Constitutionalist Platform

The following principles should be considered planks in the platform of any candidate who calls himself or herself a "constitutionalist":

  1.  The rights recognized in the Bill of Rights are rights that precede the Constitution, apply to all persons everywhere and all times, and considered as restrictions on the actions of government officials or agents, apply to all officials or agents at all levels of government, federal, state, and local, and even to the treatment of any persons anywhere outside the territorial jurisdiction of the United States, except when otherwise authorized by a declaration of war or letters of marque and reprisal.
  2.  The right to keep and bear arms, like other rights in the Bill of Rights, is an individual right, at all levels of government, and covers all weapons or other tools or supplies that might be used for defense, riot control, personal protection, law enforcement, or emergency response. The only regulation permitted is to facilitate and discipline militia and enhance its effectiveness.
  3.  No right, including the right to keep and bear arms, may be disabled, that is, restricted partially or entirely, by any process other than a trial in which the subject shall have the right of a jury, and in which the burden of proof is on the petitioner that either the disablement is a punishment authorized by statute for a crime proved to have been committed by the subject, or that if the right of the defendant is not disabled it would be exercised in a way that would threaten the rights of others or be a danger to the defendant. Any statute disabling a right for a person convicted of a crime is a prohibited bill of attainder. Any such disablement must be explicitly stated in the sentence or judgment of the court.
  4.  Legislative restriction of any right constitutes a prohibited bill of attainder, and perhaps also a prohibited ex post facto statute, and as such is null and void from inception. This includes statutes restricting purchase, possession, or use of a weapon, or the exercise of any other right, by persons convicted of a crime if the restriction is not made part of the sentence. It also includes statutes requiring carry permits for a weapon. The only credential permitted in regard to any right is a certificate that the right has not been disabled, but the carrying of such a certificate may not be required.
  5.  In all references to the power to "regulate", that power does not include the power to prohibit all modalities of a thing, and it does not include the power to impose criminal penalties (disablement of life, limb, or liberty), but only civil (fines, loss of privileges).
  6.  The "commerce" among the states and with foreign nations which the Congress has the power to regulate (Art. I Sec. 8 Cl. 3) consists only of transfers of ownership and possession of tangible goods, for a valuable consideration, that commence in one state and terminate in another, or in one state and terminate in a foreign nation, or in a foreign nation and terminate in a state. It does not include regulation of "traffic" except insofar as it is necessary to identify commercial traffic carrying commodities subject to regulation. It does not include primary production, such as mining, agriculture, herding, fishing, or hunting. It does not include manufacturing, retail sales, possession, use, transport or disposal of one's property not part of an exchange. It does not include other activities of those engaged in commerce or anything not itself a tangible commodity that "affects" commerce, substantially or otherwise.
  7.  The only crimes committed on state territory over which the national government have jurisdiction are (1) counterfeiting, (2) piracy and felonies on the high seas, (3) offenses against the laws of nations (Art. I Sec. 8), (4) violations of military law by military personnel or militia personnel in actual service, (5) treason (Art. III Sec. 2), (6) enslavement (13th Amendment), (7) deprivations of rights by a government agent (14th Amendment), (8) deprivation of the right to vote on the basis of race (15th Amendment), gender (19th Amendment), non-payment of a tax (24th Amendment), or age 18 or older (26th Amendment). All other statutes imposing criminal penalties are inapplicable to actions committed on state territory.
  8.  The location of a crime governing the territorial jurisdiction for its prosecution is the location of the center of the perpetrator's brain at the moment the criminal act is performed, not where the effects of the act occur. The only extraterritorial criminal jurisdiction is on the high seas and unclaimed territory such as Antarctica or outer space.
  9.  The powers "necessary and proper" (Art. I Sec. 8 Cl. 18) to a delegated power are only those powers essential to the administration of the delegated power, not any power that might serve the same purpose as such a delegated power. In particular, it does not include the power to impose criminal penalties for violation of a regulation, or for interference with regulated or promoted activities or spending.
  10.  The "general welfare" clause (Art. I Sec. 8 Cl. 1) is not the delegation of a power, but a restriction of the power to raise taxes (and spend the funds raised) to only those things that benefit the nation generally, and not just some region or group. There is no federal power to make "internal improvements" unless they are incidental to a delegated power, such as defense.
  11.  It is unconstitutional to impose a tax for a regulatory or confiscatory purpose, or for any purpose other than the raising of revenue.
  12.  There is no concurrent jurisdiction of the national government and the state governments over any offense, and for purposes of the double jeopardy protection (5th Amendment) the "same offense" is a physical act of the accused, and multiple prosecution is prohibited for the same or continuing physical act under different charges, statutes, or sovereigns. If the federal government wants to assert jurisdiction for a violation of civil rights by a state official, it must first void any prosecution by the state for the same physical act.
  13.  The U.S. Congress has general legislative jurisdiction over a territory only if (1) it has been purchased by the national government with the consent of the legislature of the state of which it is a part; (2) it has been purchased and is being used only for a public purpose; (3) the state legislature has explicitly ceded exclusive legislative jurisdiction over that specific parcel, described by metes and bounds, in a act according to that state's constitution; and (4) the national government has clear title and effective possession of the parcel. Concurrent jurisdiction is not permitted, except that residents of the parcel should retain their citizenship in the ceding state for purposes of voting for national and state office. Jurisdiction reverts to the state if any of the conditions of its cession terminate. Such territories include the District of Columbia, U.S. coastal waters, U.S.-flag vessels at sea, and the grounds of U.S. embassies abroad. It does not include possessions such as Puerto Rico, the Virgin Islands, or Guam, over which the national government may have civil but not criminal jurisdiction.
