All agree or none shall pass

This article was originally presented at The Jacksonian Party.

This is an article of The Jacksonian Party.

On 25 MAY 2010 Glenn Reynolds linked to an interesting, indeed compelling, article by Nicholas Rosenkranz on The Subjects of the Constitution.  This article will be followed with another on The Objects of the Constitution and a later book to explore this conception of judicial review of Constitutional law and cases.  I have previously written on this topic looking at formulations of Constitutional Structure with Strictly constructed or not?  In that I attempted to discern the differences between Strict Consturctionism, Originalism and Textualism.  I do not come to this topic from the law perspective, per se, and have no legal training just some common man familiarity with law. The Constitution is, in and of, itself not law, save for the few crimes and penalties mentioned within the text (ex. Treason and Impeachment).  The Constitution is a system of powers that are limited, enumerated, and sovereign within the limitations and enumerations, that is to say they are the exercise of sovereign power by the Nation of the United States of America.  It is a system of how one makes and designs a government to make laws, how that government works and just who gets which powers.  Thus it is a system of rules agreed upon by those who agree to abide by them and they state who they are in the Preamble.  Note that the Preamble is a statement of those individuals and what they agree to do and only invoke the Constitution as one means to do so at the very end of their statement.

To me this is a form of mechanical design theory (Wikipedia, YMMV):

In economics and game theory, mechanism design is the study of designing rules of a game or system to achieve a specific outcome, even though each agent may be self-interested. This is done by setting up a structure in which agents have an incentive to behave according to the rules. The resulting mechanism is then said to implement the desired outcome. The strength of such a result depends on the solution concept used in the rules. It is related to metagame analysis, which uses the techniques of game theory to develop rules for a game.

Thusly the Constitution can be viewed via metagame analysis, and is a set of metarules for making the rules of a game, which we call the federal government and how it works internally and externally under the Law of Nations conception of Nation State structure.

Nicholas Rosenkranz utilizes Formal Grammar of the English Language with the Subject, Verb, Object agreement system as its basis thus forming a systemic functional grammar basis analysis of how Constitutional law cases should be evaluated.  SFG is described thusly (Wikipedia, YMMV):

Systemic functional grammar (SFG) or systemic functional linguistics (SFL) is a model of grammar developed by Michael Halliday in the 1960s.^[1] It is part of a broad social semiotic approach to language called systemic linguistics. The term "systemic" refers to the view of language as "a network of systems, or interrelated sets of options for making meaning";^[2] The term "functional" indicates that the approach is concerned with the contextualized, practical uses to which language is put, as opposed to formal grammar, which focuses on compositional semantics, syntax and word classes such as nouns and verbs.

Systemic functional grammar is concerned primarily with the choices the grammar makes available to speakers and writers.^[1] These choices relate speakers' and writers' intentions to the concrete forms of a language. Traditionally the "choices" are viewed in terms of either the content or the structure of the language used. In SFG, language is analysed in three different ways (strata): semantics, phonology, and lexicogrammar.^[3] SFG presents a view of language in terms of both structure (grammar) and words (lexis). The term "lexicogrammar" describes this combined approach.

Notice that such an analysis can be done fully within a mechanical design theory approach as Formal Grammar for English, and analysis from same, are mechanism design systems.  In fact such a systemic analysis can yield structure beyond the mechanism, itself, and reveal much of the operation of the mechanism as designed via its grammatical composition.  The article does not utilize the logical notation system that the metarules can be boiled down to, but sticks to a more conversational approach that is more a reminder of simple sentence construction classes than of a Law Review article (although it is gloriously footnoted throughout).  Thus the objective of the actor is to present a highly coherent presentation of grammar as applied to the Constitution via the activity of presentation.

