See  prior posts;  Part 1, Part 2, Part 3, Part 4
Here is my draft Constitutional Enforcement Amendment.

Whereas,  The Constitution of the United States of America is the highest law of the land;

And whereas the Constitution of the United States of America limits the powers delegated to the Federal Government only to those specifically enumerated in the Constitution, as it may have been and will be amended from time to time;

And whereas there is presently no Constitutionally defined process by which the Constitutional limits on Federal or State authority may be enforced, and the rights and privileges of the people of these united States protected;

And whereas there exist today numerous infringements and violations of the Constitution as written;

Therefore, it is proposed that the following language be incorporated as an Amendment to the Constitution of the United States of America;

"Any law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort issued or promulgated by any agent, employee, or representative of any government within the territory of the United States or any of its possessions that is contrary to the plain language of the US Constitution as written, or assumes powers not specifically delegated within the Constitution, as amended, to the Federal, State or local authority, or any or all of them, shall be null and void.  Any citizen of the United States, or one of the several States, whether naturalized or native born, shall have standing to bring action to have any such law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort issued or promulgated by any government brought before any court of competent jurisdiction to determine that said law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort ruled unConstitutional, null and void. Plaintiff may choose any court of competent jurisdiction, and said court shall hear that case without delay, giving said complaint the highest priority on the docket.

Plaintiff shall have the right of subpoena as in criminal cases, and may request not only revocation of said law, but actual and compensatory damages as Congress shall determine through applicable law.  Plaintiff may cite any prior case which may have bearing upon the matter at hand, but is not obliged to cite any case of any sort, and lack of citation shall not act to prejudice his case.

Any party seeking to uphold any such law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort issued or promulgated by any government shall not be permitted to cite past case law or precedent, from whatever case derived, but must show de novo how such law is not contrary to the plain language of the Constitution as written.  The burden of proof shall be upon any party seeking to uphold any such law ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort.

In any criminal or civil proceeding, any assertion as to the lack of Constitutionality shall be immediately resolved prior to further proceedings.  Such an assertion shall always be in order.  Any citizen of the United States or of any of the several States, shall be allowed to file a supporting brief at his or her own personal expense.

The authors and legislative sponsors of laws, ordinances, regulations, executive orders, administrative ruling or any other restriction on the freedom of action of any citizen or resident of these united States passed or promulgated after this Amendment becomes effective, which law, etc. is subsequently found to be unConstitutional shall be personally liable for actual and compensatory damages as Congress by law shall determine, or each Court to determine if Congress shall not have acted.

Any Court before which is brought any such case shall immediately enjoin and bar enforcement of any such law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort being challenged by the Plaintiff within said Court's jurisdiction, the presumption always being that said law, ordinance, regulation, executive order, administrative ruling or any other written or verbal statement of any sort is null and void save only that it be proved that the plain language of the Constitution indeed specifically authorizes said authority.

Congress shall have the power to further expand the ability of citizens to challenge the Constitutionality of restrictions upon the rights of the citzenry, but shall not be empowered to constrain said challenges.

This Amendment shall have no time limit for ratification."

So, what do you, O Gentle Reader, think of this?  How might it be improved?

With regard to all who serve the Light-

Historian

It has been about a year since I have posted here, and the reason is pretty simple:  Too many things to do and not enough time in which to do them.  My perception a year ago was that vanishingly few people are interested in what I have to say, and that the likelihood of my having any impact on the aftermath of the coming unpleasantness would be equally small.  With that in mind, I decided to spend more time working on my own projects and preparations.  Two things changed my mind;  One is the article linked HERE, (cluck like a chicken, forsooth! Go ye hence and read the whole thing!) and the other is that after a year there are still several hundred visitors a week to this website.  The fact that there are still people working hard to prevent or mitigate the coming Endarkenment is encouraging, as is the number of folks who come here and read through my old posts.

But enough of that.  I will not commit to any set schedule or frequency of posting, but I will be adding material here from time to time going forward, schedule and social stability permitting.

