Common Constitutional Errors and Remedies: Protecting Our Rights

1. Common Constitutional Errors made by officials, lay citizens, and activists which, if not avoided, can defeat our efforts. Jon Roland Give Me Liberty 2007 conference March 31, 2007

2. Have we lost our rights?

3. No. Rights come from: Not changed God/Nature Life Liberty Pursuit of happiness Not changed Social compact Due process Jury Denizenship Constitution Not changed much Citizenship Voting Holding office

4. Every right must have a remedy. So, have we lost our remedies? No, if the rights exist, so do the remedies. We've lost something. What?

5. Access to our remedies.

6. Remedies Dock Moat monster Ferry boats Remedies behind wall. Gates locked or sealed. Law profession controls docks and ferry boats. If you try to use your own boat -- Can't use docks, so have to climb cliff. Don't have keys to locked gates. Moat monsters may get you.

7. Example: Legal argument kept from juries. Argue law before jury – or acquit!

8. Example: Citizens kept from grand juries, conducting prosecutions. Revive private criminal prosecutions.

9. Example: Citizens denied standing, quo warranto Resurrect prerogative writs “in the name of the people.

10. Writ of quo warranto like writ of habeas corpus: requires official to prove authority to do something, or to hold office, failing which he must not do it, or vacate the office. Only discretion of court is to schedule hearing, allow official to present his proof. Unlike a motion, burden of proof is on the respondant, not the petitioner.

11. The WTP lawsuit is essentially an attempt to do a quo warranto, without saying so. As such, it does not draw on rich legacy of quo warranto precedents. But where in the Constitution is the right to a writ of quo warranto?

12. The Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So where do we find these “others”?

13. From the historical record of the drafting of the Bill of Rights. The state ratifying conventions proposed many more rights than those that made it into the first eight of the Bill of Rights. The extras were not considered controversial. Madison and the First Congress focused on a few that seemed especially important, lumped the rest into the Ninth and Tenth Amendments.

14. The rights proposed by the state ratifying conventions fell into two broad groups: 1. A right to a presumption of nonauthority. 2. A right to the means to enable citizens to effectively supervise public officials. These are the essence of the entire Constitution and Bill of Rights. The rest is details.

15. The right to a presumption of nonauthority means the burden of proof is on the official that he is authorized to act. In theory, this is an accepted principle of law. But in practice it is regularly violated or reversed. One such pattern is the practice of courts to “defer” to Congress, the President, or executive branch “administrators”, accepting their testimony and requiring others to refute it. This is what is done with the IRS.

16. The means to supervise officials and hold them accountable includes: 1. A right to full disclosure of official activities (subject to national security). 2. A right to full accounting of the ways money is spent. 3. Standing of private citizens to get the support of courts to require officials to refrain from unlawful acts, or to vacate unlawfully held offices.

17. Freedom of Information Act was attempt to satisfy demand that should be regarded as a Ninth Amendment right.

18. In particular, New York ratifying convention proposed right to prerogative writs “in the name of the people”. This included: 1. Quo warranto. 2. Habeas corpus. 3. Prohibito. 4. Mandamus. 5. Procedendo. 6. Certiorari. For all of which any citizen has “standing”, not just those injured.

19. What makes a writ (order) “prerogative” is that it takes precedence over all other proceedings, and has to be heard ahead of other cases. By original understanding, the writ issues by default if no hearing is held. The right to a hearing belongs to the respondant. If filed and ignored, people are supposed to know they have a duty to enforce it, even over the opposition of officials.

20. Congress recognized these remedies in the “All Writs Act”, but it and the judges have since “deprecated” or transformed them into something less. Even habeas corpus writs are commonly ignored or dismissed without a proper hearing, or treated as a motion to show cause, with the burden of proof on the petitioner. The problem: Reversing the presumption.

21. One bad effect of “binding” (as opposed to “persuasive”) stare decisis is that a few precedents can distort jurisprudence. Win a few cases on the Speech Clause, or the Religion Clause, and suddenly every lawyer seeking to defend another right tries to cast it as some kind of “speech right” or “religion right”, instead of trying to get a precedent on the correctly identified right.

