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
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
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
 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
 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
 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
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
 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.