  14.  Citizenship of any political subdivision of the United States is based only on residence address, and a person is a citizen of a federal territory and subject to its jurisdiction only if he or she is a voluntary resident of that territory.
  15.  All persons present within the territorial jurisdiction of the United States have the duty to not only obey constitutional statutes and other official acts, but to help enforce them, and to train and equip themselves, alone and in combination with others, to do so. All persons in their capacity as defenders of the community are the militia, any person aware of a threat has the authority and the duty to call up the militia to meet it, and any person receiving a credible call up has the duty to respond to it. It is a duty to maintain a militia system at a state of organization, training, and equipment, involving all fit adult citizens and would-be citizens, sufficient to overcome the military.
  16.  In any situation in which laws are in conflict, any person has the inalienable duty to make an independent determination of which law is superior, and to enforce the superior law. When that superior law is the Constitution, the duty is called constitutional review, and judicial review when done by a court. It may not be relinquished to superiors, judges, or legal advisers.
  17.  Unless a criminal statute explicitly limits who may enforce it, it is equally enforceable by any person, and enforcement authority is derived from the law and from a warrant or commission, not from a title or employment status. Government agents have no criminal law enforcement authority that civilians don't also have. However, law enforcement officials, such as sheriffs and U.S. marshals, may have command rank in situations where they are present. The title of "federal agent" carries no command rank.
  18.  Any protection of government agents or other persons from criminal or civil liability for their actions, or special penalties for offenses against them, not enjoyed by others, constitutes the granting to them of a title of nobility, which is prohibited.
  19.  Based on available evidence, and until it can be proved otherwise, the Income Tax Amendment shall be considered not to have been ratified. Even if it was, the "income" which is taxable under it is only "unearned" income such as interest, dividends, and rents, and not wages for labor.
  20.  Fiat currency must not be made legal tender within a state, and the constitutional requirement that only gold or silver be legal tender on state territory must be enforced. Federal reserve notes are not legal tender for the payment of debts within, to, or from a state.
  21.  A constitution is not a contract but the Supreme Law, which provides for all contracts into which any department of government may engage. There are no "implied contracts" in which a government is a party.
  22.  Common law crimes are ex post facto and as such prohibited by the Constitution. In particular, the national government has no authority to punish for perjury, fraud, or contempt of court any act not committed on federal territory.
  23.  Require that all issues of law be argued in the presence of the jury, who shall be provided with copies of all pleadings and access to an adequate law library. Instruct the jury has it the power to review legal decisions of the court, as well as decide the facts, for a general verdict in a case. The only exception would be legal argument that cannot be made without disclosing evidence that is properly excluded.
  24.  In a jury trial any opinion on the law rendered by a judge shall be considered testimony, subject to cross-examination and rebuttal.
  25.  The right of an accused to counsel is a right to counsel of his choice, including persons not otherwise admitted to practice law.
  26.  Prosecution of persons accused of a crime may not be limited to public prosecutors. The determination of who may criminally prosecute is the exclusive duty of a grand jury.
  27.  Courts and prosecutors are not permitted to obstruct access of any person to a grand jury to present evidence or a petition, but only to regulate the timing and manner of it to make such access orderly and expeditious.
  28.  Only a natural person or aggregate of natural persons may be a party to a legal proceeding. In particular, in rem "civil forfeiture" is prohibited unless there is no apparent owner or claimant, in which case the defendant is "persons unknown". Property shall be taken only to the extent necessary to pay a specific fine or judgment imposed by the ruling of a court. It may not include any assets not exclusively owned by, or, if the ownership cannot be determined, in the exclusive possession of the accused, and any surplus from a public sale of the asset over that needed to pay such fine or judgment shall be returned to the apparent owner or possessor.
  29.  The President or other public official may not direct any offensive action by the military or militia without congressional authorization in the form of a declaration or war or letters of marque or reprisal, and any such unauthorized direction shall constitute a criminal violation under the law of nations clause (Art. I Sec. 8 Cl. 10) and an impeachable offense.
  30.  The offenses covered under the authority to punish offenses against the law of nations (Art. 1 Sec. 8 Cl. 10) include only the following:
    1.  Attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.
    2.  Dishonoring of the flag of truce, peace treaties, and boundary treaties.
    3.  Depredation of wrecked ships, their passengers and crew, and their cargo, by those who might find them.
    4.  Piracy on the high seas, even if those making the capture or their nations had not been victims.
    5.  Mistreatment of prisoners of war.
    6.  Attacks on foreign embassies, ambassadors, and diplomats, and on foreign ships and their passengers, crew, and cargo while in domestic waters or in port.
    7.  Dishonoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas.
    8.  Enslavement of foreign nationals and international trading in slaves.
    9.  Entry into a country across its border without consent of lawful authorities.

