cruel and unusual punishments inflicted.
7. Speedy and public trial before an impartial jury of the
state and district previously defined by law, wherein the
offense shall have been committed, and to have the
location of commitment be deemed where there was
concurrence of mens rea and actus reus.
8. Not to be twice prosecuted for the same offense or
same facts under different jurisdictions.
Constitutional Rights - 5
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9. To be informed of the nature and cause of the
accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses
in his favor, and to have the assistance of counsel for his
defence, but not to have counsel or an attorney imposed
on him without his consent.
10. Not to be compelled to be a witness against himself.
11. Not be disabled in the exercise, or deprived, of life,
liberty, or property, without due process of law, by
unanimous verdict of a jury of twelve.
12. Unimpeded presentation of all evidence by the
defendant, without being subject to a motion in limine.
Constitutional Rights - 6
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13. Unimpeded presentation of all legal argument to the
jury, up to the final instructions to the jury, except for
argument on a motion in limine that cannot be made
without disclosing evidence properly excluded.
14. Unimpeded presentation of all pleadings, alternative
instructions, and certified copies of applicable laws and
constitutions, to the jury.
15. Not to have a sentence that does not separately
disable the exercise of the immunity, and order
deprivation of it, within the scope of that disablement
Constitutional Rights - 7
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3. Civil trials:
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Trial by a randomly selected jury of twelve sworn to
uphold applicable constitutions in which the amount at
issue, including costs, exceeds the equivalent of at least
15.46875 troy ounces of pure silver.
4. Appeals
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Appeal from a jury verdict on a writ of error or habeas
corpus, according to the rules of the common law in the
United States as of 1787, unless the Constitution is
amended to provide otherwise.
Constitutional Rights - 8
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c. Nonauthority
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1. Presumption of nonauthority for any claim to authority, to
be strictly proved by an unbroken logical chain of derivation
from a constitution.
2. Not to have any government actor exercise a power not
delegated, regardless of whether one may be personally
injured by such exercise.
3. Not to have government actors exercise powers on the
pretext of being "necessary and proper" when they are not
just to perform his official duties but to get a desired result
beyond such duties.
4. To have delegated powers construed as narrowly, and
rights, privileges, or immunities construed as broadly, as the
language of the Constitution as meant and understood when
ratified permits.
Constitutional Rights - 9
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5. Priority docketing of all prerogative writs filed by a
any person as demandant in the name of the people
with a court of competent jurisdiction and served on the
respondant, within three sederunt days, unless the
respondant requires more, but not more than 20
calendar days, including but not limited to, demurral,
quo warranto, habeas corpus, procedendo, mandamus,
prohibito, certiorari, and scire facias, and to have
default judgment even if no proof is presented or a
hearing is not held.
6. Unimpeded and unpunished communications,
including speech, press, and education, except such as
instigate or direct a felony, misdemeanor, or tort.
7. Unimpeded assembly and exercise of rights in
concert with others.
Constitutional Rights - 10
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8. Unimpeded assembly as militia for organizing,
training, and response to threats to public safety,
subject only to direction by state militia officers
during a call-up.
9. Unrestricted keeping and bearing of weapons,
equipment, and supplies commonly used by military
forces, or suitable for militia, subject only to court
order of disablement for being a threat to oneself or
others, or to the lawful orders of militia officers
during a call-up.
10. Unimpeded and unpunished petition for redress
of grievances.
Constitutional Rights - 11
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11. Unimpeded devotion or practice of religion, not
preferentially supported by public funds, that does
not instigate or direct a felony, misdemeanor, or tort.
12. Exclusion of government actors from intrusion
into one's real property, body, or use of one's
personal property, for search, seizure, or for any
other reason, without consent, a declared state of
war or emergency threat to public, safety, a warrant
supported by an affidavit of probable cause, and
just compensation for any losses incurred, for each
incident.
Constitutional Rights - 12
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d. Supervision of government actors
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1. Access to observation and recordation of any
government proceeding except trial and grand jury
deliberations or their equivalent, or deliberations on
matters of security requiring secrecy.
2. Receipt of records of all proceedings, and
accounting for all receipts, loans, debts, and
expenditures, and reporting thereof, for eventual
examination prior to an election in which the issues
may be reviewed.
Constitutional Rights - 13
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3. Accurate recording, counting, and reporting of all
votes cast by eligible voters in any public election
with protection from disclosure of how each voted.
4. Access to all information about oneself, and
either copies at cost of all documentation or to
make one's own copies using one's own equipment.
5. Effective low-cost remedies for getting
information about oneself corrected, and use of
such information restricted to that for which there is
consent by oneself.
Constitutional Rights - 14
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f. Other
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1. Association and contract to do things not
unlawful, including practice of a profession or
occupation, marriage, procreation, and acceptance
or denial of medical prevention or treatment, except
prevention of contagious diseases.
2. Formation, conduct, and revision or dissolution of
corporations, partnerships, and other trusts, in
which settlor, trustee, and beneficiary are distinct
persons who may not be impeded or penalized from
directly appearing in any court in such capacities.
Constitutional Rights - 15
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3. Not to have some accorded special privileges or
protections that favor them over the rest of the
people, in ways not essential to the performance of
public duties.
4. Travel within, to, and from the United States and
any State, territory or locality.
5. Not to be removed from the location of one's birth
or lawful residence, or impeded from returning
thereto.
6. Not to be enslaved or submitted to peonage
except as punishment for a crime, but subject to
militia, jury, witness, and other public duty.
Constitutional Rights - 16
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7. Not to be impeded or punished for voting if one is
a citizen and resident on grounds of race, color,
creed, previous servitude, gender, age 18 or above,
or failure to pay a tax.
8. Custody and care of close relatives who are non
sui juris.
9. Not to be neglected or abused while in custody.
10. Not to be denied any right, privilege, or
immunity for failure to have or present a name or
other form of identification.
Constitutional Rights - 17
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11. Not to be deported without proof that one has
not been born or naturalized as a citizen, unless
one is born to a person not subject to the allegiance
of the United States, such as a foreign diplomat or
an invader.
12. Not to be subject to penalty for not doing
something, such as paying a tax, if government
agents refuse to allow it to be done, such as
accepting payment of a tax.
Constitutional Rights - 18
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13. Not to deny relief from some government action
for lack of an appropriation to process the
application for relief, or having an official to receive
the application, and to fail to recognize the demand
for such relief as being granted by default.
14. Not to be required to procreate or if an adult, to
refrain from procreating.
g. The foregoing list is not exhaustive, and
further rights, privileges, and immunities are to
be found in the historical record. The rule of
expressio unius est exclusio alterius shall not
be applied.
End of Lecture 2