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Defects in the Constitution
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Jun 5, 2025
Jon Roland at the Austin Constitution Meetup June 18, 2013, discussed defects in the Constitution that were oversights by the Framers, and require amendments to correct them. See http://constitutionalism.blogspot.com/2013/06/a-defect-in-constitution.html
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now good evening this is the June
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18th
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2013 us uh Constitution meet up of the
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Austin Constitution Meet Up
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group I'm John
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Rand and this evening I'm going to be
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discussing several current topics of
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interest uh I appreciate if you hold off
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on the questions until uh I finished uh
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so that we can uh treat them separately
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in the recording
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session
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now the first topic is defects in the
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Constitution uh the framers of the
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Constitution got so much right that we
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are inclined to overlook sometimes the
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things that they
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overlooked but it didn't take very long
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on for some of the over things they
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Overlook to have become a
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problem and they remain in many cases a
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problem to this day they haven't all
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been addressed with
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amendments
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so do a page down to get the next one
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okay
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okay there we
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go um one of the first defects that I'm
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going to discuss this evening is
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omission of authority to prosecute what
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were then regarded as common law
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crimes now common law crimes were
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the kind of crimes that were the subject
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of most Court action on Criminal
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action uh at the in England and the
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American colonies at the time of the
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Revolution uh they were not defined by
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Statute they included things like murder
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theft robbery rape
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trespass uh
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assault fraud
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purgy and a host of other things that uh
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for which we now have
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statutes criminal
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statutes but which at the time were
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created only by Court
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presidents
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now the question arose shortly
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after the Constitution was
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adopted
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whether there
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were there was authority to prosecute
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common law crimes
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and it seems Apparent at this time
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looking at the Constitution The Way It
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Was Written the way was
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debated that it seems likely that many
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of the
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framers thought that there would be
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authority to prosecute common law crimes
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so they didn't
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mention or provide for specific
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authority to do so
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on the other hand as obviously some of
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the other framers thought there would
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not be such
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Authority and apparently neither side
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brought the issue to the attention of
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the
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other because they didn't include any
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provisions in the Constitution to deal
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with the
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question uh you have something things
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like the trial of all crimes as though
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they were expecting to have lot of
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them but in the Virgin conduct
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resolutions of
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1798 written by Thomas
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Jefferson he pointed out that under the
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Constitution Congress was authorized
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only to prosecute for treason
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counterfeiting piracy and felonies on
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the high seas and offenses against the
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laws of
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Nations that's a substantial list of of
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crimes but it's not a whole bunch of
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them and they didn't come up that
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often
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so the question naturally arises when
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they wrote a phrase like uh
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uh removal from office for treason
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bribery and other high crimes and
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misdemeanors they later provided for
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punishment for treason in the sense of
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defining it and authorizing punishment
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of it but they didn't mention bribery or
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HRS and
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misdemeanors so there was no
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Congressional Authority authoriz granted
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to criminally prosecute those things as
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crimes but why did they mention them if
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they didn't expect Congress to have the
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authority to
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rep pass statutes to punish them did
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they expect that any punishment would be
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done by the states what about the
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territories so uh uh EV obviously they
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didn't give much attention to this
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subject but it came
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up in 180 first of all in
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1798 With the Alien and Sedition
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Acts which Jefferson and Madison and the
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other uh uh uh framers well Founders who
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would we would might classify as wigs to
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use the English term in English law or
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politics uh people divided between wigs
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and
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tories the wigs were the what we would
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dat today call
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Libertarians and the Tories were more
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likely we today call big government
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conservatives
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uh
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the Jefferson at that point led a party
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of what came to be called
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Republicans and his opponents call
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themselves
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Federalists so the labels could change
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but uh the concept remained the same
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well the Federalists
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were in favor of the federal government
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having authority to prosecute crime and
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law
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crimes and the Republicans generally
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were not but then some rep some
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Jefferson appointed
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Republicans in
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Connecticut prosecuted a news the
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editors of a newspaper named Hudson and
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Goodwin for publishing a false article
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that
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had
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illegally uh transferred $2
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million uh to France uh for the purchase
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of Western
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Florida which was then known by
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Spain well there was there was a secret