This particular post is prompted my having stumbled across a 1912 North Carolina 8th grade graduation test, link HERE.  I am surprised at how many people who consider themselves reasonably well educated have trouble with this test.  I'd expect that 95% of the high school 'graduates' our peon producing institutions would fail this test miserably, which means that the American electorate is becoming increasingly ignorant.

As discussed in my previous post, the present 'warm body' system of largely unregulated voting here in these presently united States has proven disastrous; if we are to avoid the final calamity, something must be done.  However, when one sees the hysterical shrieking of the Left when the productive minority in this country attempts to simply prevent illegal voting, it is immediately apparent that absent a very large shift in present cultural mores, restricting the "right" to vote to those who are competent to do so is simply not feasible at present. 

If we cannot reform the electorate, perhaps we can take a page from the Fabian Socialists and introduce change in a more roundabout, indirect fashion.  If we can't test the voter, what about testing the candidates?

Testing to verify competence is a basic part of our world;  from kindergarten to college and into the workplace, basic competence in a variety of subject matter is verified by test.  Want to be licensed as a professional in any of a number of disciplines?  Pass a test!  Driver's license?  Test!

This isn't news.  Yet every couple of years we, the people of these presently united States, allow our representatives to exercise the awesome power of our various levels of government without any objective evidence that any one of these persons have any knowledge whatever of the powers delegated to various levels of government, basic civics, or even what is in the Bill of Rights, which designates some of the limits on US Federal authority.  Why is that?  If you wouldn't allow your daughter to be driven on a date with somebody without verifying their basic ability to drive, why do we allow people whose skill and knowledge of the basic principles of American government are unknown to run for office?

When you consider the awesome power that can be wielded by government, does it really make sense not to have some idea of the knowledge level of the people who make the laws?
One possible way to do this would be to require every candidate for public office to take a test on Civics when they file for becoming a candidate for election.  Every candidate takes the test and the results are published after the filing deadline is over. The electorate could review the results and see what any given candidate's knowledge level is, and by extension, also learn a little bit about how government is supposed to work, and what the limits of government power are. A twofer, so to speak.  Screen the candidates and educate the voters.

Another option, perhaps a precursor, would be to make the test completely voluntary.  Local organizations could have an exam day for all the local candidates; give every candidate the same test at the same time, and grade and post the results.  Just a thought for a Sunday afternoon.

What say you, O Gentle Reader?

To test, or not to test, that is the question!

With regard to all who seek the Light,
Historian

  

Voting has been much on many people's minds of late, especially given the recent presidential election, about which much was written.  One of the reasons that the presidential contest was so close was widespread vote fraud, mostly by the incumbent party.  Without  the support of the dead, multiple votes by people at multiple addresses, and the support of many of the more than 12 million illegal residents, I doubt the contest would have been remotely close.  When you add the large numbers of barely literate or functionally illliterate voters, the situation gets still worse.  So what ought to be done about this situation?

Clearly, enforcement of laws against illegal voting ought to be at the top of every freedom lover's list, but illegal voters are only part of the problem.  There are also those who are what may charitably be called 'low-information' voters, those who will cheerfully cast their ballot for whichever candidate promises them the largest amount of unearned swag.  How did we get to this pass?

It has been widely accepted in these presently united States that voting is a right, or at least the Left states that it is a right, and that the right to vote is one of the essential basic rights of human beings.  In many respects, the right to vote is a sacred cow that few dare to kick. I have no doubt, however, that allowing any and everyone to vote is arguably another one of the reasons why these presently united States are in such dire straits, nor am I alone in my thinking.  Alexis De Tocqueville warned of the dangers of unfettered democracy, and the Founders knew it well.  Robert Heinlein, author and inventor, warned of the dangers of allowing everyone to vote.  Just to remind you, O Gentle Reader, this nation, these presently united States, was constituted as a representative Constitutional Republic, not a democracy.  So, let us proceed to boot the sacred bovine and see what sort of wisdom or insight we can acquire in the event!

