Obama’s not the problem. Romney’s not the solution.

Here’s Chicago and NYU Prof. Richard Epstein responding after being asked during a Reason interview what it is we should do to address the economic problems of the country:

You show people that all the ingenuity of gimmicks fails … we have more debt, more unemployment, and less happiness in this country now because hope and change turns out to be discord and confusion.  And there’s no way you can stop that. You cannot stop the blunders of one government program by putting another one on top of it … you get more production out of fewer regulations.
(Starts at about 11 min. into the clip)

Who’s the “fewer regulations” candidate? Certainly not Obama. And what indication is there that Romney is a regulation reducer? Perhaps this is one of the issues underlying Peggy Noonan’s contention the there seems to be little “rah, rah” enthusiasm for the upcoming election and probable candidates, despite the fact that the country is in the midst of a crisis of gargantuan proportion. Apparently, the superhero cape is a bit big on either man. A fundamental problem in American politics is that we keep looking for “American Idol” presidents. As a result, much media attention is focused on the persona and past actions of the candidates.  There is little or no focus on the basic structure and functioning of the federal and state bureaucracies and jurisprudence systems that have a much greater and longer lasting impact on the individual. An example of this is found in the following observation made recently by Conrad Black:

The United States has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers. Ninety percent of its criminal cases are determined by accused people forgoing their constitutionally guaranteed right to trial in favor of an agreed sentence. It was accepted by the Supreme Court in the cases decided last week that defendants frequently receive inept advice. It is also frequently the case that the government spuriously seizes the assets of defendants as ill-gotten gains — on the basis of fraudulent affidavits in ex parte actions — so that the defendants can’t engage the counsel of their choice, and then stays those proceedings while the criminal case is decided without the presence of a serious defense counsel.

Joseph Heller would be proud. We now find ourselves living in a jurisprudential Catch-22 our own making. This may be of little interest to you at this point, but if you’re in a business that imports natural materials or foodstuffs, perhaps you should spend a little time considering the following Lacey Act case that came to my attention via the Gibson Guitar fiasco:

(November 2003 Case Study)
The Supreme Court is currently considering whether to take the case of four businesspeople sent to prison for importing lobster tails from Honduras. Their convictions are predicated on supposed violations of the Lacey Act, which makes it a crime to import “fish or wildlife taken … in violation of any foreign law.” Here, the foreign laws are Honduran fishing regulations that have been declared null and void in Honduras, but are somehow still being enforced by American federal courts


The prosecution of four businesspeople for normal business activities highlights the dangerous but growing trend to expand criminal liability against normal social and economic conduct. Historically, a criminal conviction required proof of criminal intent (mens rea; a guilty mind) in addition to the wrongful infliction of harm (actus reus; a bad act). Even if the Honduran statutes had not turned out to be uniformly invalid, there was never any evidence that showed the businesspeople acted with criminal intent. Rather the evidence seems to prove that they were simply engaged in catching and selling seafood in a way that any businessperson would consider lawful.

This prosecution also reveals the risks of federalizing criminal law. Observers have long warned against allowing the federal government to encroach on the traditional state function of enacting and enforcing general criminal laws. Here, the federal government, through the Lacey Act, claims to enforce foreign laws against foreign and U.S. citizens. These regulations were not made by the U.S. Congress or by some executive agency, but by a foreign government with unfamiliar procedures. If the government of Honduras had actually believed these regulations to be valid, they were free to bring charges. Instead, the U.S. government prosecuted a case on what turned out to be bad law.

McNab v. United States

A Lobster Tale: Invalid Foreign Laws Lead to Years in U.S. Prison

I’m sure many an eye glazes over at the mention of legal terms such as mens rea and actus reus. But these Latin phrases are two of the “common law principles” that were developed over centuries of English court decisions, and were certainly part of the foundation underlying the creation of the U.S. Constitution. Any reasonable interpretation of the Constitution is necessarily embedded in common law. It is the ever increasing and blatant disregard of common law principle in American jurisprudence that underlies much of what many people perceive as a trashing of the Constitution by all branches of government. Without the continuing inclusion of these principles in our court decisions, the result of adjudication can be essentially whimsical.

This trend of undermining or disregarding common law principle seems to have started in 1895 with the Supreme Court decision in the Sparf vs. U.S. case wherein the court determined that a federal judge was not required to inform jurors of their power of nullification. Since then, jury nullification, described by Madison as the last line of defense against a tyrannical government and a basic reason why trial by a jury of one’s peers was included in the Constitution, has essentially been eliminated from the jury trial system as anathema, though in theory it still exists. However, since 90 percent of criminal cases never go to trial, I suppose the suppression of nullification doesn’t really matter that much – unless you’re the accused, of course.

