Response
of Jon Roland to the October 2, 2002, response of Prentice-Hall
on Magruder's American Government.

Note: Phrases in blue are links back to the document.

"Informal amendment'. The publisher's use of the erroneous term "informal amendment", and its refusal to correct this usage, is alone sufficient to justify rejection of this textbook by the State Board of Education. The error is clearly stated in their definition: “Informal amendment is the process by which over time many changes have been made in the Constitution which have not involved any changes in its written words” (SE page 79). The Constitution is the written words, and only the written words. Only the written words can be "amended", and there is no such thing as "informal' amendment to any law or constitution. The term "amendment" is a legal term with a precise meaning, and textbook publishers are not free to coin new terms using it, especially when such a term connotes that the practices to which it refers have a legal authority equal to that of the written Constitution. No practices or interpretations have, or can have, the authority of the written Constitution. To insist otherwise is not just an error. It is a deception.

At a November 8 meeting of the Austin chapter of the Federalist Society, an association mainly of conservative and libertarian lawyers, I presented the publisher's position on the use of this term, and my objection to it, to several of the members who are constitutional lawyers. The reactions were surprise that such a term could be used in a high school textbook, and amazement that anyone could have gotten away with using such a term for so long.

Definition of "Commerce". The publisher's proposed change is acceptable.

Definition of "Cabinet". The publisher's proposed change is acceptable.

"Living Constitution". The publisher's proposed change is acceptable, with one revision: Instead of "Framers’ original intent" it would be better to say "Framers’ original understanding". The reason for this is that the word "intent" has two distinct meanings that cause some confusion. Today, "intent" is usually used to mean "motivation", but in the Founding Era, in the context of common law, it meant "functional role". To understand the distinction, we can continue the architectural metaphor, which the "Framers" also used, and consider what is the "intent" an architect might have for designing flying buttresses on a church. His "intent" in the sense of motivation might be to create a job for his brother-in-law who specializes in building flying buttresses, but his "intent" in the sense of functional role would to prevent the weight of the roof from causing the walls to lean out and collapse the building. The latter meaning is the key to the standard of common law interpretation that the Framers expected would be applied to the Constitution. It is found not by seeking evidence of the state of mind of the lawgivers, but by what we might call "reverse engineering" of the way the design element fits into the overall function of the entire system. Statists like Jack Rakove try to confuse modern readers by failing to make this distinction clear. Jack understands the distinction, but tries to redirect the reader to the motivational meaning of "intent", which of course differed greatly among the Founders, even though their "understanding", which is what is important to construction, was much more uniform, and largely settled during the ratification debates.

Students interpret. The publisher's proposed change is acceptable.

Strengthen the judicial branch. The publisher's proposed change is still missing a subtle but important distinction. Putting a check "into the hands of the judiciary", which Jefferson favored, is quite different from "strengthening the judicial branch", which he opposed. The former refers to providing a way that persons with a complaint may petition for redress, the latter to the assumption of an exclusive role of constitutional construction, resulting in a strengthening of the judicial branch with respect to the other two branches. The opinion in Marbury v. Madison clearly indicates that, while the Court may decide a case last, its role of constitutional review is shared with the other branches.

Executive agreements and treaties. The publisher's proposed change is still missing a subtle but important distinction. The decision of a court in a particular case has the force of law, as does a statute, if both are constitutional, but they do not have the same force. Similarly, the administrative determination that the Soviet Union is the successor to Russia, which was the issue in the cases cited, had the force of law, but not the same force as a treaty, which is the way the author expresses it. The publisher is committing the logical fallacy that if two acts both have the force of law they are equivalent, but force of law is a matter of jurisdiction, kind, and degree.

Marshall quote. The publisher's proposed change is acceptable, with a revision: Rather than "timeless principles", it should explain that Jefferson and Madison relied on adherence to a constitutive act, ratification of the written Constitution as it was understood by the ratifiers, which is an authoritative historical event, that alone can confer legitimacy on official acts conducted under it.

Implied powers. The publisher's proposed change is acceptable.

16th, 21st Amendments. The publisher's proposed change is acceptable as to the 16th Amendment, but still needs to correct its misstatement on the 21st Amendment, which retained or delegated a power to Congress, but did not delegate a power to the states.

Inherent powers. The publisher's proposed change is not acceptable. It is not the proper role of a textbook to argue for inherent powers as something that "stands to reason". That is committing the logical fallacy of auctoritate egeo, ergo habeo, "I need authority, therefore I have it." It appears, for example, that the Founders did not intend the federal government to regulate immigration directly, but only "establish a uniform Rule of Naturalization" to be administered by the states, for immigrants to the states, and directly administer regulation of immigration only to the nonstate territories. If the Founders neglected to delegate some power that is needed, then the solution is to amend the Constitution to do so, not to presume that the power was somehow silently delegated.

Liberal constructionists. The publisher's proposed change is acceptable.

Consensus. The publisher's proposed change is acceptable.

Direct and indirect tax. The publisher's proposed change makes another error. A tax on wages would be a direct tax, but debates on the adoption of the income tax amendment indicate that "income" did not include wages or fees for individual labor, which has traditionally been considered a fundamental right, and therefore not taxable. It only included earnings on land, such as rent, or on capital, such as interest, dividends, and capital gains, which would be direct if the earnings were those of an individual, as distinct from a corporate entity. Thus, the decision in Pollock was incorrect, in that the Court treated a corporation like an individual person. The main direct tax that might have been made nonproportional would have been an ad valorem real property tax on property owned by an individual, but the Constitution delegated no authority to collect ad valorem property taxes, only "Taxes, Duties, Imposts and Excises" on trade goods. The income tax amendment, even if it had been ratified, conferred no new taxing power. I suggest replacing "wages (income tax)" with "earnings on land and capital owned by individuals".

