The Modern Constitutionalist Movement

by Jon Roland

In the article on "constitutionalists" by Bob Black ("White Man's Ghost Dance", Liberty, July, 1996, p. 47), the author presents a portrait that I, as a prominent constitutionalist and one who knows a wide spectrum of other activists who call themselves constitutionalists, do not recognize. He seems to base his portrayal on the works of Ken V. Krawchuck, but I have never heard of Krawchuck, and I doubt that many other constitutionalists have, either. Black has set up a straw man. This article is to set the record straight.

First, the focus of constitutionalists is on compliance with the U.S. Constitution, as written and intended by the Framers, not just on common law. We are sometimes called "originalists" in the debates over doctrines of interpretation. Those parts of common law not in conflict with the Constitution were made a part of the Constitution, and are the basis for all those elements, like "due process", grand juries, and trial juries, that are the subjects of the Bill of Rights. Indeed, almost all of the definitions of the terms used in the U.S. Constitution come from common law. These elements and those terms have assumed special importance today because they are major battlegrounds between those who violate the Constitution and those who attempt to defend it and restore compliance with it. In the course of such defense it is appropriate to research the origins of common law and its terms so as to better fight those battles.

Common law is the body of nonlegislative principles according to which court decisions are made. It arose when people decided to find less violent and more acceptable ways to obtain justice than private vengeance and trial by combat. It soon became established that for a judge's rulings to be fair and just, he had to make similar decisions in similar cases, and different judges had to make similar decisions in similar cases. This meant giving weight to precedent, and therefore to the principle of stare decisis. It also meant that, as the numbers of cases became large, too large for anyone to be familiar with, decisions had to be made according to principles that could be extracted from those cases, principles that could be generally applied to future cases, and this in turn led legal scholars to write guides discussing those principles and how to apply them. At the time of its adoption, the U.S. Constitution represented, in large part, the partial codification of many of those principles, thereby removing them from the realm of common law to the realm of constitutional and statutory law.

Part of this focus by constitutionalists is based on the reality that general constitutional compliance is not one of the top issues of concern for most voters today, nor is it likely to be any time soon. Most people tend to think of the Constitution in terms of rights, not in terms of delegated powers, and don't usually perceive the usurpation of an undelegated power as a threat to their rights until it takes the form of a direct threat to them personally. For lack of widespread public support, constitutionalists are compelled to turn to methods that can be used by small numbers of reformers, and on ways to leverage the existing legal system to reform itself, by confronting it with the contradictions of its constitutional violations and by provoking it to commit such outrages that the abuses become the subject of public protest and internal dissent.

Anyone who can say, as Bob Black does, that "Law is any application for the official use of coercion that succeeds", will probably never fully appreciate the central concern of the constitutionalist, which is legitimacy. For constitutionalists there is an issue of who is really an official and what is really an official act. For the anarchist, all government is evil. None of it is legitimate. Therefore, the less government, the better. For the constitutionalist, government can be legitimate or illegitimate, and it makes all the difference whether it is or not, enough of a difference to fight and die for, which is why the natural outgrowth of the constitutionalist movement has been the militia movement.

Legitimacy means conformity to fundamental principles that transcend the acts of legislators and other officials, principles embodied in a fundamental, supreme law which we usually call a constitution. The constitution represents agreement of a supermajority on principles that cannot later be overridden by transient majorities who may, in the heat of the moment, try to act in ways that are inconsistent with those principles. It is the essence of what we mean by a Rule of Law, because it is compliance with a law by everyone, even by those transient majorities. The Magna Carta is significant because it meant that even the King was subject to his own laws. Without legitimacy we no longer have voluntary compliance with the acts of officials, only surrender to their superior force, a surrender that will lead to an erosion of the moral fabric of society, to rising levels of crime, and, eventually, probably to revolution. Considering the vulnerability of our present-day technological infrastructure to even a single competent saboteur, and the importance of legitimacy to social stability, if not justice, should be clear.

