Constitutional Philosophy: Jon Roland, Q&A 2, 2012/11/17

okay all right questions if I understood you

correctly and if you could speak sort of speak up because I've gotten complaints about people not being able to hear on

the video okay well I'll do my best uh if I understood you correctly two things

one incompetence in your scheme of things is a capital offense no not

exactly the concept of nonu juries is a basis in

due process or disabling the exercise of

Rights there's one kind that is exists

by default which is minority you don't have to go to court to get a child declared to be nonu

jurist uh he just considered that by default when he reaches the age of 18

now used to be 21 if he's still incompetent you can go to court

and get him declared incompetent of a guardian appointed so you're extending

his minority perhaps on the other hand if he's

unusually mature you can get the court to remove

his disability as a minority that goes the other direction that was done for me

when I was 13 years old state law then allowed someone as

young as 13 to have his legal disabilities of minority removed which

made me an adult for all purposes except

voting although it's a little hard to explain to a bartender when I asked for drink

what I what I thought I read in in your slide which talked about the potential loss of life and one of the reasons was

incompetence well that was a concise expression I got to try to

keep it in one line so it doesn't run off the The Edge but basically due

process can be used to disable rights

for any of number of reasons it can be incompetence it can be

crime or it can be for defense but obviously you're not going to disable

the same rights for each of those things each has

its own appropriate disablements the other part is if

everyone as I understand your position is given the opportunity

to interpret uh the laws for himself or herself and act accordingly how do you

avoid Anarchy through education and

discussion we as a society need to make sure that we all know the law and can

agree on what it means can agree and if we and if we don't then we had better

amend it to clarify it until we to reach

agreement same way with laws and for sporting events if a law in for Bic

basketball or football or any other sport is ambiguous on some

point then the Umpire may make a call to resolve the issue without having a

rule but there he's not bound or anyone else is bound to make the same decision

the same way on a future occasion unless the sporting League sits down and says

okay for this situation here's the new

rule and I don't think we want a situation where umpires get to rewrite

the rules Larry yes so I had well there were

at least five different things I wanted to respond to but I'll take the top one uh a question about these prerogative

rits because they had some very intriguing features um anyone can file

one um uh you must respond to them um

the burden of proof of of responding um is is on you not on the the person

filing um from a different domain from the domain of um computer programming and

network Theory um I know that that any kind of message that must be

acknowledged according to the protocol can be abused for a denial of service

attack yes so the way this works is um 1

million people out of a country of 300 million object strongly to a particular

official or to a particular Rule and then a million um prerogative rits are

filed and all of them must be responded to within 3 days y the law cannot demand the impossible

so how do we resolve this contradiction well first of

all that that believe it or not people have thought about that I did and the obvious thing is

that once one RIT is filed and it's answered you simply

create a public record of that answer and put it

online now it's available for anybody to look ahead and if anybody wants to file

another one the system just refers them well that's already been demanded and

here's the response so if you have a a modern Communication System the system it it's

it manageable in principle now what you're doing there is you're

Shifting the demand for resources off the respondent and onto the justice

system but that's doable you might crash the judiciary's computers but you're not

necessarily going to crash the the the

official so I have a question just from the first slide which I as I recall you

said laws are such that we consent to them what if somebody doesn't consent is

that law applicable to that person well it could be if you acques you have a tendency to

lose rights if you don't protest in or object

in a timely manner just like in court there there's a time to raise an

objection and if you don't raise it you lose

it um joh this let me got little ladies first

here in the many fashion of sending

signatures to suggest secession of States I have heard that the White House

has received I heard a million I heard 750,000

signatures from all 50 states and at what point when the populace is

sovereign does something that could become a disintegration of the Union which

imperils everyone's security be handled as the sovereign's

command is that a majority of the people demanding the White House that the president make a

decision well about does 2 dangerous thought work 220 million people who can

in principle vote when we get to 100

million we have a

problem um this little bitty book here has

XXVI amendments to the Constitution the Texas Constitution on

the other hand is quite large quite a bit larger and requires a larger book and therefore I would think in