This analysis is one of the most compelling of the structural analysis reviews of the Constitution that I have run across as it gives an inherently logic-based review of the Constitution via its grammar and syntax.  Thus a key change in judicial review that started with the Progressive Era in full swing was the movement away from the Supreme Court to say who violated the Constitution and when they did so.  This shift from actors taking action at a discrete time starts with utilizing imprecise language for the basis of Supreme Court judicial reviews and even creates a blurring of the lines of who and when the Constitution to the point that statutes are seen as unconstitutional, not the actors who created such actions.  As all actions are taken by an entity, for such an action to be unconstitutional, then the entity that is doing that is in violation of the Constitution by the enumerated and limited powers it defines.  There are only three actors in the federal government:  Congress (the Legislative Branch), the President (the Executive Branch) and the Supreme Court (the Judicial Branch).  There are unconstitutional actions outside the federal government (the various limitations on the States), but for simplicity the systemic approach is used on the federal government and, once learned, then can be applied to all levels of Constitutional cases and law.

Modern Supreme Courts have moved from identifying actors, or who violates the Constitution, as a means to not get involved in political fights, by and large.  That means the imprecision of their rulings can and do create confusion about just what is and is not Constitutional and on what basis.  This means that proceedings that should be questioning a law's Constitutionality may be addressed to the wrong actor by plaintiffs, and the Supreme Court has allowed such proceedings which further confuse the issue of who violates the Constitution and when. 

Thus, in something like the Raich case of medical marijuana in California, the defense team argued that the violation of the Commerce Clause was done by the Executive Branch.  The Commerce Clause has a particular actor attached to it and that is Congress, thus any violation of the Commerce Clause in its extent of reach is not one of the Executive but the Legislative branch of government.  By attempting a Due Process procedure case, they did not bring a Congressional power over-reach case.  The difference is that in the Executive a singular action on a Constitutional law is the violation at one, singular time while in the Congressional instance the entire law is in violation from the moment it was passed.  The Executive, when acting within all other Constitutional constraints cannot be the target of a Commerce Clause case: only the Legislative branch and Congress by name, have the power to utilize the Commerce Clause and direct others in how to execute it.

In trying to blame the Executive on over-reach and admitting that Congress had the power to regulate interstate commerce, the case against intrusion into intrastate commerce was not made as that would be argued as an over-reach of Congressional (not Executive) power and a direct violation of the Tenth Amendment.  By making the procedure an enforcement case, the Raich case was not doomed to failure, but was doomed to see its Executive part of the case fail as they did not address the power being used at the direction of its holder, which was and is Congress.  Not only did the Raich team make scant use of this argument, the Supreme Court only addresses it in a single footnote which, Mr. Rosenkranz rightly observes, should have been the opening statement of a judgement as it contained the subject, the who, of the power and the extent of that power as written in the Constitution.

In looking at the Depression era case of Wickard v. Filburn, the farmer producing wheat to for private purposes, which was upheld mainly due to the District Court not addressing the actual case and, instead, writing much about how the Agriculture Act had been campaigned for by Congress.  Later United States v. Lopez would put some restrictions on the intrusion of federal interstate commerce as the prior case set no real limits on it and could be seen as an open door to federal intrusion into State sovereignty.  In the Lopez and Raich case the government deployed the rubric of intrastate commerce if it 'significantly impacted' interstate commerce, and this has never been properly addressed as a concept in direct violation of the limited powers of Congress pertaining only to interstate commerce.  Under a precise grammatical review would there be any question of this rubric even being valid?  The power grant is exclusively for interstate commerce and the outcome of it is not given to the federal government to decide: there is to be equality of law and application between the States for commerce and the power is silent, thus not granting any power, on commerce within a State.  The sovereign power grant for one aspect is singular and complete, outside of that there is nothing: no grant, no provision, no support whatsoever.

This view of the active voice parts of the Constitution with definite actors is a vital review of the concept and the subject, as it allows much of the imprecise, ill-worded and ill-conceived rulings to be examined as to their actual following of the logic of the grammatical construction of the Constitution itself.  Those constructions have meaning as they are sovereign power grants by the people to their government for the Nation of the United States of America.  When Courts, professional lawyers and professors of law attempt to cloud the language, to invite imprecise words and concepts into their everyday work with the Constitution we all begin to suffer as the meaning of the words and their sentences can be read clearly and easily by a layman.  Congress used to cite their powers in the bills they authorized so there would be no question of the power grant, its source and its extent.  By muddying that as a concept and no longer even bothering to include it, Bills and then Acts become unclear as to their power, their extent and the content of what is being done with that power.

