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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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0:02
now good evening this is the June
0:07
18th
0:10
2013 us uh Constitution meet up of the
0:14
Austin Constitution Meet Up
0:16
group I'm John
0:18
Rand and this evening I'm going to be
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discussing several current topics of
0:25
interest uh I appreciate if you hold off
0:28
on the questions until uh I finished uh
0:32
so that we can uh treat them separately
0:35
in the recording
0:37
session
0:39
now the first topic is defects in the
0:46
Constitution uh the framers of the
0:49
Constitution got so much right that we
0:53
are inclined to overlook sometimes the
0:56
things that they
0:57
overlooked but it didn't take very long
1:00
on for some of the over things they
1:03
Overlook to have become a
1:06
problem and they remain in many cases a
1:10
problem to this day they haven't all
1:12
been addressed with
1:16
amendments
1:25
so do a page down to get the next one
1:29
okay
1:31
okay there we
1:33
go um one of the first defects that I'm
1:37
going to discuss this evening is
1:39
omission of authority to prosecute what
1:43
were then regarded as common law
1:47
crimes now common law crimes were
1:52
the kind of crimes that were the subject
1:56
of most Court action on Criminal
2:00
action uh at the in England and the
2:03
American colonies at the time of the
2:07
Revolution uh they were not defined by
2:11
Statute they included things like murder
2:15
theft robbery rape
2:19
trespass uh
2:21
assault fraud
2:24
purgy and a host of other things that uh
2:30
for which we now have
2:32
statutes criminal
2:35
statutes but which at the time were
2:38
created only by Court
2:41
presidents
2:45
now the question arose shortly
2:48
after the Constitution was
2:51
adopted
2:53
whether there
2:55
were there was authority to prosecute
2:58
common law crimes
3:01
and it seems Apparent at this time
3:04
looking at the Constitution The Way It
3:06
Was Written the way was
3:08
debated that it seems likely that many
3:12
of the
3:13
framers thought that there would be
3:17
authority to prosecute common law crimes
3:20
so they didn't
3:23
mention or provide for specific
3:26
authority to do so
3:30
on the other hand as obviously some of
3:32
the other framers thought there would
3:34
not be such
3:37
Authority and apparently neither side
3:41
brought the issue to the attention of
3:43
the
3:44
other because they didn't include any
3:47
provisions in the Constitution to deal
3:50
with the
3:52
question uh you have something things
3:55
like the trial of all crimes as though
3:58
they were expecting to have lot of
4:00
them but in the Virgin conduct
4:05
resolutions of
4:07
1798 written by Thomas
4:10
Jefferson he pointed out that under the
4:13
Constitution Congress was authorized
4:16
only to prosecute for treason
4:20
counterfeiting piracy and felonies on
4:22
the high seas and offenses against the
4:24
laws of
4:26
Nations that's a substantial list of of
4:29
crimes but it's not a whole bunch of
4:33
them and they didn't come up that
4:36
often
4:38
so the question naturally arises when
4:42
they wrote a phrase like uh
4:46
uh removal from office for treason
4:50
bribery and other high crimes and
4:55
misdemeanors they later provided for
4:59
punishment for treason in the sense of
5:03
defining it and authorizing punishment
5:06
of it but they didn't mention bribery or
5:11
HRS and
5:13
misdemeanors so there was no
5:15
Congressional Authority authoriz granted
5:18
to criminally prosecute those things as
5:22
crimes but why did they mention them if
5:25
they didn't expect Congress to have the
5:27
authority to
5:30
rep pass statutes to punish them did
5:34
they expect that any punishment would be
5:36
done by the states what about the
5:40
territories so uh uh EV obviously they
5:44
didn't give much attention to this
5:46
subject but it came
5:49
up in 180 first of all in
5:53
1798 With the Alien and Sedition
5:57
Acts which Jefferson and Madison and the
6:00
other uh uh uh framers well Founders who
6:06
would we would might classify as wigs to
6:11
use the English term in English law or
6:15
politics uh people divided between wigs
6:18
and
6:19
tories the wigs were the what we would
6:22
dat today call
6:25
Libertarians and the Tories were more
6:28
likely we today call big government
6:33
conservatives
6:34
uh
6:37
the Jefferson at that point led a party
6:42
of what came to be called
6:45
Republicans and his opponents call
6:48
themselves
6:49
Federalists so the labels could change
6:52
but uh the concept remained the same
6:57
well the Federalists
7:00
were in favor of the federal government
7:03
having authority to prosecute crime and
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law
7:06
crimes and the Republicans generally
7:09
were not but then some rep some
7:13
Jefferson appointed
7:16
Republicans in
7:18
Connecticut prosecuted a news the
7:20
editors of a newspaper named Hudson and
7:24
Goodwin for publishing a false article
7:28
that
7:29
had
7:31
illegally uh transferred $2
7:34
million uh to France uh for the purchase
7:38
of Western
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Florida which was then known by
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Spain well there was there was a secret
7:46
session of Congress to authorize the 2
7:50
million for a
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negotiation through France with
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Spain which ultimately didn't leave to
7:59
anything there was no money
8:01
transferred but uh uh so the Quran got
8:05
it