Remember the first question one ought always to ask- "What is the essential function of government?"  To protect individual rights.  Question-  Is voting, in and of itself, in fact a primary individual right?  Recently, the (occasional) resident of the Spite House has attempted to allow illegal immigrants to have the vote. If voting is a basic human right, that might be a defensible position; more on this shortly.  Another question- Who benefits from unrestricted voting? Clearly, the less productive members of a culture, whether they are the ruling class who hold political power because of the vote, or those dependent on government largesse, benefit from the power of the vote through legal means which take wealth from the productive, but there is more to voting than that.

While you are pondering those questions, how has voting been carried out in the past?  During my research on this topic, it's become clear, unsurprisingly, that voting is largely carried out using the technology of the time. There is a good website that touches on the topic HERE.  Whether by colored balls, hand-written paper ballots, preprinted party tickets, government printed secret ballots (the Australian secret ballot), or modern electronic voting machines, voting has been a part of Western civilization for centuries.

Before we tackle the main issue, let's think a bit about the whole idea of voting.  Why does it matter?  (Many will tell you that it does not. The narrow margins in the recent elections for President and many local offices argue otherwise.)  What does voting do? 

Voting matters because it ultimately is about using the coercive power of the state to require  or forbid individual action, to define the limits of the personal action of otherwise free people, or to limit and define the power of government. It is about making laws, in theory, at least, within the limits of what the State is allowed to do by both the Federal and State constitutions and the common law. Voting selects those who are supposed to represent us, and also can directly change the laws through ballot measures and the like.

But is it a right?  Lots of things in this culture at present are CALLED rights; many are not.  For example, health care is erroneously called a right, likewise, employment and many other things which are NOT individual rights. What did Ayn Rand, champion of individual rights, have to say on this subject?

'“Rights” are a moral concept—the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others—the concept that preserves and protects individual morality in a social context—the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law.' (from "the Virtue of Selfishness" p92 by Ayn Rand) 

She goes on to say on page 93- "A 'right' is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)

The concept of a 'right' pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave. Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values."  So that is what Rand has said about rights.

So if the primary function of legitimate government is to protect individual rights, which means, first and foremost, to protect the right to private property, how does voting become a right?  Does the freedom to own your life and the fruits of your labor include the right of choosing your political representatives?  We supposedly live in a constitutional republic, wherein the government is forbidden to do anything that violates individual rights, or anything  else for that matter, except that which is specifically permitted, and the people are free to do as they wish, except where constrained by the rights of others. Voting cannot, or at least should not, infringe upon anyone's rights in such a system.  Any such collective action which DOES infringe on actual individual rights would be struck down, at least in a just society with legitimate government.

Historically, both here in these presently united States, and elsewhere, various polities have restricted voting along various lines, by sex, race, education, and economic condition.  This began to change here after the War between the States.  The 15th Amendment, the last of the Reconstruction Amendments ratified in 1870, defined voting as a right and removed race as a criterion, but retained the prohibition against female voting, and continued to allow States to impose literacy tests and economic qualifications for voting. While some Western states allowed women to vote after the War of Northern Aggression, women did not get the vote nationwide until the passage of the 19th Amendment in 1920.  The 19th amendment reads "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.Congress shall have power to enforce this article by appropriate legislation."

This is interesting. Both the 15th and 19th Amendments do identify voting as a right, and forbids restriction of voting based on sex, but do not forbid other constraints on voting.  In fact, a variety of restraints on this 'right' exist-  if you are not a citizen of the US, you are not supposed to vote.  Convicted felons lose their 'right' to vote.  In the past, the franchise was limited to property owners, business owners, and journeymen tradesmen; there were also requirements that voters be literate.  Many of the literacy laws were part of Jim Crow efforts to prevent former slaves from exercising the franchise, but other similar restrictions antedated the Reconstruction era. Young people don't have the 'right' to vote;  it used to be that you had to be 21 to vote, now the age is 18. We don't allow corporations to vote, although legally they are considered 'persons' and can own property. 