I very much look forward to The Objects of the Constitution and the passive voice sections and Amendments to see where this analysis goes in those realms.

Cross-Posted from 1389blog: Bruce Bawer & Hege Storhaug 7PM June 8, 2011 Ottawa

The following is cross-posted as a courtesy to 1389blog.

Bruce Bawer & Hege Storhaug:
The Problems of Immigration in Europe

Wed. June 8, 2011, 7 PM
Library and Archives Canada
395 Wellington
Ottawa

Admission: $20 (includes HST), $10 for students/ seniors

Tickets available at:
Compact Music, 785 1/2 Bank Street, 190 Bank Street
Ottawa Festivals, 47 William Street
Collected Works, 1242 Wellington
Tickets will also be available at the door.

Tickets are also available on line (click here)

Please join us for an amazing evening when Bruce Bawer returns to Ottawa with his colleague Hege Storhaug to speak on the problems of immigration in Europe.

Bruce Bawer is an internationally-acclaimed author, whose recent book is “Surrender: Appeasing Islam, Sacrificing Freedom“, and here are some short reviews:

“Bruce Bawer has yet again written an excellent book….I truly hope that it will serve as an eye-opener for everyone.” - Geert Wilders

“Written with an urgency and clarity that makes it hard to stop reading and re-reading it. It should be studied by all who wish to understand the forces at work in the West that make an Islamic ‘House of Peace’ a brewing nightmare.” - Ayaan Hirsi Ali

Hege Storhaug is the information director of Human Rights Service in Norway and the author of several books on immigration and integration, forced marriage, women in Pakistan, and related subjects.

Bruce has translated Hege’s new book, “But the Greatest of These Is Freedom: The Consequences of Immigration in Europe.” — the authorized English translation of the explosive Norwegian bestseller about the consequences of immigration in Europe.

From Norwegian and Danish reviews:

“A necessary and brave book.”
Henrik Gade Jensen, JYLLANDS-POSTEN

“A sharp and necessary book, one of the most important of the season.”
Lars Saabye Christensen

“A painful but necessary book to read. It is the most important contribution ever to the Norwegian immigration and integration debate….It should be obligatory reading for everyone who works with foreigners in Norway.”
Tore Andreas Larsen, FREMSKRITT

“If Hege Storhaug’s revelations about how our country and other Western societies are being attacked by Islamic fundamentalists…are not taken seriously by the powerful politicians, we will, within a few years, see a different, illiberal European in which a mentality out of the Middle Ages will wield absolute power…..One of the most important opinion books that have come along in recent years.”
Oddbjørn Solstad, DRAMMENS TIDENDE

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Free Thinking Film Society
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The Constitution With No Name

The present state of America is truly alarming to every man who is capable of reflexion. Without law, without government, without any other mode of power than what is founded on, and granted by courtesy. Held together by an unexampled concurrence of sentiment, which, is nevertheless subject to change, and which, every secret enemy is endeavouring to dissolve. Our present condition, is, Legislation without law; wisdom without a plan; a constitution without a name; and, what is strangely astonishing, perfect Independance contending for dependance. The instance is without a precedent; the case never existed before; and who can tell what may be the event? The property of no man is secure in the present unbraced system of things. The mind of the multitude is left at random, and seeing no fixed object before them, they pursue such as fancy or opinion starts. Nothing is criminal; there is no such thing as treason; wherefore, every one thinks himself at liberty to act as he pleases. The Tories dared not have assembled offensively, had they known that their lives, by that act, were forfeited to the laws of the state. A line of distinction should be drawn, between, English soldiers taken in battle, and inhabitants of America taken in arms. The first are prisoners, but the latter traitors. The one forfeits his liberty, the other his head. 

- Common Sense, Thomas Paine, 1776.

What is the Constitution With No Name?

Have Americans seen it before?

Is it coming again or is it always there?

Does it require you to have Belief or to have Faith?