8:06
wrong but uh the Jefferson supporters
8:12
thought that that was constituted
8:14
criminal liable so they tried to
8:17
prosecute for it and since there was no
8:20
statute making criminal making liable a
8:23
crime it was had to be prosecuted as a
8:26
common law
8:27
crime which it could have been in
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England
8:32
well the defense
8:35
argued that there were no common law
8:38
crimes under the US
8:41
Constitution which was a wig
8:44
argument
8:46
well uh it took until
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1812 for the case to finally make it to
8:52
the Supreme
8:54
Court by which
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time uh most interest in it been
9:00
lost the prosecutors didn't even show
9:04
up and uh the prevailing argument uh was
9:10
essentially a Jeffersonian one although
9:13
not prosecuted originally by
9:16
jeffersonians that there were no common
9:18
law crimes and that was a case of United
9:22
States versus Hudson and
9:25
Goodwin which is discussed on my website
9:29
constitution.org
9:34
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
9:45
federal government which it has been
9:47
trying to fill in ever
9:49
since with
9:52
uh he said what amount to
9:56
usurpations uh
9:59
some of which
10:00
are uh you know to do things that are
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arguably needed with which it does not
10:07
have
10:08
authority and others of which is clearly
10:11
Beyond its Authority and should
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be
10:15
now uh much more example of what's done
10:19
with the Commerce and necessary Proper
10:22
Clause is essentially to deal with the
10:25
lack of authority to prosecute many
10:28
kinds of Crim
10:30
CRI for example there is no authority to
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prosecute for the crime of failing to
10:35
obey a court
10:37
order or even to enforce the court
10:40
order uh that that's kind of an
10:42
important Omission well they just loss
10:45
over it and say well that's an inherent
10:48
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
10:56
branch so uh
11:04
the uh problem
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then really needs to be addressed with a
11:11
new set of
11:12
amendments which I have
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proposed
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under uh my draft amendments in the
11:20
second section on remedial
11:23
amendments the first section is on
11:25
clarifying amendments that's clarifying
11:28
the langu langage of existing Provisions
11:32
to make them uh less
11:35
ambiguous the second section is on
11:37
remedial amendments that's to remedy
11:40
defects of they were essentially
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oversights and then the third are
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substantive amendments things
11:48
that uh we really should be able to do
11:52
and for which there's no
11:54
Authority even though there in many
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cases we're doing it anyway
12:00
uh the
12:02
second major
12:05
defect is the omission of a longer list
12:08
of Rights than those specified in
12:10
Article 1 to8 of the Billa
12:12
rights Jefferson and the others simply
12:15
lumped the others into the Ninth
12:18
Amendment but that has proven not to be
12:22
adequate because nobody no modern lawyer
12:25
or judge seems to be willing to go back
12:29
into history and find out what those
12:32
other unenumerated rights
12:35
are they are in fact they're downright
12:38
resistant to it so uh it really they
12:41
really need to be spelled out and I have
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proposed
12:46
legislation that would spell it out as
12:48
an amendment to the Civil Rights Act you
12:51
know for simply listing them all it runs
12:53
us many pages it doesn't claim to cover
12:57
all rights but it covers so many that uh
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you know what's left is pretty
13:06
obscure
13:08
now the third
13:11
major uh defect is a failure to provide
13:16
that the rights and the Bill of Rights
13:18
apply to the states even if federal
13:20
courts don't have jurisdiction over
13:23
them now that was presumed at the time
13:27
Most states had their own of Rights so
13:30
we thought well the states have it
13:32
covered but in fact the states didn't
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have it
13:35
covered and uh that still leave would
13:39
leave the question whether putting the
13:42
Bill of Rights in the Federal
13:44
Constitution made them Federal questions
13:47
that would confer jurisdiction on
13:50
federal courts to adjudicate cases
13:54
between a citizen and his own
13:57
State um
13:59
that was the issue in Baron B
14:04
Baltimore uh which uh in which a
14:07
individual who had had a
14:11
Warf uh Jason the city of
14:14
Baltimore and as a result of uh dredging
14:19
projects by the
14:21
city uh it rendered his Warf
14:26
useless essentially landlocked it
14:30
so he sued for damages claiming that
14:33
Baltimore had uh deprived him of
14:36
property without due
14:39
process and the holding by Justice Chief
14:42
Justice John Marshall was that the Bill
14:46
of Rights did not apply to the states or
14:50
more precisely that the federal courts
14:53
did not have jurisdiction to adjudicate
14:55
such
14:57
cases now what was really really going
14:59
on
15:01
there is that it was recognized emerg
15:06
from the case that if the Bill of Rights
15:09
were to apply particularly the Fifth
15:12
