Posts Tagged ‘Bill of Rights’

Disjunctive Jam-Up

Friday, 26 September 2014

The Eight Amendment to the Constitution of the United States declares

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

(Underscore mine.) The constitution of the state of California has a much more complex discussion of bail; but its Article 1, §17 declares

Cruel or unusual punishment may not be inflicted or excessive fines imposed.

(Underscore mine.) Plainly these words are an adaptation from the US Constitution.

The replacement of and with or was apparently to indicate that cruel punishment were not to be deemed acceptable simply by virtue of being usual. Indeed, Article 1, §17 of the constitution of the state of Florida used to declare

Excessive fines, cruel or unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.

(underscore mine) and the state supreme court made just that interpretation in cases of the death penalty. (The section has since been radically revised.)

However, a hypothetical problem arises from the replacement. Just as cruel punishment is not acceptable regardless of whether it is unusual, unusual punishment is not acceptable regardless of whether it is cruel. And, if most or all prevailing punishments were cruel, then punishment of any other sort were unusual; and unusual punishment has been forbidden. Thus, under such circumstance, all punishment were forbidden!

This problem may not be merely hypothetical, in the context of problems such as prison over-crowding. (Of course, when push comes to shove, lawyers and judges tend to shove logic out the door.)

The US Constitution and the National Debt

Monday, 10 May 2010

The Confederate States of America went into debt to finance their war of secession. After the war some of their creditors wanted that debt repaid. The United States, on the other hand didn't want them to recover any of their investment, for the obvious reasons. In response to the insistence that this debt not be paid, sympathizers of the Confederacy suggested that, likewise, the debt of the Union should not be paid, for the obvious reasons. Additionally, it was argued that the emancipation of slaves was a taking of private property, so that, under the Fifth Amendment, former slave-owners were owed just compensation.

The North reminded the South who was making the rules, and included the following as section 4 of the Fourteenth Amendment:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

(Underscores mine.)

There's probably someone out there somewhere, even now, insisting that the debts of the Confederacy should be repaid, or that descendants of slave-holders are owed reparations, but those issues no longer have much currency, nor can they be expected to recover currency.

On the other hand, when addressing the debts of the United States, that Amendment included but did not limit itself to those debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion. What remain potentially relevant, then, are the underscored words:

The validity of the public debt of the United States, authorized by law, […] shall not be questioned.

The national debts of the United States cannot Constitutionally be repudiated, without further Amendment. Under the Constitution, they have to be serviced; and, when they come due, they have to be paid.

Present levels of deficit spending are widely seen as unsustainable, and the United States Treasury has begun to pay discernible risk premia, which is to say that a significant part of the market expects that the United States might default. So one question is of how a default might be effected.

In theory, an Amendment could quickly be ratified to permit default, though a significant share of the national debt remains domestically held, which would tend to brake the passage of such an Amendment. Of course, the beginning of the process of amendment would drastically erode confidence in the debt, so that the risk premia would grow dramatically, and the Treasury might find itself almost immediately unable to pay bills, and might remain unable to do so until the Amendment were ratified and restructuring negotiations were completed.

A more likely process would be a Declaration of Emergency, under which the Constitution were suspended, as the federal state worked-out what it could expropriate from whom. (The Constitution makes absolutely no provisions for such emergency suspensions, but we've had a long history of our rulers claiming the power to effect them,[1] and of courts doing little to check such actions.) Again, the United States might be unable to borrow money, but the process of partial repudiation could immediately be brought forward.

Or it might be that the debt were restructured without the consent of creditors. Such a restructuring would, in fact, be a partial repudiation, but lawyers and judges have long proved adept at making distinctions where there are no differences.

[1] With one exception, during each war since the adoption of the Constitution, the President has suspended provisions of the Constitution. That one exception was Madison, who had been the principal author both of the Constitution and of the Bill of Rights.

Silence Is Golden …and American

Friday, 19 June 2009
Minn. lawmaker vows not to complete Census by Stephen Dinan in the Washington Times

I know for my family the only question we will be answering is how many people are in our home, she said. We won't be answering any information beyond that, because the Constitution doesn't require any information beyond that.

Shelly Lowe, a spokeswoman for the U.S. Census Bureau, said Mrs. Bachmann is misreading the law.

She sent a portion of the U.S. legal code that says anyone over 18 years of age who refuses to answer "any of the questions" on the census can be fined up to $5,000.

Ms Bachmann is reading the relevant law just fine, and Ms Lowe is engaged in treason.

The United States Constitution is the supreme legislation; no part of it can be annulled by an ordinary act of Congress. The Constitution provides for a census, but the Fifth Amendment protects us from having to offer more information than the identities of those in our households.

In the last two Censuses, all that I have provided was that information. In the first of these, I received a telephone call from the Bureau of the Census about my failure to provide more information, and I stated my refusal firmly. They dropped the matter, because they know that the legal code will not pass constitutional muster; it is a bluff.