Texas Star decisis is not as necessary

um you made the statement or one of your slides said story decisis is incompatible with a written

Constitution when you have a relatively brief document like this full of

ambiguity and in need of interpretation is not story decises a very useful tool by

that I mean any judge can be uh passed over for

elevation have you know if they make poor decisions or use poor precedents and presumably they would want to use

precedents from a higher Court which in theory could be reviewed by a higher

court and even the Supreme Court and upheld and therefore be used as a

precedent which I guess you could say is one kind of

shortcut is that not a useful tool for a limited Constitution well of course it

is useful the problem is what happens when the president is

wrong right now if a lawyer goes to court and tries to challenge a

president as wrong perhaps in in an effort to begin a

line of argument that he can appeal all the way up to the Supreme Court in order

to get the Supreme Court to re reverse its own president he may find that that trial

court not only dismisses it as frivolous but sanctions him tens of thousands of

dollars in fines for even raising the

argument now that's a problem that's a problem at the very

least every President should be challengeable and that challenge should

be preserved on a for appeal and there should be no page limits on challenge as

a president it shouldn't detract from one's main

argument but these are mechanical questions of our existing system and they they don't not reflect our

constitution per se they don't reflect current practice

right but of course I'm rate these one of the reasons why this is a about

constitutional philosophy is it's to raise questions about what we should be doing in this

field now obviously I have opinions shouldn't be you be that should

be very clear I'm not trying to BR

to say that if you disagree with me you're wrong but by all means disagree

but be prepared to defend your argument and at least think about what

I'm saying because I think what I'm trying to do is to raise serious issues

that everyone should seriously deliberate about if he is a to be a

conscientious citizen of this country these These are philosophic

issues they're deep philosophic issues they're not just over some uh nebulous

issue like the meaning of life they're over practical things like

what should I do today you know should I go to court should I file this lawsuit should I

testify what should I say you know should I stand up and

oppose this what this official is doing should I vote for him or against him you

know these are all practical real world decisions for which philosophy provides

a needed

guide um do you have well I know why a lot of these like Civic duties about

militia juries and and their loss of power has occurred as far as what happened in the history but I'm very

curious about in the late 1800 you said the the right of private prosecutor to bring the case uh to and eventually just

cease pretty much all together what are the do you have any idea what the forces are behind that what CA that sure the

public prosecutors and the judges most of which are former public

prosecutors okay you know it's it becomes a an establishment a crony

Arrangement do you know what they did at the time do you know I mean do you know specifics about this person in this place did this or yeah but it would take

too long to go into all the det details it was a kind of a creeping

process I have a a brief on the subject on my website in fact if you go to the

homepage you'll see private prosecutions you'll see a pmic and then

a brief so you get it from two different approaches and you'll find the cases the

Precedence everything you need right there I just I want to point out by the way that was one of my first briefs that

was not written in my own case I I just want to point out as a modern-day example of you know the

system that we came from that we uh revolted against the the British system their current practice over there is uh

all lawyers um once in a while you become a prosecutor like they they bring them in and then the private ones go

back out in private practice eventually but they they trade off between the two roles which I think is wise

policy yep and uh I would be inclined to randomize the process much

more to put everybody every lawyer in practice in a jurisdiction on a in a

queue where you occasionally might be called upon to either take a pro bono

case or prosecute a case or defend a case so you had to be able to be ready

to do any of those things okay L I'll give you another turn

but um yeah I may I go to the slide where uh this is actually stated that

nature forbids consenting to the loss of in alienable rights it was pretty near the beginning

yep

I pass it where was it there we go okay so the there's a lot

that this might forbid I mean you know slavery debt bondage um perhaps selling

your right to vote M okay so what is it about a right that makes

it inalienable and I think what I'm most trying to unpack here um is the word

nature um because um it seems to me that

people um might in extreme circumstances be quite willing or maybe in the case of

selling your vote in not so extreme circumstances be willing to sell certain rights and I know that some theorists