Nullification is not the power of a jury to determine what the law is. Rather, it is the power of a jury to decide, in a specific criminal case without setting precedent, that a law is unjust or being unjustly applied. A person being acquitted by reason of nullification does not change or invalidate written law, but it could very well dampen prosecutorial fervor. Today, few jurors would seem to have the gumption to defy a directed verdict which is precisely how nullification came into being as the result of a trial in mid-1600’s England:

The jury was an essential safeguard of liberty long before the American Revolution. British courts guaranteed the independence of criminal trial juries in 1670, in a case concerning four jurors who had acquitted William Penn for illegally preaching about his Quaker beliefs. Those jurors were imprisoned for their “not guilty” verdict because they had ignored the trial judge’s instructions to vote for Penn’s conviction. An English appellate court released the jurors from prison, establishing the principle that juries cannot be punished for bringing in the “wrong” verdict. The freedom of American jurors to vote according to conscience can be traced to that landmark precedent.

The CATO Institute
December 19, 1998
Trial by Jury
by Clay S. Conrad

Jury nullification is but one of many common law principles that in today’s America are often disregarded in the pursuit of “justice” by both state and federal courts. But the inner machinations of the legal system aren’t the only reason for the misapplication and misinterpretation of the Constitution. As important is the ongoing submission of legislators to the will of courts:

If undisciplined government is the problem, in what way can the Constitution help? Taking this question to the oracle at Delphi (link added), the answer might be: in one sense not very much, but in another sense quite a lot. Distinguishing the two is the key to solving the riddle.

The first sense—legalistic constitutionalism—understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense—political constitutionalism—understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.

Both senses of constitutionalism are important, and they can often work together in defense of the Constitution. But when it comes to addressing undisciplined government, legalistic constitutionalism by itself is inadequate and often even counterproductive. Political constitutionalism must assume the principal role in any campaign for a constitutional revival. Here, however, the nation faces what may be its greatest challenge: as a concept or idea, political constitutionalism has all but slipped from our grasp. The dominant understanding today is shaped by the legalistic view, which has become the nation’s “epistemological” default option. Until the meaning of political constitutionalism can be recovered, calls for a return to the Constitution will be to little avail.

The Claremont Institute
Restoring the Constitution
By James W. Ceaser

May 22, 2012

However, this seems to beg the question. Whether they are Republicans or Democrats, there is little possibility that Congress and the Executive will suddenly shackle themselves with constitutional restraint. Congress has invariably sought to expand the reach and power of the federal government through one piece of legislation after another. When challenged, the courts have for the most part upheld said legislation. Then the executive branch goes on to expand federal powers even more through the creation and implementation of regulations. When regulation and promulgation are challenged, the courts, for the most part, again grant their imprimatur. The system has been crafted over a long period and is designed to create, promote and preserve the power of the federal government. The players have little or no desire to restrain themselves. For the most part they are enablers of one another. And partisan bickering is often no more than diversion. Much the same could be said for the “bipartisanship” ruse.

This system, as it stands, is unchallengeable by private citizens or groups. Go along or go to jail … even if you didn’t really break any laws. Few have the time, money and stamina to mount a serious challenge against the federal government in court. And even if you do win, the victory may prove Pyrrhic. Just ask Lord Black. And it doesn’t mean that down the road the government won’t go after some other poor bastard for essentially the same thing. What we have here is a tyranny of, by and for a legal system that to a great extent serves no useful purpose other than to perpetuate itself. That’s why we have 50 percent of the world’s attorneys.

If political constitutionalism is to be anything more than a catch phrase, it will have to be because a substantial majority of the states, with the support and on the behalf of state residents, don the Constitutional defender mantle, and as a group challenge the federal government, i.e., Civil War II. It won’t be pretty, but it need not be bloody. That this is direction whither we’re moving is indicated by such state actions as Arizona’s illegal alien legislation, Florida’s refusal to stop purging its voter rolls of fraudulent registrants, and several states’ proclamation of their intent to not fully implement Obamacare. That’s probably why Attorney General Eric Holder has been so vigorously challenging these assaults on federal prerogative.

The states would do well to get organized and coordinated. First order of business would be for the state parties, especially the Republicans, to become financially detached from the national party. Without control of their own funds, the state parties cannot act independently of the national. Reincorporating under a different name, for example “Texas Independent Republicans” or a similar moniker may also be necessary. Then, along with the Tea Party, or whoever else is of like mind, get state legislators elected who will vote for the convening of Constitutional Convention II. Without some such bold action I have no faith whatsoever that there will ever be any substantive improvements in the functioning of our government. The Constitution may very well need updating whether or not it’s “living”, but certainly not by the courts or executive orders or bureaucratic fiats that have, to a large extent, been the case so far. After over 200 years of floating about in briny political and legal seas, the Constitution seems bit encrusted with barnacles. Perhaps it’s time to pull it out of the water for a good scraping.

Who knows, we may even end up with a bit of originalism back in our public debate.


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