There is a great deal of diversity among constitutionalists and their views, but most would agree that their major concerns are with the departures from the intent of the Framers that have occurred during this century, and especially since 1937, when appointment to the Supreme Court of compliant judges gave rise to what some call the "New Deal Constitution", a pattern of court interpretations that supported vast expansion of the powers of the national government, and which has continued unbroken until the recent case of U.S. v. Lopez, in which in 1995 the Supreme Court ruled unconstitutional a federal gun control law. To understand the constitutional and common law battlefields of concern to constitutionalists, let us examine some of them in more detail:

[] Grand jury. The oft-repeated quote of a prosecutor, that he could get a grand jury to "indict a ham sandwich", illustrates the sad state of the institution of the grand jury today. Originally, it was not only a major way for the people to block the excesses of abusive prosecutors, but a way for the people to investigate civil problems of all kinds, including things like official abuses and corruption, or to investigate crimes. In recent times we have seen the grand jury used not so much for legitimate investigation as for persecution of political dissenters.

This situation has arisen from two major factors. The first is the ignorance of the public concerning its duties when called for grand jury service. The second is the isolation and manipulation of grand juries by judges and prosecutors for their own purposes. Once in a while, people will get called to service on a grand jury who know their duty, and they become a "runaway" grand jury, investigating problems not brought to them by prosecutors, and producing not just indictments, but presentments, or findings of fact based on their investigations.

Efforts at reform have focused on such things as educating prospective grand jurors on how to go "runaway", on seeking writs of mandamus to open the grand jury to members of the public who have cases the prosecutor refuses to bring before it, and on private prosecutions (about which more below).

[] Trial jury. Originally, trial juries judged both the law and the facts in a case, because they could not be held to account for how they made decisions, as long as they weren't bribed or coerced. They could, and did, judge the constitutionality of laws under which defendants were charged, and found the defendants not guilty if they considered the laws unconstitutional, thereby effectively nullifying the laws. However, after the 1895 Supreme Court case of Sparf & Hanson v. U.S., in which it was held that it was not a reversible error to fail to inform a jury that it had the right to judge the constitutionality of the law in the case, courts have taken that decision as a license to forbid anyone to so inform them, even to punishing attorneys and defendants for contempt of court who try to do so in court, to prosecuting members of the public for "jury tampering" who try to do it outside of court, and to excluding veniremen during voir dire who admit to having received information to that effect. This has led to the fully-informed jury movement, which seeks to inform jurors of their rights and duties to judge the law, and to seek laws to enforce informing juries of this in court proceedings. The objective is to get juries to nullify unconstitutional statutes by refusing to enforce them with guilty verdicts, since judges are refusing to rule them unconstitutional.

[] Petition. The common law right of petition is recognized in the First Amendment to the U.S. Constitution, but what does it mean? It does not just mean the right not to be punished for presenting a petition, which had often been done in English history, but also to have one's petition considered on its merits and get a decision on those merits (cf. Julie M. Spanbauer, "The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth", Hastings Const. Law Quart. 21:15). This means, among other things, that there must always be a court with jurisdiction over any petition anyone might bring before a court, and that cases of certain types cannot be denied access to the courts by excluding jurisdiction over cases of that type to all courts. It also makes something like Rule 11 of the Federal Rules of Civil Procedure unconstitutional, as are any other practices which fail to answer petitions on their merits. It is also incompatible with the doctrine of sovereign immunity, by which the government can only be sued with its consent, which courts have used to prevent citizens from suing executive officials for depriving them of their rights, or pursuing private criminal prosecutions against such officials.

[] Private prosecutions. Originally civil and criminal common law were combined. As criminal acts became increasingly the subject of statutory law, civil and criminal proceedings divided. However, until late in the last century in England and the United States, criminal prosecutions were typically conducted by attorneys paid not by public funds but by private parties, such as victims or their families, or by the police after police agencies began to emerge. The increasing number and expense of such prosecutions led to the prevalence of full-time public prosecutors, but not to any statutes or rules which would exclude prosecution by privately-paid attorneys, or even by laymen. There are no provisions in the Federal Rules of Criminal Procedure which exclude private prosecutions, and many states have statutes which explicitly provide for the appointment of persons other than the elected public prosecutor or his deputies as prosecutors in criminal cases.