Amendment to the
15:14
states and it includes the Clause no
15:19
person shall be denied life liberty or
15:24
property without due process of
15:27
law and black were persons and they were
15:31
considered persons then that would
15:33
essentially rule out
15:36
slavery and Marshall and the others
15:40
apparently thought that if they were to
15:42
come down on the other side that they
15:45
would be laying the basis for declaring
15:49
slavery
15:50
unconstitutional and that would trigger
15:52
a civil war so it was a political
15:56
decision not a principal position
15:59
position based upon the actual text of
16:02
the Constitution or or the logic of it
16:05
but the 14th amendment was intended to
16:10
overturn Baron B Baltimore and also
16:13
Dread Scott V
16:15
Sanford those two cases
16:17
primarily and it was felt necessary to
16:20
adopt an amendment because by that point
16:24
those cases have become so entrenched
16:26
with further precedents built upon
16:29
them that the only way to unravel those
16:33
precedents was to adopt an amendment
16:36
which is why I proposed so many
16:38
amendments because at this point the
16:41
only way to unravel all the bad Court
16:44
precedence is to amend them into a state
16:49
of which they were the Juris Prudence
16:52
was before the first such precedents
16:55
were established
17:00
now next would be a failure to provide
17:03
authority to break up excessive
17:06
concentrations of private
17:08
power there is actually no Authority for
17:11
the Antitrust
17:12
Act to break up monopolies and things of
17:16
that
17:17
sort uh that was uh argued to be a uh
17:24
under you know an implied power of the N
17:27
of the Commerce Clause but that doesn't
17:30
really
17:31
work that the most that could be done
17:33
would be to create a civil jurisdiction
17:36
for private parties to sue large
17:41
organizations uh and seek breakup as a
17:44
remedy but he would not authorize the
17:47
government to appear as a
17:49
party so it's especially not to provide
17:53
for criminal penalties so uh uh large
17:57
organizations large Banks Banks uh
18:00
holding companies uh labor unions
18:03
monopolies whatever uh were are
18:07
essentially beyond the reach of law
18:11
under the Constitution as it was
18:14
originally
18:18
written now next would be failure to
18:21
specify standards for trial and grand
18:25
juries the framer simply used the term
18:28
Tri you know jury or grand jury and
18:31
assume that everybody would know what
18:33
they meant by
18:35
that but they didn't
18:38
anticipate that later generations would
18:41
try to define those things out of
18:45
existence especially at the state
18:47
level and by cleverly
18:52
manipulating process and
18:54
structure uh reduce them to a much less
18:57
effective level
19:00
uh so what are needed there are for the
19:04
standards to be made clear and made
19:08
specific and on my website Constitution
19:12
or I have that laid
19:16
out next was a failure to protect
19:19
private prosecutions of public rights
19:22
such as PO on to an avus
19:25
Corpus uh avus Corpus link lingers on
19:29
but it's been changed from something
19:32
that it can be done
19:35
without the help of a court is something
19:38
that requires Court approval you apply
19:41
for R of apus Corpus now originally you
19:45
just filed a rid of aus Corpus and the
19:50
the court didn't have to accept it as an
19:53
application it was not some kind of
19:56
petition and these were the tools that
20:00
enabled private citizens to hold
20:02
government
20:03
accountable and without them government
20:06
cannot essentially not be held
20:10
accountable next was the failure to
20:13
require common law rules of
20:15
construction specifically the
20:17
presumption of
20:19
non-authority uh that was presumed at
20:22
the time but it has to be spelled out
20:26
because I encounter in debates all time
20:29
with lawyers including law
20:32
professors uh that you know they're
20:35
asking me to
20:36
prove that delegations of Power are
20:39
supposed to be interpreted
20:42
strictly they say well why can't they be
20:44
interpreted broadly and writes narrowly
20:48
you who says that powers may only be
20:52
interpreted strictly well it was assumed
20:55
at the time that that was the way
20:58
things work but you can't assume that
21:02
you have to write make it
21:04
explicit uh a failure to forbid binding
21:09
star
21:11
decises it was assumed that uh Court
21:15
decisions would apply only to the
21:17
parties to the
21:19
case and that U president would at most
21:24
be advisory suggested never binding and
21:29
yet through practice it has become
21:31
binding and that is a threaten a threat
21:35
to the Constitution itself because it
21:37
allows B binding precedents to be given
21:42
more weight than the
21:44
Constitution finally there's a failure
21:47
to provide authority to enforce court
21:50
orders uh they do it anyway but it's the
21:54
authority is
21:56
missing which I mentioned earlier
21:59
so
22:02
uh I mentioned earlier common law
22:05
crimes just just summarizes
22:09
them the the but the basic problem with
22:14
common law crimes is they are defined at
22:17
trial not before the ACT is committed
22:21
and therefore they are inherently
22:23
exposed
22:24
facto and the Constitution prohibits
22:28
Expos Factor
22:29
laws both for the federal government and
22:32
for the states so because it does it is
22:37
essentially prohibits common law crimes
22:40
both for the federal government and for
22:42
the states except that in some states
22:45
they still try to prosecute common law
22:48
crimes uh at the state level
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