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session of Congress to authorize the 2
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million for a
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negotiation through France with
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Spain which ultimately didn't leave to
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anything there was no money
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transferred but uh uh so the Quran got
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it
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wrong but uh the Jefferson supporters
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thought that that was constituted
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criminal liable so they tried to
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prosecute for it and since there was no
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statute making criminal making liable a
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crime it was had to be prosecuted as a
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common law
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crime which it could have been in
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England
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well the defense
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argued that there were no common law
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crimes under the US
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Constitution which was a wig
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argument
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well uh it took until
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1812 for the case to finally make it to
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the Supreme
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Court by which
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time uh most interest in it been
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lost the prosecutors didn't even show
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up and uh the prevailing argument uh was
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essentially a Jeffersonian one although
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not prosecuted originally by
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jeffersonians that there were no common
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law crimes and that was a case of United
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States versus Hudson and
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Goodwin which is discussed on my website
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constitution.org
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now the what's interesting about that is
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that it created a vast
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area of non-authority on the part of the
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federal government which it has been
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trying to fill in ever
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since with
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uh he said what amount to
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usurpations uh
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some of which
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are uh you know to do things that are
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arguably needed with which it does not
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have
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authority and others of which is clearly
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Beyond its Authority and should
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be
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now uh much more example of what's done
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with the Commerce and necessary Proper
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Clause is essentially to deal with the
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lack of authority to prosecute many
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kinds of Crim
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CRI for example there is no authority to
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prosecute for the crime of failing to
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obey a court
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order or even to enforce the court
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order uh that that's kind of an
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important Omission well they just loss
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over it and say well that's an inherent
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power of the Court well it might be an
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inherent power of the court but it's not
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an inherent power of congress or the
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executive
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branch so uh
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the uh problem
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then really needs to be addressed with a
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new set of
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amendments which I have
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proposed
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under uh my draft amendments in the
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second section on remedial
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amendments the first section is on
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clarifying amendments that's clarifying
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the langu langage of existing Provisions
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to make them uh less
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ambiguous the second section is on
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remedial amendments that's to remedy
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defects of they were essentially
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oversights and then the third are
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substantive amendments things
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that uh we really should be able to do
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and for which there's no
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Authority even though there in many
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cases we're doing it anyway
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uh the
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second major
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defect is the omission of a longer list
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of Rights than those specified in
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Article 1 to8 of the Billa
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rights Jefferson and the others simply
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lumped the others into the Ninth
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Amendment but that has proven not to be
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adequate because nobody no modern lawyer
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or judge seems to be willing to go back
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into history and find out what those
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other unenumerated rights
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are they are in fact they're downright
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resistant to it so uh it really they
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really need to be spelled out and I have
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proposed
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legislation that would spell it out as
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an amendment to the Civil Rights Act you
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know for simply listing them all it runs
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us many pages it doesn't claim to cover
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all rights but it covers so many that uh
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you know what's left is pretty
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obscure
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now the third
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major uh defect is a failure to provide
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that the rights and the Bill of Rights
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apply to the states even if federal
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courts don't have jurisdiction over
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them now that was presumed at the time
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Most states had their own of Rights so
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we thought well the states have it
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covered but in fact the states didn't
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have it
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covered and uh that still leave would
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leave the question whether putting the
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Bill of Rights in the Federal
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Constitution made them Federal questions
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that would confer jurisdiction on
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federal courts to adjudicate cases
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between a citizen and his own
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State um
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that was the issue in Baron B
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Baltimore uh which uh in which a
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individual who had had a
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Warf uh Jason the city of
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Baltimore and as a result of uh dredging
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projects by the
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city uh it rendered his Warf
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useless essentially landlocked it
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so he sued for damages claiming that
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Baltimore had uh deprived him of
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property without due
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process and the holding by Justice Chief
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Justice John Marshall was that the Bill
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of Rights did not apply to the states or
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more precisely that the federal courts
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did not have jurisdiction to adjudicate
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such
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cases now what was really really going
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on
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there is that it was recognized emerg
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from the case that if the Bill of Rights
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were to apply particularly the Fifth
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Amendment to the