Of course, people vote for infringements of their rights all the time, which argues strongly for a better class of voter.  And here we are again.  Is voting an unlimited individual right?

Historically, clearly the answer is 'No'.  Voting was constrained by the Founders to those who they saw had both the ability to comprehend the issues, and a significant stake in society.

Morally, again the answer is no.  Voting, insofar as it stays within the limits imposed on Government by a Constitutional Republic, has no ability to touch individual rights, and is therefore not a right, but rather a privilege. When voting degenerates to the point that it is used as a vehicle to enrich the wealthy through robbing the productive, it is a violation of individual right, not a validation.  Voting is using the power of the State to enact laws, and therefore has the potential to both violate rights and to enforce them, depending on the legislation.

From a practical standpoint, extending the franchise to the culturally illiterate  has been a disaster for these presently united States.  It is time to re cognize this and to try for something different, and hopefully better.

More anon,

With regard to all who serve the Light,
Historian


 

   

 In Part One of this series, I have discussed in broad terms  the flaws of the present Constitution, link HERE.
Part Two discussed the specific shortcomings of the US Constitution, and there were a number of thoughtful comments that added significant value. Link HERE. 
Part Three covered suggested steps to be taken and touched on the importance of ENFORCEMENT of the Constitution as the highest law of the land. Link HERE. 
This installment is about making the myth of the Constitution real, about how we can go about actually enforcing the Constitution.

The idea of Constitutional enforcement has been an undercurrent in American politics for a long time, almost as long as the Constitution has been in force.  Lysander Spooner in his essays entitled "No Treason" was not the first person to point out this issue, nor was he the last. Yet after over 200 years of increasingly obvious issues with the Constitution, we still have no enforcement clause.

Moreover, very few people are discussing what I consider to be the single most egregious flaw in the Constitution.  Neither Michael Farris in his push towards an Article 5 Constitutional Convention nor Mark Levin in his book "The Liberty Amendments" promote Constitutional ENFORCEMENT, preferring rather to propose adding still more unenforceable amendments to an unenforced, and unenforceable Document.  The only person I know that pushes the idea of enforcement of the Bill of Rights and the Constitution as the highest law of the land is Neil Smith.  Despite endless lip service about Constitutional Government, few people out of government, and nobody  at ALL in government seems to actually want to enforce The Document.  Why is that?  Cui Bono? 

Well, not having an enforcement clause sure makes looting the taxpayer a lot easier, and it also makes it a lot easier to "enact a multitude of laws and eat out our substance."  A country like ours, where over half of the people working actually work for one governmental agency or another, either directly or indirectly, does provide considerable incentive for those folks to vote in favor of keeping their jobs funded.  Enacting an enforcement clause is going to be damned difficult to do;  enforcement of the Constitution will break lots of rice bowls.  Both the Demopublicans and Republocrats see significant benefit in maintaining the illusion of legitimacy provided by the present myth.

Oddly enough, however, given the things the ruling oligarchy in this country have recently done, like having our military parade in red high heels and importing large numbers of 7th century barbarians in the hope that Western civilization will benefit therefrom,  I'm hopeful that the right combination of stimuli can make the average American politician vote for damned near anything, as long as the carrot of re-election is dangled temptingly enough in front of them.  But in any case, before we get hung up on the "how," let's think first about what an enforcement clause ought to look like.  So what should an Enforcement Clause do?  I have been thinking about this over the last two years, and here are my thoughts:

One of the problems we have with the current legal system is that it is a form of guild socialism.  That is, if you do not belong to the appropriate guild, and pay the guild tax, you do not get to work in that profession.  Guild socialism was common in medieval times, and was an early version of merchantilism, acting to restrain market entry and limit competition.  American exceptionalism was due in part to getting away from those medieval ideas, and allowing anyone who wanted to enter the market to do so.  Unfortunately, the lawyers managed to maintain their guild after the Revolution, and it still rides us today.  As an aside, the last time I checked, I believe that there are only a few states that still allow people to read the law and take the Bar exam without having graduated from an accredited law school, one of which is the Commonwealth of Virginia.  (see links here and here.)