have questioned the concept of inalienable rights yes

well of course I'm following Lo and this was Lock's position MH as it

was the position of almost all of our Founders so that sets a doctrinal

foundation but what did he mean by inal enal rights

well Jeff Jefferson style them life liberty in the pursuit of

advence but what they really talking about is the rights that arise from

nature society and the state that precede the establishment of

government which is the fourth stage and each has its own Constitution

although the first three have in general Unwritten constitutions especially the

first so depending a right is more fundamental the further back you

go and the argument for discussion of

the social contract is that even within the social contract when people gather together to

form a society and pull their so sovereignty they are not delegating all

authority to the common decision-making body of that Society because they don't

have the authority themselves to do that but um in some cases um the uh the

right that I might choose to to alienate that is to to Grant to someone else that

someone else isn't the society it's it might be another private party um you

know an old example might be a contract of indentured servitude which gets dangerously close to slavery but but um

might also be re read as an exceptionally harsh employment contract um you know where do you where

do you draw the line and and how does nature forbid that well it might not

provided that the contract provides enforcable protections for for the

servant and in general it did the the common law for indentured

servitude provided the servant could go to court and challenge the contract on

on on breach maybe not not wasn't being paid enough or was having to work too long or

he got beaten or any number of things now slave in general couldn't do

that so entered servitude contracts were

contracts that could be challenged in in court and often were well I'm bothered by the same thing

that Larry is I think in that

um as as students of philosophy we kind of see everything as agreement and when

and when you put the word agreement in you sort of imply arbitrary whereas nature God you know

higher authorities than agreement and arbitrariness seem to that certain

things are inevitable and um and and I don't I

don't get that I don't I don't see any natural rights any rights that come from nature

well for example it would be an inalienable

right not to be in two places at the same

time that's not a that's AAL yeah but that's that arises from the

law of nature that's an objective law I'm not so sure see that well but I'm using an

extreme example and from that we can move forward because from from physical laws

then we get into laws that arise out of say human nature but human nature in

general you see the kinds of things that human beings are naturally going to tend

to do under most circumstances despite the

efforts of anybody to make them to do otherwise have to be recognized as

something that in general you do not want to try to infringe on in a legal

system you don't want to have for example parents eating their

babies well In some cultures that might actually work out well for them I feel like women in ancient ancient cultures

were subjugated in certain ways that were natural for that time so I feel like they're um they're being forced to

be employed in certain ways against their will we now say well if natural

law says that we wouldn't want to be entered into slavery and various things that might have been the natural law for

the time so what by what metrics do you distinguish is true well of course the

obviously different people at different times are going to have different theories about what natural law is I

think that's what we're trying to say after all we have natural law and our

theories about natural law similarly we have the constitution of society and our

theory about the constitution of society we have our theory of mind

what's in the other guy's mind and our theory about what's in his mind I think

we follow that I think everybody's trying to say what are natural laws what we would not submit to as an otherwise

free person today is not what's natural in maybe 17th

century well actually probably pretty close maybe not to the 5th Century

but by the 17th or 18th century things were beginning to move closer to our

time and that's what gives us the Heritage we have and we consider it

Universal in the sense that we now think that people today exposed to of all

these ideas whatever their theories might have been in the culture that

existed earlier are probably now going to accept as a theory that they want to

follow wouldn't it be clear instead of referring to natural law or natural rights just to refer to moral law and

moral rights seems to me as a littleit around but I think it may it

may actually locate where the true Authority comes from that that's binding on people I think it resides maybe not

in nature but in conscience course that just makes it more abstract and we're

trying to do here is to De abstrac ify this discussion to the extent where we

can to make decisions easier yeah but I but I think that the word the word um

speaking of morals rather than natural law avoids a confusion and the confusion

is between law that governs some

societies versus the metaphorical laws that govern nature and I speak of

natural I speak of physical law as as metaphorical because um

we have legislators and unless you're a deist nature

doesn't me wait wait bullet point two I can make sense

of bullet if I eliminate the word nature and construct or construe the words a

little differently forget about nature it seems to me that the sense of what that is is about is that we should that

there's a possibility that if you consent a to the ability of an a state

government of a government of a state to deprive you of a right then there's a possibility of coer in that and that you