    It does not include any other treaties or violations thereof, and no treaty provisions are permitted or enforceable which would require the exercise of powers not delegated by the Constitution.

  31.  Limits or disclosures on campaign contributions not convertible to the personal use of the candidate, even when accepted in exchange for public funding, are prohibited by the 1st Amendment, and any such public funding must be of general benefit to the nation and not to any region or group.
  32.  Religious observances may not be supported by government agents or public funds, but neither may they be reasonably restricted on public premises when initiated and funded by private persons, provided that this is not done in a way that is disruptive or offensive.
  33.  The monitoring of communications by government agents, which the participants have the reasonable expectation of being private, is prohibited without a specific search warrant and notification of the parties involved if such notification is feasible.
  34.  Any search warrant must be served on the owner or possessor of the premises, and such person must have the reasonable opportunity to verify the validity of the warrant, unless such person cannot be found within a reasonable time. It is not permitted to wait until such person is absent to search his premises, or fail to notify the person as soon as possible if such a search and seizure is conducted.
  35.  "No knock" search or arrest warrants are not permitted unless there is imminent threat of death or injury to an innocent person, and it is not permissible to prosecute any person for resisting an improper execution of a warrant with deadly force or for any death or injuries that might result therefrom.
  36.  Legislative and judicial powers may not be subdelegated, and executive powers may not be delegated to the agents of a different sovereign. No official may make a decision adversely affecting a privilege or immunity of a person in his jurisdiction based on an act or decision by an agent of a different sovereign.
  37.  Government agencies or departments may not legislate for civilians by issuing "regulations" governing them, and it should never be necessary for a reasonable person to have to read a "regulation" or other directive to discover how to interpret a statute or decide whether or how it might apply to him. Regulations and executive orders apply only to subordinates of the issuing executive, including officials, agents, and contractors, or to persons visiting proprietary facilities, or using proprietary assets, of the government.
  38.  No person shall be penalized or obstructed from petitioning for redress against any government agency or executive official, or staff members of the legislative or judicial branches, for relief under contract, tort, injunction, or declaration, although it may require that monetary judgments require a special appropriation by the legislative branch. The financial responsibility of officials must be secured by adequate bond, and if public policy seeks to make officials personally immune, the government must assume financial liability for claims against them.
  39.  Replace creation of judges by elections or appointments by political officials with sortition, or random selection, and replace single judges with multi-judge panels to the extent feasible, from a pool selected by objective examinations, to serve for limited terms, and to be assigned to cases randomly.
  40.  Require that upon demand by any person, through a petition for a writ of quo warranto, and before continuing with an enforcement action, any official prove his authority for the action, by an unbroken logical chain leading back to the applicable constitution. Reverse the presumption of authority.
  41.  Eliminate licensing of occupations, especially the practice of law. Establish that the practice of any occupation may be disabled only by order of a court of competent jurisdiction, on petition therefor and proof by a preponderance of evidence and verdict by nine of a jury of twelve, that if not disabled the right would likely be abused, or beyond a reasonable doubt that the defendant committed an offense for which a statute specifies disablement of the right as a punishment, by a unanimous verdict of a jury of twelve.
  42.  Secret budgets and expenditures are prohibited by Art. I Sec. 9 Cl. 7, and are not to be permitted on grounds of "national security". This includes any funds administered by public officials or government agents even if derived from other sources than taxes or fees. Forbid proprietary ownership or control of private organizations by government agents or agencies except temporarily for law enforcement investigations.
  43.  Reform the Civil Service and congressional staff systems to make it easier to reassign personnel and prevent them from becoming too entrenched in any department or location. Reassign personnel at regular intervals and randomly cull them. Limit terms of service. Eliminate the seniority system. Set up chains of supervision and inspection to prevent collusion or evasion of oversight.
  44.  Have the states cede territorial jurisdiction to Congress, in accordance with Art. I Sec. 8 Cl. 17, of airspace 300 meters or more above buildings or terrain features, so that federal air traffic control there can be constitutional.
  45.  Require the boundaries between federal, state, and local jurisdictions be clearly marked so that anyone passing from one to the other will have proper notice thereof.

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Maintained: Jon Roland of the Constitution Society
Original date: 1998/4/15 —