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states and it includes the Clause no
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person shall be denied life liberty or
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property without due process of
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law and black were persons and they were
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considered persons then that would
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essentially rule out
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slavery and Marshall and the others
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apparently thought that if they were to
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come down on the other side that they
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would be laying the basis for declaring
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slavery
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unconstitutional and that would trigger
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a civil war so it was a political
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decision not a principal position
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position based upon the actual text of
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the Constitution or or the logic of it
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but the 14th amendment was intended to
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overturn Baron B Baltimore and also
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Dread Scott V
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Sanford those two cases
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primarily and it was felt necessary to
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adopt an amendment because by that point
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those cases have become so entrenched
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with further precedents built upon
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them that the only way to unravel those
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precedents was to adopt an amendment
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which is why I proposed so many
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amendments because at this point the
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only way to unravel all the bad Court
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precedence is to amend them into a state
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of which they were the Juris Prudence
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was before the first such precedents
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were established
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now next would be a failure to provide
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authority to break up excessive
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concentrations of private
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power there is actually no Authority for
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the Antitrust
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Act to break up monopolies and things of
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that
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sort uh that was uh argued to be a uh
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under you know an implied power of the N
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of the Commerce Clause but that doesn't
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really
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work that the most that could be done
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would be to create a civil jurisdiction
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for private parties to sue large
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organizations uh and seek breakup as a
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remedy but he would not authorize the
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government to appear as a
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party so it's especially not to provide
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for criminal penalties so uh uh large
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organizations large Banks Banks uh
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holding companies uh labor unions
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monopolies whatever uh were are
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essentially beyond the reach of law
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under the Constitution as it was
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originally
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written now next would be failure to
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specify standards for trial and grand
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juries the framer simply used the term
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Tri you know jury or grand jury and
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assume that everybody would know what
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they meant by
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that but they didn't
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anticipate that later generations would
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try to define those things out of
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existence especially at the state
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level and by cleverly
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manipulating process and
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structure uh reduce them to a much less
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effective level
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uh so what are needed there are for the
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standards to be made clear and made
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specific and on my website Constitution
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or I have that laid
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out next was a failure to protect
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private prosecutions of public rights
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such as PO on to an avus
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Corpus uh avus Corpus link lingers on
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but it's been changed from something
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that it can be done
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without the help of a court is something
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that requires Court approval you apply
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for R of apus Corpus now originally you
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just filed a rid of aus Corpus and the
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the court didn't have to accept it as an
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application it was not some kind of
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petition and these were the tools that
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enabled private citizens to hold
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government
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accountable and without them government
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cannot essentially not be held
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accountable next was the failure to
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require common law rules of
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construction specifically the
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presumption of
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non-authority uh that was presumed at
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the time but it has to be spelled out
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because I encounter in debates all time
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with lawyers including law
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professors uh that you know they're
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asking me to
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prove that delegations of Power are
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supposed to be interpreted
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strictly they say well why can't they be
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interpreted broadly and writes narrowly
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you who says that powers may only be
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interpreted strictly well it was assumed
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at the time that that was the way
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things work but you can't assume that
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you have to write make it
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explicit uh a failure to forbid binding
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star
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decises it was assumed that uh Court
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decisions would apply only to the
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parties to the
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case and that U president would at most
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be advisory suggested never binding and
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yet through practice it has become
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binding and that is a threaten a threat
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to the Constitution itself because it
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allows B binding precedents to be given
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more weight than the
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Constitution finally there's a failure
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to provide authority to enforce court
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orders uh they do it anyway but it's the
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authority is
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missing which I mentioned earlier
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so
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uh I mentioned earlier common law
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crimes just just summarizes
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them the the but the basic problem with
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common law crimes is they are defined at
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trial not before the ACT is committed
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and therefore they are inherently
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exposed
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facto and the Constitution prohibits
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Expos Factor
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laws both for the federal government and
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for the states so because it does it is
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essentially prohibits common law crimes
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both for the federal government and for
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the states except that in some states
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they still try to prosecute common law
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crimes uh at the state level
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