want to eliminate that situation so there we we we set aside a certain set of rights that we say even if you decide

to consent to give up these to give up the right to not be um to not let have

the state do something to you like take your life even if you give up that you can't give up that right we want to

prevent that because of the possib coercion but to say that you know I mean

life is one of those things which is considered to be an an an an alienable right but on the other hand there are

people who take the cchan route when they're in serious pain and and authorize other people to help them

commit suicide I don't see a way in which adding the word nature into that

sentence helps me to understand what the intent of the point is well I don't think we're going to

resolve all that today it might be grounds for another

another few lectures let's get C little sh here go back to what you were talking about and

simplify let's uncomplicate this for a moment and Define natural and Define law

in the way an anthropologist does nature is fundamental Universal having nothing

to do with human beings it's out there it is the essential unchangeable basic

proof and then if we want to take that look at your definition of law command

to be obeyed those Universal fundamental absolute laws in the universe in the

cosmos we take culturally her question was difference between natural law and

something in 500 BC and something now those are cultural changes that's not

natural law changing because natural law only changes if the cosmos which is

changing changes those natural laws that's just to start with then morality subjective

ethics and so become legal law and the

this this use of nature natural law is what I said it is well this h of nature

is essentially lumping together human nature with the broader

nature seems is saying well not really because we are after all living beings

we're part of nature but it implies that there's a well thing called human nature which is understanding the same basis

that we understand external nature but yeah I it can we can generally

observe that most human beings are going to object to being killed injured

imprisoned or deprived of the ability to pursue

happiness certain there are certain base things that if you do to almost

everybody they are going to resist even to the point of resist killing and being

killed right so it goes again to restraining a state doing things you don't want done to you as or other group

but it I don't understand I still don't understand the link between nature and

the general consent to the loss of enval right it seems to is to preventing a

state from doing something which you may be into position toce well because this

the social contract makes a tradeoff and the the the main purpose of

the social contract is mutual defense

so in the state of nature we're all subject to the hazards of

nature in the social contract we band together in mutual defense but we also

need to make a tradeoff in which we have to be able to defend not only against

things outside the society but other members of society and again and for

that we have to allow them to defend against ourselves so if we're going to get them

to agree to defend us we have to allow them to defend themselves against us

and that's where we have a due process stipulation that okay now we're all

members of this Society normally I would not have the right to give up my life or

Liberty or property but if I violate your

right and you can set up a court to decide which of us is in the right and

if it desire that I'm in the wrong that I'm the offender and I forfeited my rights

because I'm the offender to to switch years for a moment

from the theoretical to the Practical if I understand you you seem to be

advocating that we return to a form of government that

existed as you described it in the in the in the late 18th century early 19th

century America when as you indicated uh the average County population was

4,000 how can can such a scheme be practically applied to a

country of over 300 million in counties which have million more people well one

of the things I suggested was a Jefferson suggestion which just move

government down to the ward level and keep breaking ourselves up

into smaller SP WS with about 3,000 people in each the way we redefine

voting precincts then how did these Wards then we're going to have thousands

and thousands of little autonomous units how are they going to relate to each

other well they are Federated together into larger units and larger L ger units

and larger units so your your voting Precinct then

becomes the equivalent of a Township with its mayor or Constable or

uh judge or other official its own jury its own

courts able to resolve most ordinary problems within the

war the next probably higher level would be the C

it might be a subdivision of the county you see so there are many ways

of moving government up or down the level appropriate to getting it as

closest possible to the people without losing the generality that is NE may be

necessary for some kinds of problems but I don't what what is confounding me is

when more and more of our problems involve greater numbers of people and

larger geographical areas to resolve for example the Colorado River problem

having of water we're going to have all these different Wards trying to to

solve that that problem Each of which has a different outlook on on the

problem and how we ever going to resolve these problems which take in large

geographical areas and large numbers of people well for things like large

projects like water sheds and Dam projects and so forth you create

authorities which deal just with that problem but those authorities like the

Colorado River Authority don't have the authority to let's say adjudicate a

marital dispute or a stolen bicycle or do a lot of the other things

that government has called on to do property dispute so you have

different levels of government with different specialized subject Territorial and personal