Downturn. The publisher's proposed change still misses the point that the "war on terrorism" as such is not a significant contributing factor in the economic downturn, which began before the events of 9-11, and resulted almost entirely from the collapse of a speculative bubble. It isn't necessary to do more than mention it, leaving discussion to an economics class and textbook. The events of 9-11 may have also contributed, but that was an act of war against us, not our "war on terrorism", which has so far not been expensive enough to have much of a negative economic impact.

Bankruptcy courts. The publisher's proposed change is still not correct. Just omit the final clause ", which are units of the U.S. district courts" and it will be. The bankruptcy courts, as well as admiralty courts, are organized within districts, but are separately authorized and distinct from the "District Courts".

Interstate highways. The publisher's response is incoherent. "Interstate Highway Clause"? I can see I may have to put the Congressional Record online if someone else doesn't do it first. I don't find an argument in it for 1956 that invokes the Commerce Clause (to regulate). The argument was that the interstate highway system was needed for defense, and was justified as a defense expenditure. If someone mentioned other arguments, they were incidental. If the respondent wants to cite the Congressional Record, he needs to cite the exact days and quote some passages.

Implied powers, SE page 308. The publisher's proposed change is acceptable.

Execute federal laws. The publisher's proposed change is acceptable.

Federal Reserve. The publisher's response of just quoting from the Federal Reserve Board's own somewhat self-serving FAQ page is not adequate. Yes, the attributes of ownership of the 12 Federal Reserve banks by their member banks are restricted, but as the court case explains, the ownership is still essentially private. Read http://www.save-a-patriot.org/files/view/frcourt.html carefully.

Second Amendment. The publisher's response is not responsive. The Supreme Court in Miller only found that no evidence had been been presented. In concluding that it "cannot say" it was issuing dictum, or commentary, not edict, which would have precedential impact. And the $200 tax was not a "license tax". There is no such thing. It was a transfer tax, that is, an excise tax on the sale or transfer of ownership. This created a constitutional problem for items manufactured or already owned, since they are not transferred.

Bill of attainder. The reviewer's comments are not unclear. The publisher's response indicates the authors need to study the matter further. See "Public Safety or Bills of Attainder?", at http://www.constitution.org/col/psrboa.htm.

Presentment. The publisher's response lacks a knowledge of historical usage. The authors are invited to consider that grand juries can investigate things other than crimes, and report their findings. They might, for example, report that a bridge needs to be fixed, or that some money is missing from the public treasury (without a finding of who is suspected to have taken it), or that some law is not being executed, or that such execution is doing more harm than good. What are those reports called, in general? Today they are usually just called "reports", but during and prior to the Founding Era all kinds of grand jury reports were called "presentments". Of course, then as now the vast majority of presentments fit the definitions cited, bills of indictment initiated by the grand jury sua sponte, but such definitional restriction reflects recent usage, and definitions of terms in the Constitution must reflect usages as of the Founding.

Verdict. The publisher's proposed changes are acceptable. It is important to make clear that when at least one member of a jury in a criminal case holds out for acquittal, the rest of the jurors are supposed to know that they are then all to vote to acquit, not just report that they could not agree, resulting in a hung jury and a mistrial. They are to consider the holdout as evidence of reasonable doubt, which is collective, not individual, so that if one member of the jury has reasonable doubt, that is dispositive. As recently as the 1950s this was well-known by most people, but in recent decades the general knowledge of what juries are supposed to do has declined, is not being adequately taught in the schools, and is not being explained to jurors in instructions from judges, who tend to have a pro-prosecution bias, and often prefer a hung jury to an acquittal, which allows the accused to be retried. The publisher might add the clarification, "If a jury in a criminal trial cannot agree on a unanimous verdict of guilty, their duty is to return a unanimous verdict of not guilty, and not just report that they could not agree on a verdict." For more on this see William Forsyth, History of Trial by Jury, Chapter XII, at http://www.constitution.org/cmt/wf/htj.htm (under construction as this is written). The TEKS needs to be enhanced to provide for this.

Precedents. The publisher's response is not acceptable, because without adding something like "court decisions are divided between order, finding, and dictum, and that only the first two, which comprise the edict, may establish a precedent, in a published appeals case," what remains is misleading, and qualifies as an error, in that it misdirects the student. The TEKS needs to be enhanced to cover this and other points, but it is not responsive to say that the point is not included in the TEKS, which is very broad and unspecific.

Common and equity law. The publisher's response is not acceptable, because not all common law claims are only remedial and not all equity claims are only preventative. The authors' simplistic characterization misdirects the student. The TEKS needs to be enhanced to cover this and other points, but it is not responsive to say that the point is not included in the TEKS, which is very broad and unspecific.

Grand jury. The publisher's proposed change is acceptable.

Jury instructions. The publisher's proposed change is not acceptable. Once a topic is opened, it needs to be presented in a way that is not misleading by omission. Author might add something like "Jurors should follow the instructions of the judge that are lawful and that do not violate the rights of the defendant, but they must ultimately exercise their own judgement as to what the law is."

13th Amendment. The publisher's proposed change is not sufficient unless it adds something like "except for punishment for crime".


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