22. There are no precedents about this regarding the Ninth Amendment. There are many for the speech and religion clauses of the First Amendment, although not on the Petition Clause. Unfortunately, just being in the same article of the Bill of Rights doesn't necessarily help much. Can't we find the right to get answers in the First Amendment Right to Petition?

23. No. The historical evidence shows the Right to Petition is only the right not to be obstructed or penalized for petitioning. That bears on many of the things being done to “illegal tax” protesters, who are being punished for exercising that right. But there is no right to get answers, as such. Only a right to certain remedies if officials do not answer – to refrain from doing the things they don't prove their authority to do.

24. So why is it important to make a Ninth Amendment quo warranto argument in the WTP petition? Not because it will be more likely to win, because the Establishment will not allow it to win no matter what the argument, but the main purpose is to demonstrate to people who might think meritorious arguments can still win in court that they don't on issues like this.

25. But its effectiveness as “political theater” will be greatly reduced if legal scholars can say “It lost because it didn't make the right arguments.” We need them to be able to say “It made all the right arguments and still lost.” That is the way to get them to join in the outrage, and we need them with us in this fight. It will also have more impact on ordinary people.

26. Summarizing, some of the main obstructions to access to our remedies, and reforms that might remove them ...

27. Strict enforcement of right to presumption of nonauthority. Revival of quo warranto actions, which default to issuance of writ if no response or no hearing held. Obstructions & Reforms • Reversal of presumption of nonauthority

28. Enforce full disclosure, at no cost to petitioner, of all activities not essential to national defense. Enforce full accounting of how all public funds are used. Provide way any citizen can initiate removal of misbehaving officials, through quo warranto actions. Obstructions & Reforms • Government secrecy

29. Revive prerogative writs, which may be initiated by any citizen, “in the name of the people”, without having to have suffered injury: Quo warranto Habeas corpus Prohibito Mandamus Procedendo Certiorari Obstructions & Reforms • Restrictions on “standing”

30. Legal education for everyone. Eliminate licensing of lawyers. Split legal profession into advocacy, compliance, and paralegal. Digitize legal proceedings. Reduce cost of legal research services. Obstructions & Reforms • High cost of litigation

31. Increase number and sizes of appellate courts. Increase size of Supreme Court to 28 (with 3 to hear initially, appeal to 9, further appeal to 27, with one spare). Have juries review appeals, with power to overturn the judges in favor of rights against exercises of powers by government. Require multi-judge judicial panels to be unanimous to sustain power over right. Obstructions & Reforms • Limited court capacity for review

32. Require all legal argument be made in presence of jury (except argument that cannot be made without disclosing evidence properly excluded). Provide copies to jurors of all legal pleadings and briefs, including amicus. Provide jurors access to a good law library. Obstructions & Reforms • Legal argument kept from juries

33. Make grand juries accessible to private citizens. Revive private criminal prosecutions. Increase number of grand juries in more populous counties (so each serves ~3000 people). Allow at least half a day to each indictment. Require at least half their time be devoted to supervision of official activities. Obstructions & Reforms • Grand juries captured by prosecutors

34. Have grand jury to decide whether official was acting within his jurisdiction, and if not, to allow suit against him to proceed. End practice of removing complaints against federal agents to federal courts and then dismissing them. Obstructions & Reforms • Official immunity

35. Select judges, prosecutors at random, to serve for short terms. Enable any private citizen to prosecute, if grand jury authorizes. Remove immunity when acting outside jurisdiction. Jury trials for almost every case, including equity, and every criminal case, even if defendant tries to waive it as right. Obstructions & Reforms • Judicial & prosecutorial misconduct

36. Reduce to size that citizens can effectively supervise. Enforce strict compliance with constitutions. Move government to most local level possible (such as precincts of ~3000). Obstructions & Reforms • Large size of government

37. Revive the constitutional militia to act as a deterrent to abuses by officials. Organize and train every fit citizen to defend against threats of any kind, and to perform law enforcement duties. Use militia system to screen out individuals not fit to bear arms, and disable the right in trial by jury, on proof the individual is a danger to himself or others. Obstructions & Reforms • Advantage of initiative government officials have in violating rights