To any who have read this blog off and on over the years, these are questions that lay under everything that I have written, and not only in this blog but my others and in my fictional writing, also.  I come at this from many different angles, yet it always boils down to the simple things, and it is those simple things, described by many, that have been masked by imposed complexity.

Ah, what is 'imposed complexity'?

Imposed complexity are those things that we create as complex from the start.  Imposed complexity is our will upon our ourselves to create order.  It is the belief that complexity will give us order.  It is the belief in the expansion of cumulative or collective power will create a better world when that is channeled and guided by complexity.  Yet complex things tend to fail.  To paraphrase Montgomery Scott from Star Trek: 'The more they overhaul the plumbing, the easier it is to stop up the drains.'

Created complexity falls apart to simplicity.

Thus regulatory regimes cause chaos because they attempt to impose order on the human spirit, on human nature.  Belief in regulation falls apart when it is imposed on those that have Faith in themselves and their fellow man.  Complexity creates chaos because it cannot rule Simplicity.

Belief in God is not enough to have Faith.

Most provocatively, to have Faith in human nature does not require Belief in God, but the simple observation that Man is a part of Nature.  Thus my other writings examining the difference between Moral Law, Civil Law and Natural Law (via the examination of Pufendorf, for all his pluses and minuses) put into play that Moral Law, God given Law, is not enough for man to rule himself.  The creation of society, which man does by Natural Law, is a pre-requisite for instituting Moral Law.  Man as animal creates society which then puts in play Moral Law as those two come together to create Civil Law.  Thus if you have Faith in yourself and God, you can create a civil self, a civil person, that then partakes of creating Civil Law.

When man creates society and accepts that there is Moral Law necessary to regulate himself within society, then there is the basis for Civil Law.  Natural Law creates society, Moral Law allows us to self-govern, and we then join with these other self-governing individuals in society to create Civil Law.  It is an order that has a precedent order in that if you do not get the first part you cannot get to the other parts.  For us, as individuals, to enact Moral Law we must first come together to form a society under Natural Law.  So long as there is Nature and that we accept the drives of Nature to form society, the basis for enacting Moral Law is present.

Together these two create The Constitution With No Name.

That construct is more formally called The Law of Nations, which is unwritten law that can be discovered by creating society under Natural Law to accept Moral Law and then create the Nation.  In man this has a particular instance where it is founded: in marriage.

Marriage is that time that we accede that for our children to survive we must no longer exercise all of our Natural Liberties with our Natural Rights so as to create society and then have self-order under Moral Law.  With that acceptance The Law of Nations is created and re-created over and over and over again, so long as man and woman may live to have families.

The act of marriage is an act of Faith in the one that you marry.  With that individual you are taking the primary Leap of Faith that they will put aside the savage order of Natural Law and self-govern so as to accept Moral Law.

Faith begins at home, doesn't it?

Kindness also begins there and begats Charity.

Charity is the kindness of helping your fellow man in a selfless fashion so as to make society better for all involved so that your progeny can survive and learn to self-govern.

Notice where Civil Law comes into that?

Oh, that's right, it doesn't.  Governments which are organs of society are not organs of Charity nor are they enactors of Charity: only people can do that.

Belief cannot drive this Faith.

Faith must drive Belief for this system to work, any other system will quickly become unhinged as simple Belief can fail, but Faith in what you see, hear, and understand can never be shaken as your eyes and ears will continue to beat reality into your head until you finally recognize that YOU must deal with it.

You.

Not your neighbor.

Not the police.

Not any part of government.

You are the basis for all the rest of that working, and when you deny what is going on around you, then all the rest begins to fail.

This is how you create Order from Chaos, and Chaos gains Order from similar means.

What?  Did you think you were just an unimportant member of society to be ruled over?  You are a moral actor.  Unfortunately, in a realm of Chaos, you have to make up your role as you go along.  You don't get a script or even a plot outline as there are no set ends, just destinations you can determine on your own.  Individuals do that.  Animals cannot.  We have a braced order of self-government as individuals, not an un-braced one of animals requiring herding.

The answer to all of those trying to impose a civil order from the top, downwards?