The problem has been that, with the decline in the use of this alternative, many judges have claimed a discretion to exclude private prosecutors in some cases, and it is an appropriate objective of constitutional reformers to remove this discretion, particularly in cases of official corruption and abuse, and thereby to open the grand jury to access to the private prosecutor for investigation of such corruption and abuse.

[] Counsel. The Sixth Amendment to the U.S. Constitution provides that "the accused shall enjoy the right ... to have the assistance of Counsel for his defense". The common law principle was that this meant having the counsel of his choice, and as many as he wishes, not one imposed on him against his will. This implies a right to counsel by a layman, and thus opens the way for non-lawyers to represent persons in court. The usual excuse that only trained lawyers are competent to represent others doesn't work. That is only applicable to avoid fraudulent representation by someone who represents himself as having the training of a lawyer when he doesn't. With full disclosure, the element of fraud is absent, and the excuse fails, as does the power of the court to manipulate the legal process by a conspiracy to blacklist attorneys who don't conform to their unconstitutional practices. It also opens the way to prevent the widespread practice of appointing public defenders who represent the prosecution better than they represent their nominal clients.

[] Public trial. This right has been circumscribed in many ways that are inconsistent with the common law principle. One departure is the conduct of many proceedings in camera, out of sight of the defendant or the public, such as arguments on constitutional issues. All such issues must be argued in the presence of the jury and the public. Another is forbidding a video record of all proceedings, that would permit the public to view all phases of all proceedings, so that they might judge their fairness. No trial may be considered to satisfy the requirement that it be public unless all available means be provided to permit public scrutiny.

[] Jurisdiction. In a constitutional republic, the constitution assigns roles to various branches, departments, and officials, and that usually involves jurisdictions of various kinds. There are three main kinds of jurisdiction: territorial, subject, and personal, which become especially important in the prosecution of persons for crimes. The U.S. Constitution defines two kinds of territory: national and state. National territory consists of territory ceded to the national government by a state, and territory acquired by purchase, treaty, conquest, or other means. It distinguishes between two kinds of powers, criminal, which may involve the disablement of the rights to life, limb, or liberty, and civil, which may involve the disablement of the rights to property, privileges, or immunities. It delegates general civil and criminal powers to the national government for territory ceded by a state legislature (Art. I Sec. 8 Par. 17), which includes the District of Columbia, various parcels ceded for national buildings, military installations, and other public facilities, coastal tidelands, and U.S.-flag vessels at sea. It delegates general civil, but not criminal, powers to other national territories (Art IV Sec. 3 Par. 2). On state territory it delegates powers to punish persons for crimes, that is, criminal subject jurisdiction, for five subjects: counterfeiting (Art. Sec. 8 Par. 6), treason (Art. III Sec. 3 Par. 2), piracy and felonies on the high seas (Art. Sec. 8 Par. 10), offenses against the laws of nations (Art. Sec. 8 Par. 10), and deprivation of civil rights by government agents (14th Amend.). Finally, it delegates powers to punish a kind of person, that is, personal jurisdiction, for crimes committed anywhere, either on national or state territory, on the high seas, or on the territory of other nations, by military personnel (Art. I Sec. 8 Par. 14) and militia personnel while in the service of the nation (Art. I Sec. 8 Par. 16).

Such guidance as we have on types of jurisdiction comes from common law and international "law", and it is admittedly muddled. Jurisdictional conflicts have not always been resolved in consistent ways. Extracting general principles from the cases of disputed jurisdiction that can be elevated to the status of firm constitutional principles is difficult, but it can be done.