jurisdictions but it can be done in in principle in principle I buy my rib Stak

at RS but it was killed in Kansas and it was packaged in Chicago and it was irradiated in Tennessee and

whatnot I want I want the federal government to

say and I have confidence that that package with that seal on it does not have rat droppings in it and it's full

of eoli there are millions of problems like that yeah millions of them and an

obvious solution would be to put out for bid contracts by

private organizations to serve as inspectors and if an inspector ever

misses something he loses the contract and his competitor gets

it now you get enforcement but you also get a

competitive incentive to do it better who enforces all that it's

so if the I think the model here is consumer reports and and the Good Housekeeping seal of approval and other

kind of you know well recognized names with no government Authority but and

yeah I mean you're you're leaning on a more educated consumer quite heavily but it's much more than that I

mean when something actually goes wrong something actually has to be done someone has to have the authority to do

that there has to be a higher level of organization to grant that authority over entities that operate across

multiple political boundaries and it can contractors can issue a finding and go

to court and get it enforced but who's going to have the expertise of the contractor no to

supervise the contractor other than something like the Food and Drug Administration which requires huge

Laboratories and train people of money those Laboratories will themselves be

contractors and they would compete with each

other so if we were let's get L leardon here he's looking

anxious and after that I want to

understand more about the militia there seems to be a Fascination in this country about the militia and uh so this is complete

change of to now I read this little Constitution and I find the word Mila in there five times it's listed in four

paragraphs that total about 18 lines only this slight so real Constitution

probably has about nine lines yet there are all sorts of claims made about militias these days that I'm

just not seeing it here in the Constitution the clearly just a reading

of this makes it clear that the founding founding father who wrote this constitution the are

State basically little State armies to be regulated by the state don't have to be owned by the state but they are

regulated by the state in which the federal government can call into service

and take over the regulation of at any time there and that they are to be they are

used for uh to execute the laws of the Union to

suppress insurrections and repeal repel invasions I focus on suppress

insurrections because militias as a lot of those questionable folks who are so

interested in militias these days they are more likely to uh be the

insurrectionist and before you answer that is there a slide that you'd like me to put this on so so my question is why

why in the world do you make the comment that we all have militia Duty I I deny

that I have militia Duty I do not have militia Duty well the the the duty of

the social contract is militia is mutual defense not against

it's really Mutual cooperation well defense in so far as your neighbor isn't allowed to do

something to you totally for his benefit he we all have this contract to work together basically yeah defense is part

of but it's also the duty to take action by yourself if nobody else is around my

point is my question is on what constitutional Authority do

you say that we all have no should do it actually arises out of the social

contract theory Theory only with a unique interpretation of social cont not that unique if it

isn't written in the Constitution what gives you the right to say that it exists well if the fact that it is

written in the Constitution if you read it carefully the problem is that with

today's militias we mostly feel that we need to be protected from them and not the other way well they would disagree

but here's the concept what we're supposed to have is a robust militia

system that is organized by the state every sheriff is supposed to be

militia Commander for his County every Constable for his

County Precinct this is extra constitutional no that was the standard

practice in the founding era that was presumed when the Constitution was written as so as with so many other

parts of the Constitution it's completely outo now we have now we have paid police forces and we have a

full-time standing and paid police forces would have been considered

unconstitutional because they select militia a militia that is not not

broadly representative of the people as though it were randomly

selected it's not in here it's but it's in the history behind there where's the

National Guard come the National Guard is another select select

militia and all national Guardsmen are also members of the US military there's

a dual enlistment so when you join the National Guard you're also joining joining the Army or the Air Force I

think militia people that are interested in being militia members today are by and large people that just want to have

excuse and use the Constitution to do it to go out and raise Hill and have a good time and uh and and make it somehow okay

but if a if a manufacturer in Connecticut okay well I it has been pointed out to me that we are well past

one o00 and and so we yeah yeah I I I suggest that we we

save the continuation of this Lively debate for the third Q&A

period on the bord T time period would you say this militia

tradition that you're talking about is actually an existence