From The Prisoner: "I will not be pushed, filed, stamped, indexed, briefed, de-briefed or NUMBERED.  I am not a Number, I am a free man."

You are born free.

It takes government to enslave you.

To close with Paine, again:

Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform, and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him out of two evils to choose the least. WHEREFORE, security being the true design and end of government, it unanswerably follows, that whatever FORM thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.

Why I am not celebrating the death of bin Laden

This one is pretty simple: he was a terrorist, a scourge of mankind, a threat to all Nations, a would-be warlord, and a pretty canny operative. He had renounced his allegiance to civilized life and had reverted back to that of Natural Law as his only credo. The religious trappings were an excuse, perhaps a cause to start with but by the end he had no real affinity to any meaning of that religion save only what he could recognize that would benefit his organization and him. By doing that he had reduced himself to a state of savagery, befitting Nature, and become man the animal entire.

That was conscious on his part, voluntary, no one forced him to do it, not one single claim of his nor all of them combined forced him to leave civil life as we have seen millions in that region with those same conditions not revert to savagery like his. Thousands in those regions have reverted to that state of Nature, yes, and that speaks ill of their societies to not inculcate a civilized outlook for citizens and for those citizens to create Nations that properly reflect them. After this next round of revolutions in the region, I expect that the next set of leaders will be as oppressive, if not more so, than the last. The goal of al Qaeda is put forward in their strategic doctrine text The Management of Savagery, and in it the text describes how to make Nations descend into chaos, come into power and then exploit the now dysfunctional Nation so as to spread the disease of disorder and savagery. Unfortunately this leads to those doing the creation of the turmoil, overturning order, putting in an exploitative government that then uses the people as cattle to spread the savagery to being savages themselves. You cannot manage savagery if you are a savage, yourself.

Am I glad that Osama bin Laden is dead? Of course!

But, I was also glad that Imad Mugniyah was taken from this mortal realm in 2008 by the Israeli's, and he was the greatest killer of US servicemen and civilians until bin Laden and al Qaeda got on the scene. As the Presidential cycle was in swing at that time, here is how I closed out my review of Mugniyah:

Removing Imad Mugniyah is a very good thing.

It is, unfortunately, not even starting to get at the problem itself.

As a society and a Nation if we cannot get away from the 'sound-bite' culture driving our view of the world, then this will slowly erode us until it will be too late to address it. It is *already* here. And I have yet to hear any substantial proposals on how to roll it back and address it from either the Left or the Right. The Left wishes to give up to it and society with it, by wishing there just weren't such nasty people in the world. The Right is just looking for a lovely economy and doesn't want to put that at risk doing the things necessary to defend it.

Neither one of these is realistic nor sustainable in even the short term. Both are lethal in the long term because neither address the threat nor deal with it.

Too bad our Presidential candidates won't address these things.

We may not get the leadership we need, but we will get the one we *deserve* at this rate.

We still have this problem, in case any one has missed it.

To work against Private War in the modern age, this thing known as Piracy and Terrorism, means that we must uphold a law abiding society not only at home, but amongst Nations. That means respect between Nations for such things as borders, not interfering in other Nations militarily save via a declared war system, not allowing those who seek destabilize the order amongst Nations a safe-haven, and going after those who seek to wage war on their own and hounding them to the ends of the Earth and depriving them of suppliers and friends until they are friendless and understand that they are savages for what they have done.

Doing so via civil means is absolutely available to any Nation on this planet as it is the way that Nations must act to protect themselves from Private harm to which there is no normal civil recourse. Treaties only work where they are upheld and Nations held to account to each other, and if you don't have a treaty and harm comes from those hiding in such Nations where you have no treaty, then a Nation can still deploy means to go after those attackers. Not just normal military means, but openly sanctioned private operators that are known and who will risk their life for no pay save to liquidate those items attached to our enemies and held in Private hands. We flinch away from such means at our peril, as it is a necessary way to protect our societies, our Nations, our homes and our families to get such sanction and visit upon savages the only law they understand: the Law of Nature.