The major battlefield in this area is the definition of which territory a crime has been committed in, and therefore which territory has jurisdiction for prosecution, and it turns on the question of whether the crime is the act of the perpetrator or the injury caused by that act, and which territory has jurisdiction when the act and the result take place in different territories. Historically, when an act of violence committed on one side of an international boundary has caused injury on the other side, the issue has been resolved by either extradition of the offender to the country of the victim, prosecution of the offender in his own country, or retaliation by the victim's country against the offender's country. In a federal nation divided into states and national territories, or in a state divided into counties, the issue can get more complicated. To keep this discussion short, I shall simply assert as a general principle that the only definition of the territory in which a crime has been committed that makes sense across all kinds of situations is that it is the territory in which the offender was located when he committed the act, and not the territory in which the result occurred, when that territory is different. The arguments on that proposition could fill a book, but the reader is invited to think through the alternatives for himself.

The reason this is important is that the U.S. national government has been expanding its criminal jurisdiction by expanding the territories, subjects, and persons over which it claims such jurisdiction, to the point that it now appears to be claiming plenary criminal jurisdiction over the entire planet. This is called "extra-territorial jurisdiction", and it is unconstitutional. It is projecting law enforcement forces everywhere, and sometimes engaging in military ventures, such as the incursion into Panama, under the cover of "enforcing U.S. laws". For constitutionalists this is a dangerous pattern of usurpation that must be reversed.

[] Regulation. The common law definition of the term "regulation" included guidance, organization, training, or scheduling, but not prohibition, and the governmental power to "regulate" did not imply the delegation of the power to impose criminal penalties, only civil penalties. We have seen the attempt to amend the Constitution by redefining the term, to include prohibition and the imposing of criminal penalties, something that is a clear usurpation and the basis of much of the legislation and other official acts that constitutionalists oppose.

[] Commerce. The common law definition of the term "commerce" distinguished it from other economic activities like mining, manufacturing, agriculture, or the mere possession of things, and commerce "among the States" did not include commerce within a state, or anything that might have once moved in interstate commerce, or that might move in interstate commerce, or that is "part of an aggregate" of things that move in interstate commerce, or that have a "substantial effect" on interstate commerce (Cf. concurring opinion of Justice Thomas in U.S. v. Lopez). Despite that restricted definition, the national government has based more than 2000 criminal statutes on a broader definition of the term, interpreting the interstate commerce clause to be a grant of plenary power to the national government, which has led to a number of prosecutions that constitutionalists see as deprivations of the civil rights of the accused, and therefore as felonies themselves, specifically as violations of 18 USC 241 and 242.

[] Militia. The United States was founded on the proposition that interpretation and defense of the Constitution and constitutional laws was the duty of every citizen, not the exclusive duty of judges or other officials. The ancient principle of "raising the hue and cry" was what was later termed issuing a call-up of the militia, which consisted of any and every citizen in his capacity as defender of the state. If some officials had the common law power to impose penalties on those who failed to respond to a call-up, that did not make them the only persons with the authority to issue a call-up, or the only persons whose call-ups had to be respected by anyone who heard them. Law enforcement, like defense, was everyone's duty, and everyone had the responsibility to organize and train to perform that duty, and to equip himself with the tools needed to do so, including firearms. The principles laid out in the opinion in Marbury v. Madison recognized the right and duty of judges to enforce the Constitution over statutes or other official acts when they were in conflict with it, but the same arguments apply to any citizen who finds himself in a situation in which official acts are in conflict with the Constitution, and place an inalienable duty on every individual to interpret and apply the Constitution for himself, a duty that cannot be delegated to superiors, legal advisors, or judges. Any official act, including a decision of the Supreme Court, which is repugnant to the Constitution, is null and void from inception, and is probably itself a criminal act which it is the duty of any citizen to resist, and to enforce the constitutional law upon the perpetrators. The Constitution is not a parable. It is the Supreme Law of the Land, and its logic allows no compromise. Acts by government agents which are not constitutional are almost always illegal, and require any citizen on the scene to arrest the perpetrator and deliver him to a magistrate of competent jurisdicition for prosecution.

Since the Dick Act of 1903, the Ruling Class has been attempting to exclude the people from law enforcement, reducing them to mere informers. This is in direct conflict with the Constitution and its common law, and provides the basis for the inevitable conflicts that will come if reform cannot be achieved through the regular electoral, legislative, and judicial processes.