With regard to the broader issue of Constitutional enforcement, the problem is that it is totally impractical, (in reality not possible,) for a non-attorney at present to act to strike down an unConstitutional law, and the only way to gain 'standing' is to break the law and place yourself at risk of conviction. Given that the overall conviction rate for Federal indictments runs in the high 90% range, why would any sane person do such a thing when the deck is so obviously stacked against the common citizen?   The 1934 NFA (*1)  which led to the case of US v. Miller, where the Federal Government won on appeal because the plaintiff failed to show up at the Supreme Court, is just one example of such issues; there are probably tens of thousands.  If we are to have true enforcement of the Constitution, we have to be sure that access to whatever mechanism is developed is not restricted to the privileged class of lawyers, and that people who perceive an infringement on the Constitutional limits on Federal authority do not have to place themselves at jeopardy to seek correction.  Any American must have the right to challenge the acts of every level of government which purports to have jurisdiction over them.

The second issue I see is that Constitutional issues get bumped up the ladder, taking years of time and gobs of money before the Supreme Court rules on the matter at hand......or doesn't, in which case confusion reigns for another stretch of time, and the poor suffering taxpayer who got screwed by the government in the first place gets ignored. There needs to be a process that provides PROMPT relief.  "Justice delayed is Justice denied," right?  If the determination is made at the local level that there has been Constitutional infringment, or if there is any significant delay,  there needs to be immediate action to provide relief from the unConstitutional law or regulation, which according to precedent is now void, but which in practise never goes away.  That stay or injunction ought to restrict the government, at whatever level the action is brought, from acting until the issue is finally resolved at whatever level it ends up being resolved.  Moreover, if the case is appealed, and the higher court finds in favor of the plaintiff, the stay should be required to be extended to the entire jurisdiction of the court holding in favor of the plaintiff.  This puts some teeth into enforcement, and ought to help correct the present tendency of Federal attorneys to do the legal equivalent of the "Rope-a-dope" and to draw out the proceedings and attempt to bankrupt the plaintiff by appealing any time they get an adverse ruling.

The third issue is that nobody is held responsible.  There is no personal accountability on the part of any of the myriads of Federal, State, or local governmental elected or appointed officials, agents, or employees for their misfeasance or malfeasance.  Those who violate the Constitution do so with impunity.  That DEFINITELY needs to change, and those convicted of unConstitutional activity under color of law should suffer for it, both civilly and criminally.  On the civil side, the costs of the legal action should be assessed against the person or persons involved in the infringment, personally, and they ought to be discharged from their position and stripped of their wealth, as well as salary, benefits and pension, and any other assets they possess. 

On the criminal side, deliberate infringement of the Constitution ought to be a felony, and any such infringement resulting in loss of life, directly or indirectly, ought to be punished severely.  One could argue that such subversion of the Constitution and violation of rights under color of Law ought to be treated as treason, with the death penalty available, but in any case, any governmental employee, representative, or agent should be liable for their actions. 

So there is my conceptual list of what an Enforcement Clause for the Constitution ought to do.  Constitutional Enforcement ought to:

• Be available to any citizen of these united States;
• be resolved promptly, with the presumption in case of delay in favor of the plaintiff, and with stays or injunctions against the unConstitutional law or regulation required;
• Those who promote or enact such rules or legislation should be held accountable for the damage they cause and the costs required to address the issue.

Next time, I will discuss how this might be accomplished.  In the mean time, thoughts or constructive criticism of the above are welcomed.

With Regard to all who serve the Light,

Historian

(*1- NFA=National Firearms Act of 1934) Edited 5/17/16 to correct an erroneous reference to GCA;  h/t to the Backwoods Engineer who pointed this out at the Zelman Partisans website.  Thanks!