My exuberance for another terrorist gone from this mortal realm, that of Zarqawi back in 2006, was about the same as that for getting Mugniyah or bin Laden. He got the Happy Hamster Hop, and that is about what he deserved in the way of celebration of his passing. If you are starting to get the idea that I see all terrorists as not worth celebrating their passing, then you are catching on: they are savages and I can no more take pleasure in the end of a terrorist than I can in putting down a rabid animal. It is a necessary cleansing operation, only, and should be treated with the same level of professionalism that goes into bringing down wild animals bent on destruction or spreading disease. For savagery is a form of disease, festering behind our patina of civilized behavior, and when the patina wears thin then the ugliness of Nature starts to show through and it isn't pleasant, at all.

Quite a few of these savages and savage suppliers have been taken in over the last few years, as I noted with the sudden passing via military means of Raul Reyes back in 2008. He was a long-time member of FARC and personally responsible for the deaths of American missionaries, engineers and teachers on humanitarian and civil missions in Colombia and elsewhere in South America. He helped to have FARC take over much of the drug operations of the old Colombian Cartels which meant that the Marxist spouting terrorists were in a for-profit drug running business. Lovely how those ideals go to the wayside so quickly when you turn away from civilization, isn't it? It's almost as if there is a connection there....

Bringing down individual terrorist or even their organizations isn't normal Nation State warfare: it is a sanitary mission that just happens to involve infected Nation States that are succumbing to the disease of moving away from civilized behavior.

Now if we could only convince those on the Anarchist-Socialist-Marxist-Unionist side of things that calling everything 'racism' or 'discrimination' or just trotting out death threats for those that want some fiscal sanity and to stop going into impoverishing debt that the act of trotting out those things is not just disingenuous but corrosive to civilized behavior. That their patina of civilization is wearing thin, and no amount of make-up on the 'good' of what a government can do can mask the creature under the patina. I would really prefer that such individuals step back from the brink of savagery and examine just what being civilized means not to others, not the the Nation, but to themselves, first and foremost. A man given handouts and beholden to them is not a citizen, but well on the path to becoming a trained animal. A savage. And that in calling for more of that sort of treatment and behavior is an endorsement of savagery over self-responsibility and self-government.

Because removing the disease is a sanitary operation, done without favor nor fervor but to uphold what it means to be civilized.

Osama bin Laden got Private War and its ends delivered to his doorstep.

That is where it ends if you endorse, sustain, exploit and spread savage behavior.

You get a bullet in the head as any dangerous animal gets that threatens us in our home and our society.

Not because the animal is evil, but because it is a threat to the order of society and Nations.

Turning from being civilized is evil and the result you get is a savage who has reduced himself to that state of savagery willingly. They are still the human animal, but they are no longer the civilized human willing to forego some Natural Liberties and Rights to have a civil society and order amongst men. No matter how 'good' or 'right' or 'just' the cause is, once you take war into your own hands and are not sanctioned by society to do so, then you have become a savage. And like FARC, your ideals, morals and ethics will fly out the window as you realize just how good it feels to be a savage and kill wantonly. That is the path laid out in The Management of Savagery and it is what you get when you try to impose your Private will on society. When you do that you can expect an end very similar to that of Zarqawi, Reyes, Mugniyah and bin Laden... and remember that the mass torturer and killer Che Guevara finally had those people he was abusing turn on him to protect themselves.

Not because he was evil, per se, although he was that, too.

But because he had reduced himself to savagery and was a threat to society as he believed he was above the law and was the law, entire.

The end of Osama bin Laden

Announced last night by the President was the killing of Osama bin Laden and capture of his body during an operation in Pakistan, that took place at a mansion.

Congratulations, President Obama.

My thanks to the trigger man giving bin Laden a taste of war has he knew it coming for him.

 

Now, about these Private War organizations continuing to destabilize Nations around the globe, and the hearty help of countries interfering in unsanctioned ways in other Nations... no good end will come of Private War practiced by individuals, groups and Nations.  That is uncivilized behavior in the extreme.

That is what happens when standards are not kept up: you become uncivilized.

And you don't have to look very far, at all, to see that happening.